Planning Report No. PLN12/09
Date of Meeting: 1/04/2009
1 DEVELOPMENT APPLICATION
- MODIFICATION TO AN APPROVED HORTICULTURAL ADVISORY CENTRE
83 BEECROFT ROAD, BEECROFT
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Development Application No: |
DA/285/2004/D |
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Description of Proposal: |
Section 96(2) modification to re-arrange the outdoor garden display area within the site and use of the existing building as a point of sale building. |
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Property Description: |
Lot 12 Sec 6 DP 758074 (No. 83) Beecroft Road, Beecroft |
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Applicant: |
Graham Ross Horticultural Consultants P/L |
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Owner: |
CGU Pty Ltd |
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Statutory Provisions: |
Hornsby Shire Local Environmental Plan 1994 Residential AS (Low Density – Sensitive Lands) Zone |
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Estimated Value: |
N/A |
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Ward: |
C |
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THAT Development Application No. 285/2004/D for modifications to an approved horticultural advisory centre at Lot 12, Section 6, DP 758074 (No. 83) Beecroft Road, Beecroft be approved subject to the conditions of consent detailed in Schedule 1 of this report.
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EXECUTIVE SUMMARY
1. The application seeks to modify DA/285/2004 for an approved horticultural advisory centre by re-arranging the outdoor garden display area within the site and the use of the existing building as a point of sale building.
2. The proposal does not comply with the Business Lands DCP in respect to car parking.
3. One submission has been received in respect of the application.
4. It is recommended that the application be approved.
HISTORY OF THE APPLICATION
The original development application DA/285/2004 was approved by Council on 17 November 2004 for the change of use of a heritage dwelling to a horticultural advisory centre, display garden and rotunda. The approved plans indicate that the rear half of the site, behind the car park, would be used for both the display and sale of plants.
On 16 November 2005, Council’s Planning Committee considered Section 96(2) Application DA/285/2004/A for the enclosure of an existing carport for use as a point of sale building. Council resolved:
THAT
1. Council proceed to issue an Order under Section 121B of the Environmental Planning & Assessment Act, 1979, in respect to non-compliance with Condition No. 11.
2. The Applicant be directed to demolish the illegal point of sale building and reinstate the carport as originally approved by Council.
3. The Applicant to comply with the approved conditions of consent including total compliance with the BCA requirements and the EPA Act 1979.
Condition No.11 requires that:
11. Deliveries to the site shall be made on site by light commercial vehicle only.
On 2 May 2007 Council advised its solicitor to defer Class 4 proceedings in the Land and Environment Court against the applicant for non-compliance with the terms and conditions of Development Consent DA/285/2004 to enable the submission of a further Section 96 Application.
On 13 August 2007 Section 96(2) Application DA/285/2004/C for modification to an approved horticultural advisory centre to enclose an existing carport for the purpose of a point of sale and planting of display gardens was refused under delegated authority on the following grounds:
1.0 The application is unsatisfactory pursuant to Section 96(2)(a) of the Environmental Planning and Assessment Act, 1979, as the proposed modification is not substantially the same development for which consent was originally granted, in that:-
1.1 The submitted plan Drawing No. 4430 W1B does not clearly differentiate the display garden planting area from the retail plant sales area.
1.2 The carport has been demolished and a new building erected 5m east of the carport site
The subject application was lodged on 18 January 2008 following an on-site meeting on 29 October 2007 attended by Council’s solicitor, town planner, the applicant and the applicant’s legal representative.
The current iteration of the application was accompanied by a Building Certificate application in respect to the proposed point of sale building. Council issued Building Certificate Approval BC/8/2008 on 24 September 2008 for the building as a Class 10a building (non-habitable building or structure). The approval followed advice from the applicant that the building would only be used for storage. The applicant’s legal representative has subsequently requested a condition of approval for the subject application, that the building be upgraded to a Class 6 Building (a shop or other building for sale of goods by retail).
HISTORY OF THE SITE
The site is identified as an item of environmental heritage in respect to the existing house known as ‘Mandalay’. The site was approved for a community centre use in accordance with DA/105/2000, however, the consent was not acted upon and has since lapsed.
