item - reports...s p 2 0 6 9 2 1 sp (52098 sp161 s p 3 5 8 8 9 sp 452098 h i a t u s 3 sp 2056 sp 31...

Item ____IPP09 _______ - REPORTS -_______02/03/2016________

N O R T H S Y D N E Y C O U N C I L R E P O R T S

NSIPP MEETING HELD ON 02/03/2016

Attachments:

1. Site Plan

2. Clause 4.6 Variation

3. Draft By-law for Balcony Enclosure

4. Architectural Drawings

ADDRESS/WARD: 12/41-45 Lower Bent Street, Neutral Bay (C)

APPLICATION No: DA 390/15

PROPOSAL: Alterations and additions to Unit 12 including enclosure of eastern

balcony on lower level of unit and replacement of pergola on roof

terrace within a residential apartment building.

PLANS REF: Drawings numbered DA-01, DA-02, DA-03, DA-04, DA-05, DA-

06, DA-07, DA-08, DA-09 Revision A, dated 21.9.12, drawn by

Tony Edye & Associates Pty Ltd , and received by Council on 28

October 2015

OWNER: Phillips Jane Lee

The Owners of Strata Plan No. 16531

APPLICANT: Catalyze Property Consulting P/L

AUTHOR: Report of Aloma Moriarty, Assessment Officer

DATE OF REPORT: 16 February 2016

DATE LODGED: 28 October 2015

ADDITIONAL

INFORMATION: 15 December 2015, 18 January 2016, 9 February 2016

RECOMMENDATION: Approval

Report of Aloma Moriarty, Assessment Officer

Re: 12/41-45 Lower Bent Street, Neutral Bay

EXECUTIVE SUMMARY

This development application seeks approval for alterations and additions to Unit 12 which is a

split level apartment located on the second floor within the residential apartment building at No.

41-45 Lower Bent Street. The proposed works include the enclosure of a balcony and associated

works on the lower level and demolition of the existing pergola and replacement with a new

louvered awning system “Vergola” to part of the roof terrace.

The matter is referred to NSIPP for determination as the proposed works breach Council’s

building height control for the site by more than 10%.

The proposed building heights of 15.06m exceeds the requirements of Clauses 4.3of the North

Sydney Local Environmental Plan 2013, which specify a maximum building height of 12m for

the site. It is noted that the existing building has a maximum height of approximately 15.36m.

The applicant has submitted a Clause 4.6 request for variation to address the breach to the

building height standard. The proposal satisfies the objectives of the standard and is considered

to maintain the amenity and character of the neighbourhood. The breaches in building height will

not cause material loss of views, loss of privacy or overshadowing to surrounding properties and

the objectives of the height control would be achieved despite the variation. The variation to the

building height is therefore supported in this instance.

The proposed lower level balcony enclosure is also considered acceptable as it is accompanied

with a balcony enclosure strategy in the form of a draft Strata by-law for balcony enclosures for

this residential complex at 41-45 Lower Bent Street, Neutral Bay. It is recommended that should

consent be granted an advising be imposed on the consent requiring the strata to adopt the draft

by-law.

Council’s notification of the proposal has attracted no submissions.

Following this assessment the development application is considered to be reasonable in the

circumstances and is recommended for approval subject to conditions

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Re:

Property/Applicant Submittors - Properties Notified

Unit 12/41-45 Lower Bent Street, Neutral Bay - DA 390/15



DESCRIPTION OF PROPOSAL

The application seeks consent for alterations and additions to Unit 12 which is a split level

apartment located on the second floor within a residential apartment building. The proposed

works include:

Lower Level:

Conversion of eastern balcony into extended living area that is to be enclosed with

conservatory style glazing

Modification of opening from living area into eastern balcony, to demolish existing doors

and increase opening

Brick up existing doorway to Bedroom 3 from living room

Upper Level:

No works

Roof Terrace Level:

Demolish existing roof garden, planter and existing pergola

Install a new louvered awning system “Vergola” to part of the roof terrace

New bench with kitchen facilities to replace existing planter

Figure 1: Proposed Lower Floor Plan



Figure 2: Existing Roof Terrace Plan Figure 3: Proposed Roof Terrace Plan

Figure 4: Existing lower level balcony to be enclosed Figure 5: Existing Pergola to be demolished and

replaced with new larger vergola

STATUTORY CONTROLS

North Sydney LEP 2013

Zoning – R4 – High Density Residential

Height – 12m

FSR – None Specified

Item of Heritage - No

In Vicinity of Item of Heritage - Yes, Forsyth Park

Conservation Area - No

FSBL – No

Environmental Planning & Assessment Act 1979

SEPP 55 - Contaminated Lands

SREP (Sydney Harbour Catchment) 2005

Local Development

POLICY CONTROLS

DCP 2013



DESCRIPTION OF LOCALITY

The subject site is located on the eastern side of Lower Bent Street, Neutral Bay. The site

accommodates a five storey apartment building with basement parking and split level apartments

on the second floor. Unit 12 is one such split level apartment located eastern end of the second

floor of the building.

Unit 12 is a split level, three bedroom apartment with two balconies, one on the eastern side and

one on the southern side, on the lower level and a roof terrace the uppermost level.

Figure 3: View of Eastern side of apartment building from Forsyth Park

Figure 4: View of Southern side of apartment building from Forsyth Park

Unit 12 Roof Terrace of Unit 12 Lower Level balcony

proposed to be enclosed

Roof Terrace of Unit 12 Lower Level balcony proposed to

be retained as existing

Location of lower

level balcony

(behind tree)

proposed to be

enclosed. Refer to

Fig. 3 for clear view



Adjoining the building to the north is a single storey dwelling and to the south is four storey

townhouse developments. To the east is Forsyth Park and to the west, across Lower Bent Street

and Bent Street are a number of multi storey apartment buildings

Bent Street generally accommodates apartment buildings of a similar scale to that on the subject

site. The subject site is not identified as a Heritage Item and is not located within a Conservation

Area however the adjacent park (Forsyth Park) is a heritage listed site.

RELEVANT HISTORY

Previous Applications:

Development application 164/08 for the construction of a new conservatory and replacement of

existing pergola at Unit 7 was approved under delegated authority on 29 July 2008.

Development application 213/13 for alterations and additions to Unit 11 including enclosure of

part of the roof terrace and internal modifications at Unit 11 was approved under delegated

authority on 12 December 2013.

Subject Application:

28 October 2015 - The subject application was lodged with Council.

3 November 2015 – Following an initial assessment by the Development Review Panel (DRP),

it was considered that application breached the building height control as per the NSLEP 2013

and a letter was sent out to the applicant requesting a Clause 4.6 – Exceptions to Development

Standards to justify the non-compliance which is required to allow Council to legally consider

this non-compliance.

13 November 2015 - 27 November 2015 - The owners of the adjoining properties and the

Neutral Precinct were notified of the development.

17 November 2015 - A site inspection was carried out by Council’s officer.

15 December 2015 – The additional information was received by Council.

12 January 2016 - Following a detailed assessment of the development application the applicant

was advised to amend the Clause 4.6 variation as it included an incorrect building height. The

applicant was also advised that as the proposal includes the enclosure of a balcony on the lower

level, as per the NSDCP 2013, Section 1.4.13, Balconies are not permitted to be enclosed unless

a balcony enclosure strategy is provided for the building. As such, the applicant was requested to

provide Council with details as to what the balcony enclosure strategy is for this residential flat

building. The strategy could be in the form of a Strata by-law, with details outlining the size,

scale, and choice of material of the proposed enclosure that will be applied to all future balcony

enclosures on this apartment building.

