Land and Environment Court New South Wales Medium Neutral Citation: Clear Ridge Developments Pty Ltd v Hornsby Shire Council [2005] NSWLEC 618 Hearing dates: 6 and 7 September 2005 Decision date: 01 November 2005 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is upheld. 2. The development application (281/04) for demolition of existing structures and erection of a child care centre for 90 children with basement parking for 15 cars and parking in the front setback for 7 cars at 36, 38, 38A Northcote Road, Hornsby, is approved subject to the conditions at Annexure "A" 3. The exhibits, except exhibits 3, E, G and N, may be returned. 4. No order as to costs Catchwords: Development Application :- Child care centre Compatibility with low density residential environment number of children acoustic fence bulk and scale setbacks and landscaping Legislation Cited: Environmental Planning and Assessment Act 1979 Hornsby Shire Local Environmental Plan 1994 Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Category: Principal judgment Parties: APPLICANT Clear Ridge Developments Pty Ltd RESPONDENT Hornsby Shire Council Representation: APPLICANT Ms S Duggan, barrister SOLICITORS Hunt and Hunt RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike Pike & Fenwick File Number(s): 10254 of 2005 Judgment 1. COMMISSIONER: This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application (1563/2004) under the Environmental Planning and Assessment Act 1979 (EPA Act) to demolish the existing buildings and construct a child care centre at 36, 38 and 38A Northcote Road, Hornsby (the site). 2. For the reasons set out in this judgment, I have concluded that the proposal warrants approval and that the appeal may be upheld. The site and its context 1. The site is located on the northern side of Northcote Road. It is irregular in shape and comprises three allotments (lot 2 DP 1063486, lot 9 DP 21638 and lot 10B DP380507) with a combined area of 2793sqm including a right of carriage way along part of its eastern boundary. 2. The surrounding area is predominantly detached houses on large allotments. Hornsby Hospital and medical uses are at the eastern end of the street. Adjoining development to the east and to the rear of the site is recent villa house development, to the west is a single storey detached house adjoining a park on the corner of Sherbrook Road. The area to the west of Sherbrook Road is undergoing transition and there are several residential flat buildings between the site and Hornsby Town Centre and Hornsby railway station. The history of the proposal 1. The development application was lodged on 24 February 2004. It was notified and council received 8 objections and a petition. Following exhibition of amended plans 16 objections and 36 pro forma letters were received. A report recommending approval of the application was considered by Council on 6 October 2004 however council refused the application on 12 October 2004. The Proposal 1. The proposal is to demolish all existing structures on the site and construct a single storey child care centre for 90 children with basement parking for 15 cars and 7 cars in the front setback. Planning Framework 1. The site is zoned Residential A under Hornsby Shire Local Environmental Plan 1994 (LEP 1994). The proposal is permissible with consent. The objectives of the Residential zone relevantly include: b) to promote a variety of housing types and other land uses compatible with a low density residential environment. c) to provide for development that is within the environmental capacity of a low density residential environment. 1. Clause 7(2) requires the objectives of the zone to be taken into account before development consent is granted. 2. Hornsby Shire Community Uses Development Control Plan (Community DCP) and Hornsby Shire Car Parking Development Control Plan (Parking DCP) are also relevant. 3. The controls in the Community DCP comprise element objectives, performance criteria and prescriptive measures. The Community DCP states that: The element objectives may be implemented by meeting the performance criteria…..Prescriptive measures are those requirements that Council considers are likely to meet the objectives of the particular design element. 1. The proposal does not meet the prescriptive measure for the maximum size of Child Care Centres and site coverage in the Density control. The experts agreed that the non compliance with the site coverage control was about a 3% and that despite this deficiency the proposal met the performance criteria of the control. The proposal meets the other prescriptive measures for density having a floor space ratio (FSR) less than 0.4:1. 2. The prescriptive measure for the maximum size of child care centres states: To maintain the character of residential areas and minimise the impact of noise on adjacent properties, child care centres in residential zones should be designed to accommodate a maximum of 50 children of which no more than 30 should be in the two years and over age group. 1. The element objective for the density control is: To control the density and scale of development to ensure compatibility with the density and scale of the surrounding area. 1. The performance criteria relevantly include: The density of development is to be in keeping with the bulk, scale and intensity of the surrounding area. The scale of child care centres should in residential zones should be of a scale and character consistent with surrounding development. The issues 1. The Statement of Issues before the Court contained eight issues. Some issues were resolved through expert evidence, amended plans and conditions. 2. The remaining issues can be summarised into the key issue of whether the proposal is compatible with a low density residential environment. The evidence 1. Mr N Dickson, the Court appointed expert, Mr S Harding, for the applicant and Mr T Moody, for the Council provided expert planning evidence. 