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. 15 Conditions were proposed by the council officer to provide: · Pedestrian sight lines in accordance with figure 3.3 of Australian Standard 2890.1 - 2004 'Off-Street car parking" - "Minimum sight lines for Pedestrian Safety'. · No Stopping restrictions over full site frontage during weekdays. · Trimming/Crown Lifting of street trees over site frontage to fully clear sight lines to street traffic. The council's decision 16 The council under delegated authority refused the original application on 7 October 2005. However, by letter dated 20 January 2006, the council indicated to the Court that it was prepared to enter into a consent award and to grant consent to the amended plans subject to 117 conditions in Exhibit 11. Amended plans 17 Prior to the hearing the plans were amended. These changes were referred to in a letter from the applicant dated 1 November 2005 and included in regard to streetscape: · moving building 400mm to the west increasing the landscaped area at the front of the building from 2m to 2.4m; · four (4) canopy trees in the children's playground and three (3) new canopy trees in the front to replace the one tree in the front garden that would be removed; · two-storey section of building set back 2.4m and single-storey building setback 2m from the southern boundary; · provision of screen planting to 3m in height along southern boundary; and · path along southern boundary deleted from plans. 18 In regard to residential amenity the changes include: · length of southern elevation now 20m with relief at 10.8m; · two-storey section of building set back 2.4m and single-storey building setback 2m from the southern boundary; · provision of screen planting to 3m in height along southern boundary; · path along southern boundary deleted from plans; · five (5) ground floor windows adjoining No 166 Eastern Road have a minimum sill height of 1.7m and will be closed at playtime; · two-storey section of building moved 800mm and single-storey of building moved 400mm to the north to increase solar access to courtyard of No 166 Eastern Road; · staff room and store windows on southern elevation to have minimum 1,700mm high sill; · window to office on southern elevation to be provided with obscure glazing to bottom pane; and · three (3) stacked car parking spaces adjoining No 170 Eastern Road deleted. 19 With regard to access and parking the changes include: · Car spaces 1 – 5 are 2.6m wide and spaces 7 – 14 are 2.7m wide, car space 6 is for disabled and 3.2m wide; and · Footpath provided between car spaces 11 and 12 from Eastern Road. 20 With regard to lack of information the changes are: · statement under Part 2 of the regulations; · maximum children numbers statement on floor plan; · unencumbered indoor play space included on floor plan; · storerooms shown; · bed storage shown; · door to outdoor access to toilet; · nappy change area provided with gate shown; · foyer gate at stair; · director's office added; · kitchen shown on plan; · laundry shown on plan; · separate outdoor play area for children under 3 shown; · height and type of gates and fences shown; and · transition area shown with depth of 4m. 21 In respect of signage the changes are: · flat sign similar to Turramurra Beehive attached sign and located near entrance; · size 600mm x 800mm in height. 22 Ms McCarry stated that the amended plans were referred internally to the council's Landscape Assessment and Community Development Officer (Children's Services). Landscape The Landscape Section finds the proposal acceptable in relation to landscape issues subject to proposed landscape conditions. Community Officer The amended plans lodged on 2 November 2005 by the Applicant contain considerably more details than previous plans submitted to Council. The main concerns stated in the previous comments dated 28 June 2005 have since been addressed by the Applicant. The hearing 23 The applicant filed the appeal as a deemed refusal on 23 September 2005. 24 On behalf of the applicant evidence was given by: · Mr J Hewitt, traffic consultant; · Mr V P Milligan, town-planning consultant. 25 Ms S McCarry, Development Assessment Officer of the council, prepared the statement of basic facts. 26 On behalf of the council evidence was given by: · Mr P Laverty, resident of No 207 Eastern Road, Wahroonga; · Ms M Lamrock, resident of No 128 Junction Road, Wahroonga; · Mrs M Williams, (related to Mr M McMahon), resident of No 205 Eastern Road, Wahroonga; · Mrs Ward, resident of No 166 Eastern Road, Wahroonga; · Mr B Croft, resident of No 117 Carrington Road Wahroonga; · Mrs M Moore, resident of No 170 Eastern Road, Wahroonga; · Mr C Easterbrock, resident of No 122 Carrington Road, Wahroonga; · Mr A Rich, resident of No 201 Eastern Road, Wahroonga; · Mr F Zwarteveen, resident of No 7 Zelda Street, Wahroonga; · Mr B Shepherd, resident of No 107 Boundary Road, Wahroonga; and · Mrs J Shepherd, resident of No 107 Boundary Road, Wahroonga. 