18 January 2016 & 9 February 2016 – The additional information was received by Council.



REFERRALS

Building

The proposal is not required to be assessed in against the requirements of the Building Code of

Australia at this stage. However, conditions prescribed under the Act require the construction to

comply with the requirements of the BCA. In the event that significant modifications to the

design are necessary to facilitate the release of a Construction Certificate, a separate application

under S96 may be necessary.

SUBMISSIONS

The owners of the adjoining properties and the Neutral Precinct were notified of the development

between 13 November 2015 and 27 November 2015. No submissions were received.

The relevant matters for consideration under Section 79C of the Environmental Planning and

Assessment Act 1979, are assessed under the following headings:

The application has been assessed against the relevant numeric controls in NSLEP 2013 and DCP

2013 as indicated in the following compliance tables. More detailed comments with regard to the

major issues are provided later in this report.

NORTH SYDNEY LOCAL ENVIRONMENTAL PLAN 2013

1. Permissibility

The subject site is zoned R4 – High Density Residential pursuant to the North Sydney Local

Environmental Plan 2013 (NSLEP2013). Development for the purposes of Residential Flat

Building is permissible within the zone, however requires development consent.

2. Zone Objectives

The objectives of the R4 – High Density Residential Zone are as follows:

“To provide for the housing needs of the community within a high density residential

environment.

To provide for a variety of housing types within a high density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs

of residents.

To encourage development of sites for high density housing if such development does not

compromise the amenity of the surrounding area or the natural or cultural heritage of

the area.

To ensure that a reasonably high level of residential amenity is achieved and

maintained.”

The proposed development to enclose a balcony, internal modifications to the unit and to replace

an existing pergola with new bigger vergola on the roof terrace are considered to satisfy the

objectives of the R4 – High density residential zone as it will provide a high level of amenity

within a high density residential environment, as discussed in this report.



3. LEP 2013 Compliance

The application has been assessed against the principal development standards controls in

NSLEP 2013 as indicated in the following compliance table. More detailed comments with

regard to non-compliances are provided later in this report.

STATUTORY CONTROL – North Sydney Local Environmental Plan 2013

Site Area – 1385m² Existing Proposed Control Complies

Principal development standards

Minimum subdivision lot

size (Cl.4.1) N/A N/A N/A N/A

Height of buildings (Cl.4.3)

(max)

15.36m

(approx.)

15.06m (Proposed

Vergola)

11.6m (Proposed

lower level balcony

enclosure)

12m No

FSR (Cll.4.4 ) - - None specified N/A

4. Height of Building

Under the provisions of Clause4.3, the maximum height of a building permitted on the subject

site is 12m. The proposed alterations and additions, whilst below the existing ridge height, would

have a maximum height of 15.06m and would exceed the maximum height provisions of this

clause.

The applicant has submitted a written request seeking to vary the development standard, pursuant

to clause 4.6 of NSLEP 2013. The proposed variation has been assessed against the requirements

of clause 4.6 and the objectives of the control, as discussed below:

(a) To promote development that conforms to and reflects natural landforms, by

stepping development on sloping land to follow the natural gradient.

The proposed works are limited to the second floor and the roof terrace thus not

altering the existing topography and landform of the site.

(b) To promote the retention and, if appropriate, sharing of existing views.

The proposed works will not result in any material loss of views from any

surrounding properties or adjoining public areas.

(a) To maintain solar access to existing dwellings, public reserves and streets, and

to promote solar access for future development.

The proposal would not result in a material reduction in solar access to adjoining

properties and/or the public domain.



The proposed works will cast shadows largely within existing shadows with

minor additional shadows cast on approximately half of the roof terrace of the

adjoining unit ( No.11) between 9am and 12noon and on the landscaped area and

adjoining park between the hours of 1pm and 3pm. This is considered acceptable

given the minor extent of the proposed shadows and that solar access is retained

as existing to the adjoining roof terrace (no.11) between the hours of 12noon and

3pm, and to the landscaped area and adjoining park between the hours of 9am and

12noon. Furthermore it is noted that the adjoining terrace at unit No. 11 is off a

bedroom and thus not a primary outdoor area. It is also noted that the landscaped

area and park affected by the proposed overshadowing are already overshadowed

by existing trees. Notwithstanding, the proposal retains a minimum of 3 hours of

solar access to the adjoining properties during mid-winter in compliance with the

NSDCP 2013.

(b) To maintain privacy for residents of existing dwellings and to promote privacy

for residents of new buildings.

The proposed enclosure to the lower level balcony and the replacement of the

pergola with a new larger vergola on the roof terrace will continue to maintain the

use of these spaces as living/recreational areas to a residential unit, thereby not

generating any additional adverse impacts to the occupants of the subject property

and to residents of adjoining properties.

(c) To ensure compatibility between development, particularly at zone boundaries.

The proposal is compatible with the surrounding residential area and will not

result in any material amenity impacts on adjoining development, as discussed in

this report.

(d) To encourage an appropriate scale and density of development that is in

accordance with, and promotes the character of, an area.

The proposal will not alter the overall building height. The proposed development

seeks the enclosure of the balcony on the lower level of the unit and the

replacement of an existing pergola with a larger vergola on the roof terrace, which

will be below the level of the existing ridge of the roof at a height of 13.53

metres. Given the location of the works towards the rear of the site, the nature of

the works and the height being below the existing ridge level the proposal will not

create any perceivable additional height or associated bulk to the existing building

and is consistent with the height of other buildings in the nearby area. The

proposed works will not be visible from Lower Bent Street thus not impacting on

the character of the streetscape.

On the balance of the above, it is considered that there are sufficient environmental planning

grounds to justify contravention of the development standard. The proposal satisfies the

objectives of the standard and is considered to maintain the amenity and character of the

neighbourhood. The breaches in building height will not cause material loss of views, loss of

privacy or overshadowing to surrounding properties. The objectives of the height control would

be achieved despite the variation and it is therefore considered that compliance with the

maximum building height control would be unreasonable and unnecessary in the circumstances.



5. Clause 1.9ASuspensions of Covenants, agreements and similar instruments

The site is not subject to any easements or restrictions pursuant to SP 16531, and the site is not

subject to any 88B Instrument.

6. Clause 5.10 - Heritage Conservation

The proposed additions are generally in keeping with the character of the existing building. The

proposal will not add any perceivable bulk to the building and is limited to enclosing an existing

balcony with a conservatory style glass enclosure and the replacement of a pergola with a

vergola. These works are therefore considered to not have any adverse impacts on the heritage

listed Forsyth Park which adjoins the site. The proposal is therefore considered to be satisfactory

with regard to the heritage provisions of Clause 5.10 of NSLEP 2013.

7. Clause 6.10 - Earthworks

Clause 6.10 of NSLEP 2013 seeks to ensure that earthworks will not have any detrimental impact

on environmental functions and processes, neighbouring uses, cultural or heritage items or

features of the surrounding land.

The proposed works are limited to the existing unit that is located on the second floor of the

existing building and will not alter the existing ground levels and not involve any earthworks that

would likely disrupt drainage patterns or soil stability, or have any adverse impacts on the

amenity of adjoining properties.

8. Residential flat buildings

Clause 6.12 of NSLEP 2013 seeks to ensure that dwelling houses or dual occupancies within an

R4 High Density Residential zone will not be left isolated on sites that are not reasonably capable

of development for residential flat buildings.

The proposal will continue to maintain the use of the site a residential flat building and will not

impact on any proposed uses for the adjoining sites. The proposal is acceptable in this regard.

