Land and Environment Court of New South Wales CITATION : Shelly Bear Pty Ltd v Canterbury City Council [2004] NSWLEC 369 APPLICANT Shelly Bear Pty Ltd PARTIES : RESPONDENT Canterbury City Council FILE NUMBER(S) : (1)0121 of 2002 CORAM: Hoffman C KEY ISSUES: Development Application :- Proposed childcare centre - parking - noise of children at play - site width - proximity to main road - impact on valuation of neighbouring house Canterbury Local Environmental Plan 138 LEGISLATION CITED: Development Control Plan 25 Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 23-24/06/2003, 04 and 09/07/2003, 19/01/2004, 02/05/2004 EX TEMPORE 05/20/2004 JUDGMENT DATE : APPLICANT Mr M Ball, town planner LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 20 May 2004 (1)0121 of 2002 Shelly Bear Pty Ltd v Canterbury City Council JUDGMENT 1 This was a class 1 appeal 0121/02 between Shelly Bear Pty Limited and Canterbury City Council in regard to a childcare centre proposed at No. 2 Balmoral Street, Croydon Park. 2 The existing house was to be altered and extended to provide for ten children between the ages of nought to two year old and five children between two to three years old, fifteen children total with three staff. 3 The proposal abutted at its rear boundary another larger childcare centre at No. 3 Melrose Street also owned and operated by Shelly Bear. The new proposal at Balmoral Street was to be run separately with no gate in the back fence to connect the two. 4 The proposal was to be single storey with its entry on the north side adjoining the back fence of apartments fronting Georges River Road, a major road having a commercial area near the site. The front yard was to house, at the commencement of the hearing, two parking spaces. But at the conclusion of the hearing, four parking spaces in two stacks of two were proposed. The two against the building were for staff, the two just inside the boundary were for drop-off and pick-up of children. 5 On the south side of the front yard, about a third of the width of the frontage was to be landscaped as a buffer to No. 2A Balmoral Street. That property was a house with its driveway on the north side adjoining the proposal. 6 There was to be an emergency escape path along the south boundary of the proposal to the front yard. It was to be conditioned to be used only in that circumstance in order to minimise disturbance to the neighbours at No. 2A Balmoral whose living room windows face to the north. 7 The issues in the hearing were: (1) The proposed development is inconsistent with the objectives of the Zone 2A, Residential A Zone under Canterbury Local Environmental Plan 138 and the objectives in cl. 1.2 of Development Control Plan 25 , Childcare Centres as it is likely to result in an unreasonable detrimental effect on the residential amenity of neighbouring properties due to noise generated by and emanating there from. (2) The proposed development is inconsistent with the objectives of zone 2A, residential A zone under Canterbury Local Environmental Plan 138 and the objectives in cl. 1.2 of Development Control Plan 25 as it is likely to result in an unreasonable detrimental effect on the residential amenity of the area due to increased parking congestion and the lack of adequate, convenient and safe on-site parking. (3) The cumulative impact of the proposed childcare centre and the already existing childcare centre to the rear is likely to result in an unreasonable detrimental effect on the residential amenity of the area due to noise generated by and emanating there from. (4) The proposed development is less than 30 m from Georges River Road and in that regard is inconsistent with cl. 2.1.1(b) of Development Consent Plan 25 which specifies that childcare centres are not to be sited within 30 m of a major road. (5) The proposed development has a site frontage and width of 10 m and in that regard is inconsistent with cl. 2.1.1(c) of Development Consent Plan 25 which requires sites other than corner sites to have a minimum width of 20 m. (6) The proposed development provides for two car parking spaces both of which are in front of the building line and in that regard is inconsistent with cl. 4.1.1(a) of Development Consent Plan 25 . (7) The development application proposes work which requires an increase in hard paved area greater than ten percent of the total site area and provides only for drainage of stormwater via a 100 mm PVC drain to Balmoral Avenue. In that regard it does not comply with the Canterbury Council Stormwater Management Manual specification 9 in regard to stormwater drainage design which requires the provision of on-site detention. 