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. 20 The application was then considered at the CHAP and IHAP made the following recommendation: That the application be deferred, subject to the submission of amended plans and information that addresses the matters raised in the Town Planning Recommendations and Panel Report upon satisfactory submission of amended plans and further information, that delegated authority be given to the Executive Manager Environmental Standards to determine the application. The council's decision 21 When the council considered the development application on 28 June 2005 it resolved to refuse the application for the following reasons: 1. The application fails to comply with the requirements of DCP No 3/2000 - Non Residential Development in Residential Zones, with respect to provision of adequate landscaping. 2. Insufficient details have been provided with respect to the drainage implications of the proposed development. 3. The site is considered unsuitable for the proposed development, as it is likely to have an adverse impact on the amenity of the surrounding locality. 4. Approval of the application is not considered to be in the public interest. 5. The scale of the development in terms of the number of children to be catered for in the childcare centre is considered to be excessive in the residential context of the subject site. The hearing 22 The appeal was filed on 20 September 2005 against the council's refusal of the application. 23 Mr P Hume, was the Court-appointed town planning expert and prepared the final report dated 22 May 2006. 24 Mr G Atkins was the Court-appointed acoustic expert and prepared a report dated May 2006. 25 At the hearing the court heard evidence on behalf of the respondent council from Mr and Mrs Stathis, owners and occupiers of No 2 Cunninghame Street, Fairfield. 26 Ms B Smith, Town Planner of Fairfield City Council prepared the statement of basic facts dated 27 October 2005. The issues 27 On 13 March 2006 the council filed an amended statement of issues. 1. The proposed development is unacceptable in that it is inconsistent with the objectives and development controls within Development Control Plan No 39/2006 - Childcare centres and other Non-Residential Development ("DCP 39/2006"), particularly in relation to the number of children to be catered for and the usable outdoor play space. Particulars: a. Clause 10.1 of DCP 39/2006 states that "Council does not support the development of child care centres catering for more than 40 children in any zone, as these are unlikely to satisfy the objectives of this part". In that regard the proposed development is unacceptable as it caters for 64 children [Now 60]. b. The proposed development provides for 316 square metres. usable outdoor space exclusively for the use of children in circumstances where Clause 11.5.4 of DCP 39/2006 states "Child-care centres must have at least 7 square metres of useable outdoor play space per child ... exclusively for the use of children" (which requires 448 square metres for the current proposal). 2. The scale of the proposed childcare centre in terms of the number of children to be catered for is excessive in the residential context of the site. 3. Whether the proposed development will have an unacceptable impact on the amenity of surrounding residents in terms of noise generated from the activities carried out on the site, having regard to the number of children to be catered for and the scale of the proposal. Particulars a) The objective in Clause 11.1 - (Objective) 011.1.2 of DCP 39/2006 is "…to minimize the impact of child care centres on residential amenity in terms of traffic generation and movement, traffic noise and noise from children by encouraging an even distribution of small centres in residential zones". b) The objective in Clause 11.3 - (Objective) 011.3.3 of DCP 39/2006 is "…to ensure the safe and efficient movement of pedestrian and vehicular traffic entering and leaving the site". 4. The proposed development is unacceptable in that it is inconsistent with objectives (d) and (e) of zone 2(al) of the Fairfield Local Environmental Plan 1994 (" the Fairfield LEP"). Particulars a) The proposed (excessive) number of children will create an unacceptable impact on the amenity of the surrounding residential area. In that regard the proposed development is likely to adversely affect the living environment of neighbours (objective 1(d)) and will not be capable of integration within the immediate locality objective 1 (e)(i). 5. The proposed development is unacceptable in that inadequate information has been provided to enable a proper assessment of drainage from the site. Particulars a) The basin is greater than 900mm deep and in that regard 30% of the total roof surface area of the basin is required to be grated. b) The grated drain within the basement area is required to be deleted and a grated drain is required to be provided in front of the door to the basement storage and should be connected to the storm water system. c) Pedestrian access path is required to be specified. 