The site is currently used by the applicant as ‘Beecroft Village Gardens’. Non-compliance with the development consent for DA/285/2004 has been previously referred to Council’s solicitor to instigate Class 4 Proceedings in the Land and Environment Court. The issues of non-compliance concern traffic safety with the use of large delivery vehicles, use of an unauthorised structure on the land as a point of sale and establishment primarily for retail plant nursery instead of display gardens. Legal action has been deferred pending determination of the subject application.
THE SITE
The site has an area of 1,619m2 and is located on the eastern side of Beecroft Road. The southern boundary of the site adjoins the Module shopping centre car park and Beecroft Commercial Centre. The rear and northern boundaries adjoin dwelling house lots. The site has an average fall of 10% to the rear boundary.
The site is currently occupied by Beecroft Village Gardens, which includes the use of the heritage house for a horticultural advisory centre. The area at the rear of the property has not been used for the display and sale of plants for a substantial period of time.
THE PROPOSAL
The proposal is to re-arrange the display garden area by reducing the area of permanent display gardens, increasing the area of soft paving and expanding the area for the retail plant sales. The modification also includes the use of an existing building as a point of sale building.
The proposal necessitates Council endorsing an amended site layout plan (attached)
ASSESSMENT
The development application has been assessed having regard to the ‘2005 City of Cities Metropolitan Strategy’, the ‘North Subregion (Draft) Subregional Strategy’ and the matters for consideration prescribed under Section 79C of the Environmental Planning and Assessment Act 1979 (the Act). Subsequently, the following issues have been identified for further consideration.
1. STRATEGIC CONTEXT
1.1 Metropolitan Strategy – (Draft) North Subregional Strategy
The Metropolitan Strategy is a broad framework to secure Sydney’s place in the global economy by promoting and managing growth. It outlines a vision for Sydney to 2031; the challenges faced, and the directions to follow to address these challenges and achieve the vision. The draft North Subregional Strategy acts as a framework for Council in the preparation of a new Principal LEP by 2011.
The draft Subregional Strategy sets the following targets for the Hornsby LGA by 2031:
· Employment capacity to increase by 9,000 jobs; and
· Housing stock to increase by 11,000 dwellings.
The proposed modification is consistent with the approved development in respect to employment and in meeting the requirements of the Strategy.
2. STATUTORY CONTROLS
Section 79C(1)(a) requires Council to consider “any relevant environmental planning instruments, draft environmental planning instruments, development control plans, planning agreements and other prescribed matters.”
2.1 Environmental Planning & Assessment Act, 1979 - Section 96
The application has been lodged pursuant to Section 96(2) of the Act which allows the modification of a consent, where the proposal has been notified in accordance with regulatory requirements, is substantially the same development as approved and Council considers the application with regard to Section 79C of the Act and any submissions.
The application was notified pursuant to Council’s Notification & Exhibition DCP. There was one submission received in response to the public exhibition of the proposal.
The proposed modification results in a reduction of the garden display area and an increase in the retail plant sale area. The site would continue to be used for the purpose of a horticultural advisory centre, however, is likely to include increased sales of retail plants.
The proposed modification is consistent with the original consent which envisaged that the use of the site as a horticultural advisory centre would also include the retail sale of plants and garden products. Conditions 1 & 2 were recommended to this effect.
1. The applicant is to ensure the collection and/or return of any trolleys for customer use in the sale of garden products.
2. Customers with trolleys for use in the sale of garden products are to be assisted by staff to the customer's vehicles, to ensure the safety of pedestrians.
2.2 Hornsby Shire Local Environmental Plan 1994
The subject land is zoned Residential AS (Low Density – Sensitive Lands) under Hornsby Shire Local Environmental Plan 1994 (HSLEP). The objectives of the zone are:
“(a) to provide for the housing needs of the population of the Hornsby area.
(b) to promote a variety of housing types and other land uses compatible with a low density residential environment and sensitive to the land capability and established character of this environment.
(c) to provide for development that is within the environmental capacity of a sensitive low density residential environment.”
The proposed modification and the approved development are defined as ‘business premises’ and ‘retail plant nursery’ under the HSLEP and are prohibited uses in the zone.
