APPLICANT: the A2 Milk Company

Item ____LPP03______- REPORTS -______1/07/2020______

NORTH SYDNEY COUNCIL REPORTS

NSLPP MEETING HELD ON 1/7/2020

Attachments: 1. Site plan 2. Architectural Plans 3. Clause 4.6 statement

ADDRESS/WARD: 182-186 Blues Point Road, McMahons Point (W)

APPLICATION No: DA 82/20

PROPOSAL: Fit out on Levels 3 and 4 and associated works including an interconnecting staircase

PLANS REF:

Plan No. Issue Date Title Drawn by Received L03-A099 B 29.11.2019 RCP demolition plan level 03 Futurespace 15/04/2020 L03-A100 B 29.11.2019 Demolition plan level 03 Futurespace 15/04/2020 L03-A101 C4 26.03.2020 Partition plan level 03 Futurespace 25/052020 L03-A102 C 29.11.2019 Reflected ceiling plan level 03 Futurespace 15/04/2020 L03-A103 C 29.11.2019 Furniture & joinery plan level 03 Futurespace 15/04/2020 L03-A104 A 29.11.2019 Finishes plan level 03 Futurespace 15/04/2020 L04-A099 B 29.11.2019 RCP demolition plan level 04 Futurespace 15/04/2020 L04-A100 B 29.11.2019 Demolition plan level 04 Futurespace 15/04/2020 L04-A101 C3 26.03.2020 Partition plan level 04 Futurespace 25/052020 L04-A102 C 29.11.2019 Reflected ceiling plan level 04 Futurespace 15/04/2020 L04-A103 C 29.11.2019 Furniture & joinery plan level 04 Futurespace 15/04/2020 L04-A104 A 29.11.2019 Finishes plan level 04 Futurespace 15/04/2020 A700 A 02.12.2019 Levels 03- 04 stair Futurespace 25/052020 A701 A 02.12.2019 Levels 03- 04 stair Futurespace 25/052020 A702 A 02.12.2019 Levels 03- 04 stair Futurespace 25/052020

OWNER:

APPLICANT: The A2 Milk Company

AUTHOR: David Hoy, Team Leader Assessments

DATE OF REPORT: 11 June 2020

DATE LODGED: 15 April 2020

AMENDED: 25 May 2020

RECOMMENDATION: Approval

Report of David Hoy, Team Leader Assessments Page 2 Re: 182-186 Blues Point Road, McMahons Point

EXECUTIVE SUMMARY

This development application seeks approval for fit out on Levels 3 and 4, and associated works including an interconnecting staircase, in an existing heritage listed commercial building.

The application is reported to the North Sydney Local Planning Panel for determination as the site is subject to an 8.5m building height development standard pursuant to Clause 4.3 of North Sydney Local Environmental Plan 2013, however the proposed works, at 17.49m in height, exceed this standard by greater than 10%.

The assessment has considered the performance of the application against Council’s planning requirements.

The application proposes internal works including fitout works and installation of new stairs between Levels 3 & 4. The proposal does not affect the external form or heritage significance of the building. There are no unreasonable impacts to neighbours' views, sun, privacy or amenity. There are no unreasonable impacts to the street or local area.

A request to vary the Building Height development standard has been submitted pursuant to Clause 4.6 of NSLEP 2013 and assessed to be justifiable in the circumstances of the case and well founded on planning grounds. The proposal is within the existing building height and envelope and will not give rise to any additional breaches or increase in development yield. The variation is thus considered technical in nature.

Following this assessment the development application is considered to be reasonable in the circumstances and is recommended for approval subject to conditions.

Re: 182-186 Blues Point Road, McMahons Point - DA 82/20 Page 3

LOCATION MAP

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1 3 -51 S 35 SP P 8 1 2 5 1 51 4 38 60 3 3 7 1 Property/Applicant Submittors - Properties Notified Report of David Hoy, Team Leader Assessments Page 4 Re: 182-186 Blues Point Road, McMahons Point

DESCRIPTION OF PROPOSAL

The application seeks approval for demolition and fit out of existing tenancies on Levels 3 and 4 and associated works including construction of an interconnecting staircase between floor levels.

The proposed described in detail:

This application seeks approval for the following development:

• The demolition of existing fit outs including partitions, doors and furniture; and the replacement of damaged ceiling and tile grids on Level 3 and Level 4; • A two (2) floor fit out on Level 3 and Level 4; and • An interconnecting staircase between Level 3 and Level 4.

1. Demolition

Minor internal demolition works are proposed to facilitate the office fit out to the interiors of level 3 and 4. Level 3 will require the removal of existing fit out partitions, doors, furniture, fittings and equipment. Surfaces will then be prepared for the new proposed fit out. Level 4 will require the removal of furniture… Additionally, the development will require the demolition of existing ceiling grid and tiles to make way for the interconnecting staircase. Ceiling grid and tiles will be retained where possible, with the exception of those that are damaged (which will be replaced), or necessary for the proposed development (such as the proposed staircase)…

2. Proposed fit-out

The proposed fit out will facilitate the ongoing use of the office space on levels 3 and 4. The proposed fit out will provide a more ergonomic workspace that includes meeting rooms, desk space, open areas, a kitchen space and an interconnecting staircase between levels 3 and 4… The built form will remain the same as currently exists on site, as there will be no changes to the exterior of the site. Internal alterations will only occur on level 3 and 4 of the building.

In normal circumstances office partitions can be approved by way of Complying Development Certification. However this building’s heritage listing mandates a development application.

STATUTORY CONTROLS

North Sydney Local Environmental Plan 2013 (NSLEP 2013) • Zoning – IN2 Light Industrial • Lot size – B (Min. 230m2) • Height of building – I (Max. 8.5m) • Heritage o Item of Heritage – I0422, Commercial Building, 182 Blues Point Road o In Vicinity of Item of Heritage – - 163 Blues Point Road - 179 Blues Point Road - 68 Victoria Street o Conservation Area – No • Environmental Planning & Assessment Act 1979 • State Regional Environmental Plan (Sydney Harbour Catchment) 2005 • Local Development

Report of David Hoy, Team Leader Assessments Page 5 Re: 182-186 Blues Point Road, McMahons Point

POLICY CONTROLS

North Sydney Development Control Plan 2013 (NSDCP 2013) North Sydney Community Engagement Protocol

Figure 2A: Zoning and Lot size maps

Figure 2B: Height and Heritage maps

DESCRIPTION OF LOCALITY

The site is legally described as Lot 1 in Deposited Plan 85 103, Lot B in DP 388 442, and Lot 1 in DP 63 515 and is commonly known as 182-186 Blues Point Road, McMahons Point. The site is located within the McMahons Point Business Precinct, on the western side of Blues Point Road, the northern side of Victoria Street and the eastern side of Holt Street.

The site is approximately 1,187sqm in size and is irregular in shape. The site is occupied by a five storey commercial building including ground floor retail and other uses.

The surrounding area is characterised by a variety of commercial buildings, residential accommodation and community uses.

Report of David Hoy, Team Leader Assessments Page 6 Re: 182-186 Blues Point Road, McMahons Point

Figure 3A: Aerial image

RELEVANT HISTORY

Site history

The commercial building has been the subject of numerous previous development applications and complying development certificates. A search of Council’s online Application Tracking webpage indicates the following applications for levels 3 and 4 at the site:

• Development Application 58/17 for a level 4 office fitout was approved by Council under delegated authority on 6 March 2017 and subsequently subject to Construction and Occupation Certificates.

• DA 483/10 for a level 4 commercial internal fitout works including full height partitioning & associated services to meet all relevant codes & standards was approved by Council under delegated authority on 5 December 2010 and subsequently subject to Construction and Occupation Certificates.

• DA 386/10 for level 4 refurbishment was approved by Council under delegated authority on 3 November 2010 and subsequently subject to Construction and Occupation Certificates.

