Anibal 21 Pty Ltd v Waverley Council [2004] NSWLEC 708

Land and Environment Court of New South Wales

CITATION : Anibal 21 Pty Ltd v Waverley Council [2004] NSWLEC 708 APPLICANT Anibal 21 Pty Ltd PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 11017 of 2004 CORAM: Nott C KEY ISSUES: Development Application :- Existing childcare centre - proposed increase from 13 to 28 children - no on-site parking or drop off for parents' cars - existng demand for on-street parking - narrow street - traffic saftey - noise from children's activities - objective of zone to allow non-residential uses of "low intensity" - application of Court's practice direction "An expert witness is not an advocate for a party" LEGISLATION CITED: Environmental Planning and Assessment Act, s 97 Waverley Local Environmental Plan CASES CITED: Rupert v Manly Council [2004] NSWLEC 276 DATES OF HEARING: 24/11/2004 and 10/12/2004 EX TEMPORE 12/10/2004 JUDGMENT DATE :

APPLICANT Mrs J Zarfati, director of applicant

LEGAL REPRESENTATIVES: RESPONDENT Mr G Newport, barrister SOLICITORS Staunton Beattie

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Nott C

10 December 2004

11017 of 2004: Anibal 21 Pty Ltd v Waverley Council

JUDGMENT 1 This is an appeal against the council's deemed refusal of a development application to increase the number of children at a childcare centre at 7 Lancaster Road, Dover Heights. Commissioner Bly approved the existing childcare centre in 1997 and one of the conditions of consent was that there would be a maximum of 10 children. The development consent was subsequently modified to permit 13 children. The indoor activities for the childcare centre occur in the front part of what was formerly a dwelling house. The rear part of the building is used as a dwelling by Mr and Mrs Zarfati, who are the directors of the applicant company. 2 The proposal is to increase the number of children from the approved number of 13 to 28 children. The increased number of children would require additional indoor area for the childcare centre, and it is proposed to carry out internal alterations to the building so that the whole of the building will be used as a childcare centre, and the residential use of the rear part of the building will cease. 3 The hearing commenced on the site, and the applicant was originally represented by Mr B O'Dowd, a town planner, who had also prepared an expert report in the proceedings. Objection was taken to Mr O'Dowd being both the authorised agent and giving expert evidence, having regard to the expert witness Code of Conduct in cl 4 of Sch 1 of the Court's Expert Witness Practice Direction 2003 that states: "An expert witness is not an advocate for a party." In view of the objection, Mr O'Dowd elected only to give evidence, and the applicant was thereafter represented by Mrs J Zarfati, who is a director of the applicant company and who operates the childcare centre through another company. 4 I heard factual evidence on behalf of the applicant concerning the present and proposed operations of the childcare centre. Besides the written evidence about the operations of the centre which was given by Mrs Zarfati, there was expert town-planning and traffic-engineering evidence, as well as evidence from Mr C Kopsiaftis who owns and lives at 9 Lancaster Road, which adjoins the eastern side boundary of the subject site. Mr Kopsiaftis is a shift worker and he said that his bedroom is adjacent to the side walkway to the main entrance of the childcare centre. He said that he sleeps in the morning until 10 am or 11 am and generally was not disturbed by the present operation of the childcare centre and he had no complaint against its present operation. He was not able to say, however, whether the proposed childcare centre with 28 children would be of concern to him. 5 The council in its evidence presented a bundle of letters of objection from other neighbours whose properties adjoin the subject site or are in the immediate vicinity of it. As well, I heard oral evidence from some of these objectors. 