Beehive Capital Pty Limited v Ku-ring-gai Council [2006] NSWLEC 33

Land and Environment Court of New South Wales

CITATION : Beehive Capital Pty Limited v Ku-ring-gai Council [2006] NSWLEC 33

APPLICANT: PARTIES : Beehive Capital Pty Limited RESPONDENT: Ku-ring-gai Council

FILE NUMBER(S) : 11114 of 2005

CORAM: Watts C at 1

Development Application :- Traffic and parking KEY ISSUES: Integration with the surrounding area Quality of development

Ku-ring-gai Planning Scheme Ordinance, (KPSO) LEGISLATION CITED: Development Control Plan No 57 – Childcare centres, (DCP57) Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED: Chella Holdings Pty Limited v Ku-ring-gai Council, [2005] NSWLEC 30; Acre Woods Child Care Roseville v Ku-ring-gai Council [2005] NSWLEC 301

DATES OF HEARING: 12/01/2006

DATE OF JUDGMENT: 02/07/2006

APPLICANT: Mr J Hones, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Hones Lawyers RESPONDENT: Mr A Hudson, solicitor SOLICITORS: Wilshire Webb

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

7 February 2006

11114 of 2005 - Beehive Capital Pty Limited v Ku-ring-gai Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of a development application to demolish the existing dwelling on the land and to erect a new child care centre for fifty-six, (56) children at Lot C, DP 346838, being No 168 Eastern Road, Wahroonga. 2 I visited the land in company with the parties on the morning of the day of the hearing. At the site inspection residents gave evidence. 3 The council has come to the Court seeking a consent award on the originally amended plans and maintains that position with the further amendments proposed by the applicant. I am satisfied that the further amended plans, submitted by the applicant during the hearing with the elevations submitted after the hearing on 27 January 2006, have adequately addressed the issues originally identified by the council. I have concluded that the development should succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979. The land 4 The land is situated on the western side of Eastern Road to the north of the intersection of Burns and Eastern Roads. The land is rectangular with an area of some 1,328m2. It has a frontage to Eastern Road of 26.82m and a depth or 49.735m. To the west, the land abuts No 117 Carrington Road. The land falls around 2m towards the street. 5 There are large trees and some shrubs growing on the land. A fine Himalayan Cedar is growing in the front garden. Erected on the land is a single-storey dwelling with an in-ground pool at the rear. The land is within a residential area characterised by large allotments and gardens. An aged and disabled persons development known as 'Eastern Court' is opposite at No 201 Eastern Road. Dwellings abut the land. Relevant planning controls Ku-ring-gai Planning Scheme Ordinance, (KPSO) 6 Under the provisions of the KPSO the land is zoned Residential 2(c) and the proposal is permissible with consent. Development Control Plan No 57 – Childcare centres, (DCP57) 7 The objectives of DCP57 are childcare centres that: A. are of the highest levels of health and safety for the users of the facility; B. stimulate and enhance children's learning within indoor and outdoor environments; C. effectively integrate with the surrounding area; D. are accessible to all members of the community; and E. are of an overall high quality. Other planning controls 8 Other relevant planning controls include: · Development Control Plan 38 – Residential Design Manual, (DCP38); · Development Control Plan 28 – Advertising and signage, (DCP28); · Development Control Plan 31 – Access, (DCP31); · Development Control Plan 47 – Water Management Plan, (DCP47); · Development Control Plan 43 – Car parking for developments in Ku-ring-gai Council Area, (DCP43); and · Development Control Plan 40 – Construction and demolition waste management, (DCP40). The proposal and its history 9 Development application No DA 504/04 was lodged with the respondent council on 27 May 2005 to demolish the existing single dwelling and other structures on the land and to erect a two-storey childcare centre comprising on the ground floor an entry, director's office, three classrooms, utility room, staff/disabled toilet, children's bathroom and storage. On the first floor it is proposed to provide a staff room, store, library, programming room, kitchenette, staff bathroom, and parent/staff seminar room. 10 Vehicular access would be provided to the car parking area at the front off Eastern Road, via a widened existing driveway near the southern boundary. Car parking for fourteen (14) visitors' cars is proposed. In addition there would be three car parking spaces provided for staff vehicles. During the site inspection the applicant agreed that these spaces should be located in the car park near the boundary with No 166 Eastern Road in spaces 14, 7 and 8. 