SEPP 55 and Contaminated Land Management Issues

The provisions of SEPP 55 require Council to consider the likelihood that the site has previously

been contaminated and to address the methods necessary to remediate the site. Given the

residential history of the site, it is unlikely to be any issues of soil contamination that would

require remediation.

SREP (Sydney Harbour Catchment) 2005

The site falls within the Sydney Harbour Catchment Area and is subject to the provisions of the

Policy. Clause 25 of the SREP outlines matters to be taken into consideration in relation to the

maintenance, protection and enhancement of the scenic quality of foreshores and waterways.

The development is not visible from the Harbour, and will thus not have any detrimental impact

on the character or scenic quality of foreshores and waterways.



NORTH SYDNEY DEVELOPMENT CONTROL PLAN 2013

The proposal has been assessed with Section 7.0 and 7.1 being the Character statements for the

Neutral Bay Planning Area and the Forsyth Neighbourhood which is located within the

Neutral Bay Planning Area, and is considered to be generally consistent with these controls.

The application has been assessed against the Section B1 of the NSDCP 2013 relating to

residential developments as discussed in the DCP Compliance Table below.

North Sydney Development Control Plan 2013 Compliance Table

DEVELOPMENT CONTROL PLAN 2013 – Part B Section 1- Residential Development

complies Comments

1.2 Social Amenity

Population Mix Yes The proposal will not alter the approved mixed

residential population within the locality.

Maintaining Residential Accommodation Yes The proposal will maintain the existing residential

accommodation.

Affordable Housing Yes The proposal does not alter existing levels of

affordable housing in the locality.

1.3 Environmental Criteria

Topography Yes The proposed development does not include any

excavation or changing of ground levels, thus retaining

the topography and landform as existing.

Views Yes The proposed works are not considered to obstruct any

significant views.

Solar Access Yes The proposal would not result in a material reduction in

solar access to adjoining properties and/or the public

domain.

The proposed works will cast shadows largely within

existing shadows with minor additional shadows cast on

approximately half of the roof terrace of the adjoining

unit ( No.11) between 9am and 12noon and on the

landscaped area and adjoining park between the hours

of 1pm and 3pm. This is considered acceptable given

the minor extent of the proposed shadows and that solar

access is retained as existing to the adjoining roof

terrace (no.11) between the hours of 12noon and 3pm,

and to the landscaped area and adjoining park between

the hours of 9am and 12noon. Furthermore it is noted

that the adjoining terrace at unit No. 11 is off a

bedroom and thus not a primary outdoor area. It is also

noted that the landscaped area and park affected by the

proposed overshadowing are already overshadowed by

existing trees. Notwithstanding, the proposal retains a

minimum of 3 hours of solar access to the adjoining

properties during mid-winter in compliance with the

NSDCP 2013.

Acoustic Privacy Yes The proposed works do not present any new or

significant acoustic privacy impacts to adjoining

properties.



Visual Privacy Yes The proposed enclosure to the lower level balcony and

the replacement of the pergola with a new larger

vergola on the roof terrace will continue to maintain the

use of these spaces as living/recreational areas to a

residential unit, thereby not generating any additional

adverse impacts to the occupants of the subject property

and to residents of adjoining properties.

1.4 Quality built form

Context Yes The proposal is acceptable within the context of the

site.

Streetscape Yes The proposed works are located towards the rear of the

site and will not be visible from the streetscape having

no adverse impacts on the existing Bent Street

streetscape.

The proposal also does not include any works within

the front setback of the site and does not seek any

alteration to existing kerb, guttering, street trees or

Council infrastructure to either street frontages.

Siting Yes The proposal will not alter the characteristic building

orientation and siting and the proposed works are in

keeping with the orientation of the subject building.

Setbacks Yes No change is proposed to the existing setbacks of the

building and site.

Building Separation Yes The proposed development will not alter the existing

building separation between adjoining units and

adjoining buildings.

Form Massing Scale Yes The proposed additions are within the existing building

footprint and the small scale of the extensions which

are below the existing ridge height, are not considered

to significantly increase the bulk or scale of the existing

apartment building. The resulting development is in

keeping with the built form character of the locality.

Built Form Character Yes

Dwelling Entry Yes No change is proposed to the existing entry.

Roofs Yes The proposed flat roof of the vergola and the

conservatory are characteristic within the subject

building and considered to acceptable as roof structures

to balconies and roof terraces

Materials Yes (via

Condition)

A condition has been recommended to ensure that

materials & colours are in keeping with the character of

the building and surrounding areas.

Balconies - Apartments Yes The proposal includes the enclosure of a secondary

balcony on the lower level that is located on the rear

(East) Elevation. This elevation is visible from Forsyth

Park.

The applicant has submitted a Balcony Enclosure

Strategy in the form of a draft Strata by-law that is

detailed as follows:

“When considering an application by an Owner to

enclose an existing balcony, the Owners Corporation

shall only approve the application if the plans are

consistent with the size, scale and choice of material of

existing enclosed balconies in the building with the

objective of the ensuring the building maintains and

presents a consistent built form character. Specifically,

the enclosures should be limited to the existing

footprint to the balcony”



This draft by-law is to be adopted at EGM Meeting of

the Owners Corporation that is to be held in mid-

march.

Having regard for the above and that the proposed

conservatory style glazing enclosure is a lightweight

glass and steel structure similar to the roof terrace

balustrading, the proposal is considered to have

minimum impact on the overall design of the building.

Should consent be grated for this application it is

recommended that an advising be imposed on the

consent that this draft by-law be adopted into the Strata

By-laws.

An advising to Strata is also recommended requiring

them to adopt this draft by-law, without which, Council

will not accept any future development applications

for balcony enclosures for this site.

1.5 Quality Urban Environment High Quality Residential Accommodation Yes The proposed works will not alter the internal floor

area of the residential unit and will provide improved

amenity to the existing 3 bedroom apartment.

Safety and Security Yes The proposal will continue to maintain the security

access and lighting at the entries to the building

maintaining the safety and security of the building. The

proposed works will have no adverse impacts on the

existing security and safety that the building provides.

Vehicle Access and Parking Yes No change to existing

Site Coverage The proposed works are located on a hard paved

balcony and roof terrace area and will therefore not

alter the site coverage or landscaped area of the site. Landscape Area Yes

Landscaping Yes The proposal will not disturb the existing natural

ground levels and planting on site.

Private and Communal Open Space Yes The proposal will maintain a combination of covered

and un-covered private open spaces on the lower level

balcony and the roof terrace of approximately 44m2

which is more than the required 20m2 private open

space for a 3 bedroom unit as per Section 1.5.10 of the

NSDCP 2013.

Garbage Storage Yes No change to existing

Site Facilities Yes No change to existing

APPLICABLE REGULATIONS

Clauses 92-94 of the EPA Regulation 2000 require that Council take into consideration

Australian standard AS 2601-1991: the demolition of structures, as in force at 1 July 1993. As

demolition is proposed, a suitable condition should be imposed.

ALL LIKELY IMPACTS OF THE DEVELOPMENT

All likely impacts of the proposed development have been considered within the context of this

report.



ENVIRONMENTAL APPRAISAL CONSIDERED

1. Statutory Controls Yes

2. Policy Controls Yes

3. Design in relation to existing building and Yes

natural environment

4. Landscaping/Open Space Provision Yes

5. Traffic generation and Carparking provision Yes

6. Loading and Servicing facilities NA

7. Physical relationship to and impact upon adjoining Yes

development (Views, privacy, overshadowing, etc.)

8. Site Management Issues Yes

9. All relevant S79C considerations of Yes

Environmental Planning and Assessment (Amendment) Act 1979

CONCLUSION

The development application has been assessed against the North Sydney Local Environmental

Plan 2013 and the North Sydney Development Control Plan 2013.