27 The concerns of the local residents expressed on the site inspection included, [Note: Exhibit 8]: · Fourteen car parking spaces for a development of this type would be unworkable and there will be parking of parents' and guardians' cars on street and this will exacerbate congestion; · The applicant has apparently given no consideration in the design for the traffic consequences of development; · There are heavy traffic volumes in Eastern Road, Wahroonga, and as a result traffic lights were installed at the intersection with Junction Road; · The number of residents in the area has increased and traffic generated from about 300 homes passes through the Junction and Eastern Roads intersection; · Because of the topography in the vicinity of the land there is a blind spot and this impacts on safety of motorists; · The Roads and Traffic Authority should assess the traffic issues surrounding this development and have regard for recent intense residential development in the area; · To permit a childcare centre on this land would be a gross infringement of residential amenity; · There will be noise of children and the traffic will increase; · Conditions 40, 41, 49, 108 and 112 should be drafted as deferred commencement conditions; · The no stopping zone as proposed by the council should be secured by the applicant prior to any consent operating; · The site is inappropriate for a childcare centre as a business in a residential area; · There is a huge traffic issue surrounding this proposal; · The proposal is greedy, and there would be adverse amenity impacts on abutting neighbours; · The traffic is already excessive with the SEPP5 development across the road and other intense residential development in the area; · Eastern Road is not suitable for general traffic at the moment and the proposal would exacerbate the traffic problems; · There is a cut and fill issue with the development of the land; · Where is the air conditioning unit going? · Where will the bins be placed before pickup? · Will there be cleaners and workers coming to the premises especially at night? · Eastern Road is only 8m wide; · There have been numerous letters written to the council about the proposal and there has been no environmental assessment; · The loss of the Himalayan Cedar would be a shame; and · Criticism was levelled at Conditions 61(b), 85(a), 90(a) and 91. The issues 28 On 8 December 2005 the council filed a statement of issues in respect of the original plans. 1. Streetscape The proposed development has adverse impact upon the residential streetscape. It is therefore considered that the application is contrary to the streetscape objectives of DCP38, specifically objectives 4.2(a)(c)(j) and 5.1(a)(b)(c) and objectives 5.1 of DCP57, which require retention of natural features of the streetscape, and development which is compatible with the residential character of the street and locality. Refer also to Schedule 9 of the Ku-ring-gai Planning Scheme Ordinance. Particulars: (i) The application includes a vast area of hard surface to the front of the building. The extent of hard surface results in limited space for landscaping and canopy trees and has adverse impact upon the established residential streetscape. (ii) The development will result in the loss of the one significant tree on site, a Himalayan Cedar with an excellent SULE rating and which contributes significantly to the streetscape. (iii) The proposed development would only allow for a maximum of 3 canopy trees as opposed to the required 7 trees, usually anticipated within a residential area (refer: DCP38 5.3.3, DCP57 5.1) (Refer also to Schedule 9 of the Ku-ring-gai Planning Scheme Ordinance). (iv) The building is proposed at a minimum distance of 1.5 metres from the southern boundary, as opposed to the minimum requirement for 2.4 metres. No significant landscape screening will be able to be established along this boundary due to the minimum distance provided. Further, the plans indicate the placement of a path along this boundary, preventing the installation of any landscaping. 2. Impact upon Residential Amenity Particulars: (i) Along the southern elevation, the building is proposed to be of 24.5 metres in length, starting at the rear of the directly adjacent dwelling No 166 Eastern Road. There will be continuous length along this boundary, at a distance of 1.5 metres from the fencing. No significant landscape screening will be able to be established along this boundary due to the minimum distance provided. Further, the plans indicate the placement of a path along this boundary, preventing the installation of any landscaping. Whilst DCP38 is simply a guide for this development to ensure acceptable impact to residential amenity, the impact upon adjoining occupiers to the south is in this instance considered unacceptable. The building will be excessively lengthy along the southern elevation, and will not provide for sufficient landscaping to soften the lengthy appearance of the building. Unrelieved walls not to exceed 12 metres. Non-compliance on southern and northern boundaries. Refer to 5.2.3, 5.2.8, 5.2.11 of DCP38 and 5.2.1, 5.2.2 and 5.3 of DCP57. Refer also to Schedule 9 of the Ku-ring-gai Planning Scheme Ordinance. (ii) The development will have adverse noise impact upon the adjoining residence at No.166 Eastern Road, arising from the five windows at ground floor, including four