Clause 11 of HSLEP allows for development near zone boundaries where development is prohibited by zoning but not inconsistent with the aims and objectives of HSLEP. The clause provides for the approved development and the proposed modification. The subject site is located within 20m of land zoned Business A (General) where the development for ‘business premises’ and ‘retail plant nursery’ are permitted with consent. Accordingly, Council is able to consider the proposal within a development application.
Clause 18 of HSLEP sets out heritage conservation provisions within the Hornsby LGA. The site includes a heritage item of local significance and is within the Beecroft Cheltenham Heritage Conservation Area. The application includes a heritage assessment in accordance with the provisions under Clause 18.
2.3 Business Lands Development Control Plan
The proposed development has been assessed having regard to the relevant performance and prescriptive design standards within Council’s Business Lands Development Control Plan (Business Lands DCP). The following table sets out the proposal’s compliance with the prescriptive standards of the Plan:
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Business Lands Development Control Plan |
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Control |
Proposal |
Requirement |
Compliance |
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Site Area |
1,619m2 |
N/A |
N/A |
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Floor Area |
Advisory Centre – 317m2 Point of Sale – 32.7m2 |
N/A |
N/A |
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Floor Space Ratio |
0.22:1 |
1:1 |
Yes |
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Car parking |
5 spaces |
15 spaces |
No |
As detailed in the above table, the proposed development does not comply with the car parking prescriptive standard. The non-compliance with the car parking development standard is discussed below.
2.4 Car Parking
The approved development includes 5 car parking spaces. The approved development was assessed on the basis of 317.5m2 of business floor area @ 1 space per 40m2 (8 spaces) and 431m2 of outdoor display gardens and 300m2 of retail sales @ 1 space per 130m2 (6 spaces), requiring a total of 14 spaces.
Council’s Car Parking DCP applies a car parking rate of 1 space per 130m2 for both outdoor display areas and retail sales. Therefore the composition of display gardens versus the retail sale of plants within the site would not result in a change to the overall parking demand.
The proposed point of sale building has a floor area of 32.7m2 and results in an additional requirement for 1 car parking space. The approved development relied on a Traffic and Parking Report which calculated a parking requirement of 5 spaces, as provided on site. In recognition of the low key nature of the development and the traffic safety issue at the Beecroft Road frontage, the following condition was imposed:
9. Customer car parking shall not be provided on site.
The applicant does not propose to modify condition No.9 of the consent.
It is considered that the relocation of the point of sale building (approved under Building Certificate No. BC/8/2008) would not generate additional car parking demands. Accordingly, it is considered that there is no justification (or need) to require an additional on-site carparking space.
The proposed modification does not significantly change traffic and road safety impacts from the status quo.
The proposed re-arrangement of the garden display area would result in a minor increase in demand for car parking within the vicinity of the site. The horticultural advisory centre is located adjoining the Beecroft Village Commercial Centre and customer car parking is available in the Centre and surrounding streets.
In order to address Council’s previous concerns in relation to large delivery trucks accessing the site, it is recommended that condition No. 11 be amended to provide a greater level of certainty with respect to enforcement of conditions of consent as follows:
“11. Deliveries shall be made on site only by a small rigid vehicle as detailed in AS2890.2-2002 - Parking Facilities.”
2.5 Heritage Development Control Plan
The property is listed as a heritage item (house) of local significance under the provisions of Schedule D (Heritage Items) of the Hornsby Shire Local Environmental Plan (HSLEP) 1994. The inventory sheet for the property states that its significance relates to a “rare example in the area of a late Victorian period house in traditional Georgian style”. The property is also located within the Beecroft/Cheltenham Heritage Conservation Area listed under the provisions of Schedule E (Heritage Conservation Areas) of the HSLEP 1994.
The existing building, proposed to be used as retail building, is located toward the rear of the heritage house and at a lower ground level, such that it is not a dominant element of the property. The proposed retail structure would be located at a sufficient distance from the heritage listed house that the proposal would not result in an adverse impact upon the significance of the heritage listed property or the surrounding Heritage Conservation Area.
The existing building, proposed for use as a point of sale building, was the subject of a Building Certificate BC/8/2008 issued by Council on 24 September 2008.
3. ENVIRONMENTAL IMPACTS
Section 79C(1)(b) of the Act requires Council to consider “the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality”.
