Childcare Systems Australia Pty Limited v Cessnock City Council [2007] NSWLEC 217

Land and Environment Court of New South Wales

CITATION : Childcare Systems Australia Pty Limited v Cessnock City Council [2007] NSWLEC 217

APPLICANT: PARTIES : Childcare Systems Australia Pty Limited RESPONDENT: Cessnock City Council

FILE NUMBER(S) : 11156 of 2006

CORAM: Watts C at 1

Development Application :- Inadequate number of on site car parking spaces; KEY ISSUES: Absence of any adequate noise assessment ; 1.8 metre high metal fence will adversely impact be on the visual amenity and streetscape

Cessnock Local Environmental Plan 1989 (CLEP) LEGISLATION CITED: Cessnock Development Control Plan 2006, (CDCP) Environmental Planning and Assessment Act 1979, ss79C and 97

DATES OF HEARING: 16/04/2007, 17/04/2007 and 18/04/2007

DATE OF JUDGMENT: 20 April 2007

APPLICANT: Mr C McEwen, SC, instructed by Ms C L Huegill, solicitor SOLICITORS: Clarissa Huegill & Associates Pty Limited LEGAL REPRESENTATIVES: RESPONDENT: Mr M Baird, barrister, instructed by Mr R P Mallik, solicitor SOLICITORS: Mallik Rees Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

20 April 2007

11156 of 2007 - Childcare Systems Australia Pty Limited v Cessnock City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Cessnock City Council (the council) to refuse a development application to demolish the existing dwellings and to erect a childcare centre at Lots 1 and 2, DP970698, being Nos 168-170 Rawson Street, Kurri Kurri. 2 I visited the land in company with the parties on the morning of the first day of the proceedings. Local residents gave evidence. 3 I have concluded that the application should succeed as, during the course of the hearing, the applicant has adequately addressed the salient issues of noise impacts and car-parking provision and these and other matters may be conditioned. The land 4 The land is situated on the southern side of Rawson Street, about 40m west of Alexandra Street, Kurri Kurri. It is rectangular in plan with a frontage to Rawson Street of 40.2m, a depth of 50.3m and an area of 2,023m2. A 6m-wide laneway adjoins the rear boundary of the land. 5 The land has a fall of 1.2 metres and slopes diagonally across from the northeast to the southwest. Erected on the land are two dwellings, one on each existing lot. The land lacks significant vegetation however, there are two trees, a Liquid Ambar adjacent the northwestern corner and a Jacaranda adjacent the western boundary, about 20m from the frontage. 6 The existing lots are fenced. The height of the fences behind the building line varies between 1.5 metres and 1.8 metres and is constructed of timber palings to the east and the fence dividing the two properties is a metal 'Colorbond' fence. There is a similar 'Colorbond' fence is on the western boundary. Along the southern boundary with the lane the fencing is constructed of a combination of timber, metal sheeting and concrete panels. The front fence of No 168 Rawson Street is an open metal fence and No 170 Rawson Street has a brick fence that includes decorative perforations. The heights of the front fences vary between 1m and 1.2m. 7 The locality is characterised by single-storey detached dwellings. The Kurri Kurri Public School located some 80m east of the subject land, on the northeastern corner of Rawson and Alexandra Streets. The school has a number of detached single-storey buildings but the size and scale of the buildings is greater than the nearby detached housing. 8 The Kurri Kurri has a traditional strip shopping centre located about 200m from the land. This shopping precinct extends east along Lang and Barton Streets. 9 Nearby dwellings have variable front setbacks, of between 3m and 6m. The lot size is also variable, with many lots exceeding 1,000m2 in area, often 20m wide and 50m deep. There are some smaller lots scattered through the residential areas, some for dual occupancy or multiple dwelling development and then subdivided. Relevant planning controls Cessnock Local Environmental Plan 1989, (CLEP) 10 Under the provisions of the CLEP the land is zoned Residential 2(a) and the proposal defined, as a 'child care centre' is permissible with consent. 11 The definition of a 'childcare centre' under cl 5(1) of the CLEP, is: …a building or place used for the purpose of caring for children and includes: (a) a dwelling-house adapted for use solely for that purpose; (b) a public hall used for that purpose; or (c) part of a shop or factory used for that purpose, but does not include a dwelling being used as a domicile; 12 The development control table is found in cl 9 of the CLEP. The objectives of the 2(a) zone under the CLEP are: (a) primarily to provide for low-density residential development; (b) to enable residential flat buildings which are compatible with single dwelling development; (c) to provide for other forms of development which may appropriately be located in a residential zone; and (d) to ensure non-residential development is of a type, scale and character which will maintain residential amenity. 13 There are no state environmental planning policies that apply to the land. 14 The Hunter Regional Environmental Plan 1989, (HREP) and the Hunter Heritage Regional Environmental Plan 1989, (HHREP) apply in the City of Cessnock. There are no provisions under these plans that specifically relate to the land or the proposal. Cessnock Development Control Plan 2006, (CDCP) 15 The CDCP was prepared under the Environmental Planning and Assessment Act 1979 and cl 21 of the Environmental Planning and Assessment Regulations 2000. The CDCP was adopted by the council on 8 November 2006 and came into force on the 1 December 2006. 16 The aims of the CDCP are: · provide a detailed planning document that outlines requirements for development which meets community expectations and addresses the key environmental planning issues of the Local Government Area; · identify exempt and complying development provisions in accordance with sections 76 & 76A of the EP&A Act and clause 10A in the Cessnock LEP 1989; · identify certain development as advertised development and to detail public notification requirements in accordance with section 74C of the EP&A Act; · promote a more simplistic framework for dealing with Development Applications (DAs) consistent with the amended requirements of the EP&A Act; · encourage and assist effective community participation in the decision-making process; · provide a more accessible and understandable set of guidelines to the general public; and · apply common or consistent requirements and procedures in the assessment of all applications. 17 The CDCP includes the following provisions: CHAPTER C.1: PARKING AND ACCESS 1.1.2 Purpose To ensure that adequate off-street car parking is provided within the City of Cessnock to meet the demand for such parking created by development. 1.1.3 Aims and Objectives Aims: a) to provide a guide for developers of Council's requirements for off-street vehicular parking; and b) to ensure that adequate off-street vehicular parking is provided for traffic generating developments. Objectives: To ensure that: a) adequate car parking facilities are provided in association with developments; b) each development proposal is assessed consistently and equitably in relation to the provision of off-street vehicular parking; c) vehicular parking areas are designed in such a manner as to be functional, aesthetically pleasing in terms of landscaping, and safe for motorists and pedestrians; and d) all vehicles entering or leaving properties are driven in a forward direction. Car Parking Standards LAND USE PARKING REQUIREMENT COMMENTS Child care centre, and/ or 1 space per employee, Council may give consideration to varying the specified parking Kindergarten PLUS 1 space per 4 children enrolled for visitors and for parent parking. requirement, depending upon the nature and type of street frontage available for the setting down and picking up of children.