classroom windows, proposed to be sited immediately alongside No.166 Eastern Road. In order to comply with noise requirements, the windows of the centre would need to be closed at playtimes (refer section 5.8 of DCP57). (Refer also to Schedule 9 of the Ku-ring-gai Planning Scheme Ordinance). (iii) Solar access to the adjacent dwelling at No 166 Eastern Road achieves 4 hours. However, the outdoor courtyard area to the north of the property will be in shade at most times of the day, and useability limited (refer DCP57 section 5.1, DCP38 section 5.2 and 5.2.2 (Building Height Plane)). (Refer also to Schedule 9 of the Ku-ring-gai Planning Scheme Ordinance). (iv) The building includes three windows on the first floor of the southern elevation, which provide views to No 166 Eastern Road. These windows serve a staff room, director's office and store. The area to the north of 166 Eastern Road is used by the residents as outside courtyard area. Further, there will be no opportunity for landscaping along this southern boundary to break these views. For these reasons it is considered that there will be adverse impact upon the visual privacy of the adjoining property at No 166 Eastern Road (refer DCP57 section 5.2.1 and DCP38 section 5.4.1). (Refer also to Schedule 9 of the Ku-ring-gai Planning Scheme Ordinance). (v) The impact of the parking area upon No 170 Eastern Road. The parking area includes three stacked parks with minimal separation distance of 600mm to the common boundary of No 170 Eastern Road. No 170 Eastern Road has two windows alongside this boundary, including a bedroom window (refer DCP57 section 5.1, DCP38 section 5.4.2). (Refer also to Schedule 9 of the Ku-ring-gai Planning Scheme Ordinance) 3. Access and Parking Particulars: (i) The parking arrangement is unsatisfactory, as it does not provide for suitable widths as recommended under DCP43, which requires car spaces with high turnover to be 2.7m wide. The proposal shows 2.6m wide car spaces, which satisfies the requirements of AS2890.1-2004, but fails to meet the requirements of DCP43. (ii) No designated footpath has been included for the centre from the road to the centre (refer DCP5 7 section 4.3(a)). 4. Absence of information to determine whether the site is capable of accommodating the proposed development, as required by DCP57. Particulars: (i) Absence of Statement required by Part 2 of the Regulations (ii) Absence of information to determine maximum children's numbers. (iii) Absence of information to determine the unencumbered, indoor play space. (iv) Absence of storerooms. (v) Absence of bed storage areas. (vi) Absence of outdoor access to one children's toilets area. (vii) Absence of gate and supervision in nappy change area. (viii) Absence of gate at foyer at foot of stairwell. (ix) Absence of director's office on the ground floor, next to foyer. (x) Absence of kitchen. (xi) Absence of laundry. (xii) Absence of a separate outdoor play area for children aged under 3 years. (xiii) Absence of height and type of fences and gates indicated on plans. (xiv) Transition area falling below the minimum of 4m requirement. 5. Signage Particulars: (i) No details of the proposed signage for the centre has been submitted. The proposed sign is therefore not able to be assessed against the requirements of SEPP64 and DCP28. 29 The following emerged as the salient issues: Traffic and parking; · Lack of drive-through set down area; · Perhaps four or more set down spaces; and · Lack of car parking turning head for car parking spaces 8 and 14. Integration with the surrounding area and high quality · Appearance of the car parking area in the streetscape, and need for development to be compatible with the residential setting; · Setback of the proposal from the front alignment; · Parking of cars adjacent to the bedroom of the abutting property at No 170 Eastern Road; · The loss of the tree in the front garden; · Lack of width in Eastern Road vertical curves in terms of safety, and, · Overshadowing of No 166 Eastern Road in midwinter. The council's position statement 30 The applicant submitted amended plans that in the opinion of Ms S McCarry, Development Assessment Officer addressed the council's concerns. A copy of her report dated 18 January 2006, is in Exhibit 2 and is quoted below. 1. Streetscape (i) The applicant has increased the front setback of the building by 0.4m to allow for increase landscaping along the front boundary from 2m to 2.4m. This will allow for two canopy tree plantings adjacent to the front boundary, a canopy tree adjacent to the northern boundary and additional landscaping to screen the development from the street. Council's Landscape Officer is satisfied that the amended plans can provide adequate screen planting. However, to further minimize the visual impact of the hard paved area within the front, it is possible to provide additional landscaping adjacent to the driveway by `pushing' the eastern row of carparking (car spaces no 9-14) further north so as to allow for a 1.5m wide garden bed on the southern side of car space 9. Also to preserve the adjoining trees located on 170 Eastern Road, adjacent to the northern boundary, no excavation shall take place