• DA 87/10 to build internal offices, boardroom and work areas in a commercial building for use in normal business hours upon level 3 was approved by Council under delegated authority on 6 April 2010 and subsequently subject to Construction and Occupation Certificates.

Report of David Hoy, Team Leader Assessments Page 7 Re: 182-186 Blues Point Road, McMahons Point

In total, the site has been subject to approximately 25 applications since 2016. The applications were mostly for office fit-outs and approved under delegated authority.

Subject application

• 15 April 2020: The subject application was submitted to Council.

• 24 April 2020: Council posted a letter to the applicant requesting additional information addressing the following:

1. Plans The plans did not include dimensions. Council also requires elevation and section plans detailing the location and height of the proposed works within the building.

2. Clause 4.6 Objection Should your development application involve works that exceed the building height control standard pursuant to Clause 4.3 of North Sydney Local Environmental Plan 2013 (NSLEP 2013), including works only within an existing building, a written justification for the non- compliance under Clause 4.6 NSLEP 2013 is required to allow Council to legally consider this non-compliance.

3. Parking In the absence of floorplate dimensions, Gross Floor Area calculations and any basement level plans, Council is unable to verify that the proposal meets the parking requirements contained in Sections 2.5 and 10.2 in North Sydney Development Control Plan 2013.

• 1 May 2020-15 May 2020: The application was notified to adjoining properties.

• 25 May 2020: The applicant submitted additional information including a cover letter, a Clause 4.6 statement, and amended plans comprising dimensioned proposed floor plans, section plans and an existing basement plan.

NOTIFICATION

On 25 May 2020, the applicant submitted additional information including a cover letter, a Clause 4.6 statement, and amended plans comprising dimensioned proposed floor plans, section plans and an existing basement plan.

Section 3.6 of Council’s Community Engagement Protocol does not require the re-notification of amended plans which do not increase previously proposed impacts, or introduce a new impact, on neighbouring properties:

An applicant may amend an application at any time before Council has made its final determination… Where the amendments, in the Council’s opinion, do not increase or lessen the adverse effect on adjoining or neighbouring land, Council may choose not to renotify or readvertise the application.

Report of David Hoy, Team Leader Assessments Page 8 Re: 182-186 Blues Point Road, McMahons Point

The application seeks consent for fit out on Levels 3 and 4 and associated works including an interconnecting staircase. The amended plans include greater detail but do not propose discernible changes to the original proposal. The application does not propose new changes to the existing use, its hours of operation, or external changes to the building.

The application satisfies Section 3.6 of the Protocol and has not been re-notified. Further, no submissions have been received during the course of the assessment.

REFERRALS

Internal Referrals

Building

On 22 April 2020, Council referred the application to its Building Officer for assessment with respect to the National Construction Code (NCC)/Building Code of Australia (BCA). On 27 April 2020 Council’s Building Officer commented:

The development application seeks approval for internal alterations and additions (office fit out) to a tenancy located on levels 3 and 4 of an existing commercial building including the construction of an interconnecting staircase between levels 3 and 4. The building is classified by the NCC BCA 2019 as a class 5 building.

A search of Council’s records revealed the premises forms part of Council’s Annual Fire Safety Statement Register Program and the latest AFSS submitted to Council indicates that adequate fire safety measures are installed within the building and as such no upgrade of the building is required pursuant to Clause 94 of the Environmental Planning & Assessment Regulations 2000.

The Disability (Access to Premises – Buildings) Standards 2010, Part 4, Clause 4.3 Lessees, does not require for Council to ensure that the affected part of the building complies with these Standards.

A detailed assessment of compliance with the Building Code of Australia 2019 will be undertaken by an appropriately accredited certifier at the Construction Certificate Stage of the proposed development. Additionally, a Fire Safety Schedule is to be prepared by the certifier and accompany the Construction Certificate.

Generally, the proposed works are able to comply with the requirements of the NCC - BCA 2019, Volume 1.

Given the above, the following Standard Condition is recommended:

Standard Condition F1 - Building Code of Australia

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

(Reason: Prescribed - Statutory)

Report of David Hoy, Team Leader Assessments Page 9 Re: 182-186 Blues Point Road, McMahons Point

Heritage

The Office of Environment & Heritage identifies the following for the site:

Name of item: Commercial building Other name/s: Radio 2SM Office Building Type of item: Built Group/Collection: Commercial Category: Commercial Office/Building

Statement of significance

182-186 Blues Point Road is an unusual example of a nine storey, late Twentieth Century commercial building completed in 1961 as the headquarters of the Kalamazoo (Australia ) Limited. The building was designed by Rupert V. Minnett & Cullis Hill, Peterson & Powell, in the Structuralist style and is a dominant building is the local streetscape.

An assertive structure which at the time of its erection was regarded as avant-garde.

Description

Designer/Maker: Rupert V Minnett & Cullis-Hill, Peterson & Powell

Builder/Maker: James S. Samson Pty Limited

Physical description: An assertive concrete framed office building of 8 storeys above street level. The structure is remarkable for a series of raking columns by which, above second storey level and beyond the boundary, the upper levels project dramatically from the main rectangular core. To one side there is a stair/lift tower. The location of the shear core of the structure, remote from the centre (the usual location in an office tower) is very unusual. This building is designed in the Late 20th-century structuralist style.

Physical condition: Good

Modifications and dates: Alterations to the ground floor facade have been carried out in 1993.

Current use: Commercial Offices

History

Historical notes: 182-186 Blues Point Road was built in 1961 by Kalamazoo Australia Limited, as their headquarters in Sydney. The Kalamazoo company was established in Birmingham, England in 1904 by Oliver Morland who took out the British patent on a system of loose-leaf binding that had been invented in Kalamazoo in the United States. Kalamazoo (Australia) Limited was established in Australia by Charles E. Howie in 1919 to market the binders in Australia. The site was occupied by a shop and residence. Approval for the new building was given in 1959. Construction commenced the same year and the building was completed in 1961. It appears that the company occupied only parts of the upper floors .

Assessment of Significance

a) Historical, c) Aesthetic, f) Rarity and g) Representativeness: Local b) Associative and e) Research: Local

Report of David Hoy, Team Leader Assessments Page 10 Re: 182-186 Blues Point Road, McMahons Point

Figure 4: North Sydney Council Heritage Database image

Conservation Planner’s comments

The following comments have been provided:

1. Heritage status and significance

The site is:

• identified as heritage item (I 0422) and is significant for being ‘an unusual example of a nine storey, late Twentieth Century commercial building completed in 1961 as the headquarters of the Kalamazoo (Australia) Limited. The building was designed by Rupert V Minnett & Cullis Hill, Peterson & Powell, in the Structuralist style and is a dominant building in the local streetscape. An assertive structure which at the time of its erection was regarded as avant-garde. • is in the close vicinity of the heritage items at 62 Victoria Street (I 0511), 163 Blues Point Road (I 0417), 167 and 169 Blues Point Road (I 0418 and I0418), 176 and 178 Blues Point Road (I 00420) and in close proximity to the Union, Bank and Thomas Streets conservation area (CA 15). • not situated within any conservation area.

2. Considerations

An assessment of the proposal has been undertaken in relation to NSLEP 2013 Clause 5.10 Heritage conservation and NSDCP 2013 Section 13 Heritage and Conservation as follows:

Existing on the site is a Structuralist commercial building that was completed in 1961. It is locally significant and has been assessed for its historical, associative, aesthetic, rarity, representativeness and research potential. The building is concrete framed and the building structure enables each of the levels to have changeable arrangements within them. This is reflected in the numerous development applications for internal fit-outs and partition installations that have occurred over time but without any impact on the building structure itself. The building structure remains largely intact but for the alterations to the ground floor façade undertaken in 1993.

Report of David Hoy, Team Leader Assessments Page 11 Re: 182-186 Blues Point Road, McMahons Point

The subject proposal is for new commercial fit-out works to levels 3 and 4 for the A2 Milk tenancy. A commercial office fit-out at level 4 was approved under DA 58/17. These works did not involve intervention to any of the significant structure of the building. The subject proposal seeks to upgrade its fit-out and is acceptable on heritage grounds subject to proposed partitions continuing to relate to mullions of the building fenestration and are reversible. The kitchen fit- out has been successfully completed.

Although the works are wholly internal, the major part of the works relate to the demolition of fabric between levels 3 and 4. The accompanying HIS (prepared by Heritage 21 dated February 2020) does not provide sufficient analysis to support any demolition of structural fabric to create interconnection between floors and in relation to the access arrangements of the initial building design. The demolition of fabric between levels 3 and 4 will impact on the architectural integrity of the 1960s Structuralist building and is not supported on heritage grounds.

The proposal is supported in part only and it is recommended that the internal demolition of existing fabric between levels 3 and 4 be deleted.

3. Conclusion and Recommendations:

An assessment of the proposal for 182-186 Blues Point Road, McMahons Point has been undertaken in terms of North Sydney LEP 2013 Part 5 Clause 5.10 Heritage conservation and North Sydney DCP 2013 Section 13 Heritage and Conservation in relation to the proposed changes to levels 3 and 4 of the building which are supported in part only. That is, for the internal fit-outs of levels 3 and 4 as this work is consistent with the flexibility of use of each of the floors of the building.

The works relating to the demolition of fabric between levels 3 and 4 is contrary to the objectives contained in NDCP 2013 section 13.5 Protecting heritage significance and therefore not supported on heritage grounds.

The following conditions are recommended:

Site Specific Conditions Prior to the issue of a CC:

1. That the office partitions shall relate to the mullions and that the installations shall remain demountable and not be of a permanent nature. 2. That the proposed demolition of structural fabric to create a connecting stair between levels 3 and 4 of the tenancy shall be deleted and excluded from the proposed development.

(Reason: To retain the architectural integrity of the heritage item)

Standard Conditions

3. A4 No demolition of extra fabric 4. E11 Removal of extra fabric

Planner’s Comment

The application was referred to Councils Conservation Planner who has raised no in principle objection to the proposed fit-out work but has raised some concern with regard to the proposed installation of inter floor stairs between Level 3 and Level 4 due to the loss of concrete and fabric associated with the original construction of the building.

Report of David Hoy, Team Leader Assessments Page 12 Re: 182-186 Blues Point Road, McMahons Point

The applicant’s Heritage consultant has provided a heritage impact assessment which has considered the potential impacts of the proposed demolition work on the significance of the building. The HIS includes consideration of impacts arising from the cutting of the original concrete slab and removal of ceiling and flooring within the building. The proposed stair works are supported in the applicant’s HIS on the basis that the works are “reversible”.

Figures 5 & 6: Interior views of the existing building detail the existing floor slab and suspended ceiling panels in the location of the proposed stairs (indicated) and views from Level 3.

Conclusion – Heritage Conservation

The subject building is listed a heritage item in NSLEP 2013 Schedule 5. The building’s heritage significance is predominantly related to its external, architectural and aesthetic form. The building has also previously been altered at the entry and with numerous building fitouts.

The Conservation objectives under Clause 5.10 of NSLEP 2013 requires that Council must have regard for the impact of the proposed works on the heritage significance of the building.

Council’s Conservation Planner has raised concern about the loss of building fabric associated with the cutting of existing concrete slabs and consequential loss of fabric. However it is not considered that these works are so significant as to diminish the heritage significance of the building. The views of the applicant’s heritage consultant that the works are reversible also are not supported.

The long-term viability of the building includes the need for adaptation to contemporary office use, with the need for improved amenity, accessibility and adaptability of commercial floor space.

The proposed installation of stairs between Level 3 and Level 4 would enable future tenants with larger staffing needs to occupy the space without reliance on existing lift cores for staff movement. The proposed works should not be acknowledged as an important adaptation to provide contemporary commercial need. The proposed demolition work and potential future replacement would not result in any significant impact to the heritage significance of the building, which will remain apparent in its external form.

Report of David Hoy, Team Leader Assessments Page 13 Re: 182-186 Blues Point Road, McMahons Point

The proposed development is therefore considered to satisfy the relevant provisions of Clause 5.10 of NSLEP 2013 and Section 13 of NSDCP 2013 relating to works to a heritage item. Appropriate conditions have been recommended to ensure appropriate measures to be implemented during construction work.

Other

The application was not considered to raise any environmental health, engineering, stormwater, geotechnical, railway, traffic, landscaping or other matters requiring specialist comment.

CONSIDERATION

The relevant matters for consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979, are assessed under the following headings:

State Environmental Planning Policy No. 55 and Contaminated Land Management Issues

The application does not propose alterations, additions or use at ground level or penetration of ground.

State Environmental Planning Policy No. 64 – Advertising & Signage

The application does not propose signage.

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

The proposal is consistent with the aims of the SREP.

North Sydney Local Environmental Plan 2013

1. Permissibility within the zone

The site is zoned IN2 Light Industrial under the provisions of NSLEP 2013. Development for the purposes of Office Premises is permissible with the consent of Council. Demolition is permissible with consent pursuant to clause 2.7 of the LEP.

2. Aims of Plan and Zone Objectives

Aims of Plan include:

(2) (a) to promote development that is appropriate in 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 new development is compatible with desired future character in terms of bulk, scale and appearance,

Report of David Hoy, Team Leader Assessments Page 14 Re: 182-186 Blues Point Road, McMahons Point

(i) to ensure that new development does not adversely affect residential amenity in terms of visual and acoustic privacy, solar access and view sharing,

(f) to identify and protect the natural, archaeological and built heritage of North Sydney and ensure that development does not adversely affect its significance,

Clauses 2.3 and the Land Use Table contained in NSLEP 2013 provide for the particular objectives of the IN2 zone:

(a) To provide a wide range of light industrial, warehouse and related land uses.

(b) To encourage employment opportunities and to support the viability of centres.

(d) To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.

(e) To support and protect industrial land for industrial uses.

(f) To encourage a mix of lower scale housing types.

(g) To permit development that is compatible with the scale and character of the surrounding residential area.

The application seeks approval for fit out on Levels 3 and 4 and associated works including an interconnecting staircase. The proposed floorplate includes an open plan layout and small & large quiet, informal and formal meeting rooms and areas to the sides. The proposal does not include alterations to the type of flooring, internal heights, windows, external walls or external building form.

The building’s heritage significance is associated with its external form. The proposed alterations do not appear to be easily reversed but will not affect the building externally. The floors have been altered previously and do not appear to contain fabric that contains or that is potentially contains heritage significance.

The application only proposes internal works and will not affect neighbouring solar access, views, visual privacy or acoustic privacy. The proposal maintains the existing office use. The interconnecting staircase reduces total floorspace but will provide direct between the two levels and facilitate occupation by of the floors by a single larger tenant. The open plan scheme could be altered at will and, in future if desired, room partitions could be altered without structural change to the building.

The alterations meet contemporary amenity standards and are not inappropriate where the building comprises a multi-storey commercial building that is at the northern end of the McMahons Point Business Precinct and near North Sydney railway station. The proposal is consistent with the aims of plan and zone objectives.

Report of David Hoy, Team Leader Assessments Page 15 Re: 182-186 Blues Point Road, McMahons Point

3. LEP Compliance table

The application has been assessed against the relevant principal development standards contained in Part 4 of NSLEP 2013 as indicated in the following compliance table.

STATUTORY CONTROL – North Sydney Local Environmental Plan 2013

Mixed Use Existing Proposed Control Complies Minimum Lot Size (cl.4.1) 1,187sqm total site area No change 230sqm N/A Building Height (cl.4.3(2)) (max) Six storeys 17.49m 8.5m No

4. Building Heights

The maximum building height for the site is 8.5m pursuant to clause 4.3 of NSLEP 2013. The existing building height and the location of proposed works at a building height of 17.49m above ground level (existing) do not comply with the development standard.

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 in accordance with the requirements outlined in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009, as against the requirements of clause 4.6 and the objectives of the building height control in clause 4.3 of the LEP, discussed as follows:

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

The application seeks approval for fit out on Levels 3 and 4 and associated works including an interconnecting staircase. The proposal does not include additions or alterations to the external building form. The proposal will not affect the structural integrity and therefore the ultimate longevity of the building.

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

The application only proposes internal works and will not affect neighbouring solar access, views, visual privacy or acoustic privacy.

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

The application only proposes internal works and will not affect neighbouring solar access, views, visual privacy or acoustic privacy.

Report of David Hoy, Team Leader Assessments Page 16 Re: 182-186 Blues Point Road, McMahons Point

(d) to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings.

The application only proposes internal works and will not affect neighbouring solar access, views, visual privacy or acoustic privacy.

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

The alterations are within the existing building. The proposal does not include additions or alterations to the external building form.

(f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area.

The proposed building height variation has been assessed against the requirements of clause 4.6(3), discussed as follows:

(a) That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

The development standard is considered reasonable and necessary for the site and surrounding area as part of ensuring the heritage item is maintained and not replaced, however the standard is considered unreasonable where the proposed alterations are wholly contained within the existing building and do not involve any external works.

(b) That there are sufficient environmental planning grounds to justify contravening the development standard.

The proposal facilitates the continuation of the existing office use of the building with the works providing for improved internal amenity that is consistent with contemporary office needs and which enables a more efficient and healthy office environment.

The proposal would not affect the external form or heritage significance of the building. There are no unreasonable impacts to neighbours' views, sun, privacy or amenity. There are no unreasonable impacts to the street or local area.

The development standard is considered to act as an additional measure to restrict redevelopment of the site and thereby retain the existing building that constitutes a heritage item; However, in consideration of the above, it is concluded that the proposed development will not have any material adverse impacts on neighbouring properties arising from the proposed Building Height.

Report of David Hoy, Team Leader Assessments Page 17 Re: 182-186 Blues Point Road, McMahons Point

The objectives of the Building Height control are achieved notwithstanding non- compliance with the control. In this regard, strict compliance with the development standard is considered to be unreasonable and unnecessary in the circumstances and sufficient environmental planning grounds are promoted in support of the variation.

The variation sought under clause 4.6 of the LEP is considered to be well founded and is supported in this case.

5. Miscellaneous Provisions

5.1 Heritage conservation

Objectives of 5.10 of NSLEP 2013 include to conserve the heritage significance of heritage conservation areas, including associated fabric, settings and views. The consent authority must, before granting consent to applicable development within a conservation area, consider the proposed development's effect on heritage significance. The consent authority may also require a heritage management document to assess the development's effect.

The site is a heritage item and in the vicinity of heritage items.

The building’s heritage significance is associated with its external form. The proposed alterations do not appear to be easily reversed but will not affect the building externally, the curtilage of and views to surrounding items, or the existing character of the area. The floors have been altered previously and do not appear to contain fabric that contains or that is potentially contains heritage significance.

5.2 Suspensions of Covenants, Agreements and Similar Instruments

The application did not include a survey plan or demonstrate whether any search for covenants, easements or restrictions upon the site had been made.

The provisions of Clause 1.9A of NSLEP 2013 allows consent to be granted for the proposed development despite any covenant or restriction on the title.

North Sydney Development Control Plan 2013

The proposal relates to Parts B and C of NSDCP 2013. The following sections assess the proposal with respect to:

• Part B Section 2 Commercial and Mixed Use Development, • Part B Section 10 Car Parking and Transport, • Part B Section 13 Heritage and Conservation, and

Report of David Hoy, Team Leader Assessments Page 18 Re: 182-186 Blues Point Road, McMahons Point

• Part C Section 9 Lavender Bay Planning Area.

Refer to REFERRALS Heritage for further information with respect to Part B Section 13 Heritage and Conservation,

1. Part B Section 2 Commercial and Mixed Use Development

The following table assesses the proposal with respect to Part B Section 2 being the development controls for commercial and mixed use development.

NORTH SYDNEY DEVELOPMENT CONTROL PLAN 2013

Commercial Development Complies Comments Section 2 Commercial and Mixed Use Development 2.1.1 General Objectives Satisfactory The application proposes to provide direct O4 provide various grades and sizes of subject to internal access between levels 3 and 4. commercial floorspace to accommodate a condition/s The proposed floorplate includes an open mix of business, service, high tech plan layout and small & large quiet, industry, retail and recreational uses, informal and formal meeting rooms and areas to the sides. The proposal does not include alterations to windows, external walls or type of flooring. O11 incorporate innovative sustainable The stairs and other voids reduce total design to reduce energy and water floorspace but facilitate occupation by a consumption and meets or exceeds larger tenant. The open plan scheme could sustainability requirements, be altered at will and, in future if desired, room partitions could be altered without O15 encourages the provision of structural change to the building. adaptable office development which meets the requirements of new office The alterations are not inappropriate technology and caters for variations in where the building comprises a multi- office layout and use, storey commercial building that is at the northern end of the McMahons Point Business Precinct and near North Sydney railway station. The proposal maintains the existing office uses of the upper floors of the building.

The proposal includes a level 3 ‘teapoint’ and level 4 kitchen. It is recommended that, should the application be approved, consent conditions require water-saving appliances be installed. B2.2 Function 2.2.1 Diversity of activities, facilities, Yes The application proposes to provide direct opportunities & services internal access between levels 3 and 4. P1 Non-residential buildings or The stairs and other voids reduce total components of buildings should floorspace but facilitate occupation by a incorporate a variety of different sized larger tenant. The alterations are not spaces that reflect a site’s location in the inappropriate where the building commercial centre hierarchy (i.e. large comprises a multi-storey commercial floor plates should be provided in higher building that is at the northern end of the order centres with small floor plates in McMahons Point Business Precinct and lower order centres). near North Sydney railway station. The proposal maintains the existing office uses of the upper floors of the building.

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B2.3 Environmental criteria 2.3.7 Solar access N/A The application only proposes internal 2.3.8 Views works. The application does not propose 2.3.11 Visual privacy any change of use or to change the height of the building or its envelope including building entries, awnings or windows. The proposed alterations are not upon the ground or street level. The proposal will not affect neighbouring solar access, views, visual privacy or acoustic privacy. B2.4 Quality built form 2.4.5 Building design Yes The proposal includes 2.7m internal P1 IN2 zone floor-to-ceiling height: upper heights. floors min. 2.7m P2 Possible lesser floor-to-ceiling heights if the applicant can demonstrate that the dwelling or non-residential floor space is capable of receiving satisfactory natural daylight and ventilation (e.g. shallow apartments/ commercial tenancies with large amounts of window area). B2.5 Quality urban environment 2.5.1 Accessibility Yes The building accessibility will not be P1 Section 12 Access in Part B in NSDCP altered by the proposed fitout works. The 2013 proposal does not affect the access to the building, the floors or toilet facilities. 2.5.8 Car parking Satisfactory The application did not detail existing P1 Provide on-site car parking in parking arrangements. accordance with Section 10 Car Parking & Transport in Part B of NSDCP 2013 The proposal does not increase the potential occupancy of the building. The proposal will not increase parking demand. B2.6 Efficient use of resources 2.6.1 Energy efficiency N/A The proposed alterations do not affect more than half the total volume of the building. 2.6.3 Thermal mass & insulation Satisfactory The proposal does not include alterations P1 Provide flooring that will absorb heat to windows, external walls or type of from the winter sun… flooring. Ceiling insulation is unknown. P2 To maximise natural cooling, protect thermal mass from summer sun with shading and insulation… P3 Incorporate masonry walls and insulated walls and ceilings… P4 Thermal insulation is used in the roof, walls and floor. P5 Ceiling/roof insulation must have at least an R3.0 rating or equivalent and wall insulation must have at least an R1.5 or equivalent rating… 2.6.4 Natural ventilation Satisfactory The proposal does not involve alterations to windows or the external building form. 2.6.5 Water conservation Satisfactory The proposal includes a level 3 ‘teapoint’ P1 Where the proposed development subject to and level 4 kitchen. involves the installation of new: condition/s

