Land and Environment Court of New South Wales CITATION : Ayad -v- Hurstville City Council [2008] NSWLEC 1481 APPLICANT Ayad, Ash & Magdoline PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 10586 of 2008 CORAM: Hussey C KEY ISSUES: Development Application :- Child Care Centre, building bulk/ scale & streetscape impact, flooding. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Hurstville Local Enviornmental Plan 1994 DATES OF HEARING: 2/12/2008 DATE OF JUDGMENT: 3 December 2008 APPLICANT Mr J Burrell, solicitor LEGAL REPRESENTATIVES: of Burrell Solicitor RESPONDENT Mr P Rigg, solicitor of Decons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 3 December 2008 10586 of 2008 A & M Ayad v Hurstville City Council JUDGMENT Background 1 This appeal was lodged against council's refusal of a development application for a 40 place childcare centre at 103 Penshurst Road, Penshurst. 2 The issues identified for the appeal are summarised as follows: o Suitability of the site due to flooding risk. o Bulk and scale and streetscape impacts. o Internal configuration. o Traffic and parking. o Public interest. The site 3 This site is triangular–shaped with a 39.47m frontage to Penshurst Road and a total area of 798.9 sq m. It is adjacent to George Street, although it does not have frontage to this street because the corner and entire rear boundary is traversed by a 3.05m wide drainage easement that contains an open stormwater channel. 4 The site is located on the south-western side of the street and contains an existing 2-storey dwelling house. 5 Adjoining the site to the east is a villa complex. There is a 2-storey dwelling house located adjacent to the rear boundary opposite the drainage reserve. The area is predominantly residential in character and comprises generally single dwelling houses. Some dual occupancy and other medium density villa and townhouse developments are evident in the vicinity. Planning controls 6 Hurstville LEP 1994; under which the site is in the Zone No 2 (Residential Zone) and the proposal is permissible with consent. The zone objectives include: (a) to preserve and enhance the character and amenity of established residential areas, (d) to encourage greater visual amenity by requiring landscaping and permitting a greater variety of building materials and flexibility of design, (f) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours. 7 DCP – Child Care Centres. This DCP contains a number of aims and specific planning controls, including locational criteria, flooding restrictions. The aims include to: o Encourage the provision of high quality child care which meets the needs of the community; o Minimise potential impacts on the locality and broader environment as well as the natural and built environment, by providing effective control measures, o Ensure the integration of the facility within its environment is achieved so that the development reflects the existing streetscape and character of the locality. The proposal 8 This proposal is for: o The demolition of the existing dwelling house. o The erection of a 2-storey child care centre for 40 children. The proposed ratio of children is 10 x 0-2 year olds, 16 x 2-3 year olds and 14 x 3-5 year olds. o The centre is to have a 2 way access drive from Penshurst Street leading to an under-croft parking area for parking spaces and turning area. o There is an outdoor play area adjacent to the front boundary with a 1500mm high fence, which is reinforced to resist traffic impacts. o The ground floor comprises an entry area, indoor play space, bathroom, store and cot room (4). Lift and stair access is provided to the first floor. o The first floor comprises a staff room and office, kitchen, 2 internal play areas, 4 bathrooms and a large external balcony area designated as outdoor play space. The sides of this area are to be covered with mesh-like material to prevent objects being throw into adjoining properties. The evidence 9 Detailed evidence was presented by: o Mr P Nelson; Council's planner o Mr S Layman; Applicant's consulting planner o Mr P Kozarovski; Applicant's consulting engineer. o Mr J Messih; Applicant's structural engineer. o Mr B Conneeley; Applicant's traffic consultant. 10 In addition to this, a number of objections were lodged and they have been considered in conjunction with the expert evidence. 11 One of the primary constraints on this site is the drainage and its flood liability from the adjacent concrete-lined drain. This matter was investigated by Mr Kozarovski, who found that the site is subject to regular inundation from surcharge from the concrete channel. Based on the estimated 100 year flood level, he recommended a 500 mm freeboard should be allowed to the finished floor levels (FFL). 12 Mr Kozarovski considered that cross section 10 was the relevant reference point. At this point the estimated 100 year flood level is RL 38.11 AHD, resulting in a FFL of RL 38.61 AHD. Whilst he concluded that the compliance with this level would not have any impact on flood behaviour and the flood hazard risks would be acceptable, nevertheless this was subject to: o The provision of child proof gates on all locations where children can be exposed to flowing water, particularly the low-lying front play area. o The evacuation of children from the outside playground areas in the case of any rain. o The establishment of a minor overland flow path through the proposed car-park and along the landscaping strip. o The inclusion of 300mm high louvre or pool fence type inserts along the south-eastern boundary line to allow free flow from south to the north and also in the front structural fence around the play area. 13 In assessing the impact of flooding on the site for the proposed development, Mr Kozarovski said that : o The overland flow through the playground will be experienced once in 10 years on average. o Assuming the time of concentration is in the range of 60 minutes and the overland flow is not expected to last longer than 10 minutes during the 100 year design flood event, then the playground is not expected to exceed 150 to 200 mm during this event, when the flow width would engage the entire playground. o The catchment response time is relatively long. In the case of severe rainfall, the site can become inundated within 15 to 30 minutes from the start of heavy rain. This should allow adoption of an appropriate evacuation strategy. 14 In my assessment of the suitability of the site for this development, it is apparent that the site is subject to an undesirable level of flooding for this particular use. It seems to me that the playground area could be inundated on a regular basis and also its location adjacent to an open flow channel in lower level storm events contributes to this unsuitability. Although, I accept this can be managed by strict conditions of consent. 