beyond the northern side of the dwelling. The applicant is in agreement of this, and a condition is to be imposed. (ii) The development will still result in the loss of the Himalayan Cedar, however, as the front setback has been increased to 2.4m, there is room to replace the tree with three new canopy trees within the front setback. Council Landscape Section will support the removal of the tree provided that 3 canopy trees are planted along the front boundary. (iii) Landscape Concept Plan lodged at Council on 2 November 2005 indicate 9 canopy trees to be provided on site - three within the front setback and six within the rear yard. The required 7 trees are required to attain a height of 13m and careful consideration of each species and their placement is required in relation to the safety of the children. (iv) Amended plans show the southern boundary increased from 1.6m to 2m for a length of 10.5m and 2.4m for a length of 10.5m and 3.6m for a length of 1.5m. The increased in setback will allow landscape screening to be planted along this boundary. However, the landscaping plan only show a 0.6m wide landscaping strip down this section. A 0.6m wide landscaping is not sufficient to provide reasonable plantings. Amendments will be required as the side setbacks have been compromised by the proposed pedestrian paths and the outdoor equipment storage (northern side). To provide for appropriate screen planting along the southern side of the dwelling, pedestrian access will need to be deleted except to access the garbage bins. To provide for appropriate screen planting along the northern side of the dwelling, the proposed outdoor equipment will need to be relocated. The applicant does not agree to relocating the proposed outdoor equipment. 2. Impact upon Residential Amenity (i) The south elevation of the building has been reduced in length to 23m, with the southern side setback increased to 2m to 2.4m and 3.5m. The increase in setback will allow for landscaping to be provided to soften the appearance of the building. Furthermore, the provision of a 1.8m high fence, landscaping along the southern side and if the applicant is in agreement to the deletion of the side pathway, the impact to residential amenity to the adjoining occupiers to the south is considered acceptable. A slight indentation has been provided along the southern elevation to provide some architectural relief to this elevation. Unresolved on the northern elevation. The side setback to the northern boundary has been reduced from 3.4m down to 1.8m and 2m. The proposed outdoor equipment storage area has now been allocated to the side of the northern elevation, reducing the setback to l .8m to 2m for a length of 12.8m. Due to the reduced setback, adequate screen planting should be provided to soften the building. Council's Landscape Officer recommends that the outdoor equipment storage area be relocated so as to allow appropriate screen planting along the northern boundary. The applicant does not agree to this. (ii) The amended plans show the five windows along the southern elevation being reduced in size and to have a sill height of 1.8m. The Noise Assessment Report, (Report Number 1601, dated June 2005), prepared by RSA Acoustics Consultants, submitted to Council on 11 July 2005 have addressed the issue of noise impact upon the adjoining residence at No. 166 Eastern Road and other nearby residents and is satisfied that provided that the recommendations described in the report are implemented ie the classroom windows to be closed during internal play activity, installation of a 1.8m high fence, doors to the classrooms to be fitted with acoustic edge seals and acoustic drop closure bottom seals, the proposed child care centre should be able to operate without loss of acoustic amenity to local residents. The applicant has agreed to accept this as a condition of consent, and a condition is to be imposed. (iii) The width of the car spaces have been increased from 2.6m to 2.7m wide as required under DCP 43. The applicant has increased the southern side setback both on the ground floor and on the 1St floor, which has reduced the amount of overshadowing to the northern windows of the adjoining southern property - no. 166 Eastern Road. These windows will not be in shade from 12 noon onwards. However the issue of the outdoor courtyard area to the north of the property will now benefit approximately two hours of morning sun from 9am to 11 am, which then afterwards the area will then be in shade. This is an improvement to what was originally proposed and is considered acceptable, as this area is not off a main living area and that the main area outdoor can be located at the rear yard. (iv) The three windows on the 1St floor southern elevation have been altered. The staff room and store room windows have been reduced in size to have a sill height of 1.8m. The middle window, which is an office window will have opaque glass fixing. The side setback has been increased to allow for screen planting and to break the view. The issue of overlooking into the southern property - 166 Eastern Road has been resolved. (v) The three stacked parks along the northern elevation have been deleted and landscaping strip of approximately 1 metre is proposed adjacent to the northern boundary to soften the development. 