(a) shower roses;

Report of David Hoy, Team Leader Assessments Page 20 Re: 182-186 Blues Point Road, McMahons Point

(b) taps for use over a basin, ablution It is recommended that, should the trough, kitchen sink or laundry tub; application be approved, consent (c) flow restrictors; conditions require compliance with (d) toilets; provision P1. (e) white goods, such as clothes washers or dishwashers;

they must have the highest WELS star rating available at the time of development. 2.6.6 Waste management & Satisfactory The application included an Efficient Use minimisation subject to of Resources table but did not include a 2.6.8 Building materials condition/s waste management plan. Consent conditions can require a plan be prepared and form part of any Construction Certificate application. 2.6.9 Adaptive reuse of buildings Yes The application proposes to provide direct P2 Buildings should be designed to internal access between levels 3 and 4. encourage adaptable office floorspace to The stairs and other voids reduce total accommodate changing occupier floorspace but facilitate occupation by a requirements. larger tenant. The proposed floorplate includes an open plan layout and small & large quiet, informal and formal meeting rooms and areas to the sides. The open plan scheme could be altered at will and, in future if desired, room partitions could be altered without structural change to the building. 2.6.11 Hotwater systems N/A The building does not comprise residential development and the application does not propose to install any hotwater systems.

The proposal is generally consistent with Part B Section 2 being the development controls for commercial and mixed use development.

2. Part B Section 10 Car Parking and Transport

The following table assesses the proposal with respect Part B Section 10 being the development controls for car parking and transport.

NORTH SYDNEY DEVELOPMENT CONTROL PLAN 2013

Commercial Development Complies Comments 10.2 Parking Provision 10.2.1 Quantity Requirements Satisfactory The proposal does not increase the potential Non-residential dev. occupancy of the building. The proposal will not P7 IN2 zone: max. 1 parking increase parking demand. space per 100sqm non- residential GFA P9 On-site parking significantly below the max. specified will only be considered if there is good access to public transport 10.3.2 Stacking of parking N/A The application did not detail existing parking spaces arrangements. P1 Max. 25% of spaces

Report of David Hoy, Team Leader Assessments Page 21 Re: 182-186 Blues Point Road, McMahons Point

The proposal is generally consistent with Part B Section 10 being the development controls for car parking and transport.

3. Part B Section 13 Heritage and Conservation

The following table assesses the proposal with respect to Part B Section 13 being the development controls for development affected by or affecting identified heritage and conservation.

NORTH SYDNEY DEVELOPMENT CONTROL PLAN 2013

Heritage and Conservation Complies Comments B13.5 Heritage Items 13.5.1 Protecting heritage significance Satisfactory The building’s heritage significance is P5 Locate change away from original associated with its external form. The areas of the heritage item that are intact, proposed alterations do not appear to be e.g. …to the rear. easily reversed but will not affect the P6 All works are to be consistent with an building externally. The alterations meet adopted Conservation Management contemporary amenity standards. Plan/s where applicable. 13.5.5 Interior layouts Yes The floors have been altered previously and do not appear to contain fabric that contains or that is potentially contains heritage significance. B13.11 Guidelines for Non-Residential Building Types Yes The application does not propose external alterations or additions.

The proposal is generally consistent with Part B Section 13 being the development controls for development affected by or affecting identified heritage and conservation.

Refer to REFERRALS Heritage for further information.

4. Part C Section 9 Lavender Bay Planning Area

The following table assesses the proposal with respect to Part C Section 9 being the character statement for the Lavender Bay Planning Area.

NORTH SYDNEY DEVELOPMENT CONTROL PLAN 2013

Area Character Statement Complies Comments 9.2 McMahons Point Business Precinct 9.2.1 Significant Elements Yes The proposal maintains the existing office Land Use use and will not alter any lot or external P1 Diverse range of residential form. accommodation., home occupation, light industrial, commercial and retail activities. Subdivision P6 A mixture of large consolidated lots in single ownership and small lots in individual ownership. P7 Irregular subdivision pattern.

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9.2.2 Desired Future Character Yes The application does not propose any Diversity external alterations or additions. P1 Mix of modern 2-3 storey industrial and commercial buildings…

The proposal is consistent with Part C Section 9 being the character statement for the Lavender Bay Planning Area.

SECTION 7.11 CONTRIBUTIONS

Under Council’s Section 94 Contributions Plan:

Contributions will be levied on additional residential development and additional commercial development…

The application does not propose any change of use or increased floor space. Council’s Section 94 Contributions Plan is not considered to apply.

APPLICABLE REGULATIONS

In the event of an approval consent conditions will address applicable regulation considerations including demolition, fire safety, fire upgrades, compliance with the Building Code of Australia, Principal Certifying Authority appointment, notice of commencement of works, sign on work sites, critical stage inspections and records of inspection.

PUBLIC INTEREST

The proposal is in the public interest.

SUITABILITY OF THE SITE

The site is suitable for the proposal.

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

Report of David Hoy, Team Leader Assessments Page 23 Re: 182-186 Blues Point Road, McMahons Point

6. Loading and Servicing facilities Yes

7. Physical relationship to and impact upon adjoining Yes development (Views, privacy, overshadowing, etc.)

8. Site Management Issues Yes

9. All relevant s.4.15 considerations of Yes Environmental Planning and Assessment (Amendment) Act 1979

SUBMITTERS CONCERNS

The notification resulted in no submissions.

CONCLUSION

The development application has been assessed against North Sydney Local Environmental Plan 2013 and North Sydney Development Control Plan 2013.

The application only proposes internal works. The proposed fit out on Levels 3 and 4 and associated works including an interconnecting staircase facilitates the continuation of the existing office use of the building.

A request to vary the Building Height development standard has been submitted pursuant to Clause 4.6 of NSLEP 2013 which has been assessed and is found to be justifiable in the circumstances of the case and well founded on planning grounds. The proposal is within the existing building height and envelope and will not give rise to any additional breaches or increase in development yield.

The proposal will not affect the external form or heritage significance of the building. There are no unreasonable impacts to neighbours' views, sun, privacy or amenity. There are no unreasonable impacts to the street or local area.

The owners of adjoining properties were notified of the proposed development for a 14-day period in accordance with Council’s Community Engagement Protocol. The notification resulted in no submissions. Standard consent conditions can adequately address any potential, unreasonable adverse impacts to the locality and ensure the protection of the public interest.

Having regard to the provisions of Section 4.15 of the Environmental Planning & Assessment Act 1979, the application is considered to be satisfactory and therefore can be approved.

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RECOMMENDATION

PURSUANT TO SECTIONS 4.16 AND 4.17 OF ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 (AS AMENDED)

THAT the North Sydney Local Planning Panel, exercising the functions of Council as the consent authority, assume the concurrence of the Director General of the Department of Planning, Industry and Environment and invoke the provisions of Clause 4.6 Exceptions to Development Standards in NSLEP 2013 with regards to the non-compliance with Clause 4.3 Building Height and grant consent to Development Application No. 82/20 for fit out on Levels 3 and 4 and associated works including an interconnecting staircase on land at 182-186 Blues Point Road, McMahons Point, subject to the following site specific conditions and attached standard conditions:-

Water Conservation

E1. Any:

(a) taps for use over a basin, ablution trough, kitchen sink or laundry tub; (b) flow restrictors; (c) white goods, such as clothes washers or dishwashers;

installed must have the highest WELS star rating available at the time of development.

