Meeting Date: Tuesday, 11 April, 2017
Location: Council Chambers, City Administrative Building, Bridge Road, Nowra
Clr Patricia White - Chairperson
General Manager or nominee
DE17.28...... DA16/2070 – 7 Beach Street, Huskisson – Lot B DP 359526....................... 1
Addendum Agenda - Development Committee – Tuesday 11 April 2017
DE17.28 DA16/2070 – 7 Beach Street, Huskisson – Lot B DP 359526
DA. No: DA16/2070/4
HPERM Ref: D17/78880
Group: Planning Environment & Development Group
Section: Development Services
Attachments: 1. S79C Assessment Report - Construct Residential Flat Building - 7 Beach St, Huskisson ⇩
Description of Development: Demolition of existing dwelling and ancillary outbuilding, and Construction of a residential flat building
Owner: JACA Property Group Pty Ltd
Applicant: Lee Carmichael Town Planning
Notification Dates: 23 September 2016 to 10 October 2016
No. of Submissions: Five (5) in objection
Nil in support
Purpose / Reason for consideration by Council
Called in by Councillors due to extensive public interest on 25 October 2016.
That Council advise the applicant that:
1. On the basis of the information provided to date, Council is not prepared to support the variations to the SEPP65 guidelines and Council’s DCP2014;
2. Determination of the application be deferred to further assess the impacts with respect to solar, privacy and streetscape considerations having regard to future development on neighbouring sites; and
3. Staff report the application back to the Committee for determination when the further analysis is complete.
1. Defer determination of the application.
Implications: Council could defer determination of the application pending further information being provided that addresses what the impact of the proposed design amendments in the applicant’s ‘Council Response Report’ will have on the solar access for dwelling units within the proposed development as well as existing and future development on neighbouring sites. The information is warranted irrespective of the design changes noting that it is likely that other developments will follow and are likely to adopt a similar design approach having regard to the shape, size and orientation within the subject precinct.
The design changes include:
§ Minor reduction in penthouse balconies
§ Reduction in the lift shaft overrun
§ Additional privacy screens
§ Fixed privacy screens to balconies
The provisions of section 79C(1)(a)(i) of Environmental Planning and Assessment Act 1979 in relation to State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development and 79C(1)(b) in relation to likely impacts need to be taken into consideration with the proposed amendments to the design.
Accordingly, the recommendation being put to Council is to seek the additional information relating to solar access /impacts, privacy and streetscape.
2. Not support the proposed variations and direct staff to determine the application under delegated authority.
Implications: Council could not support the proposed variations to the SEPP65 guidelines and Council’s DCP, as the likely impacts of the amended development have not been adequately ascertained, in accordance with the provisions of section 79C(1)(b).
3. Approve the application.
Implications: Council could approve the application in its current form if it considers that the provisions of section 79C have been addressed subject to conditions of consent. This would require a further report to Council, with draft conditions.
Figure 1 – Location Map
The application seeks approval for the demolition of the existing dwelling and ancillary outbuilding and construction of a four (4) storey residential flat building, containing twelve (12) dwelling units, with basement parking:
§ 2 x 2 bedroom and 10 x 3 bedroom apartments; and
§ 22 car spaces, with 2 spaces also provided at ground level adjacent to Winnima Lane.
Vehicular access is proposed from Winnima Lane only.
Figure 2 – Landscape Plan
Figure 3 – Section
Figure 4 – North and East Elevations
Figure 5 – South and West Elevations
Figure 6 – View from Beach Street
Figure 7 – View from Winnima Lane
The development site comprises Lot B DP 359526 (7 Beach Street, Huskisson). Refer to Figure 1.
Site and Context
The development site:
§ Contains an existing two (2) storey dwelling house and ancillary outbuilding;
§ Is zoned B4 Mixed Use and 1,011.71sqm in area;
§ Is identified as being part bush fire prone land;
§ Has existing access from Beach Street. The rear boundary of the site adjoins Winnima Lane; and
§ Adjoins land zoned B4 Mixed Use and RE1 Public Recreation, under the Shoalhaven Local Environmental Plan 2014.