3. Access and Parking (i) The width of the car spaces have been increased from 2.6m to 2.7m wide as required under DCP43. (ii) A 1m wide footpath and covered ramp area have been included on the plan to provide a walkway from the footpath to the building's entrance. 4. Absence of information to determine whether the site is capable of accommodating the proposed development, as required by DCP57. (i) Submitted – 2 November 2005. Considered satisfactory. (ii) (i) to (xii) Submitted - indicated on amended plans lodged 2 November 2005. 5 Signage (i) Details submitted and are considered satisfactory. 6 Issues still outstanding: · To provide a 1m landscaping strip along the rear western boundary and retain existing vegetation (subject to the species being suitable for a childcare centre), as pleaded in Council's Statement of Issues, dated 8 December 2005. 31 There was no formal referral of the amended application to the council's traffic engineer, however he/she advised there were no objections to the proposed amendments. 32 Ms McCarry concluded that: …the key aims and objectives …[of] the KPSO, Development Control Plan 38, Development Control Plan 43, Development Control Plan 31, Development Control Plan 28, Development Control Plan 40 and DCP57 Child Care Centres, [have been met]. 33 The council came to the Court with draft consent orders and conditions in Exhibit 11. Further amended plans 34 Following the site inspection on 24 January 2006, the applicant amended the plans in red in Exhibit L by providing: · Option A, showing a car parking plan with a drive-through traffic flow giving access to fourteen car parking spaces and by lowering the car parking by 520mm. Car parking spaces Nos 7 and 8 were shown as allocated to two staff vehicles. This plan also lowered the height of the proposed childcare centre by 420mm. · Option B, showing a revised single access car park without drive-through flow for fourteen car parking spaces and by lowering the car parking by 520mm. Car parking spaces Nos 7 and 8 were shown as allocated to two staff vehicles. This plan also lowered the height of the proposed childcare centre by 420mm. 35 As an attachment to a letter dated 27 January 2006, the applicant provided a sheet of elevations showing in red the amended levels for the floors, top ceiling level and ridge level. The ground floor level as amended was shown as 175.38m AHD; the ceiling of the ground floor was shown as 178.08m AHD; the first floor was shown as 178.38m AHD; the ceiling of the first floor was shown as 180.78m AHD and the ridge level was shown as 182.58m AHD. Thus the overall height of the proposal was reduced by around 720mm. Evidence and findings Traffic and parking 36 Mr Hewitt the applicant's traffic consultant concluded that there would not be any adverse traffic parking or traffic environmental implications resulting from the proposed development. He stated: · The maximum peak hour vehicle generation from the new centre is anticipated to be a maximum of about 47 vtph, (vehicle trips per hour) (two way) or less than 1 additional vehicle trip per minute. Translated to the road system this additional traffic will not be perceptible to other road users or vary the currant amenity status of the adjacent and feeding roads. · Seventeen (17) on-site parking spaces (amended to 14 spaces and now compliant under DCP43, with 1 space for 4 children, including staff parking) are proposed and designed to exceed Council's numerical and design requirements as well as the Australian Standards criteria. · The proposed access point and sight distances available for emerging traffic to the approaching flows on Eastern Road meets the relevant safety requirements and will allow for the safe and efficient movement of vehicles to and from the site. 37 The lack of drive-through set down area was a serious flaw of the original application. It is proposed cater for 56 children and most will probably be driven to the centre. Mr Hewitt, although prepared to recommend approval of the application with a dead end aisle car park for 14 vehicles, indicated that he would prefer to see people pick up and set down children by parking in the street. He said that the occasions would be few, when all car parking spaces in the car park were occupied and when one or two additional vehicles were driven onto the land. However, he could not discount that situation would occur. He said that on such occasions the incoming motorist would have to park temporarily and wait for a car space to be vacated. 38 In order to overcome the shortcomings of the dead end aisle car park, Mr Hewitt prepared Option A in Exhibit L to show how a drive-through car park could be laid out. I understand, the applicant would embrace this option were I otherwise satisfied with the application. The applicant indicated that approval could be granted referring in conditions to the plans in Option A. 39 The finished general levels of Option A were reduced 520mm from 175.4m AHD to 174.88m AHD during the hearing. The finished general levels of Option B were similarly modified. I am satisfied that this reduction in the general finished level of the carpark would be beneficial in reducing the prominence of the car park when viewed from viewpoints in the street. Also, the proposed 2.4m wide landscaping strip along the frontage would provide the opportunity for planting along the frontage to screen from view, most cars parked in the car parking area in its lowered configuration. 