8 The hearing in this matter had commenced on 23 June 2003 and the owner of No. 2A Balmoral Street at that time had objected strongly to the proposal on the grounds of noise, nuisance from children at play in the yard, overshadowing, and impact on the value of his house and property. He had since sold the house for $515,000 and the new owners, Mr and Mrs Murphy, had been shown the final plans of the proposal brought to the Court in Exhibit K. The Murphys had given written advice that they had no objections to it. 9 The updated drawings in Exhibit K show that most of the shadows for the proposal fell on the driveway of 2A and although there were shadows on the northern windows and pool area of the house at 9am midwinter, by about 9.30 to 10 am there was sunlight and it remained in sun until 3pm. 10 In regard to the impact on the value of the property, a valuation report in Exhibit 18 revealed that as a modest asbestos cement cottage No. 2A was possibly "the cheapest entry level" house in the area. The area consisted mainly of Federation and California bungalow brick and tile homes some renovated and added to. 11 The maximum recent sale nearby was $682,000 for a large, brick house in good order and the lowest recent sale was $480,000 for a semi-detached brick cottage. Both were in quieter and superior locations to No. 2A, which was affected by traffic noise on the Georges River Road, and on-street parking of staff and customers of the nearby commercial area. 12 The valuer had difficulty in concluding that a $515,000 sale price meant that there was any adverse financial effect on No. 2A when it sold. The valuer could only estimate $7,500 increase in value if there was no childcare centre next door. The Court has concluded this is de minimus and should not warrant refusal of the proposal. In any case the new owners at No. 2A Balmoral did not maintain the previous owner's objections. 13 The evidence on acoustic impact had been the most involved. The neighbours having the existing noise from the Melrose Street childcare centre were most concerned at the shrill cries and continuous babble of children at play in the rear yard of the Melrose Street facility. They feared that it would be added to by the subject proposal. 14 The Court had heard acoustic evidence and had given a preliminary decision on 21 January 2004 that tonal noise should not be included in the noise impact assessment. Given that decision, the applicant had ensured that the building would have acoustic insulation and glazing and air conditioning, that would prevent internal noise causing disturbance to the neighbours from the Balmoral Street childcare centre. 15 The play yard at the rear was to be used separately by the nought to two year olds and the two to three year olds. The initial acoustic assessments had been done with all fifteen children at play at the same time. 16 At the conclusion of the hearing the Court was satisfied that the appropriate maximum noise generation level target was 47dBA measured at any nearby or adjoining neighbour's boundary and that the proposal could achieve that. 17 In fact, with the keeping of play equipment to a maximum 300 mm above ground level, and splitting the play time of the age groups, and with a 2 m lapped and capped fence on the southern boundary, the maximum noise level of children at play would probably not exceed 45dBA at the nearest residential boundary. 18 That noise level being at the nearest residential boundary being No. 2A. At objectors' homes further away, the noise level would be less and their concerns should not eventuate as a nuisance. Although their existing concerns in regard to the Melrose Street childcare centre may remain, this proposal should not add to it. 19 In regard to traffic impacts the Court is satisfied that with revised parking arrangements there would be no unacceptable impact on traffic and on- street parking. 20 With the improved parking and the provision of landscaping at the front of the property, and in the rear yard, together with the improved appearance of the existing house, there was no reason sufficient for a refusal on the basis of non-compliance with minimum site provisions of Development Control Plan 25. 21 Stormwater runoff was to be dealt with by an on-site detention system in the final plans, and that should reduce runoff to neighbours, and would be piped through the Melrose Street childcare centre. Whilst no easement was proposed due to the same ownership of the two properties, the Court considers it prudent to require that if 2 Balmoral Street is sold separately to No. 3 Melrose Street in the future an appropriate easement for drainage should be created prior to the sale. 22 Given the achievement of reasonable and acceptable impacts, the non-compliance with the council's Development Control Plan were not sufficient for refusal. 23 Therefore the orders of the Court are: 1. The appeal is upheld. 2. Consent is granted for a child care centre for 10 children 0-2 years old and 5 children 2-3 years old, total 15 children and 3 staff at No. 2 Balmoral Avenue, Croydon Park as shown on drawings A01 to A06 all issue E by ARC Design as in Exhibit J as amended by and in accordance with the conditions annotated in Exhibit 10 and attached in Annexure 'A' hereto. 3. The exhibits are returned to the parties except Exhibits 2, 5, 10, 18, J, K and L. K G Hoffman Commissioner of the Court Nmc/rjs 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.