The variations to the building height standard are justifiable, as the proposed breaches will not

have adverse impacts on the amenity of the adjoining properties nor does the proposal result in a

built form that is uncharacteristic or out of scale with its surrounds.

The proposed lower level balcony enclosure is also considered acceptable as it is accompanied

with a balcony enclosure strategy in the form of a draft Strata by-law for balcony enclosures for

this residential complex at 41-45 Lower Bent Street, Neutral Bay. It is recommended that should

consent be granted an advising be imposed on the consent requiring the strata to adopt the draft

by-law.

The development application is considered to be a reasonable response in the circumstances and

is recommended for approval subject to conditions.



RECOMMENDATION

PURSUANT TO SECTION 80 OF ENVIRONMENTAL PLANNING AND ASSESSMENT

ACT 1979 (AS AMENDED)

THAT the North Sydney Independent Planning Panel, as the consent authority, under the

delegation of the General Manager as the consent authority , assume the concurrence of the

Director General of the Department of Planning and invoke the provisions of Clause 4.6 with

regard to the exception to the development standard for height and grant consent to

Development Application No. 390/15 for alterations and additions to a residential unit including

the enclosure of a balcony and the replacement of a pergola with a louvred roof awning system

“vergola” to Unit 12 at 41-45 Lower Bent Street, Neutral Bay subject to the attached site

specific conditions, standard conditions and advisings:-

Aloma Moriarty David Hoy

ASSESSMENT OFFICER TEAM LEADER (ASSESSMENTS)

Stephen Beattie

MANAGER DEVELOPMENT SERVICES

September 2013 v1

NORTH SYDNEY COUNCIL CONDITIONS OF DEVELOPMENT APPROVAL

UNIT 12 41-45 LOWER BENT STREET, NEUTRAL BAY DEVELOPMENT APPLICATION NO. 390/15

A. Conditions that Identify Approved Plans Development in Accordance with Plans/documentation A1. The development must be carried out in accordance with the following drawings and

documentation and endorsed with Council’s approval stamp, except where amended by the following conditions of this consent.

Dwg No. Issue Description Drawn by Received DA-01 A Site Plan and Site Analysis

Plan Tony Edye & Associates 28 October 2015

DA-02 A Lower Second Floor Plan – Existing & Proposed

Tony Edye & Associates 28 October 2015

DA-03 A Upper Second Floor & Roof Terrace Plan


DA-04 A Existing and Proposed Roof Plan


DA-05 A West Elevation Tony Edye & Associates 28 October 2015 DA-06 A East Elevation Tony Edye & Associates 28 October 2015 DA-07 A North Elevation Tony Edye & Associates 28 October 2015 DA-08 A South Elevation Tony Edye & Associates 28 October 2015 DA-09 A Sections Tony Edye & Associates 28 October 2015

(Reason: To ensure that the form of the development undertaken is in

accordance with the determination of Council, Public Information) Plans on Site A2. A copy of all stamped approved plans, specifications and documents (including the

plans, specifications and documents submitted and approved with the Construction Certificate) must be kept on site at all times so as to be readily available for perusal by any officer of Council or the Principal Certifying Authority. All documents kept on site in accordance with this condition must be provided to any officer of the Council or the certifying authority upon their request. (Reason: To ensure that the form of the development undertaken is in

accordance with the determination of Council, Public Information and to ensure ongoing compliance)

ATTACHMENT TO IPP09 - 02/03/2016

12/41-45 LOWER BENT STREET, NEUTRAL BAY DEVELOPMENT APPLICATION NO. 390/15 Page 2 of 16

September 2013 v1

No Demolition of Extra Fabric A3. Alterations to, and demolition of the existing building shall be limited to that

documented on the approved plans.

(Reason: To ensure compliance with the approved development) C. Prior to the Issue of a Construction Certificate (and ongoing, where indicated). Dilapidation Report Damage to Public Infrastructure C1. A dilapidation survey and report (including photographic record) must be prepared by

a suitably qualified consultant which details the pre-developed condition of the existing public infrastructure in the vicinity of the development site. Particular attention must be paid to accurately recording any pre-developed damaged areas so that Council is fully informed when assessing any damage to public infrastructure caused as a result of the development. A copy of the dilapidation survey and report is to be submitted to the Certifying Authority for approval prior to the issue of any Construction Certificate.

The developer may be held liable for all damage to public infrastructure in the vicinity of the site, where such damage is not accurately recorded and demonstrated as pre-existing under the requirements of this condition.

The developer shall bear the cost of carrying out works to restore all public infrastructure damaged as a result of the carrying out of the development, and no occupation of the development shall occur until damage caused as a result of the carrying out of the development is rectified. A copy of the dilapidation survey and report must be lodged with North Sydney Council by the Certifying Authority with submission of the Construction Certificate documentation.

(Reason: To record the condition of public infrastructure prior to the commencement of construction)

Dilapidation Survey Private Property (Neighbouring Buildings) C2. A photographic survey and dilapidation report of adjoining properties No’s. Units 10

& 11, 41 -45 Lower Bent Street, Neutral Bay detailing the physical condition of those properties, both internally and externally, including, but not limited to, such items as walls, ceilings, roof, structural members and other similar items, SHALL BE submitted to the Certifying Authority for approval prior to the issue of any Construction Certificate. The survey and report is to be prepared by an appropriately qualified person agreed to by both the applicant and the owner of the adjoining property. A copy of the report is to be provided to Council, if Council is not the Certifying Authority, prior to the issue of any Construction Certificate. All costs incurred in achieving compliance with this condition shall be borne by the person entitled to act on this Consent.



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In the event that access for undertaking the photographic survey and dilapidation report is denied by an adjoining owner, the applicant MUST DEMONSTRATE, in writing, to the satisfaction of Council that all reasonable steps have been taken to obtain access and advise the affected property owner of the reason for the survey and that these steps have failed. Written concurrence must be obtained from Council in such circumstances.

Note: This documentation is for record keeping purposes only, and may be used by

an applicant or affected property owner to assist in any action required to resolve any dispute over damage to adjoining properties arising from the works. It is in the applicant’s and adjoining owner’s interest for it to be as full and detailed as possible.

(Reason: Proper management of records)

Structural Adequacy of Existing Building C3. A report prepared by an appropriately qualified and practising structural engineer,

certifying the structural adequacy of the property and its ability to withstand the proposed additional, or altered structural loads during all stages of construction shall be submitted to the Certifying Authority for approval prior to issue of any Construction Certificate. The certified report must also include all details of the methodology to be employed in construction phases to achieve the above requirements. The methodology in the certified report must be complied with at all times.

(Reason: To ensure the structural integrity of the building is maintained)

External Colours and Finishes C4. The external colours and finishes shall match those as existing and/ or be compatible

with surrounding development. A schedule of external colours and finishes must be submitted to the Certifying Authority for approval prior to the issue of any Construction Certificate. The Certifying Authority must ensure that the building plans and specifications submitted, referenced on and accompanying the issued Construction Certificate, fully satisfy the requirements of this condition.

(Reason: To ensure that the completed colours and finishes of the works are

compatible with surrounding development)



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Roofing Materials - Reflectivity C5. Roofing materials must be factory pre-finished with low glare and reflectivity

properties to be compatible with the colours of neighbouring buildings. The selected roofing material must not cause a glare nuisance or excessive reflectivity to adjoining or nearby properties. Plans and specifications which comply with this condition must be submitted to the Certifying Authority for approval prior to the issue of any Construction Certificate. The Certifying Authority must ensure that the building plans and specifications submitted, referenced on and accompanying the issued Construction Certificate, fully satisfy the requirements of this condition.

