Land and Environment Court of New South Wales CITATION : Yuen Yuen v Hornsby Shire Council [2006] NSWLEC 824 APPLICANT Yuen Yuen Pty Limited PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10524 of 2006 CORAM: Brown C KEY ISSUES: Development Application :- demolition of an existing dwelling and the erection of a child care centre - heritage - streetscape/character - traffic/access - amenity impacts LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Hornsby Local Environmental Plan 1994 DATES OF HEARING: 04/12/06 DATE OF JUDGMENT: 12/11/2006 APPLICANT Mr A Galasso SC SOLICITORS Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 11 December 2006 10524 of 2006 Yuen Yuen Pty Limited v Hornsby Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Hornsby Shire Council (the council) of DA No. 2041/2005 for the demolition of an existing dwelling and the erection of a child care centre at 45 Wongala Crescent, Beecroft. The site 2 The site comprises Lot D in DP40012. It has an area of 1,397 square metres and overall fall of 9% to the frontage of the site. A detached dwelling is sited on the land. The Arden Anglican Primary School adjoins the southern and western boundaries of the site and includes a range of single and two storey buildings. A detached dwelling adjoins the northern boundary. The site is opposite the northern railway corridor, which includes remnant bushland. 3 The immediately locality is largely characterised by residential development comprising a mix of federation and inter-war housing, later in fill housing, detached single and two storey brick and tile dwellings. Relevant planning controls 4 The subject site is within the Residential AS (Low Density - Sensitive Land) zone under Hornsby Local Environmental Plan 1994 (the LEP). The proposed development is permissible with consent. 5 Clause 15 of the LEP provides a maximum floor space ratio of 0.4 to 1. Clause 18 of the LEP requires the Court to consider the impact of a proposed development on the heritage significance of a heritage item and a conservation area. The site is within the Beecroft/Cheltenham Heritage Conservation Area and is in the vicinity of a heritage item at numbers 39-41 Wongala Crescent. 6 The proposed development is also subject to Hornsby Shire Community Uses Development Control Plan (the Community Uses DCP). The primary purposes of the Community Uses DCP is to provide controls for child care centres in addition to educational establishments and places of public worship. The relevant sections of the DCP include controls relating to density, site selection, set backs, parking and access, design, recreational space and landscaping. 7 The proposed development is also subject to the council's Heritage Development Control Plan (the Heritage DCP). The primary purpose of the Heritage DCP is to manage the heritage of Hornsby Shire and to provide guidance and outline specific controls for development relating to heritage items and heritage conservation areas. The Heritage DCP includes a statement of significance for the Beecroft/Cheltenham Heritage Conservation Area and precinct character statements for individual precincts within the area. The subject site is within precinct B2 - Beecroft North. The issues 8 The council filed a Further Amended Statement of Issues containing 6 individual issues. These issues can be grouped into the following main areas. 1. whether the proposed development will have an unacceptable impact on the nearby heritage item and conservation area. 2. whether the proposal will have an unacceptable impact on the streetscape and character of the area. 3. whether the proposal will have an unacceptable impact on traffic and pedestrian safety. 4. whether the proposal will have an unacceptable impact on 47 Wongala Avenue through tree loss, noise, loss of light, loss of privacy and bulk and scale. 9 The issues raised by resident objectors are considered as part of the above issues. The evidence 10 Mr Mark Robinson was the court appointed heritage and town planning expert and Mr Tim Rogers was the court appointed traffic engineer. The applicant was granted leave to provide additional town planning and heritage evidence from Mr Laurence Winnacott and Mr Graham Brooks respectively. 11 The following residents provided evidence on site: o Ms Ann Floyd of 119 Copeland Road. o Mr Colin May, the principal of Arden Anglican School. o Miss Carolyn Watt, the president of the Beecroft/Cheltenham Civic Trust. o Mr and Ms Sunderland of 47 Wongala Crescent. o Ms Edwina Ruff of 67 Wongala Crescent. o Ms Marlene Ratcliffe of 6 Albert Road, and o Ms Hilda Barnett of 2 Albert Road. Heritage 12 Mr Robinson states that the proposed development has an unacceptable impact on the setting and heritage significance of the heritage item at 39-41 Wongala Avenue and the Conservation Area for a number of reasons including the loss of vegetation on the footpath, the amount of hard stand associated with the car park and the bulk and scale of the building compared to the relatively modest houses in the locality. 13 Mr Brooks comes to the opposite conclusion. He states that the Conversation Area is primarily listed for its Federation residential character. This character involves large well designed houses in impressive garden settings that are easily visible from the street, grassed footpath reservations and fences. While these characteristics are present in Wongala Crescent, they are generally restricted to the area south of the site. The site and development to the north reflect a much later stage of development and are at odds with the primary characteristics of the Conservation Area. Consequently, any impacts from the proposed development have a lesser impact on the Conservation Area. 14 In terms of the impact on the heritage item, Mr Brooks states that the item is part of the Arden Anglican School. The curtilage of the item is already affected by new fencing, play structures, artificial grass and signage. By contrast, the proposal seeks to screen the driveway and external parking area by landscaping. In his opinion, the proposal is sympathetic to the item because it does not visually challenge or dominate the scale, character or streetscape presence of the item. 15 Cl 18(5) of the LEP provides that the court must take into consideration the likely affect of the proposed development on the heritage significance of a heritage conservation area when determining an application for consent. The Heritage DCP provides more detailed controls that relevantly relate to design, streetscape and siting. 16 Having considered the relevant matters in the LEP and the Heritage DCP, I accept the conclusions of Mr Brooks. The area around the site has a wide range of building styles of various ages with many inconsistent with the details in the Beecroft North precinct character statement. I agree with Mr Brooks that the inconsistent development starts around the site and extends further to the north. This development involves a relatively new dual occupancy development and recent alterations and additions to existing dwelling. I am satisfied that the design of the proposed building and its siting on the property when combined with the proposed landscaping will not have an overly noticeable impact on the Conservation Area. I am also satisfied that the loss of some street vegetation of dubious quality will have little or no impact on the Conservation Area. 17 Similarly, I am satisfied that the proposed development will not have an unacceptable impact on heritage item. The site is sufficiently distant from the item and with the design, siting and landscaping any impact would be minimal at best. While not a heritage item, the dwelling at 43 Wongala Avenue has some heritage merit although I do not accept that the proposal will have any meaningful impact on this dwelling. Streetscape and character of the area 18 The more general issue on the streetscape and character of the area was seen by Mr Robinson as also being unacceptable because of the reduced setback from the setback of the existing dwelling, the bulk and scale of the building and the visual dominance created by the excavation, driveway and parking area. 19 Mr Winnacott states that when considered against the elements that make up the character of the area, such as the Arden Anglican School, commuter parking within the road reserve and the railway corridor the proposal is acceptable. The compliance with the numerical controls within the Community Purposes DCP support this conclusion. 20 Clause 7(2) of the LEP requires the Court to take into account the objectives of the zone before development consent is given to the carrying out of any development. The relevant objectives are: (b) to promote a variety of housing types and other land uses compatible with the low density residential environment and sensitive to the land capability and established character of this environment; (c) to provide for development that is within the environmental capacity of a sensitive low density residential environment. 21 On this issue, I agree with the conclusions of Mr Winnacott. The Community Uses DCP specifically addresses child care centres. I note that the proposed development satisfies all (and in some cases exceeds) the numerical requirements for floor space ratio, site cover, front, rear and side set backs, landscaped area, car parking and indoor and outdoor play areas. While compliance with the numerical controls of a DCP does not automatically guarantee an approval, it is nonetheless a good indicator of whether the proposal addresses the character and form of development anticipated by the council for this form of development. 22 While the driveway will be greater in width than that normally expected for a single residential development, it is similar in width to a recently constructed dual occupancy development further north on Wongala Crescent. I am not troubled by the ability to view the car park from the street, as any design for a child care centre would likely provide a similar layout. I accept that the proposed landscaping will adequately screen this area in most instances. 23 Similarly, I am not troubled by the proposed excavation as it is largely a direct result of the topography of the site and is constant with dwellings with similar topography including the existing dwelling on site. 24 I also find that the design of the dwelling is acceptable and is not overly bulky or imposing in the streetscape. It has a setback and landscaped area greater than that required by the Community Uses DCP. The overall design provides adequate articulation and relief and acceptably addresses its residential context. 25 Having considered Cl 7(2) and the relevant parts of the Community Uses DCP, I find that the impact on the character of the area and the streetscape is not significant and the proposal is consistent with the relevant objects of the Community Uses DCP, as well as it's numerical requirements. Traffic and access 26 The impact of additional traffic was a significant matter raised by the residents and parents of children who attended the Arden Anglican School. They expressed concern that the existing traffic conditions were already unacceptable and that the additional traffic would exacerbate an already unacceptable situation. Additional concerns related to pedestrian safety and cars entering and leaving the site. 27 The issue of traffic has been addressed on four separate occasions through the consideration of the application by the council and the Court. The applicant provided two separate traffic reports, the council staff assessed the traffic implications and the Court appointed expert Mr Rogers also assessed the potential impacts. All came to the same conclusion that the traffic implications were not sufficient to refuse the application. 