(Reason: To minimise water use)

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NORTH SYDNEY COUNCIL CONDITIONS OF DEVELOPMENT APPROVAL 182-186 BLUES POINT ROAD, MCMAHONS POINT DEVELOPMENT APPLICATION NO. 82/20

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.

(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.

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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)

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)

Structural Adequacy of Existing Building

C1. 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)

Waste Management Plan

C2. A Waste Management Plan is to be submitted for approval by the Certifying Authority prior to the issue of any Construction Certificate. The plan must include, but not be limited to:

a) The estimated volume of waste and method of disposal for the construction and operation phases of the development;

b) The design of the on-site waste storage and recycling area; and

c) Administrative arrangements for waste and recycling management during the construction process.

The approved Waste Management Plan must be complied with at all times in the carrying out of the development.

(Reason: To encourage the minimisation of waste and recycling of building waste)

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Asbestos Material Survey

C3. 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)

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

Commencement of Works Notice

D1. 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

Water Conservation

E1. Any:

(a) taps for use over a basin, ablution trough, kitchen sink or laundry tub; (b) flow restrictors; (c) white goods, such as clothes washers or dishwashers;

installed must have the highest WELS star rating available at the time of development.

(Reason: To minimise water use)

Cigarette Butt Receptacle

E2. 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

E3. 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

E4. 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.

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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

E5. 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.

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

Dust Emission and Air Quality

E6. 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

E7. 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)

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Special Permits

E8. 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.

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.

(Reason: Proper management of public land)

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)

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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.

(Reason: Proper management of public land)

Construction Hours

E9. 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

E10. 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.

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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.

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 cannot 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

E11. 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.

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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

E12. 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)

Prohibition on Use of Pavements

E13. 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)

Waste Disposal

E14. 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

E15. 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)

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F. Prescribed Conditions imposed under EP&A Act and Regulations and other relevant Legislation

National Construction Code

F1. All building work must be carried out in accordance with the provisions of the National Construction Code.

(Reason: Prescribed - Statutory)

Appointment of a Principal Certifying Authority (PCA)

F2. 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)

Construction Certificate

F3. 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.

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

Occupation Certificate

F4. 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)

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Critical Stage Inspections

F5. 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

F6. 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.

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

Demolition

F7. 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)

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Clause 4.6 Variation Request Height of Buildings development standard

182 Blues Point Road, McMahons Point Two floor fit out and interconnecting staircase

Submitted to North Sydney Council On behalf of a2 Milk Company Limited

21 May 2020 | 2200031

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CONTACT Chris Ferreira Associate Director [email protected] 0423 976 803 Reproduction of this document or any part thereof is not permitted without prior written permission of Ethos Urban Pty Ltd.

This document has been prepared by: This document has been reviewed by:

Lara Reynolds 21 May 2020 Chris Ferreira 21 May 2020 Reproduction of this document or any part thereof is not permitted without written permission of Ethos Urban Pty Ltd. Ethos Urban operates under a Quality Management System. This report has been prepared and reviewed in accordance with that system. If the report is not signed, it is a preliminary draft. VERSION NO. DATE OF ISSUE REVISION BY APPROVED BY

Ethos Urban Pty Ltd ABN 13 615 087 931. www.ethosurban.com 173 Sussex Street, Sydney NSW 2000 t 61 2 9956 6952

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Contents

1.0 Introduction 2 2.0 Site location and context 3 3.0 Development Standard to be Varied 4 4.0 Nature of the variation sought 4 5.0 Matters to be addressed by Clause 4.6(3) of the North Sydney LEP 2013 5 5.1 Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case 5 5.2 There are sufficient environmental planning grounds to justify contravening the development standard 7 5.3 Clause 4.6(4)(A)(Ii) 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 8

6.0 Secretary’s Concurrence 10 7.0 Summary 11

Figures Figure 1 Aerial photo of the site 3 Figure 2 Height of building map (extract) 4

Tables Table 1 Consistency with the objectives of Clause 7 4.3 under the North Sydney LEP 2013

Ethos Urban

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1.0 Introduction

This Clause 4.6 variation request has been prepared by Ethos Urban on behalf of a2 Milk Company Limited. It is submitted to North Sydney Council (the Council) in response to a request for additional information for DA82/20 for a two-floor fit out and interconnecting staircase at 182 Blues Point Road, McMahons Point. The existing building exceeds the maximum building height development standard of 8.5m, however the proposed works remain entirely internal within the existing built form.

Clauses 4.6(3) and (4)(a)(ii) require that a consent authority be satisfied of three matters before granting consent to a development that contravenes a development standard. These three matters are detailed below:

 that the applicant’s written request has adequately demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case;  that the applicant’s written request has adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard; and  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. The consent authority’s satisfaction of those matters must be informed by the objective of providing flexibility in the application of the relevant control to achieve better outcomes for and from the development in question.

The Land and Environment Court has established a set of factors to guide assessment of whether a variation to development standards should be approved. The original approach was set out in the judgment of Justice Lloyd in Winten Property Group Ltd v North Sydney Council [2001] 130 LGERA 79 at 89 in relation to variations lodged under State Environmental Planning Policy 1 – Development Standards (SEPP 1). This approach was later rephrased by Chief Justice Preston, in the decision of Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe).

While these cases referred to the former SEPP 1, the analysis remains relevant to the application of clause 4.6(3)(a). Further guidance on clause 4.6 of the Standard Instrument has been provided by the Land and Environment Court in a number of decisions, including:

 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118;  Turland v Wingecarribee Shire Council [2018] NSWLEC 1511;  Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009;  Micaul Holdings Pty Limited v Randwick City Council [2015] NSWLEC 1386; and  Moskovich v Waverley Council [2016] NSWLEC 1015.

In accordance with the above requirements, this Clause 4.6 variation request:

 identifies the development standard to be varied;  identifies the variation sought;  establishes that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case;  demonstrates there are sufficient environmental planning grounds to justify the contravention; and  provides an assessment of the matters the secretary is required to consider before providing concurrence.

This clause 4.6 variation request relates to the development standard for Height of Buildings under clause 4.3 of the North Sydney LEP 2013 and should be read in conjunction with the Statement of Environmental Effects (SEE) prepared by Ethos Urban dated 12 March 2020.

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Given the proposed works are fit out works to levels 3 and 4 of an existing commercial building, and are completely internal to the building, and given Council has approved a multitude of development applications for internal fit out works on levels situated above the height limit, this clause 4.6 variation request demonstrates that compliance with the maximum Height of Buildings development standard is unreasonable and unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravention of the standard.

2.0 Site location and context

The site is located at 182 Blues Point Road, McMahons Point within the North Sydney Council Local Government Area. The site is located on the western side of Blues Point Road, approximately 300m south-west of North Sydney Railway Station. The surrounding area is characterised by a mixture of land uses consisting of commercial premises, cafes, restaurants and residential buildings.

The site is legally described as Lot 1, DP 85103; Lot B, 388442; Lot 1, DP 63515. The site has an area of approximately 1,187m2 and is pentagonal in shape, however the building itself is rectangular. The site is listed as being a building of local heritage significance, pursuant to Schedule 5 of the North Sydney Local Environmental Plan 2013 (NSLEP).

The existing 9 storey building comprises of various commercial office spaces, a salon, a gym, a restaurant and a grocer. The ground floor of the building is generally level with Blues Point Road and vehicular access is afforded from Victoria Place at the rear of the building. The building was originally constructed in 1961 and is listed Schedule 5 of the NSLEP as locally heritage significant.