(Reason: To ensure that excessive glare or reflectivity nuisance from roofing

materials does not occur as a result of the development) Asbestos Material Survey C6. A report must be prepared by a suitably qualified person in relation to the existing

building fabric to be demolished and/or disturbed identifying the presence or otherwise of asbestos contamination and, if asbestos contamination is present, making recommendations as to the work required to safely address the contamination. Any demolition works or other works identified in the report as having to be carried out must be carried out in accordance with the recommendations of the report and the following: a) the removal of asbestos must be undertaken by a WorkCover licensed

contractor; b) all removal must be in strict accordance with the requirements of the

WorkCover Authority in relation to the removal, handling and disposal of material containing asbestos and any Work Safe Australia requirements.

c) during the removal of any asbestos a sign stating “DANGER ASBESTOS REMOVAL IN PROGRESS” must be erected in a visible position at the boundary of the site; and

d) Waste disposal receipts must be provided to the Certifying Authority as proof of correct disposal of asbestos laden waste.

The report must be submitted to the Certifying Authority for approval prior to the issue of any Construction Certificate. The Certifying Authority must ensure that the report, and other plans, referenced on and accompanying the issued Construction Certificate, fully satisfy the requirements of this condition.

(Reason: To ensure the long term health of workers on site and occupants of the building is not put at risk unnecessarily)



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D. Prior to the Commencement of any Works (and continuing where indicated) Asbestos Material Survey

D1. Prior to the commencement of any works, a report must be prepared by a suitably

qualified person in relation to the existing building fabric to be demolished and/or disturbed identifying the presence or otherwise of asbestos contamination and, if asbestos contamination is present, making recommendations as to the work required to safely address the contamination. Any demolition works or other works identified in the report as having to be carried out must be carried out in accordance with the recommendations of the report and the following: a) the removal of asbestos must be undertaken by a WorkCover licensed

contractor; b) all removal must be in strict accordance with the requirements of the

WorkCover Authority in relation to the removal, handling and disposal of material containing asbestos and any Work Safe Australia requirements.

c) during the removal of any asbestos a sign stating “DANGER ASBESTOS REMOVAL IN PROGRESS” must be erected in a visible position at the boundary of the site; and

d) Waste disposal receipts must be provided to the Certifying Authority as proof of correct disposal of asbestos laden waste.

The report must be submitted to the Certifying Authority for approval prior to the issue of any Construction Certificate. The Certifying Authority must ensure that the report, and other plans, referenced on and accompanying the issued Construction Certificate, fully satisfy the requirements of this condition.

(Reason: To ensure the long term health of workers on site and occupants of the building is not put at risk unnecessarily)

Commencement of Works Notice

D2. Building work, demolition or excavation in accordance with this development consent

must not be commenced until the developer has given at least 2 days notice to North Sydney Council of the person’s intention to commence building work, demolition or excavation in accordance with this development consent.

(Reason: To ensure appropriate safeguarding measures are in place prior to the commencement of any building work, demolition or excavation)



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E. During Demolition and Building Work

Cigarette Butt Receptacle E1. A cigarette butt receptacle is to be provided on the site for the duration of

excavation/demolition/construction process, for convenient use of site workers.

(Reason: To ensure adequate provision is made for builders’ waste) Parking Restrictions

E2. Existing public parking provisions in the vicinity of the site must be maintained at all

times during works. The placement of any barriers, traffic cones, obstructions or other device in the road shoulder or kerbside lane is prohibited without the prior written consent of Council. Changes to existing public parking facilities/restrictions must be approved by the North Sydney Local Traffic Committee. The Developer will be held responsible for any breaches of this condition, and will incur any fines associated with enforcement by Council regulatory officers. (Reason: To ensure that existing kerbside parking provisions are not

compromised during works)

Road Reserve Safety E3. All public footways and roadways fronting and adjacent to the site must be maintained

in a safe condition at all times during the course of the development works, with no obstructions caused to the said footways and roadways. Construction materials and plant must not be stored in the road reserve without approval of Council. A safe pedestrian circulation route and a pavement/route free of trip hazards must be maintained at all times on or adjacent to any public access ways fronting the construction site.

Where public infrastructure is damaged, repair works must be carried out in when and as directed by Council officers (at full Developer cost). Where pedestrian circulation is diverted on to the roadway or verge areas, clear directional signage and protective barricades must be installed in accordance with AS1742-3 (1996) “Traffic Control Devices for Work on Roads”. If pedestrian circulation is not satisfactorily maintained across the site frontage, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.

(Reason: Public Safety)

Removal of Extra Fabric

E4. Should any portion of the existing building, trees, or curtilage of the site which is indicated on the approved plans to be retained be damaged for whatever reason, all the works in the area of the damaged portion are to cease and written notification of the damage is to be given to Council forthwith. No work is to resume until the written approval of Council to do so is obtained. Failure to comply with the provisions of this condition may result in the Council taking further action including legal proceedings if necessary.



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(Reason: To ensure compliance with the terms of this development consent) Dust Emission and Air Quality E5. The following must be complied with at all times:

(a) Materials must not be burnt on the site.

(b) Vehicles entering and leaving the site with soil or fill material must be covered.

(c) Dust suppression measures must be carried out to minimise wind-borne emissions in accordance with the NSW Department of Housing’s 1998 guidelines - Managing Urban Stormwater: Soils and Construction.

(d) Odour suppression measures must also be carried out where appropriate so as to prevent nuisance occurring at adjoining properties.

(Reason: To ensure residential amenity is maintained in the immediate vicinity)

Noise and Vibration E6. The works must be undertaken in accordance with the “Interim Construction Noise

Guideline” published by the NSW Environment Protection Authority, to ensure excessive levels of noise and vibration do not occur so as to minimise adverse effects experienced on any adjoining land.

(Reason: To ensure residential amenity is maintained in the immediate vicinity) Developer's Cost of Work on Council Property E7. The developer must bear the cost of all works associated with the development that

occurs on Council’s property, including the restoration of damaged areas. (Reason: To ensure the proper management of public land and funds)

No Removal of Trees on Public Property

E8. No trees on public property (footpaths, roads, reserves, etc.) unless specifically approved by this consent shall be removed or damaged during construction including for the erection of any fences, hoardings or other temporary works.

(Reason: Protection of existing environmental infrastructure and community assets)

Special Permits

E9. Unless otherwise specifically approved in writing by Council, all works, processes, storage of materials, loading and unloading associated with the development must occur entirely on the property.



September 2013 v1

The developer, owner or builder may apply for specific permits available from Council’s Customer Service Centre for the undermentioned activities on Council’s property. In the event that a permit is granted by Council for the carrying out of works, processes, storage of materials, loading and unloading associated with the development on Council's property, the development must be carried out in accordance with the requirements of the permit. A minimum of forty-eight (48) hours notice is required for any permit: -

1) On-street mobile plant

Eg. cranes, concrete pumps, cherry-pickers, etc. - restrictions apply to the hours of operation, the area of operation, etc. Separate permits are required for each occasion and each piece of equipment. It is the developer's, owner’s and builder’s responsibilities to take whatever steps are necessary to ensure that the use of any equipment does not violate adjoining property owner’s rights.

(Reason: Proper management of public land)

2) Hoardings

Permits are required to erect Class A and Class B hoardings. If an ‘A’ Class hoarding is to alienate a section of Council’s property, that section will require a permit for the occupation of Council’s property.


3) Storage of building materials and building waste containers (skips) on

Council’s property

Permits to utilise Council property for the storage of building materials and building waste containers (skips) are required for each location. Failure to obtain the relevant permits will result in the building materials or building waste containers (skips) being impounded by Council with no additional notice being given. Storage of building materials and waste containers on open space reserves and parks is prohibited.