6 Dr D Brieger lives with his wife at 10 Northcote Street which adjoins the rear boundary of the subject site. He is a cardiologist and his wife is an emergency physician who works on a Monday evening. On a Tuesday, he said that his wife's sleep is disturbed because of the noise from children in the afternoon when they are in the rear yard. On occasions when he has been on call himself at night, his sleep has also been disturbed during the day. He said that while the present situation could be accepted, he objected to an increase in the number of children which would increase, he thought, the volume of noise from the rear yard. 7 In relation to outdoor activities, Mrs Zarfati in response to the evidence of Dr Brieger said that in the morning there would be only a half an hour increase in the time of outdoor activities: one group of 13 children would be outside in the morning for a half an hour, after which the other group of 15 children would be outside for a half an hour. In the afternoon, the present situation is that children are outdoors for one hour. Mrs Zarfati said that it was proposed that the children would be taken into the rear yard for supervised activities for a total period of one and a half hours (that is, there would be two separate groups of children, each group being in the rear yard for only forty-five minutes). Conditions of consent could be imposed to this effect. 8 Other residents who objected were also concerned about the increased noise that would result from the proposal and about increased traffic and parking in Lancaster Road. 9 Mrs T Gilerman and her husband live next door on the western side of the subject site at No. 5. She is a chartered accountant who works from home on one or two days a week. Her office/bedroom is at the upper level at the rear of her house and overlooks the rear extension of the building on the subject site. At the present time, this extension is where the dwelling is but it will be converted, if consent is granted, for use as part of the childcare centre for the additional children. Mrs Gilerman also overlooks the rear yard of the childcare centre where the outdoor activities occur. She said that when she is working from home she has to have her windows closed in order to concentrate. She also said that noise from within the two rooms of the childcare centre that face her boundary is heard in her kitchen and also in one of her front rooms where her young child plays or occasionally sleeps during the day. She had not complained to Mrs Zarfati about the noise because when she and her husband moved to No. 5 in 1999, they were aware of the approval of the childcare centre. However, she and her husband were opposed to an intensification of the use involving 28 children at the centre. 10 Mr & Mrs Kuo of 3 Lancaster Road also gave evidence opposing the proposed intensification of the childcare centre operations. The rear part of their house extends further to the rear than the adjoining house of Mr & Mrs Gilerman, so that there is a direct line of sight to the rear part of the applicant's building from the Kuos' lounge room (which is at the rear of their house) and from their rear balcony. They sometimes hear noise from the childcare centre when they are on their rear balcony or down at their swimming pool level. They accept the childcare centre with its present operations but are opposed to the increased number of children. They referred to the difficulty sometimes of driving out of their garage because of the cars parked on the street and they were of the view that the increased number of children will result in increased traffic and parking. 11 I also heard brief oral evidence from Mr J Boyd, Mr P McGrath and Mrs Hammer who live respectively at 6, 12 and 22 Lancaster Road. 12 In his written objection Mr Boyd said that his house does not have a garage or car space. His house and many of the dwellings on the northern side of Lancaster Road are built on a raised embankment above the road. He said that at least twice a week when he goes to his daughter's place to baby sit her children, he has been unable to find a parking space near his home when he returns. In the afternoon between 4 pm and 5 pm when children are being collected from the childcare centre, a four-wheel drive vehicle has often doubled parked, he said. 13 Mr Gilerman said that when dropping off their children at the childcare centre, parents often park both sides of his garage entrance, which affects visibility. He said that at least once a week parents park across or halfway across his driveway blocking his entrance. 14 Likewise, Mrs Kuo said that often a car is parked partly across her driveway while a child is being dropped off at the childcare centre. She observed that between Old South Head Road and Gilbert Street there are 29 dwellings in Lancaster Road (including 4 units) and of these 16 dwellings do not have on-site parking but have to find space for parking on the street and some households have not only one car but two cars. 15 The evidence of the traffic engineers was that in the stretch between Gilbert Street and Old South Head Road, there were 29 dwellings including 4 units of which 11 do not have carparking spaces. 16 At this point of my judgment I should refer to Waverley Local Environmental Plan, in particular to cl 10(2) and to the objectives of the 2(b) Residential – Low Density zone within which the subject site is located: