Land and Environment Court of New South Wales CITATION : Ucan v Hornsby Shire Council [2006] NSWLEC 228 APPLICANT Yucel Ucan and Hulya Ucan PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 11353 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Demolition, childcare centre, childrens safety, traffic congestion and car parking, building character, contaminated land Hornsby Local Environmental Plan 1994 Hornsby Shire - Community Uses Development Control Plan LEGISLATION CITED: Hornsby Shire - Dwelling House Development Control Plan Hornsby Shire - Access and Mobility Development Control Plan Hornsby Shire - Waste Minimisation & Management Development Control Plan Hornsby Shire - Car Parking Development Control Plan CASES CITED: Port Stephens Pearls Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 426] DATES OF HEARING: 04/04/2006 DATE OF JUDGMENT: 05/09/2006 APPLICANT Ms Mary-Lynne Taylor, solicitor SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 9 May 2006 11353 of 2005 Yucel Ucan and Hulya Ucan v Hornsby Shire Council JUDGMENT Introduction 1 This appeal relates to Development Application No. 1325/04, which is for the demolition of an existing dwelling and detached garage and the construction of a two storey building on a site at the corner of Norfolk Road and Devlin Road, being No. 101 Norfolk Road, North Epping. 2 The new building is to comprise at the ground floor level a long daycare centre ("the centre") for 20 children aged between 3 and 5 years. At the first floor level areas to be an ancillary four-bedroom dwelling. Surrounding the building will be areas of private open space for the dwelling and an outdoor play area for the children. Having access off Devlin Road at the western end of the site is a parking area for six cars. 3 Because the children's play area is effectively in the front yard of the building adjacent to Norfolk Road it is proposed that the front fence be constructed as a structural wall. A 1.6 sq m sign is to be attached to this wall. 4 The centre is to operate between 7:30 a.m. and 6:30 p.m. Monday to Friday for 50 weeks each year. There are to be two staff members one of which is the applicant who is to reside in the dwelling. It is proposed that five of the six car parking spaces, including one accessible space, are to be made available for the centre with one space being utilised for the dwelling. 5 The irregular shaped site comprises Lot 2 DP 24682 and has an area of 797 sq m. It has an average fall of about 1% towards the south-west corner. 6 The area surrounding the site predominantly comprises one and two storey detached dwelling houses and some multi unit housing. Adjoining the site to the west and south are single storey detached dwellings. Statutory provisions 7 The site and surrounding land is zoned Residential A under the Hornsby Local Environmental Plan 1994 ("the LEP") in which zone dwelling houses and childcare centres are permissible with development consent. The relevant objectives of the Residential A zone are: (b) to promote a variety of housing types and other land uses compatible with a low-density residential environment. (c) to provide for development that is within the environmental capacity of a low-density residential environment. 8 Also applicable to the site and this form of development are the: - Hornsby Shire - Community Uses Development Control Plan ("the Community Uses DCP"), - Hornsby Shire - Dwelling House Development Control Plan ("the Dwelling House DCP"), - Hornsby Shire - Access and Mobility Development Control Plan ("the access DCP"), - Hornsby Shire - Waste Minimisation & Management Development Control Plan ("the Waste DCP"), - Hornsby Shire - Car Parking Development Control Plan ("the Car Parking DCP"). Advertising and residents' concerns 9 The application was advertised and a total of more than 300 submissions were received. These submissions mainly comprise objections in the form of pro forma letters and raise the following essential matters of concern: - A business should not be established in this peaceful residential community, - Noise generated by the centre will be unacceptable for its neighbours, - Vehicular traffic generated by the centre would cause congestion and would obstruct present traffic flows, - The proposed building would be out of character with existing buildings in the surrounding area, - The centre is not needed and will not offer any benefit to the community, - The site is located on a dangerous bend in Norfolk Road and the children could be vulnerable to out of control cars. 10 Included in the submissions were objections from 26 separate households surrounding the site, indeed there were very few property owners within the immediate vicinity of the site that did not object to the proposal. The appeal was conducted as an on-site hearing and the following residents addressed the Court and explained their concerns: 1. Mr D Thompson of 4 Devlin Road, North Epping, 2. Ms F Findlay (ward councilor) of Cheltenham Road, Cheltenham, 3. Mr M and Mrs J McIntosh of 1 Devlin Road, North Epping, 4. Mr R Campie of 90 Norfolk Road, North Epping, 5. Mr M Nielsen of 95 Norfolk Road, North Epping, 6. Mrs J Hemett of 10 Douglas Avenue, North Epping, 7. Mrs A Hope of 3 Devlin Road, North Epping, 8. Mr A de Pomeroy of 4 Valley View Crescent, North Epping, 9. Mr K Mason of 11 Kirkwood Avenue, North Epping, 10. Mr Kemmis of 5 Highview Close, North Epping, 11. Mrs M Nelson of 95 Norfolk Road, North Epping. 