(Reason: Proper management of public land) 4) Kerbside restrictions, construction zones

Attention is drawn to the existing kerbside restrictions adjacent to the development. Should alteration of existing kerbside restrictions be required, or the provision of a construction zone, the appropriate application must be made and the fee paid to Council. Alternatives to such restrictions may require referral to Council’s Traffic Committee and may take considerable time to be resolved. An earlier application is suggested to avoid delays in construction programs.




September 2013 v1

Construction Hours E10. Building construction and works must be restricted to within the hours of 7.00 am to

5.00 pm Monday to Friday and on Saturday to within the hours of 8.00 am to 1.00 pm inclusive, with no work on Sundays and Public Holidays.

Demolition and excavation works must be restricted to within the hours of 8.00 am to 5.00 pm Monday to Friday only. For the purposes of this condition: a) “Building construction” means any physical activity on the site involved in the

erection of a structure, cladding, external finish, formwork, fixture, fitting of service installation and the unloading of plant, machinery, materials or the like.

b) “Demolition works” means any physical activity to tear down or break up a

structure (or part thereof) or surface, or the like, and includes the loading of demolition waste and the unloading of plant or machinery.

c) “Excavation work” means the use of any excavation machinery and the use of

jackhammers, rock breakers, excavators, loaders, or the like, regardless of whether the activities disturb or alter the natural state of the existing ground stratum or are breaking up/removing materials from the site and includes the unloading of plant or machinery associated with excavation work.

All builders, excavators must display, on-site, their twenty-four (24) hour contact telephone number, which is to be clearly visible and legible from any public place adjoining the site.

(Reason: To ensure that works do not interfere with reasonable amenity

expectations of residents and the community) Out of Hours Work Permits E11. Where it is necessary for works to occur outside those hours allowed by these

conditions, an application may be made to Council's Customer Services Centre for a permit to carry out works outside of the approved hours. If a permit is issued the works approved must be carried out in accordance with any requirements specified in the permit. Permits will only be approved if public safety is at risk. Applications which seek a variation to construction hours solely to benefit the developer will require the lodgement and favourable determination of a modification application pursuant to the provisions of Section 96 of the Environmental Planning and Assessment Act 1979.

Notes: 1) Failure to obtain a permit for work outside of the approved hours will result in

on the spot fines being issued, or Council pursuing any action required (including legal proceedings) to have the out of hours work cease, without prior warning.



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2) Applications for out of hour’s works should be lodged with Council no later than seven (7) calendar days prior to the date of the intended works.

3) Examples of activities for which permits may be granted include: • the erection of awnings, • footpath, road and other infrastructure works which can not be

carried out for public convenience reasons within normal hours, • the erection and removal of hoardings and site cranes, and • craneage of materials which cannot be done for public convenience

reasons within normal working hours.

4) Examples of activities for which permits WILL NOT be granted include; • extended concrete pours • works which are solely to convenience the developer or client, and • catch up works required to maintain or catch up with a construction

schedule.

5) Further information on permits can be obtained from the Council website at www.northsydney.nsw.gov.au.

(Reason: To ensure that works do not interfere with reasonable amenity

expectations of residents and the community) Site Amenities and Facilities E12. Where work involved in the erection and demolition of a building is being carried out,

amenities which satisfy applicable occupational health and safety and construction safety regulations, including any WorkCover Authority requirements, must be provided and maintained at all times. The type of work place determines the type of amenities required. Further information and details can be obtained from the Internet at www.workcover.nsw.gov.au

(Reason: To ensure the health and safety of the community and workers on the

site) Health and Safety E13. All work undertaken must satisfy applicable occupational health and safety and

construction safety regulations, including any WorkCover Authority requirements to prepare a health and safety plan. Site fencing must be installed sufficient to exclude the public from the site. Safety signs must be erected that warn the public to keep out of the site, and provide a contact telephone number for enquiries.

Further information and details regarding occupational health and safety requirements for construction sites can be obtained from the internet at www.workcover.nsw.gov.au

(Reason: To ensure the health and safety of the community and workers on the

site)


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Prohibition on Use of Pavements E14. Building materials must not be placed on Council's footpaths, roadways, parks or

grass verges, (unless a permit is obtained from Council beforehand). A suitable sign to this effect must be erected adjacent to the street alignment.

(Reason: To ensure public safety and amenity on public land)

Plant & Equipment Kept Within Site E15. All plant and equipment used in the undertaking of the development/ works, including

concrete pumps, wagons, lifts, mobile cranes, hoardings etc, must be situated within the boundaries of the site (unless a permit is obtained from Council beforehand) and so placed that all concrete slurry, water, debris and the like must be discharged onto the building site, and is to be contained within the site boundaries.

Details of Council requirements for permits on public land for standing plant, hoardings, storage of materials and construction zones and the like are available on Council’s website at www.northsydney.nsw.gov.au. (Reason: To ensure public safety and amenity on public land)

Waste Disposal E16. All records demonstrating the lawful disposal of waste must be retained and kept

readily accessible for inspection by regulatory authorities such as North Sydney Council and the Environmental Protection Authority. (Reason: To ensure the lawful disposal of construction and demolition waste)

Asbestos Removal E17. All demolition works involving the removal and disposal of asbestos cement must

only be undertaken by contractors who hold a current WorkCover Asbestos or “Demolition Licence” and a current WorkCover “Class 2 (Restricted) Asbestos Licence and removal must be carried out in accordance with National Occupational Health and Safety Commission. (Reason: To ensure works are carried out in accordance with relevant

WorkCover requirements) F. Prescribed Conditions imposed under EP&A Act and Regulations and other

relevant Legislation Building Code of Australia F1. All building work must be carried out in accordance with the provisions of the

Building Code of Australia.

(Reason: Prescribed - Statutory)


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Home Building Act F2. 1) Building work that involves residential building work (within the meaning and

exemptions provided in the Home Building Act 1989) for which the Home Building Act 1989 requires there to be a contract of insurance under Part 6 of that Act must not be carried out unless the Principal Certifying Authority for the development to which the work relates has given North Sydney Council written notice of the contract of insurance being issued and of the following:

a) in the case of work for which a principal contractor is required to be

appointed:

i) the name and licence number of the principal contractor, and ii) the name of the insurer by which the work is insured under Part

6 of that Act, or

(b) in the case of work to be done by an owner-builder: (i) the name of the owner-builder, and (ii) if the owner-builder is required to hold an owner-builder permit

under that Act, the number of the owner-builder permit. 2) If arrangements for doing residential building work are changed while the

work is in progress such that the information submitted to Council in accordance with this conditions is out of date, work must cease and no further work may be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council), has given the Council written notice of the updated information.

Note: A certificate purporting to be issued by an approved insurer under Part 6 of the

Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.

(Reason: Prescribed - Statutory)

Appointment of a Principal Certifying Authority (PCA)

F3. Building work, demolition or excavation in accordance with the development consent must not be commenced until the developer has appointed a Principal Certifying Authority for the building work in accordance with the provisions of the EP&A Act and its Regulations.

(Reason: Statutory; To ensure appropriate safeguarding measures are in place

prior to the commencement of any building work, demolition or excavation)



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Construction Certificate

F4. Building work, demolition or excavation in accordance with the development consent must not be commenced until a Construction Certificate for the relevant part of the building work has been issued in accordance with the provisions of the EP&A Act and its Regulations.