40 Ms Williams a nearby resident, referred to comments of Mr M McMahon, solicitor, that were the Court minded to endorse the consent orders proposed by the parties that Conditions 40, 41, 49, 108 and 112 should be included in a deferred commencement condition requiring the approval of the Ku-ring-gai Traffic Committee to the proposed 'No Stopping' zone prior to any consent being issued. Condition 108 states: Prior to issue of the Occupation Certificate, the applicant must make a written application to the Ku-ring-gai Traffic Committee to install a 'No Stopping' zone over the site frontage (weekday restriction only). The applicant must obtain a written copy of the related resolution from the Ku-ring-gai Traffic Committee and submit a copy of this to the Principal Certifying Authority for approval prior to Occupation Certificate issue. Where approval of the 'No Stopping' is resolved by the Committee the necessary 'No Stopping' signage must be installed (at the cost of the applicant) prior to issue of the Occupation Certificate and occupation of the development. 41 I consider the Option A arrangement of car parking to be an improvement over the original design however, there would be still some deficiencies in that there would still be required some backing and filling by motorists to get into and out of the car spaces in an area where accompanied children would be walking. However, Mr Hewitt was prepared to accept this disadvantage and stated that the car parking arrangements of a childcare centre are to be considered differently to say a primary school in that a parent or guardian would always accompany the child from the car to the centre where the children are booked in. Thus, no child is unescorted in the car parking area. A preferable design of a childcare car park to my mind, would be one where there are some parallel car parking spaces provided along the driveway for pick up and set down in addition to the car parking for staff and visitors in a car park proper. In a recent decision of Brown C in Chella Holdings Pty Limited v Ku-ring-gai Council, [2005] NSWLEC 30, 15 February 2005, at cl 15, "…a further four drop-off/pickup points around the access driveway" were incorporated in amendments of the plans. In Acre Woods Child Care Roseville v Ku-ring-gai Council [2005] NSWLEC 301 the plan that I approved had "…one set-down point in the driveway". However, I am satisfied that this deficiency of not providing parallel car parking would not be sufficient reason to refuse the application, given that the applicant has provided car parking in accordance with the council's requirements. 42 Another deficiency of the original plans was the lack of car turning head for car parking spaces Nos 8 and 14. In both Options A and B, Mr Hewitt, addressed this deficiency, by providing a 1m extension of the aisle to allow for turning movements. I would not refuse the application for reason of a lack of turning space at the end of the aisle if either Options A or B were selected. 43 Many residents were critical of the narrowness of Eastern Road in front of the land. They expressed concern for the danger associated with vehicles entering and leaving the land. Mr Hewitt noted that the width of Eastern Road in front of the land is 7.8m wide. With parking on both sides, passing lanes are restricted. Mr Hewitt was not concerned about this aspect of the design however; he embraced the suggested draft Condition 108 in Exhibit 11 that the applicant is to make a written application to the Ku-ring-gai Traffic Committee to install a 'No Stopping' zone over the site frontage. This no stopping zone would be of greater benefit if Option A were selected over Option B, as drivers exiting the car park would have a clear view along Eastern Road to the south with car parking on the western side of the road limited to in front of No 166 Eastern Road. 44 Thus, I am satisfied that Option A is acceptable, and the 'No Stopping' zone is critical. I accept the suggestion of Mr McMahon that it would be appropriate in this instance to include a deferred commencement condition, as without a 'No Stopping' zone no approval should issue and the application should fail. Integration with the surrounding area and quality of development 45 The architectural plans in Exhibit F showed the general level of the proposed car parking area at 175.4m AHD or 520mm higher than as now proposed in either of Options A or B. With the cars perched around 1.4m above the footpath, there would have been an adverse visual impact of cars seen from viewpoints in the street, despite the provision of a 2.4m wide landscaping strip along the frontage of the land. In order to reduce the steepness of the access ramps, and to reduce the visual prominence of the car park especially in Option A, the applicant