28 Mr Roger's evidence acknowledges the current issues with traffic involving the Arden Anglican School, commuter parking and the narrow alignment of Wongala Crescent. He states that the major cause of the traffic conditions is due to traffic associated with the morning set down and pick up of children at the Arden Anglican School as there are no facilities for set down and pick up off street. 29 Using the RTA Guidelines for Traffic Generating Developments, Mr Rogers calculates the proposal will generate some 37 vehicles per hour in the morning peak. In his opinion, this would result in only a minor increase in traffic flows and would have no material affect on traffic conditions along Wongala Crescent. As the proposal provides the number of car parking spaces required by the RTA and the council and as the parking layout complies with Australian Standard AS 2890.1 2004 Mr Rogers concludes that there are no traffic reasons why the application should be refused. 30 The weight of technical evidence clearly supports the application and I accept the conclusions of Mr Rogers. I note that Mr Rogers helpfully suggests a number of measures that could be implemented to improve traffic conditions around the site. These are: 1. banning parking on the western side of Wongala Crescent where the road narrows to provide only two traffic lanes; 2. extending the school set down and pick up area; 3. providing more parking on the eastern side of Wongala Crescent by formalising the shoulders; 4. banning the left turn from Beecroft Road into Albert Street during the morning peak period to remove through traffic; and 5. implementing time restricted parking in Wongala Crescent to remove commuter parking. 31 Having accepted Mr Rogers' evidence that the proposal would have no material impact on traffic, it would be inappropriate for the Court to impose any further requirements. In any event, the matters raised by Mr Rogers are more appropriately dealt with by the council's Local Traffic Committee after consultation with the school and the community, if thought appropriate. 32 Mr Rogers also addressed the question of pedestrian safety. He stated that the car park complies with the design requirements in Australian Standard AS 2890.1 2004 for adequate sight distance for pedestrians using footpath and vehicles entering and leaving the site. I accept this conclusion. Impact on 47 Wongala Avenue 33 The premises were inspected on the site view. It is the only residential property that adjoins the site, the Arden Anglican School adjoining to the rear and to the south. Mrs and Mrs Sunderland outlined their specific issues. Those not addressed earlier in the judgment relate to tree loss, loss of privacy, loss of light and increased noise. 34 The loss of trees was explained on site with a landscape plan and aboral reports provided by the applicant. While Mr and Mrs Sunderland expressed concerns that trees on their property would be potentially threatened by the development, the evidence suggests the contrary. In the absence of any other evidence to refute these conclusions, I accept that the trees on Mr and Mrs Sunderland's property will not be affected. 35 Some trees on the site adjoining the Sunderland property will be removed however additional landscaping will be provided. The loss of trees is not a matter that would warrant the refusal or amendment of the application. 36 The loss of sunlight is also not a matter that would warrant refusal of the application, as the proposed development is located to the south of the Sunderland property. 37 Loss of privacy is also not an issue that would require further amendment or refusal of the application as there are no windows overlooking the Sunderland property and the proposed fencing will provide privacy at ground level. 38 Noise was addressed through an acoustic report that stated that noise impacts could be adequately addressed through largely through a 2 metre high fence on the northern boundary. There was however disagreement between the parties on the appropriate noise goal. The applicant maintained that the appropriate noise goal was background plus 10 dBA whereas the council required a noise goal of background plus 5 dBA. 39 As this issue arose later in the proceedings through the council's without prejudice conditions of consent and as there are no other reasons why the development application should be refused, I allowed the parties to make written submissions on this issue by 8 December 2006 following which I would deal with the submissions in chambers. 40 In considering the submissions I accept that the appropriate noise goal is background plus 10 dBA. The applicant provided the only expert evidence on this issue and in the absence of any evidence to refute the conclusions of the applicant's expert I accept the applicant's noise goal. I note that while the Community Uses DCP addresses acoustics no specific noise goal is provided. Final orders were made on 11 December 2006. 41 The orders of the Court are: 1. The appeal is upheld. 2. DA No. 2041/2005 for the demolition of an existing dwelling and the construction of a child care centre at 45 Wongala Crescent, Beecroft is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, 2, 10 and A. ___________________ G T Brown Commissioner of the Court 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.