Land and Environment Court of New South Wales CITATION : Martin v Camden Council [2007] NSWLEC 660 APPLICANT Mark Martin PARTIES : RESPONDENT Camden Council FILE NUMBER(S) : 10331 of 2007 CORAM: Hoffman C KEY ISSUES: Appeal :- 39 place childcare centre, car parking, streetscape, vehicle noise, children at play noise, traffic safety, visual amenity from neighbours land, difficulty of separation from multiple neighbours. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Camden Local Environmental Plan No 47 Camden Development Control Plan 2006 New South Wales Industrial Noise Policy DATES OF HEARING: 08/08/2007, 09/08/2007, 10/08/2007 and 18/09/2007 EX TEMPORE JUDGMENT DATE : 18 September 2007 APPLICANT Mr A. Seton, solicitor of Marsdens Law Group LEGAL REPRESENTATIVES: RESPONDENT Ms J. Walsh, solicitor of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 18 September 2007 10331 of 2007 Mark Martin v Camden Council JUDGMENT 1 This is a Class 1 Appeal No 10331 of 2007 between Mark Martin and Camden Council in regard to a refusal of consent for a 39 place childcare centre at 16 Burnett Avenue, Mount Annan. The proposal incorporates an existing 1920s house to be used for nought to three year olds plus a kitchen and reception and wash rooms. An extension of the rear is proposed to provide three to six year old facilities and outdoor play areas. 2 Along the western side boundary the existing driveway is to be used to give access to a 10-car car park. It comprises three staff spaces 2.4 metres wide and seven parent drop-off and pick up spaces 2.6 metres wide and a turnaround bay. One of the parent spaces is 3.3 metres wide for disabled access. 3 The existing house and the additions are single-storey. The existing house has a deep front setback of about 15 metres. There is a stone front fence, which acts as a retaining wall for the elevated front yard. There is a hedge on top of the wall. The site is large compared to its neighbours and sits on the crown of a hillock so that it is above its neighbours except for one house at the rear. That house is 7 Childs Place, and it is at the same level as the subject site. There is a large eucalypt about halfway down the lot originally proposed to be retained. The side and rear boundary fences are currently 1.5 metres high lapped and capped timber. The allotment is approximately rectangular and has a frontage of 36.3 metres and an average depth of about 60 metres, giving a total area of 2,115 square metres. Neighbouring lots vary in size but are in the order of 500 to 700 square metres. 4 The houses in the locality are predominantly single-storey brick and tile. The Mount Annan Shopping Centre is about one kilometre to the north west. The local high school is about 500 metres to the south-west. 5 The statutory controls applicable are the Camden Local Environmental Plan No 47 in which the site is zoned residential 2(d) Release Areas and the use is permissible with consent subject to Camden Development Control Plan 2006 pt F ch 3 Childcare Centres. 6 The contentions in the appeal are: Issue 1 - Unsuitable site The site is not suitable for the proposed development as it will have an adverse impact on adjoining landowners. Particulars (a) Amenity of adjoining properties. The proposed site currently joins seven residential properties, a childcare centre is required to maintain a high degree of separation from residential development. Ideally it should adjoin a public reserve, school or other non-residential use; DCP 2006 pt F ch 3 cl 5(c)(ii). (b) Buffer zones for outdoor play equipment. Buffer zones are not provided to the southern boundary from play equipment. The controls stipulate buffer zones to be incorporated; DCP 2006 pt F ch 3 cl 17.1(a)(ii). (c) Restriction of the number of children playing at anyone time. In order for the centre to comply with the required noise criteria a restriction is required on the number of children playing of thirteen at any one time. The controls indicate that for large centres staging of outdoor play areas may be appropriate; DCP 2006 pt F ch 3 cl17.1(a)(iii). Issue 2 - Access The proposed development is not considered to have adequate sight at distances to the east when entering and exiting the site. Particulars (a) The controls require driveway and car parking layout be designed for the safe delivery and collection of children. Design is to take into account sub-division layout and street design. Issue 3 - Acoustic fencing An assessment of the physical impact of the proposed acoustic fencing on adjoining properties is required. Particulars (a) A proposed noise control measure includes the construction of sound barrier fencing to a total height of 2.4 metres to the southern and eastern boundaries and 2.1 metres to the western boundary. Ten millimetre thick transparent polycarbonate extension is proposed above 1.8 metres. The controls require fences to be up to 1.8 metres in height, or up to 2.1 metres may be considered subject to an assessment of its physical impact on adjoining lots. No such assessment has been provided. (b) The effect on solar access and overshadowing impacts on adjoining properties from the proposed acoustic fencing. No information has been submitted assessing the impact of the proposed fences upon the adjoining residential properties. 