Alkosh Pty Limited v Fairfield City Council [2006] NSWLEC 680

Land and Environment Court of New South Wales

CITATION : Alkosh Pty Limited v Fairfield City Council [2006] NSWLEC 680

APPLICANT: PARTIES : Alkosh Pty Limited RESPONDENT: Fairfield City Council

FILE NUMBER(S) : 11090 of 2005

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Non-support by the council of childcare centres catering for more than 40 children

Fairfield Local Environmental Plan 1994, (FLEP) LEGISLATION CITED: City Wide Development Control Plan, (CWDCP) Environmental Planning and Assessment Act 1979, ss79C and 97

DATES OF HEARING: 26/10/2006

DATE OF JUDGMENT: 10/31/2006

APPLICANT: Mr C Gough, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Storey & Gough, Solicitors and Attorneys RESPONDENT: Mr A J Seton, solicitor SOLICITORS: Marsdens Law Group

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

31 October 2006

11090 of 2005 - Alkosh Pty Limited v Fairfield City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Fairfield City Council (the council) to refuse a development application to alter and add to an existing dwelling and to use the building as a childcare centre for sixty (60) [originally for eighty (80)] children at Lots 1 and 23, Section 6, DP 6977, and Lot 20 DP 403271, being No 38 Station Street, Fairfield. 2 I visited the land in company with the parties on the morning of the hearing. 3 I have concluded that when considered under the heads of consideration of s 79C of the Environmental Planning and Assessment Act 1979 the application is satisfactory and there is no need to restrict the number of children to 40. The visual impact of an acoustic fence would not be so significant as to warrant refusal of the application. The land 4 The land is situated on the corner Station and Cunninghame Streets. The land has a frontage to Station Street of about 24m and a frontage to Cunninghame Street of about 55m and an area of 2,318m2. 5 The land slopes down to the rear and north. There are Jacaranda trees, a Palm tree, a Melaleuca tree, Privets and other smaller trees growing on the land. 6 Erected on the land is a single storey mainly weatherboard cottage that is proposed to be adapted for the proposed use. Relevant planning controls Fairfield Local Environmental Plan 1994, (FLEP) 7 Under the provisions of the FLEP the land is zoned Residential 2(al) and the proposal is permissible with consent. 8 The objectives of the Residential 2(a1) zone under the FLEP are: a) to set aside land primarily for the purposes of multi-unit housing and associated facilities; b) to provide for the orderly development of a wide range of multi-unit housing types, essentially domestic in scale and character, which will cater for differing lifestyles and income levels; c) to achieve attractive high quality residential development; d) to allow people to carry out a reasonable range of business activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours; e) to allow a range of non-residential uses that: (i) are capable of integration with the immediate locality; (ii) serve the demands of the surrounding population; and (ii) do not place demands on services beyond the level reasonably required for residential use; and f) to reinforce the economic viability, vitality and security of commercial centres. City Wide Development Control Plan, (CWDCP) 9 The CWDCP at cl 13.1 provides controls for childcare centres. This instrument has superseded Development Control Plan No 39/2006 - Childcare centres and other Non-Residential Development ('DCP 39/2006') however it has maintained similar provisions. The clause of the CWDCP provides detailed controls and objectives for various aspects of these centres. 10 Clause 13.1.1(b) of the CWDCP states: Council does not support the development of childcare centres catering for more than 40 children in any zone, as these are unlikely to satisfy the objectives of this Part. 11 Under cl 13.1.6 of the CWDCP - Outdoor spaces and landscaping: there is a requirement of at least 10m2 of useable outdoor open space per child that is exclusively for the use of children. Under the previous instrument this requirement was 7m2 and the council did not press the higher space requirement in this application. The proposal now complies with the 7m2 requirement. 12 Under cl 13.1.18 of the CWDCP - Emergency evacuation: the hours of operation shall not extend beyond 10.00am to 10.00pm Mondays to Fridays and 8.00am to 10.00pm Saturdays. The proposal complies with the previous more limited requirements of the DCP 39/2006 of 7.00am to 7.00pm Mondays to Fridays and 8.00am to 7.00pm Saturdays. No operation is proposed on Sunday or public holidays in compliance with either requirement. The proposal and its history 13 Development application 324/2005 was lodged with Fairfield City Council on the 18th March 2005 and sought planning approval to alter and add to an existing dwelling and to use it as a childcare centre catering for eighty (80) children. Before the hearing commenced the number of children was altered to sixty-four (64) and during the hearing it was amended to sixty, (60). 14 The proposal includes four (4) playrooms. One playroom would be used for eighteen (18) children aged 2-3 years, another for sixteen (16) children aged 3-6 years, another for eighteen (18) children aged 3-6 and another for eight (8) children aged 0-2 years, [Note: Exhibit F, plan with annotations as to the number of children]. 15 It is also proposed to provide clerestory windows to allow solar penetration into the building and additional floor area along the western part of the land. 16 The proposed hours of operation of the childcare centre would be Monday to Friday, 7.00am to 6.00pm. Notification 17 The application was notified to nearby owners and occupants for 14 days from 29 March 2005 to 12 April 2005 and the council received two (2) submissions objecting to the proposal. These objections were from: · Mr K Lin the owner of No 4 Cunninghame Street, [Note: Exhibit 3, Fol 59]; · Mr and Mrs C Stathis, owners of No 2 Cunninghame Street, [Note: Exhibit 3, Fols 60-1]. 18 Concerns were held for privacy, safety and noise. Mr and Mrs Stathis who are shift workers and sleep during the day requested at least a 2m high fence around the childrens' play area and for some landscaped buffer along their common fence line. 19 On 2 June 2005, the application was considered at the Independent Hearing and Assessment Panel (IHAP) and authority was delegated to the Executive Manager, Environmental Standards Department, to determine the application after amendment. It was recommended that: a. Amended plans shall be submitted to Council demonstrating the following: i. Increase the landscaped areas to the front setbacks, and provide the three (3) metre landscape setback to both Station and Cunninghame Street frontages and a two (2) metre landscape strip to side and rear boundaries as stipulated in the non- residential code. ii. Submission of an amended detailed landscape plan from a suitably qualified landscape architect. iii. With the increased landscaped areas this will result in the reduction of four (4) car spaces to a total of sixteen (16) car spaces. In this regard the maximum number of children in care will reduce from eighty, (80) children to sixty-four, (64) children. iv. An amended drainage plan shall be submitted indicating the details of the basement, the access ramp to the basement and the cross section through the basement and splay corner shall be provided.