15 Reference to the site levels in exhibit 9 also causes some concern. In the area near the rear stairs the existing ground level is in the order of RL 37.56 AHD. However the proposed car park slab is to be RL 37.80 AHD. As this slab covers a substantial part of the site, it appears this raising of the levels will likely displace floodwaters onto other properties. The details on the proposed overland flow path do not adequately address this in my assessment. 16 In any case, the estimated 100 year flood level is RL 38.11 AHD and the car park level is RL 37.80 AHD. This means that in the design flood event there will be approximately 300mm of water through the car park. Whilst this may be manageable in some circumstances, I do not consider it an attractive feature of this proposal considering this car park is to be used by the child care centre patrons for drop-offs and pick-ups. In my assessment this is a negative aspect of the proposal. 17 The threshold issue however concerns the bulk and scale of the building and its integration with the surrounding neighbourhood as required by the DCP. I understand that the proposal demonstrates substantial compliance with the numeric controls, particularly the overall height, building envelope and FSR control. 18 The allowable FSR is 0.5:1 and the proposal has a complying FSR of 0.49:1. However this is achieved by including the open under-croft car park into the structure, whose floor area is not required to be included. Consequently, this results in a noticeably much bulkier building. 19 In other appeal matters, it has frequently been stated that compliance with the numeric controls does not guarantee approval. As well as this, there should be reasonable compliance with the qualitative aims and objectives, which in this case requires " the integration of the facility within its environment is achieved so that the development reflects the existing streetscape and character of the locality". 20 The streetscape impact was considered by the planners in their joint conference, with Mr Layman supporting the proposal on the basis of its numerical compliance and compatibility with other large 2-storey dwellings nearby. He says that a child care centre should not be expected to look like a single dwelling and that the proposal takes account of the urban form of Penshurst Street but does not mimic it. Also, the proposal provides generous front landscaping in a streetscape that is dominated by large mature figs, so that the visual impact of the building will be softened. 21 Against this Mr Nelson says that the building does not satisfactorily respond to the current urban form and that the proposed landscaping is not an adequate response to achieve compliance with the DCP objectives. 22 Having considered these competing positions, I do not consider this particular design demonstrates adequate compliance with the integration of development aims in the DCP because the building will appear excessively bulky in the streetscape. 23 In the first place, the triangular shape of the lot, with a much wider frontage than the neighbouring properties imposes a constraint on the design of any building so that it is compatible and not over bearing. But in this case, the proposed building width of approximately 23m and overall width of 33m incorporating the front balcony, with a minimal setback of 5.5m, does not reflect the characteristics of the streetscape. The extraordinary length of the balcony is in my opinion antipathetic to the streetscape. 24 Even though the existing street trees provide some screening, nevertheless, some sidewalls will be observed, particularly along the southern elevation, which is in the order of 30m. Likewise, the elevation adjacent to the drainage easement is in the order of 42m at the 1st storey level, which is quite unlike any other building in this neighbourhood and in my opinion works against its integration into the environment. 25 I also have particular concerns with the front elevation treatment and its contribution to the streetscape. As I have noted, the front width imposes a constraint on the design to ensure satisfactory impacts. But I consider this front elevation is poorly resolved because in its overall building width of 24m, there is no apparent coordination, or rhythm of door and window openings, which unrepresentative of the other more balanced building designs in the neighbourhood, albeit smaller buildings. 26 The vertical louvres in front of the car park also appear as an ad hoc element in the overall, which in my opinion enhance its streetscape presentation. 27 Another design concern is that the levels on the lot required to provide adequate flood level clearance results in the ramp access being placed in the front of the building and having a total ramp length of approximately 22m, with one rest. In my opinion, this compounds the bulk of the building and contributes to its streetscape presentation as a relatively large commercial, or industrial type building that does not comfortably integrate with the predominant residential character of this neighbourhood. 28 In these circumstances, I do not accept Mr Layman's opinion that the landscaping can adequately address this. In any case, I think the proposed front landscaping is likely to be compromised by the provision of the un-detailed overland flowpath and driveway level restrictions. 29 Insofar as a number of other amenity and safety issues were raised, including the bat roosting in the fig tree and the traffic safety of the outdoor playground, I am satisfied these could otherwise be satisfied by conditions of consent in an appropriate design. Conclusion 30 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. In my assessment the proposed building demonstrates excessive bulk and scale, notwithstanding its numerically compliance, As such, it does not reasonably satisfy the provisions of the DCP to adequately integrate into its environment so as to make a satisfactory streetscape presentation. 29 I also consider the proximity of the site adjacent to the lined concrete storm water channel, which is subject to regular surcharge and flooding is an undesirable element of this proposal, for a 40-place child care centre. I accept however that safety measures such as additional safety fencing could be installed, however additional supervision and control of this situation would be required according to Mr Kozarovski's recommendation. In my opinion this is a negative aspect of the proposal that contributes to its refusal. 30 In the ultimate, I rely on the opinion of Mr Nelson that this particular building form and appearance does not satisfy the streetscape aims, nor does it satisfy the LEP objectives to preserve the character and amenity of this established residential area. Therefore, I consider it fails. Court orders 1 The appeal is dismissed. 2 Development consent for the demolition of the existing dwelling and erection of a 2-storey child care centre for 40 children at 103 Penshurst Street, Penshurst is refused. 3 The exhibits may be returned except for 1, 7, 8, 9, A and D. ___________________ R Hussey Commissioner of the Court 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.