7 The respondent's evidence was heard from: o Messrs D and F Allsopp, objectors of 14 Burnett Avenue, the neighbours on the west side front of the proposal. They adjoin the driveway and car park of the proposal at a slightly lower level. o Mr T Walsh, objector of 5 Childs Place whose house is No. 5 behind the Allsopp's. The Walsh property adjoins the rear one third of the west boundary of the side adjacent and a little below the proposed outdoor play areas. o Messrs P and L Randall of 7 Childs Place, objectors at the rear of the site adjacent to the proposed outdoor play area. Their entertainment area is are at about the same level as the site. o Mr and Mrs Cashburn of 2 Dore Place, objectors who are the neighbours on the east of the site at the front. Their house is on the corner of Burnett and Dore. Their backyard adjoins the front yard of the proposal, although the proposal is elevated about one metre above them. o Mr K Gunn objector of 12 David Place Mount Annan who is an interested local resident. o Mrs T F Fedali, objector of 12 Burnett Street, also gave evidence. o Mr G Goodyer, consultant town planner, also gave evidence for the respondent. 8 The owners of 4 and 6 Dore Place, had also objected but did not give oral evidence. Their rear yards also abutt the east boundary of the site but at a level perhaps 2 metres below the site. Number 6 is adjacent to the proposed outdoor play areas. Number 4 is adjacent to the proposed rear extension and the existing house. 9 The applicant's evidence was heard from: o Mr M Brown, consultant town planner: o Mr S Gauld consultant acoustic engineer. o An arborist report from Mr S Freeman was tendered in Exhibit F but he was not called for cross-examination. o A heritage report from Mr D Gojak was tendered in Exhibit D. He was not called for cross-examination. 10 The parties had agreed on single experts for traffic and parking and acoustics evidence. Mr C Hallam, consulting engineer, gave evidence on traffic and parking. Mr G Atkins, consulting acoustic engineer, gave his evidence. 11 The plans tendered in Exhibit A at the hearing had several changes by deletion and annotation. The deletions and changes included: (a) Location of a waste storage area for six wheely bins adjacent to play school building and the production of an associated waste management plan. (b) Removal of the new disabled ramp at the Burnett Avenue frontage and the retention of the existing stone wall and hedge above it along the front boundary. (c) Removal of the new pool fence above the Burnett Avenue frontage. (d) Amendment of the grass play area within the front yard of the site to become simply a grassed area in the front setback. (e) Removal of the shed in the rear yard adjacent to 7 Childs Place. (f) Removal of the three sheds in the rear yard adjacent to 5 Childs Place. (g) Amendment of the car parking area to add a turning bay additional to the ten parking spaces. (h) Removal of the large eucalypt tree existing in the proposed car park. (i) Delineation of the outdoor playing area in yellow on the plans. (j) Deletion of any proposed alterations to the front façade of the existing building. 12 The start of the hearing occurred on site and in the properties of the neighbours. Mr Hallam gave his oral evidence on site. In regard to the objectors' concerns about the location of the drive entry at a crest in Burnett Avenue he had the following to say: 1. Traffic safety sight distances required for turning into the site are 65 metres in one direction and 83 metres in the other. The actual sight distances available are 80 metres and 124 metres so the driveway has ample safety margins. 2. In calculating safe stopping distances he had surveyed Burnett Avenue and found that cars typically travel at 60 kilometres an hour, not the posted 50 kilometres an hour, and he had allowed for that. 3. For cars exiting the site he agreed with the New South Wales police traffic recommendation in evidence that in peak hours of 6.30am to 10am and 3pm to 6.30pm weekdays there should be signposted "No stopping" restrictions along the full frontage of the site. 4. The glare from low sun angles morning and afternoon in Burnett Avenue is a normal motoring hazard that drivers must account for. There being times at which it occurs in Burnett Avenue should not be a reason for refusal. The no stopping area proposed will give additional margin for safety in that regard. 5. The drive entry and the aisle of the parking area should be a minimum width of 5.8 metres and it measures between 6 metres and 7 metres so it had ample width to spare. 6. He would prefer the acoustic fence along the western boundary adjacent 14 Burnett Avenue to end adjacent the front façade of No. 14 so that safety sight lines for exiting cars is appropriate. 