An aerial photo of the site is shown at Figure 1.

Figure 1 Aerial photo of the site Source: Nearmap and Ethos Urban

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3.0 Development Standard to be Varied

The development standard to be varied is provided at clause 4.3(2) of the NSLEP 2013 which states:

The height of building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

The maximum height of the buildings for the subject site is 8.5 metres (see Figure 2).

The maximum building height development standard does not accord for the fact that there is an existing commercial building on the site of some 9 storeys which is a heritage item.

Figure 2 Height of building map (extract) Source: North Sydney LEP 2013

4.0 Nature of the variation sought

The proposed works the subject of this Clause 4.6 variation request constitute internal two-floor fit-out works on levels 3 and level 4 with an interconnecting staircase between the two levels. These works occur above the 8.5 metre height limit up to RL 59.660. The lowest point of the site is approximately RL 42.17 (refer to Attachment A). As such, the works occur up to 17.49 metres above existing ground level. However, the existing building exceeds the maximum permissible Height of Building for the site substantially, and thus any internal works above approximately Level 2 will occur above the permissible height under clause 4.3 of the NSLEP 2013.

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5.0 Matters to be addressed by Clause 4.6(3) of the North Sydney LEP 2013

5.1 Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case Clause 4.6(3)(a) of the LEP requires the departure from the development standard to be justified by demonstrating: that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

In Wehbe, Preston CJ of the Land and Environment Court of NSW provided relevant assistance by identifying five traditional ways in which a variation to a development standard had been shown as unreasonable or unnecessary. However, it was not suggested that the types of ways were a closed class.

In the decision of Wehbe, the Chief Justice expressed the view that there are five different ways in which an objection to a development standard might be shown as unreasonable or unnecessary and is therefore well founded. These five tests are as follows:

1. The objectives of the development standard are achieved notwithstanding non-compliance with the standard (First method). 2. The underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary (Second method). 3. The underlying object or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable. (Third Method) 4. The development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable (Fourth method). 5. The zoning of the particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning is also unreasonable and unnecessary as it applies to the land and compliance with the standard would be unreasonable or unnecessary. That is, the particular parcel of land should not have been included in the particular zone (Fifth method).

Of particular assistance in this matter, in establishing that compliance with the development standard is unreasonable or unnecessary is the First Method, Second Method, Fourth Method and Fifth Method. These will be further addressed to demonstrate that compliance with the maximum building height is unnecessary in this circumstance.

5.1.1 The objectives of the standard are achieved notwithstanding non-compliance with the standard (First Method) Table 1 demonstrates that the proposed variation to the height of buildings development standard will still result in a development that achieves the objectives of this clause.

Table 1 Consistency with the objectives of Clause 4.3 under the North Sydney LEP 2013 Objective Proposal (a) to promote development that conforms to and The proposal is for fit out works on Levels 3 and 4 of an reflects natural landforms, by stepping development existing, heritage listed commercial building. As all on sloping land to follow the natural gradient, works are internal to the building, the works are therefore consistent with this objective, as the works will not result in any physical exterior changes to the existing building. The proposed works do not alter the existing building’s relationship to the land, and as such, the works ensure the building remains compatible with the natural slope of the land. (b) to promote the retention and, if appropriate, As the proposed works are wholly contained within the sharing of existing views, existing building envelope, they will not cause impacts to any existing views. The proposal is therefore consistent with this objective.

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Objective Proposal (c) to maintain solar access to existing dwellings, As the proposed works are wholly contained within the public reserves and streets, and to promote solar existing building envelope, they will therefore will not access for future development, create any solar access impacts. The proposal is therefore consistent with this objective. (d) to maintain privacy for residents of existing As the proposed works are wholly contained within the dwellings and to promote privacy for residents of existing building envelope, they will therefore will not new buildings, create any privacy impacts. The proposal is therefore consistent with this objective. (e) to ensure compatibility between development, The proposal is for fit out works of two levels in an particularly at zone boundaries, existing and operational commercial building. Accordingly, the works will not alter the compatibility of the existing building with neighbouring properties. The proposal is therefore consistent with this objective. (f) to encourage an appropriate scale and density of As the proposed works are wholly contained within the development that is in accordance with, and existing building envelope and internal works, they will promotes the character of, an area. not be perceptible from public or private areas in the vicinity of the site. The proposal is therefore consistent with this objective.

Accordingly, strict compliance with maximum building height prescribed under clause 4.3 of the Sydney LEP is considered unreasonable and unnecessary in the specific circumstances given the underlying objectives of the standard are achieved, notwithstanding the technical non-compliance with the numerical control due to the existing building height being above 8.5 metres.

5.1.2 The underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary (Second Method) As described in Section 5.1.1, it is evident that the objectives of Clause 4.3 relate to the construction of a new building or the extension of an existing building, not internal fit out works to an existing building. The proposed works will not result in any increase to the existing building height. They comprise of an internal fit out within levels 3 and 4 of the building (wholly contained within the existing building envelope) and will assist in progressing the orderly and economic use of an existing commercial building. Accordingly, the underlying objective of Clause 4.3 is not relevant and therefore compliance with the standard is unnecessary. The non-compliance in this circumstance is a technical matter only and does not have any bearing on the development as proposed or existing.

5.1.3 The development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable (Fourth Method) The existing building is listed as an item of local heritage significance, meaning the majority of works conducted within the building require development consent by Council, even fit out works. Therefore, a significant number of development applications for development above the maximum height limit of 8.5m have been approved and are summarised in Table 2 below.

By granting consent to a multitude of applications above the existing height limit (and in particular on levels above the Levels 3 and 4), Council has effectively abandoned the application of the building height development standard for this site as it relates to applications for fit out works. This is entirely reasonable given the nature of the works. Hence, compliance with this development standard is considered unreasonable and unnecessary.

Table 2 Development approvals for fit out works at 182 Blues Point Road above the maximum height limit DA Number Description of Works DA 13/12 Internal office fit out, including partitions on level 5. DA 58/17 Office fit out and demolition works in level 4. DA 438/15 Commercial office fit out of levels 1 and 7.

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DA Number Description of Works DA 310/11 Tenancy partitions to level 8 internal offices DA 86/11 Commercial office refurbishment, including demolition, on level 1 and 5. DA 483/10 Commercial internal fit out works including full height partitioning & associated services to meet all relevant codes and standards. DA 433/10 Alterations to fit out on level 7. DA 386/10 Level 4 internal refurbishment. DA 91/10 Minor internal alterations to an existing office space. DA 87/10 Build internal offices, boardroom and work areas in a commercial building for use in normal business hours. DA 40/10 Internal partitions and furniture on Level 7. DA 568/06 Internal office fit out.

5.1.4 The zoning of the particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning is also unreasonable and unnecessary as it applies to the land and compliance with the standard would be unreasonable or unnecessary. That is, the particular parcel of land should not have been included in the particular zone (Fifth Method) The existing building is a well-serviced building that has several commercial uses, including neighbourhood shops and office premises. The site is within the vicinity of several public transport options and other commercial buildings. It is also an item of local heritage significance, and is therefore a valued building which contributes to the character and environmental heritage of the locality. For these reasons, the existing height control of 8.5 metres and light industrial zoning is not appropriate for this particular building. Accordingly, the zoning of this particular land is considered unreasonable and inappropriate and so the development standards appropriate for that zoning are also unreasonable and inappropriate. These controls are considered not appropriate given the existing circumstances of the site and its context, as they have little bearing on the development as proposed or existing.

5.2 There are sufficient environmental planning grounds to justify contravening the development standard Clause 4.6(3)(b) of the PLEP requires the consent authority to be satisfied that the applicant’s written request has adequately addressed clause 4.6(3)(b), by demonstrating:

That there are sufficient environmental planning grounds to justify contravening the development standard.