Occupation Certificate

F5. A person must not commence occupation or use of the whole or any part of a new building (new building

includes an altered portion of, or an extension to, an existing building) unless an Occupation Certificate has been issued in relation to the building or part. Only the Principal Certifying Authority appointed for the building work can issue an Occupation Certificate.

(Reason: Statutory) Critical Stage Inspections

F6. Building work must be inspected by the Principal Certifying Authority on the critical stage occasions prescribed by the EP&A Act and its Regulations, and as directed by the appointed Principal Certifying Authority.

(Reason: Statutory) Commencement of Works

F7. Building work, demolition or excavation in accordance with this development consent must not be commenced until the developer has given at least 2 days notice to North Sydney Council of the person’s intention to commence the erection of the building.



Excavation/Demolition F8. 1) All excavations and backfilling associated with the erection or demolition of a

building must be executed safely and in accordance with appropriate professional standards.

2) All excavations associated with the erection or demolition of a building must

be properly guarded and protected to prevent them from being dangerous to life or property.



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3) Demolition work must be undertaken in accordance with the provisions of AS2601- Demolition of Structures.

(Reason: To ensure that work is undertaken in a professional and responsible

manner and protect adjoining property and persons from potential damage)

Site Sign F9. 1) A sign must be erected in a prominent position on the site

a) stating that unauthorised entry to the work site is prohibited;

b) showing the name of the principal contractor (or person in charge of the work site), and a telephone number at which that person may be contacted at any time for business purposes and outside working hours; and

c) showing the name, address and telephone number of the Principal Certifying Authority for the work.

2) Any such sign must be maintained while to building work or demolition work

is being carried out, but must be removed when the work has been completed.

(Reason: Prescribed - Statutory) G. Prior to the Issue of an Occupation Certificate Infrastructure Repair and Completion of Works G1. Prior to the issue of any Occupation Certificate any and all works relating to the

development:

a. in the road reserve must be fully completed; and b. to repair and make good any damaged public infrastructure caused as a result

of any works relating to the development (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) must be fully repaired;

to the satisfaction of Council Engineers at no cost to Council.

(Reason: Maintain quality of Public assets)



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Damage to Adjoining Properties G2. All precautions must be taken to prevent any damage likely to be sustained to

adjoining properties. Adjoining owner property rights and the need for owner’s permission must be observed at all times, including the entering onto land for the purpose of undertaking works.

(Reason: To ensure adjoining owner’s property rights are protected) Utility Services G3. All utility services shall be adjusted, to the correct levels and/or location/s required by

this consent, prior to issue of an occupation certificate. This shall be at no cost to Council.

(Reason: To ensure compliance with the terms of this consent)

Asbestos Clearance Certificate G4. For building works where asbestos based products have been removed or altered, an

asbestos clearance certificate signed by an appropriately qualified person (being an Occupational Hygienist or Environmental Consultant) must be submitted to and approved by the Certifying Authority (and a copy forwarded to Council if it is not the Certifying Authority) for the building work prior to the issue of any Occupation Certificate, the asbestos clearance certificate must certify the following: -

a) the building/ land is free of asbestos; or b) the building/ land has asbestos that is presently deemed safe.

The certificate must also be accompanied by tipping receipts, which detail that all asbestos waste has been disposed of at an approved asbestos waste disposal depot. If asbestos is retained on site the certificate must identify the type, location, use, condition and amount of such material. Note: Further details of licensed asbestos waste disposal facilities can be obtained

from www.epa.nsw.gov.au (Reason: To ensure that building works involving asbestos based products are

safe for occupation and will pose no health risks to occupants) Damage to Adjoining Properties G5. On completion of the development the subject of this consent and prior to the issue of

the Occupation Certificate, a report is to be prepared by an appropriately qualified consultant and is to be provided to the Certifying Authority (and a copy to Council if it is not the Certifying Authority) certifying:



September 2013 v1

a) whether any damage to adjoining properties has occurred as a result of the development;

b) the nature and extent of any damage caused to the adjoining property as a result of the development;

c) the nature and extent of works required to rectify any damage caused to the adjoining property as a result of the proposed development;

d) the nature and extent of works carried out to rectify any damage caused to the adjoining property as a result of the development; and

e) the nature and extent of any agreements entered into for rectification of any damage caused to the adjoining property as a result of the development.

The report and certification must reference the dilapidation survey and reports required to be provided to the Certifying Authority in accordance with this consent.

Where works required to rectify any damage caused to adjoining property as a result of the development identified in the report and certification have not been carried out, a satisfactory agreement for rectification of the damage is to be made with the affected person/s as soon as possible prior to the issue of an Occupation Certificate. All costs incurred in achieving compliance with this condition shall be borne by the developer.

(Reason: To ensure adjoining owner’s property rights are protected in so far as

possible)

ADVISINGS

Adoption of Draft Strata By-Law The body corporate is to be advised that a Strata by-law is to be registered for the enclosure of balconies to be carried out in a manner that is consistent with the design, colour and materials of the balcony enclosure approved by this consent. Details demonstrating that this by-law has been adopted into the Strata by-laws for this development must be submitted to Council. North Sydney Council will not accept future development applications for balcony enclosures on the site without the adoption of the balcony enclosure by-law.


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Clause 4.6 Exception to Development Standard – Height of Building North Sydney Local Environmental Plan 2013 (NSLEP) In relation to a Development Application for a roof vergola at Unit 12, 41-45 Lower Bent Street, Neutral Bay

January 2015

Catalyze PROPERTY CONSULTING


p. 1 Unit 12, 41-45 Lower Bent Street, Neutral Bay Clause 4.6 Report January 2015

CLAUSE 4.6 EXCEPTIONS TO DEVELOPMENT STANDARDS Standard to be varied: Height of Building – Clause 4.3

Address: Unit 12, 41-45 Lower Bent Street, Neutral Bay

Proposal: Alterations and additions including: the enclosure of a balcony,

the demolition of an existing pergola and planter box wall and

the construction of a new Vergola (Proposed Development) at

Unit 12, 41-45 Lower Bent Street, Neutral Bay (Site).

1. INTRODUCTION This is a written request to seek an exception to a development standard under Clause 4.6

– Exceptions to Development Standards of the NSLEP.

The development standard for which the variation is sought is Clause 4.3 (Height of

Building) pursuant to the NSLEP. The Building Height Map (HOB) prescribes a maximum

height for the site of 12m (”P”).

The development application proposes to replace an existing rooftop pergola with a new

vergola. The new vergola is marginally higher than the existing pergola but is still below

the ridgeline of the existing building and the same height as a recently approved

extension to the neighbouring unit.

This request is made on the basis that:

a) compliance with the development standard is unreasonable and unnecessary in

the circumstances of the case,

b) that there are sufficient environmental planning grounds to justify contravening the

development standard, and

c) it is consistent with the objectives of the LEP, the particular standard and the zone in

which the development is proposed to be carried out.

These relevant matters are set in this submission.

The objectives of Clause 4.6 in NSLEP are:

a) to provide an appropriate degree of flexibility in applying certain development

standards to particular development,



b) to achieve better outcomes for and from development by allowing flexibility in

particular circumstances.

In accordance with sub-clause 4.6(2), development consent may be granted for

development even though the development would contravene a development standard

imposed by this or any other environmental planning instrument.

2. DESCRIPTION OF PLANNING INSTRUMENT, DEVELOPMENT STANDARD AND PROPOSED VARIATION

Summary of Legal Context and Proposed Variation

EPI applicable: North Sydney Local Environmental Plan 2013 (NSLEP)

Zoning: R4- High Density Residential

Standard being varied: Height of Building (Clause 4.3)

Numeric measure of variation: Allowed: 12m (“P”) on the LEP Map

Proposed: 14.88m

Percentage of variation: 24% (2.88m)

3. CONSISTENCY WITH THE OBJECTIVES OF THE DEVELOPMENT STANDARD

Development consent must not be granted for development that contravenes a

development standard unless the consent authority is satisfied that the proposed

development will be in the public interest because it is consistent with the objectives of the

particular standard and the objectives for development within the zone in which the

development is proposed to be carried out.