Figure 8 – Zoning Extract
The following provides details on pre-lodgement discussions, post-lodgement actions and general site history:
§ A pre-lodgement meeting was held with Council planning, building and engineering staff and the applicant’s planning consultants (Development Advisory Unit (DAU) Meeting on 19 April 2016).
§ The application was lodged on 8 September 2016.
§ During assessment of the application, additional information was requested from the applicant on six (6) occasions – 19 September 2016, 14 October 2016, 18 October 2016, 15 November 2016, 13 December 2016 and 8 March 2017.
§ On 20 and 21 December 2016 the applicant submitted additional information, which was subsequently referred to the relevant sections of Council for comment.
§ On 8 March 2017, following detailed assessment of the application and submitted information, additional information was requested in order to particularly address the provisions of clause 4.6, Shoalhaven Local Environmental Plan 2014 and State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development.
§ On 13 March 2017 the applicant submitted a written response detailing that design modifications are proposed to assist in addressing privacy and solar impact issues.
Whilst the proposed design amendments go some way to addressing solar and in particular privacy issues, a detailed analysis of impacts on adjoining development is still required to ascertain what the impacts will be on existing and future development. The detailed analysis of impacts should take into account the relevant planning controls (this would refer to a compliant building) but also buildings which adopt a similar design approach which is likely in the event that this development is approved.
1. State Government Design Guidelines:
State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65) and Apartment Design Guide (ADG) – Non-compliance with Design criteria (1) of Section 3F – Visual Privacy.
The required separation distance from the habitable rooms and balconies of the proposed building to side and rear boundaries is 6m and 3m for the non-habitable rooms.
The proposed separation to the side boundaries is less than that required, being between 2.5 – 4m. This results in a variation of approximately 33-58% for habitable rooms and balconies.
The proposed separation to the rear boundary is less than that required, being a minimum of 1.8m (Unit 1C, 1D, 2C and 2D) and 5m (Unit 3A). This results in a maximum variation of 70% for habitable rooms and balconies.
It is also evident that solar access for neighbouring sites will be reduced by this proposal, especially given the reduced side boundary setbacks. The design guidance component of Section 3B – Orientation suggests that if a proposal significantly reduces the solar access of neighbours, building separation should be increased beyond the minimums contained in Section 3F. Consideration also needs to be given to solar and daylight access to areas (i.e. living areas, private open space etc.) within the proposed building. It is unclear whether or not the building design amendments as proposed in the applicant’s response will significantly reduce solar access to neighbouring sites and the proposed building itself.
In addressing this, the applicant believes the relevant objective of Section 3F – Visual Privacy is satisfied by the following:
§ “No direct balconies to either side of the building;
§ Privacy screens to be provided to side window habitable rooms;
§ Privacy screens to be provided to the front and rear balconies along the northern and southern sides;
§ High level windows provided to habitable areas”; and
§ Reducing the extent of balconies on the third level (fourth storey).
The applicant has designed this proposal in relation to future development on neighbouring sites. It is noted that the existing single dwelling development on the neighbouring sites are no longer permissible in the prescribed land use zone and these developments now rely on existing use rights. The provisions of Shoalhaven Local Environmental Plan 2014 (SLEP 2014) and Shoalhaven Development Control Plan 2014 (SDCP 2014) encourages redevelopment of these sites. In other words, they foreshadow a different higher density residential character.
The proposed design responses (i.e. reduction in the extent of balconies and installation of additional privacy screens) are generally acceptable, however, further modelling is required on what the impact of these amendments will be on the solar access to the dwelling units within the proposed development and future development on neighbouring sites. The nominated building envelopes for future development on the adjoining sites must address the provisions of SEPP 65 (and ADG), ensuring that future development on these sites is not prevented from being able to achieve acceptable solar access and privacy by satisfying the required setbacks or by demonstrating that adequate solar access and privacy is achieved through alternative design solutions.