The environmental planning grounds relied on in the written request under Clause 4.6 must be sufficient to justify contravening the development standard. The focus is on the aspect of the development that contravenes the development standard, not the development as a whole. Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action v Woollahra Municipal Council [24] and Turland v Wingecarribee Shire Council [42]).

There are sufficient environmental planning grounds to justify a flexible approach to the application of the height control as it applies to the site. In Four2Five, the Court found that the environmental planning grounds advanced by the applicant in a Clause 4.6 variation request must be particular to the circumstances of the proposed development on that site. The applicable circumstances that relate to the site are discussed below.

5.2.1 Orderly and economic use of an existing commercial premises The proposed internal fit out works will allow the continuation of the existing commercial use of the tenancy and the building. The works will enable the ongoing operation of an office premises and provide a more ergonomic and efficient working space for staff members, responding to the needs of the new tenant. The office premises is also supported by surrounding land uses which include a fitness studio, grocer, post office, hair salons and several cafes and eateries. Accordingly, the proposed internal fit out works will assist in progressing the orderly and economic use of an existing commercial building and enhance the economic viability of the area. Not permitting the proposed internal fit out works on levels 3 and 4 will unnecessarily stifle the existing use of the site and tenancy.

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5.2.2 Height of building standard anomaly The building was constructed in a number of decades ago, and has since undergone refurbishment works, however the existing bulk and scale of the building has remained unchanged. Additionally, the site is an item of local heritage significance for its existing façade, significant view lines and unique building form. Therefore, it is a valued building which contributes to the character and environmental heritage of the locality.

Accordingly, the height control of 8.5m is considered an anomaly in the context of the existing nine storey building. The application of such a control to internal fit out works on levels of the existing building above 8.5m which promote the ongoing use of the building is considered unreasonable. Accordingly, non-compliance in this circumstance is considered appropriate and justified.

5.2.3 No perceptible environmental impacts The proposed internal fit out works will facilitate the ongoing use of the office premises on levels 3 and 4 of the building. Accordingly, there are no perceived environmental impacts associated with carrying out the proposed works. Specifically, the works will be wholly contained within the existing building envelope, meaning they will have no impact on solar access, views, wind speed or visual privacy. The proposed works will not change the overall intensity of building use and are therefore unlikely to result in any additional noise or traffic impacts. In addition, the proposed works provide a valuable opportunity for the site to improve its energy use and efficiency through the installation of energy efficient lightbulbs and flow restricting taps.

5.3 Clause 4.6(4)(A)(Ii) 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 Clause 4.6(4)(a)(ii) of NSLEP 2013 requires that 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.

5.3.1 Consistency with the objectives of the development standard The proposed development is consistent with the objectives of the height of buildings development standard, for the reasons discussed in Section 5.1.1 of this report.

5.3.2 Consistency with the objectives of the zone The objectives of the IN2 Light Industrial Zone are outlined in Table 3 below. The proposed internal fit-out works at 182 Blues Point Road will not result in a change to the existing building height and will not contravene any of the zone objectives.

Table 3 Consistency with the objectives of the IN2 Light Industrial zone under the North Sydney LEP 2013

Objective Proposal

To provide a wide range of light industrial, The proposed works will enable the ongoing use of a commercial office warehouse and related land uses. premises in a way that does not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or otherwise. The use of the site as a commercial office premises also contributes to the variety of employment uses in the zone. The proposal is therefore consistent with this objective.

To encourage employment opportunities The proposed works ensure the provision of ongoing employment for staff and and to support the viability of centres. also facilitate employment opportunities during construction. This supports the viability of the McMahons Point precinct and the Blues Point Road commercial strip.

To minimise any adverse effect of industry As the proposed works are wholly contained within the existing building on other land uses. envelope, they will not cause impacts to any other land uses. The proposal is

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Objective Proposal

therefore consistent with this objective. Furthermore, the proposal in an of itself is not a type of ‘industry’.

To enable other land uses that provide The proposed fit out works allow the continuation of a commercial premises, facilities or services to meet the day to day which is contribute to the variety of land uses which provide facilities and needs of workers in the area. services to meet the day to day needs of workers in the area. The site is surrounded by a number of retail uses including hair salons, a pharmacy, real estate agencies and Australian Post Office, as well as a number of cafes and eateries. These uses also supports the day to day needs of workers within the area and also improve the economic viability of the area.

To support and protect industrial land for The proposed development will facilitate the ongoing use of the site as an industrial uses. office premises. This will have no impact on the industrial use of the site and surrounding land uses. Therefore, the proposal is consistent with this objective.

To encourage a mix of lower scale housing The site is surrounded by a number of residential dwellings which range from types. single dwellings to four storey residential flat buildings. The proposed development will have a negligible impact on the existing or ongoing development of housing within the area.

To permit development that is compatible The existing heritage building is an item of local heritage significance, and is with the scale and character of the therefore a valued building which contributes to the character and surrounding residential area. environmental heritage of the locality. The proposed development is contained wholly within the existing building envelope and does not propose any changes to the existing size or façade of the building. Accordingly, the proposal will have no impact on the existing scale and character of the surrounding residential area.

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6.0 Secretary’s Concurrence

Under Clause 4.6(5) of LEP, the Secretary’s concurrence is required prior to any variation being granted. Under Clause 64 of the Environmental Planning and Assessment Regulation 2000, the Secretary has given written notice dated 21 February 2018, attached to the Planning Circular PS 18-003 issued on 21 February 2018, to each consent authority, that it may assume the Secretary’s concurrence for exceptions to development standards in respect of applications made under cl 4.6, subject to the conditions in the table in the notice. We note that none of the conditions in the table apply to the proposed development, therefore the Secretary’s concurrence can be assumed.

Nevertheless, the following section provides a response to those matters set out in clause 4.6(5) which must be considered by Council under its delegated authority:

Whether contravention of the development standard raises any matter of significance for State or regional environmental planning.

No matters of State or regional environmental planning significance are raised by the contravention of the development standard, as the proposal relates to fit out works in an existing commercial building.

The public benefit of maintaining the development standard.

Given that the existing commercial building is above the maximum height standard under the NSLEP 2013, there is no public benefit in maintaining the development standard for the proposed fit out works. The works are wholly contained within the existing envelope and the built form will remain the same as currently on site. The works will introduce a two-floor fit-out and interconnecting staircase between level 3 and level with no changes to the exterior of the site.

Any other matters required to be taken into consideration by the Secretary before granting concurrence.

The proposed variation is a minor non-compliance that will allow for the orderly redevelopment of the site. No other matters require consideration by the Secretary.

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7.0 Summary

In conclusion Council can be satisfied that this Clause 4.6 Variation Request satisfactorily demonstrates:

 That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as the objectives of the standard are otherwise achieved;  There are no perceivable environmental impacts of the proposed works as they will be wholly contained within the existing building envelope;  The development standard is an anomaly in the context of the nine storey building on the site;  There is a longstanding precedence for approving internal fit out works on this site which are above the maximum height limit control;  There is sufficient case law and environmental planning grounds for contravening the development standard; and  The proposed development is 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.

In light of the above, it is requested that Council grant development consent for the proposed development even though there is a minor variation to the proposed development standard imposed by Clause 4.3 of NSSLEP 2013.

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Appendix A

RL 48.63 RL 47.04

RL 47.81 RL 43.02

RL 42.80

RL 42.17 RL 44.01

LEGEND

The Site

Cadastre

2m contour

Topographic data has been sourced from Spatial Services NSW (Clip and Ship). The data represents the natural ground level at 2m intervals with a vertical accuracy of +/- 1m. Ethos Urban has used this data to generate a terrain model and extracted the RL’s for each corner of the site. The above figure is the result of this analysis which concludes a minimum ground RL of 42.17 and a maximum ground RL of 48.63.