The operational noise level limit for the development shall be in accordance with the following noise limits as outlined in the Acoustic Report prepared by Muller Acoustic Consulting referenced as MAC21181-01RP1 dated March 2021;
Receiver type Period dBA LAeq(15min)
Residential Night 43
ATTACHMENTS 1. Locality Plan 2. Aerial Photograph 3. Zoning Map
4. Plan of Management
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021 ATTACHMENT 1 – LOCALITY PLAN
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021 ATTACHMENT 2 – AERIAL MAP
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021 ATTACHMENT 3 – ZONING MAP
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021 ATTACHMENT 4- PLAN OF MANAGEMENT
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021
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DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021 ITEM-4 DA 1124/2020/HA/A – DIVISION 8.2 REVIEW OF
DETERMINATION FOR THE OCCUPATION AND FITOUT OF SHOP 10 FOR A RESTAURANT AND ASSOCIATED SIGNAGE - LOT 8 SP 93305, TENANCY 10/21 HEZLETT ROAD, NORTH KELLYVILLE
THEME: Shaping Growth
OUTCOME: 5 Well planned and liveable neighbourhoods that meets growth targets and maintains amenity.
STRATEGY: 5.1 The Shire’s natural and built environment is well managed through strategic land use and urban planning that reflects our values and aspirations.
MEETING DATE: 27 JULY 2021
DEVELOPMENT ASSESSMENT UNIT
AUTHOR: PRINCIPAL COORDINATOR
ROBERT BUCKHAM
RESPONSIBLE OFFICER: MANAGER – DEVELOPMENT ASSESSMENT PAUL OSBORNE
Applicant Sizhitang Pty Ltd
Notification 14 days
Number Advised 13 Number of Submissions Nil
Zoning R1 General Residential Site Area Shop 10 – 82m2
List of all relevant s4.15(1)(a)
matters Section 4.15 (EP&A Act) – Satisfactory.
SEPP (Sydney Region Growth Centres) 2006 – Satisfactory.
SEPP No. 64 Advertising and Signage – Satisfactory.
North Kellyville Precinct Development Control Plan 2018 – Satisfactory
Political Donation None Disclosed
Reason for Referral Division 8.2 Review of Determination Recommendation Approval
EXECUTIVE SUMMARY
The Review of Determination is for the occupation and fitout of Shop 10 for a restaurant and associated signage.
The proposed use is as follows:
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021
• Hours of operation are Monday to Sunday: 10am to 10pm.
• Staff Numbers: 6 Maximum (3 in kitchen, 3 in restaurant)
• Patron Numbers: 24 Maximum (inside only)
• Two illuminated signs are proposed:
o 2.9m x 0.6m sign affixed to the Hezlett Road Shop Façade o 1.3m x 0.4m sign affixed to the Goodison Street Facade
The application originally included outdoor seating however this has since been deleted from the Development Application.
On 23 June 2020, the application was refused by Council’s Development Assessment Unit (DAU). Reasons for refusal included that the land use was not permitted in the zone but also the lack of supplementary information submitted with the application including details regarding hours of operation, staff and patron numbers, signage and food premises fit-out details.
Council staff were advised by Department of Planning, Industry and Environment (DPIE) during the assessment of the original application, that whilst SEPP (Sydney Region Growth Centres) 2006 was not a Standard Instrument LEP, group terms land use definitions were used. Therefore, the proposed use for a food and drink premises was then considered a type of retail premises which were listed as prohibited in the R1 General Residential zone.
On 3 March 2021, Council’s General Manager wrote to the Secretary of Department of Planning, Industry and Environment seeking urgent rectification of the zoning permissibility issues associated SEPP (Sydney Region Growth Centres) 2006 – North Kellyville Growth Centre Precinct and its application to the mixed-use development at 21 Hezlett Road, North Kellyville which contains several ground floor tenancies (including the subject Shop 10). It was raised that the SEPP unreasonably restricts the use of the ground floor tenancies to
‘neighbourhood shops’ precluding other reasonable forms of development such as hairdressers which are separately defined as business premises and are prohibited uses under the site’s R1 General Residential zoning. The Department advised “We have looked in to this matter and can see the case for both ways for why a hairdresser may be defined as a
‘neighbourhood shop’ and/or a ‘business premises’. We recommend Council use their discretion in that particular instance.”
Given the ambiguity in the instrument and the Department’s advice regarding a similar matter the proposed use for a restaurant is considered to be permitted with consent in the R1 General Residential zone being a use captured under “any other development not specified in Item 2 or 4 (development permitted without consent or prohibited development)”
if the SEPP was read in a traditional manner, given that the SEPP is not a Standard Instrument LEP with specific group term references.
