Land and Environment Court of New South Wales CITATION : Hanna v Hurstville CC [2005] NSWLEC 730 APPLICANT Tony Hanna PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 10437 of 2005 CORAM: Murrell C Development Application :- Refusal of a childcare centre - placement for 60 children - streetscape - noise - drainage - parking - signage and landscaping. KEY ISSUES: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 64 LEGISLATION CITED: Hurstville Local Environmental Plan 1994 Hurstville Development Control Plan No. 6 DATES OF HEARING: 22/09/2005 and 31/10/2005 EX TEMPORE JUDGMENT DATE : 11/29/2005 APPLICANT Mr R. K. Graham, solicitor with Ms C. Bracks, solicitor of Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT Mr P. Rigg, solicitor of Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 29 November 2005 10437 of 2005 Tony Hanna v Hurstville City Council JUDGMENT 1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Hurstville City Council's deemed refusal of a development application for the demolition of buildings and the construction of a childcare centre on the site known as No.s 37-37A Cahill Street, Beverly Hills. 2 The subject site is generally surrounded by single storey residential brick dwellings and the topography is relatively flat with a gentle slope to the north. It is noted that there is a council drainage easement that runs through the property in Lee Street which is the parallel street to the west of the subject site. 3 The proposal when submitted to the council was initially for a 90 child place centre. Since that time the development application has been amended and the proposal before the Court is for a 60 child place centre with 7 staff. 4 The subject site is larger than an average residential site in the area. It is some 1347 m squared with a frontage to Cahill Street of some 22 m. The property is for the amalgamation of 2 residential lots, that is No. 37 and No. 37A. 5 The FSR of the proposal as depicted in the amended plans (exhibit 5) is for an FSR of 0.27:1 with a site coverage of 33%. It is noted also that the landscape plan provides for appropriate play and landscaping of the proposal. 6 When the Court first met on site with the parties a number of resident objectors gave evidence to the Court. In summary their concerns are that the proposed development will be out of character with the subject area and that the bulk of the building and the presentation in the streetscape is not appropriate to the area. Also the residents are concerned about the parking required in that the front of the property will be a concrete flat paved area and that the traffic generated by the proposed development will impact on the amenity of this quiet residential street. 7 There are also concerns about clients of the childcare centre dropping their children at the centre and then leaving their cars parked in the street to access the railway station which is relatively close to the subject site at Beverly Hills. The residents are concerned about the noise that would be generated by the proposed development and that the size of the childcare centre is one that would not fit in with the character of the area. 8 After the first site inspection, where a number of objectors attended, the Court adjourned the proceedings and the purpose of the adjournment was to allow for the applicant to respond to the issues concerning the streetscape and the applicant proposed that an open carport could be placed over part of the car parking at the front of the subject premises to reflect a domestic scale within the streetscape. 9 There were also alterations with respect to the front fence and the landscaping that could be introduced at the front boundary area in terms of providing a better fit with the streetscape. 10 The applicant also took the opportunity to make further inquiries about the drainage easement and a drainage easement has been agreed to with the owner of No. 50 Lee Street, Beverly Hills. This requirement must be satisfied in terms of the ability to provide for drainage in terms of the LEP. The Court this morning met on site to understand the drainage easement, the physical arrangement of the drainage easement, and also heard further evidence from the residents and a number of residents reiterated their concerns to the Court in terms of not considering the amended plans met or satisfied their objections to the location of a childcare centre at the subject site. 11 Exhibit A to the proceedings shows the location of those residents who attended on the occasion of the second site inspection and for the Court record they are: + Ms Helen Ware of No 56 Cahill Street + Mrs Leedaw of No 33 Cahill Street + Mr Ian Dunlop of No 46 Cahill Street + Mr Reg Wall of No 44 Lee Street, the property behind Mr Kenwell of No 48 Cahill Street + Mr Lee of No 58 + Mr Stephen Querin of No 54 + Ms Teresa Stefanoni of No 52 + Mr Wan, the son of the owners of No 35, the adjoining property to the south + Miss Sherlldice of No 46 + Miss Bettina Mergios of No 44 Cahill + Mrs Ruth May of No 45 Cahill Street. 12 Those residents who gave evidence include: Mrs Ware, Mr Roberto Stefanoni, Mrs Ruth May, the owner of No 44, and Mr Vince Vadalati the Mayorof the council also gave evidence to the Court. They are concerned that the quiet nature of their street would be impacted by the childcare facility. 