reduced the level of the car park to 174.88m AHD. This would assist in rendering the development more compatible with the residential setting. The question is whether the car parking area would be sufficiently compatible in the streetscape. There were no plans provided during the hearing, to show this visual impact of the Options A and B. On 27 January 2006, after the hearing, the applicant provided the Court with elevations of the building amended in red showing the levels of various elements of the design. These elevations did not show any change to the ground levels. On that plan the ground floor had been amended to 175.88m AHD or 420mm lower than the originally proposed ground floor level. This ground floor level would be 500mm higher than the general finished level of the car parking area and a pedestrian ramp is proposed for access to the centre. 46 Some indication of the original levels was given on the site inspection. If one were to extrapolate these levels some idea of the visual impact of the proposed general finished level of the car parking area can be obtained. The level of the footpath at the northern side of the existing driveway is proposed as 174.09m AHD thus the proposed general finished level of the car parking area would be some 790mm higher than the footpath at this point. This would be around the level of the existing garden bed. 47 I am satisfied that the proposed car parking area lowered by 520mm to a general level of 174.88m AHD in the front garden would "…effectively integrate with the surrounding area". In coming to that conclusion I have taken into account the proposed screening vegetation in the front garden. 48 Also, I am satisfied that the proposed setback of the proposal from the front alignment of 19.8m with landscaping along the frontage would sufficiently "…integrate [the proposal] with the surrounding area". The front setback of abutting development is of the order of 13m (No 166 Eastern Road) and 12m (No 170 Eastern Road). Although the proposal would have some adverse visual impact on the streetscape this would not be sufficient reason to refuse the application. 49 Mr Hewitt, for the applicant, suggested that car parking spaces Nos 7 and 8 adjacent to the bedroom of the abutting property at No 170 Eastern Road should be allocated to staff, so that movement into and out of those spaces is limited and the activity and noise associated with the car parking area proper would be more remote. Condition 1(d) is proposed to this end. This condition also included car parking space 14 for staff parking. 50 In order to further reduce noise and to ameliorate visual impacts a lapped and capped timber fence is proposed along the boundaries of the land. This is contained in Conditions 71-2 and I am satisfied this would assist in attenuating of noise from the car park. Conditions 19, 69–72 and 92 are imposed to deal with acoustic attenuation and refer to the acoustic report dated June 2005 prepared by Rodney Stevens of RSA Acoustics. With these conditions imposed, I am satisfied that some of the adverse acoustic impacts of the proposal would be sufficiently addressed and would assist in integrating the proposal with the surrounding area. 51 The Himalayan Cedar in the front garden would be lost as it is in the front row of the proposed car parking. This is lamented; however, as the proposal has been found adequate in other respects, I am satisfied that this would not be a reason for refusal. In coming to this conclusion I have had regard to the favourable assessment by the council's landscaping assessment section. The 2.4m planting bed along the frontage of the land would provide sufficient planting width to provide adequate screening vegetation and for the planting of replacement trees. 52 The proposed two-storey section of the proposal would overshadow No 166 Eastern Road in midwinter at around 9.00am as is shown in the shadow diagrams in Exhibit J. However, the lowering of the eaves and ridge by around 720mm would reduce that overshadowing. I consider this overshadowing to be not sufficient reason to refuse the application. 53 Whether or not the proposal is of high quality, putting aside the matters discussed above, will depend on execution. It is important that the applicant carry out development to a high standard of materials, textures and colours to integrate the development with other development in the street. 54 Of those matters raised by objectors that have not been addressed above I am satisfied that none would cause me to refuse the application. Costs 55 As there were no submissions made in respect of costs, and I note that each party has agreed to pay its own costs. Consent orders 56 The consent orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application DA 504/04 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 child care centre for fifty-six, (56) children at Lot C, DP 346838, being No 168 Eastern Road, Wahroonga, is approved subject to a deferred commencement condition in Schedule A and Conditions 1 to 117 in Schedule B, attached as Annexure A. 3. The exhibits except for Exhibits E, F, G, J, L, 1, 2, 3, 4 and 11 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.