Land and Environment Court of New South Wales CITATION : Hepburn Pty Limited v Hornsby Shire Council [2007] NSWLEC 169 APPLICANT J W Hepburn Pty Limited PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10030 of 2006 CORAM: Tuor C KEY ISSUES: Development Application :- childcare centre, parking and access, noise, limitation on childrens play, site selection crteria, streetscape LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Hornsby Shire Local Environmental Plan 1994 DATES OF HEARING: 16/10/2006, 17/10/2006, 11/02/2007, 9/03/2007 EX TEMPORE JUDGMENT DATE : 12 March 2007 APPLICANT Mr G. Newport, barrister instructed by Ms J. Napoli LEGAL REPRESENTATIVES: of Robert Napoli & Co RESPONDENT Mr I. Woodward, solicitor of Storey and Gough JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 12 March 2007 10030 of 2006 J W Hepburn Pty Limited v Hornsby Shire Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application (2172/2004) for a childcare centre at 32 Palmerston Road, Waitara (the site). Site and its context 2 The site is located on the eastern side of Palmerston Road and has an area of 752 sq m. It is developed with a detached house. Adjoining the site to the south (30 Palmerston Road) and to the east (75A Burdett Street) are single storey detached houses and to the north is a church and a rectory. 3 The surrounding area is predominately low density residential development. Hornsby Hospital is located in Palmerston Road on the northern side of Burdett Street. The proposal 4 The proposal is to demolish the existing dwelling and construct a childcare centre for 32 children, with parking for eight cars and outdoor play areas at the front and rear of the site. Planning Framework 5 The site is zoned Residential A (Low Density) under Hornsby Shire Local Environmental Plan 1994 (LEP 1994). The proposal is permissible with consent. 6 Hornsby Community Uses Development Control Plan (the DCP) is also relevant. The purpose of the DCP is stated as being: the primary purpose of the DCP is to assist Council and proponents in evaluating proposals for childcare centres, educational establishment and places of public worship. 7 The operation of the DCP is explained as: The DCP is divided into the primary control elements. Control elements comprise element objectives, performance criteria and prescriptive measures. The element objective may be implemented by meeting the performance criteria. Meeting performance criteria enables the development of innovative schemes that meet the particular characterises of an individual site. Prescriptive measures are those requirements the council considers are likely to meet the objectives of the particular design element. Compliance with the prescriptive measures does not guarantee approval of an application. The application must also satisfy the element objectives and performance criteria. 8 The primary control elements include site selection, parking and access design, recreation space, landscaping and acoustics. The issues 9 The amended Statement of Issues contains three issues and a number of sub issues. These can be summarised as: i. whether the proposal has an acceptable impact on residential amenity in terms of site selection, parking and access, noise, streetscape, ii. whether the proposal to limit the number of children and playtime in the outdoor area is acceptable. The evidence 10 The Court heard evidence from the following Court-appointed experts: · Mr C McLaren, traffic engineer. · Mr S Layman, town planner. · Mr S Cooper, acoustic engineer. 11 The Court also heard evidence from the following exerts: 12 For the applicant · Ms S Coping, social researcher analyst · Dr R Tonin, acoustic engineer · Dr A Elliot, research director, early childhood education 13 For the council · Dr R Berg, social researcher · Dr R Kitson, early childhood expert · Ms P Walsh, children's play environment consultant. 14 The Court visited the site and a number of residents gave evidence. Other residents were present on site and signed a document indicating their opposition to the development. Written objections in response to the notification of the application were tendered into evidence. 15 The main concerns of the residents can be summarised as the inconsistency of the childcare centre with the residential character of the area and unacceptable traffic impacts as Palmerston Road. The centre will also generate unacceptable noise impacts and there are already a number of centres in the area which are under utilised. The residents also considered the design of the centre to be inappropriate for the street. Traffic and parking 16 The main concern of the residents was that Palmerston Road is a busy road which provides access to Hornsby Hospital, including access for ambulances. There are already unacceptable traffic impacts from the number of cars using the road and trying to park. The residents considered the childcare centre would exacerbate these impacts by generating more cars and providing insufficient parking on site. 17 The residents were sceptical that the parking provided for the childcare centre would be used and that cars would park in the street. The arrangements in their opinion would result in pedestrian and vehicular conflict for young children and cars using the site. 18 Mr McLaren examined the existing traffic volumes using the site and concluded that: peak hour volumes indicate that Palmerston Road functions as a collector type road, thereby confirming that the traffic volumes are not commensurate with main road flows for a two lane road. 19 Mr McLaren also examined the Roads and Traffic Authority (RTA) traffic data for the recent five year period which showed a low accident level. He stated that; the driveway is adequately located in terms of both road safety and traffic flow efficiency considerations. 20 Mr McLaren recommended changes to the parking layout to introduce a pedestrian path separate to the parking area. These changes were incorporated into revised plans and satisfied Mr McLaren's concerns. 