6. The proposed development is unacceptable in that inadequate information has been provided to enable a proper assessment of location requirements and building design and streetscape. Particulars a) Information has not been provided in accordance with the following requirements of Clause 11.1.1 of DCP 39/2006: "A location analysis shall be submitted with each application. This shall indicate in map form all existing child care centres as well as all parks, schools and other community facilities within a two (2) kilometre radius of the proposed centre. The map shall identify the capacity of surrounding centres, as well as any potential health and safety risk hazards (as listed in C11.1.4 and C11.1.5 below). An analysis of the need for a centre in the proposed location must also support the application". b) Clause 11.2.1 of DCP No. 39/2006 states that: "A site analysis shall be submitted with each application. The site analysis shall include the following: (a) to (e) have been provided f) Prevailing winds, natural drainage and noise sources; g) Location and scale of buildings, structures and trees on adjoining properties; h) Characteristics of any adjoining public open spaces; i) Street frontage features such as poles, street trees, kerb crossings, bus stops and other services". Information has not been provided with the proposed development in accordance with the requirements of (f), (g), (h) and (i) listed above. 7. Whether the proposed development will have an unacceptable impact on the privacy of surrounding residents due to opportunities for overlooking from the site. 8. Whether the proposed development is in the public interest, particularly having regard to the number of children to be catered for and the scale of the proposed childcare centre. 28 During the hearing the number of children to be accommodated was reduced; the outdoor play area was increased in area and thus Issue 1(b) was not pressed. The salient issue was the inconsistency with the objectives and development controls within City Wide Development Control Plan for childcare centres, [Note: Exhibit 2, Issue 1(a)]. The evidence and findings Inconsistency with the City Wide DCP 29 In particular (a) of Issue 1, the council contends that the proposal would not comply with cl 13.1.1(b) of the City Wide Development Control Plan [Note: Formerly cl 10.1 of the DCP39/2006 now superseded], which states that the "…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". 30 Under cl 13.1 – Overview: the relevant objectives identified by Mr Hume are: (a) … (b) To ensure Child-Care Centres are located and designed to minimise the impact on the amenity of surrounding residents and other land users; (c) To ensure Child-Care Centres are located and designed to provide children with a safe, healthy and active environment, conducive to positive development; (d) To ensure staff and other users of Child-Care Centres are provided with a high quality work environment. 31 Mr Hume considered the proposal against these objectives and identified the only significant impact on the amenity of surrounding residents and other land users as being the visual impact of the height of the fence on the common boundary with the Cunninghame and Ware Street properties. 32 It is proposed to erect an acoustic barrier 2.1m high constructed of lapped and capped timber around the play area to the north of the existing dwelling. The timber boarding would be fixed to the rails so that the boards would face the neighbours' dwellings. This fence and screen would slope with the land and would not exceed the height indicated. 33 Where the play area abuts the Cunninghame and Ware Street properties a sloping section of clear 'Polycarbonate' is proposed to be attached to the top of the fence and extending at an angle of 45 degrees over the land to a height of 2.7m above the natural ground level. 34 Mr Gough for the applicant submitted, that the underlying purpose or objectives of cl 13.1 of the CWDCP and the 40-place limit, would be met by the proposed fence and landscaping. 35 Mr Seton for the council submitted, that the proposed fence would be unsightly on the evidence of the Court-appointed town-planning expert Mr Hume and as such the application should be refused. 36 I am satisfied that the 2m-wide landscaping strip proposed around the perimeter of the play area and against the above fence would largely screen the fence from viewpoints within the street, once the landscaping had reached maturity. I have also taken into account the screening effect of landscaping within abutting properties. 37 The evidence of Mr Hume that the fence would be so unsightly as to warrant refusal of the application does not persuade me. I consider the proposed fence and sloping section would be sufficiently screened by vegetation so that the visual impact would be softened sufficiently so as to be not unduly unsightly. 38 Thus I am satisfied that the objectives would be met and the proposal would ensure the proposed childcare centre would be located and designed to minimise the impact on the amenity of surrounding residents and other land users; would ensure that it is located and designed to provide children with a safe, healthy and active environment, conducive to positive development. 39 Mr Seton was also critical of the fact that although Mr and Mrs Stathis had been made aware of the proposed fence and barrier other property owners on whose boundary the proposed fence would be erected had not been informed of the sloping section on the top only that a fence of 2.lm height was proposed. 40 Should the sloping section of the fence offend abutting neighbours, further negotiation might be required between the applicant and those neighbours. However, I am satisfied that a fence of 2.1m on the boundary (that was advertised) together with some other acoustic structure over or on the subject land could be provided to effectively screen the proposal and provide for acoustic attenuation. I have included Conditions 52(e) and 52(f) prepared by Mr Gough to achieve this end. 41 Mr Hume was also critical of the need for the 0 to 2 year old children being escorted through rooms occupied by other age groups in order to access the rear play area. Mr Gough tendered a drawing that showed a screen erected in the westernmost room separate that movement from other children. I do not consider this screen necessary, however, if in practice this need is revealed, this is an option that could be taken up. 42 I am satisfied that it is unlikely that the older children would be so disturbed by the younger ones being escorted through their room as to warrant refusal of the application. Also, I consider the interaction between different age groups is often sought for full development and socialisation of each group. 43 Thus I am also satisfied that the proposed childcare centre would be located and designed to provide children with a safe, healthy and active environment, conducive to positive development and to ensure staff and other users of the childcare centres would be provided with a high quality work environment. Other matters Noise transmission 44 During the hearing the specification of the fence to acoustically screen the childrens' playground was refined by Mr Atkins. He was satisfied that if the number of children using the playground were limited to 10 at any one time with the proposed acoustic screen in place reasonable levels of acoustic attenuation would be achieved. 45 Mr and Mrs Stathis explained that they are shift workers and need to maintain a reasonable level of quiet in order to sleep during the day. Their main bedroom is located towards the eastern side of their house and the bedroom facing towards the proposed playground is presently used as a study cum bedroom where Mr Stathis sometimes sleeps. 46 I accept the evidence of Mr Atkins that the proposed acoustic barrier around the play area would attenuate noise and maintain reasonable noise levels in nearby dwellings. I would not refuse the development application for reason of noise impacts. Site size 47 During the hearing the plans were amended to show the outside toilet located within the existing garage. Thus sufficient play area of 448m2 based on 7m2 per child would be provided within the design for 64 children. However, also during the hearing the number of car parking spaces was reduced by one and as a result the applicant decided to reduce the number of children within the centre to 60. Thus the north facing play area would be more than sufficient in area to provide for the children within the centre. Thus the issue of site size was no longer pressed. Drainage 48 This aspect of the design had been resolved before the hearing. There was no issued between the parties in this regard. 49 On site Mr and Mrs Stathis were concerned that overland stormwater flow across their land would be reduced. Mr M Fedele, of Fedele Design Pty Limited explained that with a stormwater sump now proposed within the playground area it might be expected that the overland stormwater flow would be reduced once development took place. I would not refuse the application for this reason. 50 For the above reasons, the appeal is upheld. Conditions 51 The conditions are those in Exhibit 8 as amended during the hearing. Orders 52 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 324/2005 lodged with Fairfield City Council on 18 March 2005 that sought planning approval to alter and add to an existing dwelling and to use it as a childcare centre catering for originally eighty (80) children and amended to sixty (60) children at Lots 1 and 23, Section 6, DP 6977, and Lot 20, DP 403271, being No 38 Station Street, Fairfield, is approved subject to Conditions 1 to 53 in Annexure A. 3. The exhibits except for Exhibits A, B, C, D, F, G, 2, 8, and 15 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.