2. Ms T Gowan and Mr S Cooper provided a joint acoustic report, which recommended appropriate noise criteria and measures to achieve this criteria. These include an acoustic fence in locations adjoining outdoor play areas and management conditions that limit the number of children outside to a maximum of 45 at any one time. The measures agreed between the acoustic experts have been incorporated into amended plans, conditions and a Management Plan agreed to by the applicant. Mr Moody and Mr Dixon however raised concerns about the design of the acoustic fence and its compatibility with the character of the area. 3. Mr T Beardsmore, architect and Ms J Grant, planner provided statements of evidence and a joint report on compliance with the Children's Services Regulation 2004 and the requirements for outdoor play space. The plans were amended to address the recommendations of these experts. 4. Mr C Hazell, traffic engineer, for the applicant provided evidence on the acceptability of the parking and access arrangements for the development which resolved concerns raised by the experts. 5. A number of residents gave evidence on site. Their main concerns reflected those raised by council and the additional issue of traffic and parking in the street. The traffic and parking impacts of the proposal were addressed in the report to council and found to be acceptable. They were not raised as an issue in the case beyond that the 22 spaces provided was less than the requirement in the Parking DCP of 22.5 spaces as the DCP requires "rounding up" of figures. The car parking is calculated at the rate of 1 space per 4 children. No evidence was provided that the deficiency of 1 space would result in any unacceptable impacts and of itself this non – compliance would not warrant refusal of the application. A condition requiring that the number of children be reduced by two is unlikely to achieve any material benefit or reduction in impact and should not be imposed. Compatibility with low density residential environment Number of children 1. The submission of Mr Jackson, the council's advocate, was that the 90 children would result in impacts that a development, which complied with the prescriptive measure of 50 children in the Community DCP, would not generate. These impacts are the requirement for an acoustic fence to address noise impacts, the bulk and scale of the development, insufficient setbacks and landscaping which resulted in a development that was not compatible with a low density residential environment and therefore did not meet the objective of the zone. 2. Mr Jackson referred to the planning reports, which outlined the rationale for the amendment to the Community DCP that incorporated the limit of 50 children. This rationale is reflected in the control itself as being to maintain the character of residential areas and minimise the impact of noise on adjacent properties, child care centres in residential zones should be designed to accommodate a maximum of 50 children of which no more than 30 should be in the two years and over age. 3. For the reasons which I will discuss below I find that despite its non compliance with the numerical control the proposal will maintain the character of the residential area and minimise the impact of noise on adjacent properties and that the proposal meets the performance criteria and element objective of the density control in the Community DCP and the relevant objective of the zone. Acoustic fence 1. In relation to the requirement for an acoustic fence the experts agreed that if the noise criteria of 45dB(A) is not to be exceeded at the nearest affected residential property the number of children outside should be limited to 45 and acoustic fences provided. Therefore a childcare centre, which complied with the Community DCP would have the same requirements and noise impact as the proposal provided the Management Plan is adhered to. The applicant has accepted the requirements of the Management Plan and I agree that its requirements are not so onerous and management of the centre in accordance with the requirements of the plan is achievable. 2. The acoustic fence is different to other fences in the area but is generated by the use of the site for a child care centre, which is permissible in the zone. The acoustic fence is generally a solid fence to 1.8m with a clear polycarbonate screen above, at an angle projecting over the site. The location of the acoustic fence, the type of solid material and the height of the polycarbonate screen vary along each boundary to achieve the required noise criteria. 3. Due to the slope of the land and the levelling of the site a retaining wall is proposed along the western boundary. This results in the fence having an overall height of about 3.7m above the ground level of the adjoining property. Mr Moody and Mr Dickson raised concerns about the impact of the fence. Amended plans and conditions were provided which stepped the fence and set it back from the boundary enabling landscaping to be provided to screen the retaining wall and the fence from the adjoining property. I find that these measures reduce the impact of the fence to an acceptable level. 4. Mr Moody also raised concerns about the acoustic fence along the northern boundary considering it should be further setback from the boundary as it is close to the living area of the adjoining house. Mr Dickson considered the fence to be acceptable. The acoustic fence when viewed from the property to the north would appear little different to that of a domestic 1.8m masonry fence and its impact is acceptable. Particularly as the living area also has a northern aspect. 5. The experts agreed that the appearance of the acoustic fence from the adjoining property to the east was acceptable. 6. I therefore find that design of the acoustic fence while different to other domestic fences is not an element, which is so atypical as to be incompatible with the area or to warrant refusal of the application. Bulk and scale 1. The centre would be smaller if it were to accommodate less children. The experts disagreed on whether a reduction in size would result in a different bulk and scale of development, particularly when viewed from the street. In Mr Harding's opinion the arrangement of the allotments occupied by the development meant that the appearance of the childcare centre from the street would not be out of character with the area. The centre occupies a single street frontage, is single storey and in his opinion is of a domestic scale and appearance. Any reduction in size would probably reduce the length of the building and the experts agreed that the length of the building would not be visible and its impact was acceptable. 