It is noted that if Council agrees to a reduced side boundary separation distance then it is probable that future development on the adjoining lots will also seek reduced setbacks. If a similar setback was requested for the adjoining lots the resultant separation between the buildings could be 5-8m instead of the 12m required by the ADG. This would be a significant reduction in separation between buildings with other potential impacts on streetscape amenity. This aspect is especially important considering the coastal foreshore location, noting also that Council developed similar controls for the precinct intended to achieve an acceptable streetscape rhythm and appearance, that recognises the domestic scale of Huskisson and was sympathetic to the existing town character.
Clause 4.3 (Height of buildings)
The maximum height of building requirement is 13m.
Part of the proposed building (lift overrun) exceeds the maximum height by 574mm, being approximately 4.4%. Other sections of the roof also make minor encroachments to the height limit – eastern section being approximately 208mm (1.6%) and western section being approximately 239mm (1.8%).
The applicant has consequently sought an ‘exception’ to the development standard pursuant to clause 4.6 of SLEP 2014.
The contraventions are considered relatively minor and negligible in terms of the overall design of the proposed building. The proposed building height is considered compatible with the height of the existing and importantly desired future character of the locality, having regard to the strategic controls (zone, DCP) for the locality.
Clause 4.4 (Floor space ratio)
The maximum floor space ratio requirement is 1.4:1. This equates to 1,416.4sqm for the subject site.
The proposed floor space ratio is 1.42:1, being 1,445sqm. The proposed building exceeds the maximum floor space ratio by 28.6sqm, being approximately 2%.
The applicant has consequently sought an ‘exception’ to the development standard pursuant to clause 4.6 of SLEP 2014.
Again the contravention is relatively minor and negligible in terms of the overall design of the proposed building. Compliance with the standard could be achieved by modifying the internal design and would not alter the bulk and scale of the building in relation to the existing and desired future character of the locality.
2. Council’s DCP Controls:
It should be noted that these DCP controls were adopted by Council following extensive community engagement and with the benefit of expert urban design advice.
A1.2 of Control 5.5 Orientation and Separation, Chapter N19 Huskisson Mixed Use Zones, SDCP 2014
Chapter N19 requires separation distances, measured between residential windows facing one another, as follows:
Table 1 – DCP separation distance requirements and proposed development
Minimum distance to buildings
Minimum distance to boundaries
Proposed development minimum distance to boundaries
Between non-habitable rooms windows (can be measured diagonally).
Between all other windows except primary windows of living areas/external edge of balconies and terraces.
Between primary windows of living areas/external edge of balconies and terraces and all other windows except between primary windows of living areas/external edge of balconies and terraces.
Between primary windows of living areas/external living areas and primary windows of living areas/external edge of balconies and terraces for buildings up to and including four storeys.
The applicant has designed the proposed building in relation to separation to windows of future development on neighbouring sites.
The proposed design responses (i.e. reduction in the extent of balconies and installation of additional privacy screens) are generally acceptable however, further information is required on what the impact of these amendments will be on the solar access to the dwelling units within the proposed development and future development on neighbouring sites. Irrespective of the design changes, further analysis of solar impacts is required to determine the acceptability of these changes.
The applicant considers that the current design is fully compliant with the acceptable solution for separation distances.
Numerical compliance (with the setbacks) is not achieved. Compliance could be achieved if the building were to be modified or if the site was to be amalgamated. However, the applicant is of the opinion that the design achieves the objectives in the DCP and the solution is therefore a reasonable design response having regard also to the location and market / cost considerations.
It is also noted that clause 6A of SEPP 65 confirms that with respect to the objectives, design criteria and design guidance set out in Parts 3 and 4 of the ADG, development control plans cannot be inconsistent with this guide in respect of the following:
“(a) visual privacy,
(b) solar and daylight access,
(c) common circulation and spaces,
(d) apartment size and layout,
(e) ceiling heights,
(f) private open space and balconies,
(g) natural ventilation,
Further, subclause 6A(2) clarifies that "if a development control plan contains provisions that specify requirements, standards or controls in relation to a matter to which this clause applies, those provisions are of no effect", whilst subclause 6A(3) clarifies that "this clause applies regardless of when the development control plan was made".