3.1 Natural Environment
The proposed modification would not result in the removal of any trees or impact on the natural environment.
3.2 Built Environment
The proposed modifications to the garden display area would not have any impacts on the built environment. Council has issued a Building Certificate Approval on 24 September 2008 for the building which is proposed to be used for point of sales.
The Point of Sale building is located to the rear of the heritage dwelling and is set back 1 metre from the side boundary. The building setbacks are considered appropriate having regard to the location of the adjoining dwelling house and the Residential AS (Low Density – Sensitive Lands) Zone.
All other modifications are limited to the layout of the display area at the rear of the site.
3.3 Social Impacts
The proposal would not result in social impacts.
3.4 Economic Impacts
The proposal would not result in economic impacts.
4. SITE SUITABILITY
Section 79C(1)(c) of the Act requires Council to consider “the suitability of the site for the development”.
The site is approved for use as a horticultural advisory centre which includes the retail sale of plants. The proposed modifications to the development do not alter the suitability of the site to accommodate the development.
5. PUBLIC PARTICIPATION
Section 79C(1)(d) of the Act requires Council to consider “any submissions made in accordance with this Act”.
5.1 Community Consultation
The proposed modification to the approved development was placed on public exhibition and was notified to adjoining and nearby landowners between 30 January 2008 and 13 February 2008 in accordance with Council’s Notification and Exhibition Development Control Plan. During this period, Council received one submission. The map below illustrates the location of properties notified, and that made a submission, in close proximity to the development site.
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NOTIFICATION PLAN |
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• PROPERTIES NOTIFIED
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X SUBMISSIONS RECEIVED |
PROPERTY SUBJECT OF DEVELOPMENT |
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The submission objected to the development, generally on the grounds that the applicant is seeking retrospective approval for unauthorised development.
Comment: Council has issued a Building Certificate for the relation of the point of sale structure. Council has yet to approve its use and therefore, the applicant is not seeking retrospective approval.
6. THE PUBLIC INTEREST
Section 79C(1)(e) of the Act requires Council to consider “the public interest”.
The public interest is an overarching requirement, which includes the consideration of the matters discussed in this report. Implicit to the public interest is the achievement of future built outcomes adequately responding to and respecting the future desired outcomes expressed in environmental planning instruments and development control plans.
It is considered the proposed modification is consistent with the original consent and is therefore not inconsistent with the public interest.
CONCLUSION
The approved development is for the use of the site as a horticultural advisory centre and has generally been implemented in accordance with the consent, other than the point of sale building and the planting of display gardens. The proposed modification seeks to re-arrange the outdoor garden display area and increase the proportion of plants for retail sale.
The proposed modification would result in an additional requirement for 1 car parking space associated with the point of sale building. The increase in demand for car parking is minor and in accordance with the approved condition of consent, customer car parking would not be provided on the site.
The proposed modification is substantially the same development as approved and can be considered pursuant to S96(2) of the Act. Accordingly, it is recommended that the application be approved subject to the conditions held at Schedule 1.
Note: At the time of the completion of this planning report, no persons have made a Political Donations Disclosure Statement pursuant to Section 147(3) of the Environmental Planning and Assessment Act 1979 in respect of the subject planning application.
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Rod Pickles Manager - Assessment Team 2 Planning Division |
Scott Phillips Executive Manager Planning Division |
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1.View |
Locality Plan |
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2.View |
Approved Plan |
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3.View |
Proposed Plan |
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4.View |
Development Consent DA/285/2004 |
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File Reference: DA/285/2004/D
Document Number: D01097394
SCHEDULE 1
Amendment to the description of the proposal by deleting reference to:
“plans dated 12 November, 2004 (Document No. D000742236).”
Addition of the following conditions:
1. Addition of new condition 35 as follows:
35. The development must be carried out in accordance with the following plans and documentation listed below and endorsed with Council’s stamp, except where amended by other conditions of this consent:
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Plan No. |
Drawn by |
Dated |
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4430 W1c |
Peter Hall Architects P/L |
Nov, 04 |
2. Deletion of condition No. 11 and replacement with new condition as follows:
11. Deliveries shall be made on site only by a small rigid vehicle as detailed in AS2890.2-2002 - Parking Facilities.
- END OF CONDITIONS -