13 The council's mayor also raised the issue, as did other residents, about the need or demand for a childcare centre and the mayor advised the Court that council was currently undertaking a study of childcare facilities within the City of Hurstville. 14 The Court has the benefit also of additional expertise or expert evidence from Ms Deborah Laidlaw who is the Court-appointed expert in these proceedings and she is satisfied that the amended plans will allow the childcare facility to sit comfortably in the streetscape of the residential area. By way of comment Ms Laidlaw considered even before the amended plans that the childcare facility as proposed was satisfactory. She in her original report also raised issues about the number of placements. That was calculated on the basis of the area required for child play and with the amended plan that matter has been rectified. 15 The Court also had the benefit of expert evidence from Mr Michael Ball, the applicant's town planner, and also heard evidence on traffic issues on site from Mr Rogers, a traffic engineer, and the Court also had the benefit of hearing evidence from Mr Stephen Cooper, an acoustic consultant. The council raised a number of issues in the proceedings and they are that the proposed development is out of character with the surrounding residential development in that the setback from the usual building line is large with a car parking hard paved area in the frontage. 16 The second issue related to providing sufficient on-street parking. Council is satisfied that the proposed development now provides sufficient parking to meet the requirements of its DCP No 2. 17 The other issues that were raised during the proceedings are that: the proposed development does not preserve or enhance the amenity of the existing residential area in terms of the zone objectives; the proposed development is not located close to adjacent community focal points, that is the locational criteria objectives contained in DCP No 6; the proposed development will unreasonably impact on adjoining properties due to the size of the facility and the noise and activity associated with a childcare centre accommodating 60 children; and the on-street parking will have negative impacts in terms of congestion in the street and there will be an increase in traffic generation; and matters raised by objectors. And an issue that is no longer contested is that of the drainage as adequate details of drainage and stormwater disposal have now been provided to the Court. 18 In terms of council's LEP the relevant LEP is Hurstville Local Environmental Plan 1994. The subject site is zoned Residential 2 and the Residential 2 zone provides objectives that include: (a) to preserve and enhance the character and amenity of establish residential areas; (d) to encourage greater visual amenity by requiring landscaping and permitting a greater variety of building materials and flexibility of design. 19 It is also noted that an objective of the zone is to enable redevelopment for medium density housing forms including townhouses, villas, cluster housing, semi-detached housing, residential flat buildings and the like where such development does not interfere with the amenity of surrounding residential areas. Clause 9 of the LEP requires that: "Except as otherwise provided the council may grant consent to the carrying out of development" - in this case, the Court - "only if the council/Court is satisfied the development is consistent with those objectives." 20 I should note also that objective F of the zone is to allow people to carry out a reasonable range of activities from their homes - this is not a home occupation - where such activities are not likely to adversely affect the living environment of neighbours. A number of uses that are permissible development consent includes bed and breakfast accommodation as well as educational establishments, group homes, multiple dwellings and residential flat buildings. It is noted that council does have a development control plan however that identifies the areas that it considers appropriate for residential flat development. 21 Clause 13 of the LEP, the maximum floor space ratio for a building not used for residential purposes within zone 2, is 0.5:1. As I stated earlier the plan as amended is 0.27:1. 22 Clause 15 of the LEP states that before granting consent to the carrying out of development of land for any purpose the council must be satisfied that: (a) facilities for the supply of water and for the removal or disposal of sewage and drainage are available to that land or arrangements satisfactory to the Water Broad for the provision of these facilities has been made. In this regard the applicant has demonstrated that drainage can be physically achieved with the easement that has been agreed to by letter of No 50 Lee Street and this would not be an impediment although it is noted that a formal easement would need to be achieved and in this regard the council has appropriately suggested or proposed a deferred commencement condition with respect to the drainage issue. 