11 Fifty-six, (56) children are proposed to be catered for and would comprise 16, 2-3 year olds, 20 3-4 year olds, 20 4-5 year olds. Seven staff would be required to operate the centre between the hours of 7.30am to 6.00pm Monday to Friday. Lighting and signage would be provided. 12 The proposed levels were a general finished car parking level of 175.4m AHD; ground floor level of 175.8m AHD; First floor level of 178.8m AHD; and top ceiling level of 181.5m AHD. These levels were amended downwards during the hearing. Notification 13 The original application was notified to nearby owners and occupants and the council received eighty-three (83) letters, some in support. Comments included, [Note: Exhibit 3 Report to the council]: · This commercial development appears out of place within a residential area. It should be located in a business zoning. If this commercial precedent is set, what other unpleasant commercial developments can we look forward to? · The development will adversely affect real estate values and the lifestyle of residents. · It is local knowledge that there is a brothel, which operates across the road from the proposed childcare centre. This shouldn't operate in the vicinity of a childcare centre. · Why should there be a second floor for numerous staff rooms and offices, which cast a shadow over neighbours on south side, which will cover almost half of their property at 9am? · The sheer bulk of the building does not fit with the character of the existing homes in the area. The development with its dual entry driveway, carpark, covered ramp and signage is clearly commercial and totally out of character with the surrounding homes. The carpark does not have a garden feel about it, and is not suitable for the character of the area. · Development does not meet the Development Control Plan in respect of it being less than 125 metres from a sub-arterial road (it is less than 100) That it shares boundaries with more than two neighbours (it has three) The site cover for this proposal appears to be excessive. The built upon areas has not taken pedestrian ramps etc all into consideration. The land size appears too small. · DCP57 states that the Child Care Centre should be single storey in height. The proposal comprises a two-storey building. · The shadow diagrams show considerable overshadowing to the neighbouring property. · The car parking is inadequate and fails to comply with minimum requirements. · Outdoor play area appears not to comply with minimum requirements. Need to provide 664m2 rather than 404.1m2. · The high, large wall along the southern side of the development will cause overshadowing and be visually most unappealing for the residents at 166 Eastern Road, 170 Eastern Road and rear neighbours at 117 Carrington Road will also be greatly affected by a loss of privacy and noise created by a 56 place childcare centre. · Impact of noise, fumes and access to light to the south facing windows at No 170 Eastern Road, comprised of a bedroom window and a living room window. The fencing on the side and rear boundaries should at least be 1800mm high to ensure that no children push their fingers through the fence and that dogs do not jump the fence. · Hours of operation will effectively be 6am to 6pm - this represents continual noise throughout the day. The amount of noise that will be generated by the child-care centre contradicts the number of existing SEPPS developments in the area catering for over 55s If this is allowed it will be the future of all our residential Al streets. Why is a childcare centre needed in the area when there is a preponderance of over 55 developments? Other sites are more suitable. · The childcare centre at the corner of Brentwood and Eastern Roads is too close at the end of the year - why not use that more suitable site? · Another site is located in Peace Avenue - a set of three properties, two of which previously had a preschool on site. The lot is available for sale. The road is not wide enough to allow parked cars and two lanes of normal traffic. · The corner of Eastern Road and Junction Road is a traffic black spot. The number of serious accidents at this intersection has probably diminished (check your traffic data on this) following the introduction of the traffic lights, but the situation remains delicately poised. · The approach to this site is an undulating one, and raises traffic safety issues. Exactly where the pre-school is to be located is a deceptively blind rise, exacerbated by the fact that traffic often speeds long this section of road to beat the red light. When cars park on both sides of Eastern Road in this stretch it effectively becomes a one-way street. Large buses that use this stretch of road are a potential cause of