Sub-clause 4.3(1) outlines the objectives of this clause in relation to HOB are as follows:

a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient,

b) to promote the retention and, if appropriate, sharing of existing views,

c) to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development,

d) to maintain privacy for residents of existing dwellings and to promote privacy for

residents of new buildings,



e) to ensure compatibility between development, particularly at zone boundaries,

f) to encourage an appropriate scale and density of development that is in


Comments supporting the proposal’s consistency with each of the above objectives are

addressed below:

Objective (a)

To promote development that conforms to and reflects natural landforms, by

stepping development on sloping land to follow the natural gradient.

The height exceedance is largely as a result of the natural slope of the land on which the

existing building is constructed.

The construction of the new vergola on the roof is under the existing building height and

roofline and comparable to the existing pergola which it is replacing.

The addition has been stepped in from the edge of the balcony, to reinforce the stepped

built form of the existing building, which is in keeping of the character within the locality.

Objective (b)

To promote the retention and, if appropriate, sharing of existing views.

The proposed development will have no impacts on the existing views of neighbouring

properties.

The addition will be visible to the occupants of the site; however, visibility to the

surrounding area will be extremely limited.

The roof form and pitch has been designed to maintain sight lines past the property,

promote the sharing of existing views, reduce bulk, and ensure the structure is below the

ridgeline of the existing roof.

The addition will not create bulk from the public domain, or from the adjoining units.

Objective (c)

To maintain solar access to existing dwellings, public reserves and streets, and to

promote solar access for future development.



No change to solar access for existing dwellings, public reserves and streets is proposed.

The proposal complies with the solar access requirements for both adjoining units.

Objective (d)

To maintain privacy for residents of existing dwellings and to promote privacy for

residents of new buildings.

There will be no adverse impact on the privacy of adjoining dwellings.

Objective (e)

To ensure compatibility between development, particularly at zone boundaries.

The site is situated adjacent to a zone boundary, specifically R4 (High Density Residential)

and RE1 (Public Recreation).

The proposed development is compatible with both zones, as there is the proposed

development will have no impact on the adjacent public reserve, Forsyth Park.

Objective (f)

To encourage an appropriate scale and density of development that is in


The scale and massing of the proposal is acceptable as it sits below the height of the

existing building and replaces a similar existing structure.

The proposed vergola will not impact the amenity of the public domain (Bent Street and

Forsyth Park) or adjoining sites and adjoining units.

The flat roof design proposed for the vergola is inconspicuous and subservient to the main

roof form of the existing building and promotes the character of the area.

4. CONSISTENCY WITH THE OBJECTIVES OF THE ZONE In accordance with Clause 2.3, the objectives of R4 High Density Residential zone

objectives are as follows:



• To provide for the housing needs of the community within a high density residential

environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day

needs of residents.

• To encourage the development of sites for high density housing if such

development does not compromise the amenity of the surrounding area or the

natural or cultural heritage of the area.

• To ensure that a reasonably high level of residential amenity is achieved and

maintained.

The proposal is consistent with the zone objectives.

5. CONSISTENCY WITH THE AIMS OF LEP In accordance with Clause 1.2(2), the aims of the NSLEP are as follows:

a) To promote development that is appropriate to its context and enhances the

amenity of the North Sydney community and environment,

b) In relation to the character of North Sydney’s neighbourhoods: (i) To ensure that new development is compatible with the desired future

character of an area in terms of bulk, scale and appearance, and

(ii) To maintain a diversity of activities while protecting residential

accommodation and local amenity, and

(iii) To ensure that new development on foreshore land does not adversely

affect the visual quality of that foreshore land when viewed from Sydney

Harbour and its tributaries.

The proposal will have no negative impact on natural areas and the vergola is below the

height of the existing building.

The proposed development is consistent with the LEP objectives.

6. ADDITIONAL CONSIDERATIONS 6.1 Would the contravention raise any significant matter or

hinder the attainment of the objects of the Act? The contravention of the development standard in this case does not raise an issue of

State or regional planning significance as it relates to local and contextual conditions.



The objects of the Act are as follows:

a) to encourage: i. the proper management, development and conservation of natural

and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

ii. the promotion and co-ordination of the orderly and economic use and development of land,

iii. the protection, provision and co-ordination of communication and utility services,

iv. the provision of land for public purposes, v. the provision and co-ordination of community services and facilities,

and vi. the protection of the environment, including the protection and

conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and

vii. ecologically sustainable development, and viii. the provision and maintenance of affordable housing, and

b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and

c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.

The proposed development is consistent with the objectives of the Act.

The presence of the proposed structure will enhance the amenity of the property, which is

in keeping with the objectives of the Act.

6.2 The variation allows for a better planning outcome

The proposed exceedance of the HOB control results in a greater amenity for the

property, without any adverse environmental impacts.

In seeking to demonstrate a better outcome for the site, the following matters are also

considered:

6.2.1 Would a complying development result in an unreasonable outcome in the circumstances of the case?



A complying development would reduce the head height clearance of the proposed

vergola so that it was unusable. In all of the circumstances, this is an unreasonable

outcome, as it would reduce the amenity of the property.

6.2.2 Would the underlying objectives of the zone or the development standard be defeated or thwarted if compliance was required?

No.

6.2.3 Has the development standard been virtually abandoned or destroyed by the Council’s own actions in departing from the standard?

Yes, in that the existing building already breaches the height limit by a greater degree

than what is proposed by the subject application.

6.2.4 Is the zoning of the land unreasonable or inappropriate?

The zoning of the land is appropriate.

6.3 There are sufficient environmental grounds to permit the variation?

The proposed variation does not compromise any significant natural feature or result in

any new loss of amenity within the Lower Bent Street context. The proposed variation

results in no significant new impact than a complying building would bring.

6.3 Is the proposed development in the public interest?

A development that is in the public interest would demonstrate that it is consistent with the

objectives of the particular standard and the objectives for development in that particular

zone.

It has been demonstrated previously that the proposal is consistent with the objectives of

the Development Standard (Section 3) and consistent with the Zone objectives (Section

4).

As outlined in the Planning Report attached the Development Application, the proposed

development supports the desired future character of this locality and is in keeping with

the character buildings along Lower Bent Street.



No public benefit would result from strict compliance with the standard in this instance.

6.4 The objection is well founded

For the reasons outlined in previous sections, the objection is well founded in this instance

and the granting an exception to the development standard can be supported in the

circumstances of the case.

7. CONCLUSION

The proposed development will be compatible with the surrounding land uses and desired

future character of the Neutral Bay area. The breach is only minor and is lower than the

existing building.

Strict compliance would serve no environmental grounds and make no meaningful

improvement to building design. Massing across the site (or the extent of building that

exceeds the height) is an unrelated issue and should not impact the appropriateness of

any variation to height on the site, particularly towards Lower Bent Street.

For this reason, strict compliance with the development standard is unreasonable and

unnecessary and the use of Clause 4.6 of NSLEP is available to Council in this instance.


For privacy reasons, the architectural plans have been removed

from this document prior to publishing on the web. The plans

attached to the hard copy report may be viewed at Stanton Library

during opening hours or at the Customer Service Centre in Council

Chambers between 9.00am and 4.00pm Monday to Friday.

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