11 The concerns of these residents are very much the same as those referred to above and were explained in more detail: 1. The centre does not comply with numerous council requirements and as a consequence is too small for the proposal. The council has now twice rejected it, 2. The traffic generated as a result of the dropping of and picking out of 20 children in this short and narrow street will worsen the existing unsafe traffic environment. The curve in Norfolk Road is dangerous with cars often losing control and leaving the Road. There have been numerous vehicular accidents in this locality. The safety of children cycling nearby will be at risk, 3. This same activity will generate noise and together with the noise generated by the children during the day will adversely affect the quiet residential amenity of the area, 4. The proposed car park will become highly congested at pickup and drop-off times resulting in cars executing dangerous manoeuvres including reversing onto Devlin Road, 5. The centre comprises a business and as such it would be out of character with this peaceful residential area and would thus be inappropriate in this location. Instead it would be better located close to a business zone. 6. The children in the centre might be at risk from visitors to the ancillary dwelling, 7. The proposed building and its masonry fence would be out of character with the surrounding low-density residential area, 8. Given that the hours of operation will extend between 7:30 a.m. and 6:30 p.m. two different shifts of staff will be required hence more than the indicated two staff members will be required. This will require additional car parking. 9. Other childcare centres in the locality do not have waiting lists and places are readily available, hence the applicant's contention that there is unmet demand is not right. An oversupply of places could put existing employment in the centres at risk, 10. There is evidence that property values in the vicinity of the centre would be reduced as a consequence. 11. The site is contaminated with zinc and lead to dangerous levels according to the applicant's own expert report, 12. Nearby bush land is prone to serious bushfires making a child care centre particularly vulnerable. 12 Of special relevance was the evidence of Mr and Mrs McIntosh who moved into the immediately adjoining property to the west to get away from medium density development. In terms of amenity, of their property is the one most directly affected by the proposal. Their particular concerns in relation to loss of amenity include: - The noise generated by the car park and by the children, - Overlooking from the first floor level dwelling house into their rear yard and bathrooms, - Similar overlooking from people using the car park. The unsatisfactory nature of the landscaping, - Conflict between vehicles using the proposed driveway and their own immediately adjacent driveway and traffic congestion generally. Council's decision 13 The development application was examined in detail and recommended for refusal by Mr S Turner a council town planner. The council agreed and by notice of determination dated 5 October 2005 refused the application for reasons relating to: - Various non-compliances with the LEP and the applicable development control plans, - The proposal will have a detrimental impact on the streetscape, - The proposal will have a detrimental impacts on the amenity of adjoining residential properties, - The proposal is not suited to the site. The evidence and the issues 14 Expert town planning evidence was provided by the Court-appointed expert Mr D Furlong. The Court was also assisted by Mr Turner the council's town planner and Mr A Minto the applicant's town planner. 15 It was submitted on behalf of the council that all of the issues that were of concern have, taking into account the evidence of the Court-appointed expert, now been resolved to its satisfaction. The Court was nevertheless invited to take into account the residents' concerns in making its decision as to whether or not consent should be granted. 16 In essence the residents' concerns comprise: o Whether the children in the centre would be vulnerable to traffic on Norfolk Road particularly as out of control vehicles might crash into the property. o Whether the traffic generated by the centre especially in Devlin Road and the insufficiency of off street parking would cause unreasonable congestion and adversely affect the amenity of the area, o Whether the proposed building including the boundary fence would be out of character with development in the surrounding area, o Whether a childcare centre should be permitted to be established on contaminated land, o Whether the centre would have adverse amenity impacts on its immediate neighbours including noise, overshadowing and loss of privacy. o Whether the proposed centre, by being a business operation should be permitted in the residential zone and whether it would adversely affect the values of surrounding properties, Childrens safety 17 Plainly, being situated on the corner of two roads the site exhibits a level of vulnerability associated with motor vehicles leaving the road and entering the site. Resident evidence was that on a regular basis vehicles lose control and leave the road in the general vicinity of the curve in Norfolk Road near Devlin Road. 18 According to the council however there is no record of run off road vehicle crashes at this site and having regard to the absence of a crash history at this intersection there are no additional traffic management measures justified. 19 This matter was nevertheless the subject of an expert investigation by Jamieson Foley Traffic & Transport Pty Ltd ("Jamieson Foley"). That investigation concluded that: o Examination of the intersection geometry and potential crash scenarios has shown the likelihood of an errant vehicle entering the childcare centre is very low. o To provide a countermeasure for this very low risk from an out-of-control passenger vehicle, a structural wall to resist a crash load is proposed to be built along the Norfolk Road fence line. 20 The above described structural wall is to be incorporated into the proposed boundary fence as required by proposed Condition 15 of the without prejudice conditions of consent. In these circumstances this is not a reason for the refusal of the application. Traffic congestion and car parking. 21 The matters of traffic congestion, safety and car parking were also investigated by Jamieson Foley and a report prepared. That report notes that at peak times there is no traffic congestion at the intersection of Devlin Road and Norfolk Road, taking into account that a maximum queue of 2 right turning vehicles occurred twice during the one hour the traffic count with a maximum delay of about 10 seconds. 22 According to the report the traffic generation in morning peak would be 16 one-way vehicle trips over the two-hour drop-off period. Taking into account the low traffic volumes in Devlin Road and the adequate capacity at the intersection, this generation can be easily absorbed into existing traffic. An analysis for the afternoon pick-up period produces a similar result. 23 The report also notes that the parking provision of six car spaces (including a disabled car space) and the ability for vehicles to enter and leave the site in a forward direction meets the requirements of the Car Parking DCP. In addition the vehicular footpath crossing provides adequate driver sight distance for exiting vehicles, being in accordance with the appropriate standard. 24 Recognising as I do that there will at peak times be some local concentration of traffic that will be noticeable to the residents living close by and will affect their amenity I have not been persuaded that this is a reason sufficient to warrant the refusal of the application. In this context I accept the expert traffic engineering evidence. Building character 25 In relation to building character Mr Furlong noted that the proposed two-storey building complies with the applicable floor space ratio and was not dissimilar to many other two-storey dwellings in the vicinity. Moreover the proposed setbacks, articulated front fencing and the landscaping will reduce any perceived impact. He concluded that the proposal would not have an excessive bulk and scale and would be appropriately responsive to the objective of the Residential A zone. 26 Concerns were initially raised by the council and Mr Furlong in relation to the proposed shade structure that is within the 6 m Norfolk Road setback area. As recommended by Mr Furlong the design has been changed to a more lightweight structure with a reduced height. As a consequence the structure will be significantly screened by the front fence and is now acceptable in terms of it occupying part of the setback area. 27 Having considered the design of the proposal in the context of surrounding development during the site inspection and taking into account Mr Furlong's evidence, I agree that the built form character would not be inappropriate. Contaminated land 28 In response to concerns that there may be heavy metal concentrations on the site and as required by the council a contamination assessment report was prepared by Geotechnique Pty Ltd. That report notes that heavy metals concentrations were discovered on the site but that they were not such as to pose a risk of hazard to human health for the environment. Despite this further investigation is required in relation to part of the site in the vicinity of the asbestos sheet clad garage that is to be removed. Following this a remedial action plan is to be prepared detailing remediation and validation. These matters are provided for in Conditions 8, 9, 10 and 11 of the without prejudice conditions of consent. In the circumstances this is not a reason for refusal of the application. Amenity impacts on neighbours 29 Whilst the neighbours at 3 Devlin Road, which does not have a common boundary with the site, will be affected by the centre, I do not accept that this property will be subject to any amenity impacts of significance. 30 The neighbouring property to the south at No. 99 Norfolk Road did not object to the proposal. However the neighbours at 1 Devlin Road, having a common boundary with that part of the site that is to be utilised for the car parking area will be directly affected but will it be so affected that the application should be refused? 31 Concerns were expressed in relation to overlooking from first floor windows. However, taking into account that the building is positioned over 13 m from the common boundary only bedrooms and bathrooms are involved and as Mr Furlong noted the bedroom windows should have their windowsill heights raised to 1.5 m, I agree that this is not a critical issue. As for visual privacy and car headlight impacts from the driveway and car park, the applicant has agreed to erect on the common boundary a 2.2 m high fence with an additional 300 mm of lattice screen on top. This is an adequate response, being supplemented by a 1.5 m wide landscaped strip. 32 As for the noise issue an acoustic assessment report was prepared by Bassett Acoustics. That report measured relevant ambient noise levels and estimated likely noise generation by the proposal, including that generated by the children and car park activities. The report concludes that, subject to compliance with a number of recommendations, there are no acoustic site conditions that would preclude the proposed development from complying with the identified relevant noise criteria. The requirements of the acoustic report are incorporated into the conditions of consent and I am not aware of any reason why these requirements will not be met. In the circumstances I agree that noise impacts are not such as to warrant refusal of the application. Conclusions 33 Whilst there can be no doubt that what is proposed is a community facility it will also be conducted as a business. However because a childcare centre is permissible in the zone the fact that it is a business makes no difference and this is not a reason upon which a rejection of the application could be founded. Also, impacts on land values are not matters for consideration in dealing with development applications. Instead, the impacts of the proposal, especially in this case, the amenity impacts on neighbouring properties as discussed above are the relevant matters for consideration. 34 Another matter which can also be relevantly considered is the relationship between the two areas of private open space and the dwelling itself. Whilst this is something that I expect could have been improved in a different design, I accept the evidence of Mr Furlong that considering the development as a whole this aspect is not critical. 35 Having considered the proposal in the light of the issues and having considered not only the above matters but other matters such as the planning controls, setbacks, recreation space, landscaping and private open space Mr Furlong concluded that: In general terms I believe that the proposed development is a reasonable one. It is permissible within the zone and is in a form acceptable in terms of bulk and scale. The building will not be out of place within the streetscape for the wider locality and the childcare centre will provide a needed local facility. This need is acknowledged - in the planning report to the council meeting on 5 October 2005, which states: Investigations into the matter revealed that a number of facilities within the locality have no spaces available for children in the 3-5 year age group. Accordingly there is a need for childcare centres within the locality. The non-compliances with the various DCP criteria raised in the Statement of Issues in this matter are not in my opinion of sufficient impact to warrant the refusal of the application. In all cases they can either be addressed in conditions of consent, or on a merits assessment are worthy of variation in this instance. In view of the above I believe the proposal is worthy of approval, subject to appropriate conditions and that such approval will not result in any detrimental impacts on the amenity of the surrounding residential area. 36 Having considered all of the evidence and taking into account the council's position in relation to the application I agree with Mr Furlong and have decided that the appeal should be upheld and conditional development consent granted subject to the without prejudice conditions of consent which have been agreed to by the applicant. 37 Finally, I should comment on the proposition that because there were a large number of objections to the proposal this is a reason for its rejection. Whilst there were indeed a large number of objections I have decided that this is not a matter that should attract any determinative weight. This is because whilst community responses must be taken into account where such objections are not supported by evidence objectively expressed by experts, the views of those who do not have the essential expertise will be given less weight. (See Port Stephens Pearls Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 426] at 72 and 73) 38 Clearly the wider public interest must be distinguished from resident objections and taking into account the expert evidence, I have not been persuaded that the application should be refused. Orders 39 The orders of the Court are therefore: 1. The appeal is upheld. 2. Development Application No. 1325/04, for the demolition of an existing dwelling and the construction of a two storey building comprising a long daycare centre for 20 children and ancillary four-bedroom dwelling at No. 101 Norfolk Road, North Epping, is determined by the granting of development consent subject to the conditions in Annexure 'A' hereto. 3. Exhibit A is retained. ___________________ T A Bly Commissioner of the Court 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.