further congestion. Traffic flow has been building up rapidly in the streets adjacent to the proposed childcare facility. · No pedestrian access appears to have been provided. Appears as though people using the childcare centre will have to use the vehicle driveway. This will not be safe. The plan indicates 17 parking spaces, of which three are for staff, and one disabled. An average staff ratio is one staff member for eight children. With an enrolment of 56 this means at least eight (and possibly up to ten) staff members. The indicated staff parking for three staff cars is therefore greatly underestimated. Proposal also includes tandem parking spaces, which is a last resort. · This section of Eastern Road is narrow, and blocked up to Junction Road each morning. There are also bus stops to either side of the road, further restricting traffic movements. There is insufficient space to easily and effectively manoeuvre a vehicle -particularly the large 4WD vehicles. · The width of the driveway is only 5.5 metres, which does not allow for vehicles to pass and enter/exit at same time. · The bus service in Eastern Road is not frequent and in any case is unlikely to be used by parents taking children to or from the Centre. Cars returning to areas south of Junction Road would heed to cross or enter Junction Road at either Eastern Road or Wahroonga Avenue or Grosvenor Road. At present all of these intersections cause problems, particularly for traffic heading west. Does anyone at Council ever `get off their backsides to oversee the proposed sites at the busiest traffic times. · The tree at the front of the property is to be removed. Developers at 29 Wahroonga Avenue were made to retain their similar tree and build their new house behind it. Surely Council will not allow this tree to be removed? · The design and scale of the carparking means that the landscaping is compromised. The width of the proposed landscaping means that it will be little more than parsley around the pig. · The playground area seems to be calculated without any regard for the requirement of a rubbish bin area, siting of water tanks and the provision of the retaining wall, nor does the calculation allow any reduction for landscaped areas. The undercover balcony is also counted as 'playground'. · Impact of the development upon the root zone of the New Zealand Christmas Bush (Pohutukawa) at No 170 Eastern Road. · The area is prone to bushfire. Collection of persons and children from the childcare will be difficult during times of emergency, particularly given the limited access into the area. · The statement says that the proposed facility will be built in accordance with the Building Code of Australia. The plans do not appear to provide for satisfactory evacuation egress within the boundary of the property. Access down the northern and southern sides of the building is inhibited due to landscaping. · Given the large roof and compacted areas for car parking there must be a huge retention pit under the car parking area. Is the developer complying with the requirements of Council's DCP47 - Water Management? · Good early learning centres are extremely valuable to the community. It is important that elected Council hears our voice and encourages the development of high quality early childhood centres. Increased pressure in the area due to the closure of Aberfeldy Preparatory School at Turramurra. Beehive preparatory schools are work friendly and have extended working hours to provide for working parents. · Both Ku-ring-gai Council's draft Social Plan 2000 and Hornsby Council's Children's Services Strategic Plan 2005-2010 stress the need for additional child care places to meet demand. 14 The council's traffic engineer and reporting officers in their report in Exhibit 3 addressed these submissions and concluded that the original development application for the proposed childcare centre was acceptable: · The parking provision is considered to be satisfactory. · The parking space widths should be 2.7m to accommodate high turnover. · The traffic generation from the proposal is not considered to have a significant impact on the surrounding road network. · The access point is satisfactory, however clear sight lines should be maintained to pedestrians on the footpath which may require modification of the front wall. Also, pruning/crown lifting of the street trees in front of the property, and the introduction of 'No Stopping' restrictions on the frontage of the site on weekdays will be required to maintain sight distances to the north. · The traffic generation from the proposal is not expected to have significant additional impact to the northern leg of Eastern Road. The intersection of Eastern Road and Junction Road would not be significantly impacted by the traffic generated by the proposal.