21 The number of car spaces complies with the requirement of the DCP which is consistent with the RTA guidelines of one space per four children. Mr McLaren was satisfied that the spaces provided would meet the demands of the development and not increase the demand for off street parking. He also considered that the aisle width of 5.8 m was adequate for this type of development and the number of spaces provided. The aisle width provided sufficient width to access the car spaces and for cars to access and egress in a forward direction. He stated that the 6.7 m aisle width in the DCP was required for developments with short term parking and large numbers of vehicles, such as a shopping centre and was an excessive requirement for this development. 22 I note that Mr McLaren's assessment is consistent with that in council's planning report of 16 November 2005, which states that: the road system has spare capacity to cater for a moderate increase in traffic volumes that can be anticipated from a number of additional 30 to 50 place childcare centres or expansion of hospital services as proposed in the hospital master plan. 23 Mr McLaren had not specifically examined the hospital master plan but considered that the hospital would need to generate a considerable increase in traffic to effect the road capacity. 24 While I recognise the concerns of the residents, the evidence before me from both Mr McLaren, the Court-appointed expert, and the council's assessment is that the proposed childcare centre will not result in adverse pedestrian or traffic congestions. In the absence of expert evidence to the contrary, I accept this evidence. Noise 25 The experts agreed that if the criteria of background plus 5 dB(A) is applied, there needed to be no limitation on the use of the outdoor play areas. However, the experts agreed that if the less stringent criteria of background plus 10 dB(A) is adopted the use of the outdoor play areas for active play should be limited to 1.5 hours per day. To achieve this the number of children using the rear play area would need to be restricted to a maximum of 15 children aged 3 to 5 and 10 children aged 0 to 2 in the front play area. 26 The noise experts also recommended 2.4 m high acoustic fences around the rear area and 1.8 m high acoustic fences on the northern and southern boundaries except at the frontage of the property where the acoustic fence may be decreased in height. The acoustic fences are to be lapped and capped timber fencing to 1.8 m and a perspex panel behind lattice where it exceeds this height. 27 The noise experts agreed that the outdoor areas can be used at other times but must comply with the criteria of background plus 5 dB(A). This would require small groups of children undertaking passive activities such as sandpit activities, story telling, painting etc. 28 As I understand the evidence, there is no issue of noise except with the upstairs rectory bedroom and that this can be addressed through limiting the number of children and the hours of active play. In response to the noise experts' agreed statement, council sought an adjournment to adduce evidence on the appropriateness of limiting the hours of active play to 1.5 hours per day. 29 The childcare experts agreed that outdoor play was an important part of a child's learning experience and that the sound of children playing is not excessively noisy. They considered that children made noise when engaged in both active and passive play and that children under 12 months would not undertake active play but still made noise. 30 The DCP and the Department of Community Services (DOCS) licence requirements specify a minimum outdoor area of 7 sq m per child. The proposal meets this minimum requirement. The DOCS Best Practice Guidelines and the Early Childhood Australian Best Practice Guidelines recommend 20 sq m per child. 31 The DOCS guidelines and the DCP do not include any requirements for the length of time for outdoor play or that outdoor areas should adjoin indoor play areas. All the childcare experts agreed that DOCS provides only minimum standards. The experts consider that children's play should not be looked at only in relation to time but also in relation to the amount of space, the physical environment and the richness of play provision as well as the level of staff qualifications and competence. 32 They considered that noise levels were limited by these factors and that the noise management strategy is "an overkill", particularly given the small number of children in the centre and the "joyful happy sounds of children's play". 33 In relation to the specific question of the appropriateness of the limit of 1.5 hours of active play, Dr Kitson and Ms Walsh considered this to be inadequate and that ideally indoor and outdoor play should be integrated to allow independent access of children without time limitations. To achieve this indoor and outdoor spaces should be integrated. 34 Dr Elliot considered that the proposed 1.5 hour limit met international standards for active play and is consistent with Australian best practice. She raised no concerns about the outdoor play area being separate from the indoor areas as children would be supervised as they walked through the centre to the outside. The small numbers of children would not disrupt the activities of the other age groups. 35 The residents do not share the perception of the childcare experts of children's play being an acceptable noise. The DCP objective for acoustics is "to provide a reasonable acoustic environment for residents". The DCP does not provide any numerical criteria or prescriptive measures as to what a reasonable acoustic environment is. 36 The DCP states the proposal should comply with the provisions of council's Policy and Guidelines for Noise and Vibration Generating Developments (2000). This document does not prescribe a numerical criteria for childcare centres but recognises that noise impacts can be mitigated by timetabling outdoor play to relatively short periods during the day as well as physical measures such as acoustic fences and separation distances. 37 In summary, the acoustic experts have agreed that an acceptable acoustic environment can be achieved by limiting the number of children and the period of active outdoor active play as well as the provision of acoustic fences. The noise experts agreed that the outdoor areas could be used at other times provided this meet the background plus 5 dB(A) criteria. 38 The childcare experts considered the limitation on time to be unnecessary and Dr Kitson and Ms Walsh considered it to be a totally inadequate period. 