The provisions of Chapter N19 (Council’s DCP) in relation to this matter are inconsistent with State Environmental Planning Policy No 65. Accordingly, the SEPP prevails and separation distances should be to the site boundaries (in accordance with Design criteria (1) of Section 3F – Visual Privacy) and not to the windows of future buildings on neighbouring sites. However, the ADG is, as the title suggests, a guide but states that:
“The design criteria set a clear measurable benchmark for how the objective can be practically achieved. If it is not possible to satisfy the design criteria, applications must demonstrate what other design responses are used to achieve the objective and the design guidance can be used to assist in this.”
As mentioned previously, the applicant has made some modifications to the design but in order to resolve the acceptability of these changes further analysis is required.
A1.5 of Control 7.4 Setbacks and Alignments, Chapter N19, SDCP 2014
Chapter N19 states that the second level (third storey) of a building is to have a maximum 70% footprint of the floor below (second storey) and the third level (fourth storey) is to have a 70% footprint of the floor below it; and be set back 4m from the level below along the street frontage. This control effectively results in development being ‘tiered’ with a smaller footprint for each level as the building increases in height.
The objectives for the controls are intended to assist in the creation of distinctive built forms, with a positive streetscape contribution and “establish a well-proportioned rhythm between buildings consistent with a residential streetscape”.
The second and third levels do not achieve a maximum footprint of 70% of the level below and the levels are not fully compliant with the 4m setback from the level below. The second level has the same footprint as the first level. Refer to Figure 3.
The applicant has only applied this provision to the third level and indicated that this level is 69.9% of the lower levels and contains a dwelling unit with the building line set back 2m from the level below.
In addition to this control being designed to encourage a certain design outcome, it reinforces setback controls which have not been achieved. If there is to be support for a departure from this control (A1.5) in addition to the setbacks, detailed analysis and consideration must be made of solar, privacy and streetscape impacts so that the impacts can be assessed and understood.
The applicant has submitted a detailed report in support of the development. The report addresses various matters including but not limited to design and how the building is considered to be a satisfactory design and refers to proposed amendments. A comment is made in the report that the design is consistent with the four (4) storey residential flat building approved at No. 1 Beach Street.
The residential flat building at 1 Beach Street was approved on 19 February 2008, prior to the adoption of DCP 99 – Huskisson Business 3(g) Zone Precincts, Amendment No. 1, which was adopted on 7 November 2012. It is also noted that the residential flat building at 2 Murdoch Street was also approved in 2008 prior to Amendment 1 being adopted. Therefore neither of these two developments were assessed using the amended DCP 99 (Chapter N19 DCP2014)
The DA has been assessed under s79C of the Environmental Planning and Assessment Act 1979. Refer to Attachment 1.
Consultation and Community Engagement:
Notification was made in accordance with Council’s Community Consultation Policy with letters being sent within a 120m buffer of the site, including the Huskisson Woollamia Community Voice and Huskisson Chamber of Commerce and Tourism Inc. during the period 23 September 2016 to 10 October 2016. The proposal was also advertised in the local press on one occasion (South Coast Register and Nowra News).
Five (5) public submissions were received in relation to Council’s notification of the development. They were all objections to the development.
Key issues raised as a result of the notification include but were not limited to matters listed below. A more detailed analysis can be found in the attached section 79C assessment report.
§ Scale of the development, including height and density;
§ Building separation and non-compliance with SEPP 65 and ADG;
§ Amenity; and
§ Onsite car parking.
There are potential cost implications for Council in the event of a refusal of the application. Such costs would be associated with defending an appeal in the Land and Environment Court of NSW.
A section 82A review or an appeal with the Land and Environment Court are possible in the event of a refusal of the application.
Summary and Conclusion
Noting the likelihood of other sites being developed with a similar design approach, it is considered essential to ascertain what the solar, privacy and streetscape impacts may be in the future to determine the acceptability of this (and potentially other) developments having regard to the controls and ‘vision’ that were developed specifically for this area.
The Huskisson community were extensively engaged in the preparation of the design guidelines for these higher density precincts in Huskisson. To agree to significant and substantial variations, without appreciating the full flow on consequences to the balance of the precinct, could undermine community confidence in Council’s planning processes.