The application was notified to adjoining property owners and no submissions were received.
The application is recommended for approval.
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021
BACKGROUND
On 13 December 2012, DA 677/2013/HB was approved for the construction of a mixed use development comprising ground level neighbourhood shops, 40 residential units and 126 car parking spaces on the subject site. The approval has been subject to a number of Section 4.55 Modifications which included changes to building height, unit yield and commercial floor areas but relevantly retained the approved ground level neighbourhood shop uses.
On 8 June 2018, DA 1796/2018/HA was approved for the occupation and fitout of ground floor Shops 3 and 4 for a restaurant. This included a change of use from a neighbourhood shop to a restaurant. The assessment report for the application addressed permissibility of the proposed use identifying that restaurants were permitted with consent in the R1 General Residential Zone pursuant to SEPP (Sydney Region Growth Centres) 2006.
On 4 July 2018, a Complying Development Certificate (CDC) was issued for the change of use of Shop 10 from a neighbourhood shop to an office premise. This remains the current approved use for Shop 10.
On 28 May 2019, DA 1665/2019/HA was lodged for the occupation and fitout of Shop 7 for a food and drink premises. During the assessment of the application the issue of whether the proposed use for a food and drink premises was permitted in the R1 General Residential Zone was raised. The issue related to the interpretation of land use definitions in the SEPP and the use of ‘group terms’ which were utilised in the Standard Instrument LEP. As SEPP (Sydney Region Growth Centres) 2006 was developed and implemented by the State government, Council staff requested clarification on this matter from the Department of Planning and Environment (DPE).
During discussions with the DPE Officers, Council staff were advised that whilst SEPP (Sydney Region Growth Centres) 2006 was not a Standard Instrument LEP, group terms land use definitions were used. Therefore, the proposed use for a food and drink premises was considered a type of retail premises which were listed as prohibited in the R1 General Residential zone. On this advice DA 1665/2019/HA was withdrawn by the applicant as it was a prohibited use in the zone.
The original Development Application 1124/2020/HA was lodged on 25 February 2020. On 31 March 2020 a letter was sent to the applicant requesting withdrawal of the application based on the permissibility of the use. The applicant advised on 11 May 2020 that the application would not be withdrawn and they would await determination of the application.
On 23 June 2020, the application was refused by Council’s Development Assessment Unit (DAU). Reasons for refusal included that the land use was not permitted in the zone but also the lack of supplementary information submitted with the application including details regarding hours of operation, staff and patron numbers, signage and food premises fit-out details.
On 3 March 2021, Council’s General Manager wrote to the Secretary of Department of Planning, Industry and Environment (DPIE) seeking urgent rectification of the zoning permissibility issues associated SEPP (Sydney Region Growth Centres) 2006 – North Kellyville Growth Centre Precinct and its application to the mixed-use development at 21 Hezlett Road, North Kellyville which contains several ground floor tenancies (including the subject Shop 10). It was raised that the SEPP unreasonably restricts the use of the ground floor tenancies to ‘neighbourhood shops’ precluding other reasonable forms of development
DEVELOPMENT ASSESSMENT UNIT MEETING 27 JULY, 2021 such as hairdressers which are separately defined as business premises and are prohibited uses under the site’s R1 General Residential zoning.
To date no formal response has been received from DPIE on the matter or any planned changes to the SEPP. However, it is noted that in response to the particular case of a hairdresser operating within the development which was raised in Council’s correspondence, the Department advised “We have looked in to this matter and can see the case for both ways for why a hairdresser may be defined as a ‘neighbourhood shop’ and/or a ‘business premises’. We recommend Council use their discretion in that particular instance.”
On 22 March 2021, the subject Division 8.2 Review of Determination was lodged. Legal advice regarding the permissibility of the proposed development was also submitted as part of the review application.
PROPOSAL
The Development Application is for the occupation and fitout of Shop 10 for a restaurant and associated signage.
Internal seating is proposed for a maximum of 24 patrons with a maximum of 6 staff.
The fit-out includes:
• Commercial kitchen;
• Bar area;
• Cold display;
• Internal customer seating and table areas;
• Outdoor seating on the terrace area; and
• Business identification signage.
Two external illuminated signs are also proposed:
• 2.9m x 0.6m sign affixed to the Hezlett Road Shop Façade
• 1.3m x 0.4m sign affixed to the Goodison Street Facade Proposed hours of operation are 10am – 10pm, 7 days.
ISSUES FOR CONSIDERATION