39 I note that the childcare experts considered that children make noise whether engaged in either active or passive play. However the noise criteria is based on an average measurement and the noise of children running freely on average would be greater than that on average of children sitting at a sandpit or painting. 40 I therefore consider that the limitation on active play to 1.5 hours per day is acceptable, as the children can use the outdoor areas at other times for passive play, provided the noise criteria of background plus 5 dB(A) is satisfied. Conditions to this effect are to be imposed. 41 The conditions of consent propose a deferred commencement condition that requires a management plan to be prepared which includes a timetable for use of outdoor areas for active and passive play. However, It is preferable that the Plan of Management be prepared prior to final orders being issued and that a condition then be imposed that requires the centre to operate in accordance with the Plan of Management. 42 A condition will also be imposed to limit the number of children in each age group to 15, 3 to 5 year olds and 17 0 to 2 year olds of which 7 must be under 12 months. 43 For abundant caution, it is appropriate that the noise levels of the centre are monitored once it is operational to ensure that the noise criteria are met. This will enable the Management Plan, the number of children and the periods of active and passive play to be adjusted, if necessary. A condition to this effect is to be imposed. 44 On this basis, I am satisfied that a reasonable acoustic environment for adjoining residents can be achieved as well as an appropriate learning environment for the children attending the centre. 45 By way of comment, while I accept the opinions of the childcare experts in relation to the importance of play in a child's development and the need for quality play environments, the proposal complies with the standards for a DOCS licence and the DCP. While the recommendations of Dr Kitson and Ms Walsh would clearly achieve a higher standard of development, they exceed the current adopted requirements and it would not be reasonable to refuse the application on the basis of the outdoor play area's size or relationship to its inside area, or the limitation on active play. Clearer guidelines and standards which address these issues would be of assistance in assessing applications for childcare centres to ensure that best practice is being consistently achieved. Site selection 46 Council raised the issue that the proposal did not satisfy the site selection criteria of the DCP, in particular the restrictive measure that in choosing a site consideration should be given to "sites close to populations with a large proportion of 0 to 4 age group". 47 The key difference between Dr Berg and Ms Coping was the interpretation of "close to" in relation to populations with a large proportion of 0 to 4 year olds. 48 Dr Berg equated "close to" as being 700 m, which is the distance referred to in the site selection criteria for railway stations and places of employment. 49 Ms Coping referred to the Department of Planning's Transport and Population Data Household Travel Survey, which found that people travel an average of 8 km per day for the purpose of childcare or education. Dr Berg did not consider this to be appropriate as 0 to 4 year olds form only a small percentage of these criteria. Ms Copping considered the 700 m criteria to be too limited as it related to being able to walk to a childcare centre. 50 Mr Woodward for the council submitted that the purpose of the criteria was to ensure that childcare centres are placed where they are needed so they service the community. I note that the DCP states that it would be unlikely that any site will meet all the selection criteria and it will be necessary to weigh up the various criteria before choosing a site. 51 I do not consider that it is appropriate to look at the population criteria in isolation or that it is necessary for me to adjudicate on whether "close to" means 700 m or 8 km. The important factor to ascertain is whether the centre is likely to service the community. In this regard people are likely to use the centre by both walking and driving. The fact that it is near a large hospital and medical service area will also be attractive. Although this is a separate criterion I do not consider that it should be isolated from the population criterion. Nor do I accept the statements that other centres are not fully utilised as a reason for refusal of this centre. 52 From the evidence, there is nothing to indicate that the site is unsuitable for use as a childcare centre. There is sufficient 0 to 4 population in the area where people can walk to or drive to the centre as well an employment centre nearby. This is sufficient for the centre to provide a service for the community. The proposal therefore meets the element objectives of the control. Streetscape 53 In relation to streetscape the centre is a part one and part two storey building set back about nine metres from the front boundary. The proposal complies with the height control for dwellings and the floor space ratio control of 0.4:1 in the DCP. The landscaping is below the 45% required by the DCP but Mr Layman considered that the proposal would fit into the residential context of the area. 54 The context is residential but there is no consistent character, style or period of housing. The proposal will be different to the houses in the area, particularly the parking in the front set back area. However, a degree of difference is to be expected as it is not a residential development. Mr Layman considered that the proposal, while different fitted into the residential context and met the objective of the 2A zone "to promote a variety of housing types and other land uses compatible with low density residential environment". I accept Mr Layman's evidence. Directions 55 The Court directs that: 1. The Applicant is to serve a Plan of Management by 15 March 2007. 2. The Respondent is to provide any comments on the Plan of Management and draft conditions by 22 March 2007. The Draft conditions are to include monitoring of noise levels once the centre is operational to ensure the noise criteria are met. 3. Agreed Plan of management and conditions are to be filed by 26 March 2006. 56 Upon satisfactory completion of Directions 1-3, final orders will be issued in Chambers. ___________________ Annelise Tuor Commissioner of the Court ljr 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.