Moeskops v Sutherland SC [2005] NSWLEC 176

Land and Environment Court of New South Wales

CITATION : Moeskops v Sutherland SC [2005] NSWLEC 176

APPLICANT Robinson Moeskops

PARTIES : RESPONDENT Sutherland Shire Council

FILE NUMBER(S) : 11615 of 2004

CORAM: Brown C

KEY ISSUES: Development Application :- alterations and additions to existing childcare centre - increase in number of children - noise - landscaped area

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2000 draft Sutherland Shire Local Environmental Plan 2004

DATES OF HEARING: 8/04/2005 EX TEMPORE JUDGMENT DATE : 04/08/2005

APPLICANT Ms S. Duggan, barrister SOLICITORS Willis & Bowring

LEGAL REPRESENTATIVES:

RESPONDENT Mr C. Mathieson, solicitor SOLICITORS Sutherland Shire Council

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

8 April 2005

11615 of 2004 Robinson Moeskops v Sutherland Shire Council

JUDGMENT 1 This is an appeal against the refusal by Sutherland Shire Council (the council) of Development Application 04/0670 for alterations and additions and to extend the number of children at an existing childcare centre at 482 Port Hacking Road, Caringbah (the site). The proceedings were conducted as an On Site Hearing. 2 The site is lot 25 in D P 5606. It is almost rectangular in shape and is located on the south-eastern corner of Port Hacking Road and Telopea Avenue. It has a frontage of 19.82 m to Port Hacking Road and a depth of 73.715 m along Telopea Avenue giving a total site area of 1257.8 sq m. 3 Development in the area is predominantly residential characterised by a mix of single dwellings, dual occupancy, villas and town houses. To the north across Telopea Avenue is a two storey brick dwelling and to the south is a dual occupancy development. To the east is a villa development. 4 The proposal is to increase the number of children attending the centre from 40 to 48. The proposal also includes an extension to the north-eastern corner of the main building to provide an addition 27 sq m of playroom floor area. An extension to the existing patio at the centre of the west elevation of the main building and the relocation of a window on the western elevation is also proposed. The existing play areas and carparking will be retained. 5 The site is zoned 2(a2) Residential under Sutherland Shire Local Environmental Plan 2000 (the LEP). The proposed development is permissible with consent. Clause 31 of the LEP provides requirements for non-residential uses in residential zones. Clause 36 provides for a 50% landscape area requirement in residential zones. 6 The council's Development Control Plan for Childcare Centres 9.3/08 (Edition 3) (the DCP) applies to the application. Relevantly, cl 15 of the DCP requires that the maximum number of 40 children in residential zones. 7 The proposal is also subject to draft Sutherland Local Environmental Plan 2004 (the draft LEP). The draft LEP covers the local government area. It has been advertised and the evidence indicated that the council is to further consider the contents of the draft LEP in light of comments from the Department of Infrastructure Planning and Natural Resources. Childcare centres are a permissible use on the site if the amount of children does not exceed 45. Considering the normal matters of immense and certainty, I am not convinced that any significant weight can be given to its contents. I am also advised that the draft LEP will contain transitional provisions that will save the application and this supports the conclusion that no significant weight should be placed on the draft LEP. 8 The council filed a Statement of Issues containing two principle areas of concern. These being: 1. noise to adjoining properties and 2. non-compliance with the minimum landscaped area requirements. 9 Noise was the significant issue in the proceedings. The parties agree to the appointment of Mr Louis Challis as the Court appoint acoustical expert. Ms Tracey Gowen prepared a further acoustical report for the applicant. 10 Mr Challis recommended that a Noise Management Plan be prepared to address the issues raised by a number of local residents. He also provided further conditions that addressed the noise impacts on the adjoining property at 484A Port Hacking Road. This largely involves changes to the wall between the two properties. 11 During the hearing Mr Challis and Ms Gowen conferred and prepared conditions that sought to address noise impacts on the property owned by Mr Romeo at 484A Port Hacking Road. This involves a two-stage approach using the Noise Management Plan and additions to the boundary fencing of a physical barrier adjoining the rear yard of Mr Romeo's property. 12 There was agreement between Mr Challis and Ms Gowen that the physical works would likely achieve a noise reduction of 10dBa. A condition provides the mechanism to ensure that this reduction is achieved. They also agreed that noise levels would be further reduced through compliance with the requirements in the Noise Management Plan. 13 The Court was advised that measures contained in the Noise Management Plan have been introduced at the centre over the last two weeks and in response, Mr Romeo indicated that he had experienced a noticeable reduction in noise at his property during this time. 14 The occupier of the adjoining dwelling at 484 Port Hacking Road, Mrs Greenwood, also provided oral evidence to the Court. She also indicated a noticeable improvement over noise over the last two week period. I note that the applicant also accepted further conditions to address other concerns raised by Ms Greenwood, such as additional landscaping along the common boundary and the removal of an adjoining storage shed. 15 On the issue of noise, I accept the Noise Management Plan and the modifications to the fencing with 484A Port Hacking Road will satisfactorily address this issue. 16 Mr Greg Hand and Mr Lyndsay Fletcher provided evidence for the council and applicant respectively on the issue of the landscaped area. With recent amendments to the proposal, the council did not press the non-compliance with the landscaped area requirements, even though the 50% requirement was not been satisfied. There was agreement that the proposal achieves 49%. Mr Hand reviewed the SEPP 1 objection and accepted that the need to strictly comply with the standard was unreasonable and unnecessary in this case and as such the SEPP1 objection was well founded. I concur with this conclusion. 17 Traffic was also an issue raised by local residents but not the council. The applicant provided a traffic report from Mr Craig McLaren. The report concludes that the additional parking demand for the additional eight children can be readily accommodated by the supply on site and nearby convenient on-street parking. The additional traffic volumes should also be readily accommodated by the surrounding areas with minimum impacts and would be hardly noticeable. Considering the relatively small increase in children, I agree with the conclusions of Mr McLaren. 18 Accepting that the proposed noise attenuation measures are more than satisfactory and considering the proposal only seeks to increase the number of children by 8, there are no substantive reasons why approval should not be granted even though the 48 places exceeds the requirement in the DCP. 19 Consequently, the Orders of the Court are: 1. The appeal is upheld. 2. Development Application 04/0670 for alterations and additions to an existing child care centre at 482 Port Hacking Road, Caringbah is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of Exhibits 1, 7, A and B. _________________________ G T Brown Commissioner of the Court ljr