23 The other matter, which I must give central consideration to, genuine and proper consideration, is the council's Development Control Plan No 6 for Childcare Centres. This DCP is a comprehensive DCP which sets out requirements for such matters as building form, access and parking, landscaping design and specific requirements. It is also noted that the DCP provides for a number of aims and these aims include: to provide a comprehensive document for a childcare facility; to encourage provision of high qualify childcare which meets the needs of the community, minimise potential adverse impacts on the locality and the broader environment as well as the natural and built environment by providing effective control measures and (g) ensure the integration of the facility within its environment is achieved so that the development reflects the existing streetscape and the character of the locality. 24 The DCP provides locational criteria and childcare centres should be located close to or adjacent to community focal points such as local shopping centres, community buildings, churches, halls etcetera, parklands, sportsgrounds and schools, where there is no major traffic conflicts, and that sites should be greater than 500 sq m and have a frontage greater than 13 m. It also provides for requirements in terms of the building form which with the appropriate scale and building design a high level of amenity to adjoining and surrounding properties and also identifies the relationship to adjoining properties, in particular consideration with active clay areas and building details, that is the application must have regard to the streetscape and the existing built form in the area. 25 The council contests the number of children should be reduced to 50 places to more appropriately fit in with the character of the residential area and have less impact on the residential area. 26 First of all I will go to the issue of the streetscape. The amended plan provides for a built form that in my assessment is one that would not be out of character with the area. It will appear as a different building form but it will not present as a bulk and scale that is out of character with the area and it is noted that the character of the area is single storey residential development. The proposed development respects this prevailing built form, and the development will in my assessment be one that sits comfortably within the streetscape. 27 It is noted that the amended plan provides detailing to introduce domestic scale and to ensure that the fence and landscaping at the front boundary is related to adjacent dwelling houses within the streetscape. I am of the opinion that the plan does achieve a fit and has regard to the details to assist in ameliorating the impacts of the proposal. The amended landscape plan, also provides for landscaping which will complement the proposed built form in terms of appropriate canopy trees at the front of the property and there is to be a low fence. 28 The parking area at the front of the property, the apron, will not be a dominant feature, while it will be visible in the streetscape it will be significantly ameliorated by the street frontage landscaping now proposed. Also it is noted that the street is one that has canopy box gums and it is proposed that the streetscape plantings be reinforced with two box gums on either side of the driveway. This will also ameliorate the impacts of the proposed development. It is not envisaged that the proposal should be hidden because in its built form it is acceptable in the streetscape but it will provide for a better fit in a landscaped setting. 29 With respect to the issue of noise, and I have carefully considered all the residents' concerns and I do understand that people are concerned about the introduction of a non-residential form and a non-residential use into a streetscape. The planning controls clearly allow for childcare centres to be established within Residential A zones and the role for the Court is to assess whether the impacts are reasonable on the amenity of the area. 30 The proposal in terms of the acoustic treatment of the fence to the property adjoining No 35 and on the advice of Mr Cooper with the partial roof extending from the fence will in his assessment provide for the necessary amelioration to ensure that the residential amenity of that property is maintained, and also for the properties to the rear. I am satisfied on the basis of his expert advice that the proposed development is one that will not unreasonably impact in terms of noise. The Court is aware that childcare facilities, schools, other facilities for children, do in fact introduce additional noise levels but the critical issue is whether the noise levels would be acceptable. A management plan was also submitted to the Court and together with the acoustic treatment and the design of the proposed development I am satisfied it will not unreasonably impact on the amenity of the area. 31 It is also noted that there are a number of conditions that have been proposed and agreed to by the applicant in terms of the monitoring of noise following the construction of the building and the operation. The fences have also been addressed by the council in its conditions to ensure that the appropriate fencing is provided to the adjoining neighbours and that it is also appropriate in the streetscape. The council has also identified that the plans of management (in terms of condition 105) are to be complied for the operation of the childcare facility. 