2. The main concern of Mr Dickson and Mr Moody was the appearance of the building from the street, which they considered to be too wide and uncharacteristic of houses in the street. This combined with the greater front setback and car parking proposed within the setback area resulted in a building that was not compatible with the character of the area. 3. Mr Harding's opinion was that the width of the frontage closest to the street was similar to that of houses in the area. This part of the building would be the dominant visual element from the street as the other elements are further setback and recessive in their design. 4. The experts held different opinions on the character of the area. Mr Moody and Mr Dickson considered the proposal should respond to the one and two storey domestic character, which dominates the streetscape. In Mr Harding's opinion the other institutional uses in the street were also part of its character as well as the adjoining flat development. In his opinion the development was compatible with this more diverse character. 5. To some extent the difference in opinion of the experts is academic. The relevant objective of the zone which the proposal is to satisfy is: b) to promote a variety of housing types and other land uses compatible with a low density residential environment. 1. The objective recognises that there will be different housing types and land uses other than residential which is reflected in the zoning table. The key criteria is that the uses are compatible with a low density residential environment. 2. The principles articulated by Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 are helpful in understanding compatibility. To be compatible does not mean that a proposal needs to be the same as other development but rather the Senior Commissioner states that: 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment……The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping . 1. In this case the nature of the use means that it will have different functional requirements to that of a house which will be reflected in the appearance of the building. For example a child care centre requires a greater number car spaces which need to be accommodated on site. The Community DCP permits these to be provided in the front setback area, which will mean that this area will have a different appearance to a dwelling. In accepting that a degree of difference will result from a different use, compatibility will be determined by whether the proposal responds to the essential elements that make up the character. In this case the building is setback further than adjoining properties, it accommodates parking and has two driveways. It is therefore different to the residential character of the area. However, from the street the car parking is screened from and is below street level. This combined with the fence will achieve a front setback area which although different is compatible. 2. The building is single storey, also set down from the street and designed as a domestic rather than an institutional building. The width of its elevation to Northcote Road, particularly as this is not in a single plane, will present in a similar manner to houses in the street and is compatible with the streetscape. 3. Overall the relevant objective of the zone is satified. Setbacks and Landscaping 1. The side setbacks backs exceed the numerical control in the Community DCP of a minimum of one metre being a minimum of two metres. However, Mr Moody and Mr Dickson were concerned that the size of the development warranted larger setbacks for it to be compatible with a low density residential environment. They considered that greater setbacks would provide greater spatial separation between adjoining developments, particularly the villa houses to the east, and enable greater landscaping to be provided which would screen the development. In their opinion, despite the numerical compliance, the setbacks did not meet the performance criteria of the control that setbacks should complement the streetscape and allow for landscaping and open space between buildings. 2. The prescriptive measures of the landscape control in the Community DCP require that a landscape buffer of a minimum of 2m (depending on the scale of the development) should be provided around the site to soften and screen it from adjoining development. Mr Moody and Mr Dickson interpreted this control to mean that the two metre width should be planted. 3. The majority of the perimeter of the site is landscaped to depth of two metres. However, some of the boundary, while having a separation of two metres or more from the fence to the building, is not landscaped and part of the length of the driveway along the east and west boundary has only a landscape strip of one metre. The proposal provides more landscaping than the 45% required under the DCP. While most of this is perimeter landscaping, it includes a range of tress, shrubs and groundcovers and is consistent with the character of low density residential area. 4. I do not accept that the entire perimeter of the site needs to be a two metre landscaped buffer for the development to be softened and screened. The development does not need to be hidden by landscaping for it to be compatible with the area. The reduced landscaping along the driveway does not result in the development providing inadequate landscaping nor is it something that would warrant refusal of the application. I accept Mr Harding's evidence that the performance criteria and element objective of the setback and landscape control are met. Orders 1. For the above reasons the Orders of the Court are: 1. The appeal is upheld. 2. The development application (281/04) for demolition of existing structures and erection of a child care centre for 90 children with basement parking for 15 cars and parking in the front setback for 7 cars at 36, 38, 38A Northcote Road, Hornsby, is approved subject to the conditions at Annexure "A" 3. The exhibits, except exhibits 3, E, G and N, may be returned. 4. No order as to costs ********** Annexure A (350887, pdf) Amendments 21 May 2020 - Annexure A included DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2020