32 With respect to the number of places, on the evidence to the Court I am satisfied that the development application as submitted for 60 children is satisfactory and that 60 children should be approved and as such condition 7 where council has proposed for the facility to be limited to 50 children will be changed to 60 children in total and there be no more than 7 staff members, which is currently council's condition as well. 33 The Court has had regard to the residents' concerns and as I stated the introduction of such a facility is not always embraced or welcomed in the first instance but the purpose of conditions and the purpose of the design and the assessment to detail that has been considered in this development application is to ensure that childcare facilities can co-exist harmoniously within a residential area. Residential areas are an appropriate location for such facilities and the conditions and the design of the proposal is one that will allow the development to not significantly adversely impact on the residential amenity of the area. 34 The residents were concerned about the overspill of parking or parking within the street. The street is one that will have cars parked from time to time by other residents of the street and their visitors but it also has the environmental capability and the physical capability to accommodate additional cars within the street such that they will not impact on the amenity of the street. 35 The additional traffic generated by the proposed development is also not an issue that would warrant refusal of the development application and in that regard I accept the advice of Mr Rogers. I also accept his advice in terms of the assessment of the car parking and I do not consider that the proposed development is one that would create unacceptable parking or traffic generation. 36 The issue of drainage as I stated has now been satisfied to the Court's satisfaction in terms of cl 15 of the LEP. 37 The residents raised concerns about the size of the signage. It is noted that the council has adopted the condition recommended by the Court-appointed expert that the signage be limited to the space on the front boundary area and that be for the purposes of adverting the business which is as defined in State Environmental Planning Policy No 64. 38 The mayor raised the issue of demand for the facility. There has not been any evidence presented to the Court that would persuade me that the application should be refused because there has not been a demonstrated demand and indeed that is a commercial decision. It is noted that council is currently undertaking a study and in the future, with the benefit of that study, council may resolve to introduce policies, however with the application before me today there is no evidence to suggest that there is not a demand for the facility and the Court could not refuse the application in terms of the evidence to the Court. 39 Concern was expressed on behalf of the owners of the adjoining property at No 35 concerning the front bedroom of his parents' property. As such the Court has looked at this with the parties and it has been agreed that a 1.8metre fence be provided that is in line with the building line of that building at the front. Council has also proposed a condition to ensure that a fence will provide amenity for that dwelling whilst not impacting on the streetscape in terms of a high front fence and that the side fences for the building setback areas are generally 1.2metres that is appropriate in the streetscape. 40 The issue of the maintenance of the landscaping has also been addressed by a condition of council and the applicant has agreed to install sufficient rainwater tanks for the maintenance of such vegetation. The applicant during the adjournment also undertook an assessment of the application in terms of the DOCS requirements and that is not so much a matter for this Court but nonetheless it provides the opportunity to ensure that any development that is approved by the Court also complies with the requirements of DOCS although separate approval is required nonetheless I can see that the application complies. 41 Therefore on the basis of my assessment and with the benefit of two site inspections, with the benefit of the Court-appointed expert and the other experts to these proceedings, I am satisfied that the childcare centre for 60 children should be approved. 42 The proposal also provides for adequate parking. The conditions assist in ensuring that the residential amenity of the area is maintained and the amendments to the proposal in my assessment overcome the streetscape presentation of the childcare centre and I am satisfied it will sit comfortably within the streetscape. 43 Therefore on the basis of my assessment above the formal orders of the Court are: 1. The appeal in respect of the property known as No.s 37 and 37A Cahill Street, Beverly Hills, is upheld. 2. The development application submitted to Hurstville City Council, and as amended for the demolition of dwellings and the erection of a sixty place childcare centre, is approved subject to the conditions contained in annexure 'A'. 3. The exhibits are returned with the exception of 3, 9, D, R, V, X, Y and AA. ___________________ J S Murrell Commissioner of the Court ljr 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.