7. The total car parking provided for 10 spaces for staff and parents gives a ratio of one space per four children. The usual requirement for play schools is one space per five children, so the on site car parking should be ample for drop-off and pick up activity and also provide spaces for employees. 8. The extra turning bay now proposed is probably not needed but gives an added convenience. 9. The council request for provision of a light truck parking bay is not necessary for a play school as they are normally serviced by car-sized vans. 10. Surveys that Mr Hallam has conducted on other similar sized play schools and the pattern of parent drop-off and pick up, indicates that peak arrival and departure would be 8am to 9.30am when 22 cars would enter and 22 leave. This averages one car entering or leaving every 2 minutes. He said this gives enough space between movements that no queuing of cars would occur. He had calculated the driveway intersection with Burnett Avenue as if it was a road intersection. It gave an "A" quality rating which, is the best rating, and indicated no delays or minimum delays entering or leaving the site. Thus he said there would be no traffic congestion as feared by the objectors and council. 11. As part of that analysis he had also surveyed the traffic in Burnett Avenue and found current traffic peaks 64 vehicles per hour in the morning and 72 vehicles per hour in the afternoon. The proposal would increase this to peaks of 87 vehicles per hour in the morning and 94 vehicles per hour in the afternoon. The Roads and Traffic Authority recommends a maximum of 200 vehicles per hour for residential streets like Burnett Avenue. So Mr Hallam concluded that the change to existing traffic conditions would be minimal and acceptable. 13 In cross-examination Mr Hallam said he had not considered that parents may park in front of 14 Burnett Avenue, the Allsopps, in order to drop-off or pick up children. The applicant submitted that parents would avoid that as much as possible because they have to take the child into the building and sign in and sign out when picking up. To park in the street would mean at least a 50 metre walk each way to the reception room and add considerably to the difficulty and time of drop-off and pick up. 14 Dealing with the arborist's report first, the council accepted that the tree is larger and mature at about 90 years old and had been badly pruned in the past and subsequent regrowth had created faults in the tree that made it dangerous. Also the arborist discovered bacterial infection and said even without the proposal it would have to be removed within 5 years. 15 Dealing with the heritage report the applicant accepted the recommendations of the expert and they are incorporated in the draft conditions. 16 The town planners, Mr Goodyer and Mr Brown, had produced a joint report and they agreed the site, being large, is potentially suitable for a childcare centre. The size would enable, in their opinion, suitable measures to be incorporated to reduce impacts to reasonable levels. It is the extent of measures to reduce impacts that they disagreed upon. 17 Their disagreements related to the Camden Development Control Plan 2006 provisions in cl 5(c)(ii). It read: "Council will only consider sites which satisfy the following locational criteria where applicable, sites which maintain a high degree of separation from residential development, that is with a centre located adjacent to public reserves, schools and other non-residential uses and only limited side frontage to residential lots if applicable. Example corner lots". 18 In considering this, I assume that the Camden Local Environment Plan that makes play schools permissible in the residential zone cannot be overridden by Development Control Plan. Therefore the statement that the council will only consider certain sites cannot be seen as a prohibition. As a guide to potential applicants the clause is useful as it indicates things that will reduce conflict with neighbours, namely: separation from houses by being next to schools or parks or on corner lots so that there are only two neighbours. 19 The respondent put that non-compliance of the site with those matters should be sufficient for refusal, but I must agree with the experts on this that the size of the site should enable impacts to be reduced to acceptable levels. 20 The town planners deferred to Mr Hallam on traffic and parking matters, and he said that the proposal would be acceptable subject to the conditions he recommended. 21 Given that the traffic, parking, heritage and tree concerns are resolved and the streetscape issue also, except for an acoustic fence in the front setback sought by Mr Atkins, the planners said the location and height of the acoustic fences is the only remaining issue. 22 Mr Goodyer preferred Mr Atkins recommended fence heights in order to minimise acoustic impacts on the neighbours. Where acoustic fences are higher than 2.1 metres, for visual amenity reasons, they should be set in from the boundary by 2 metres at least. Mr Goodyer would prefer the setback to be wider around the children's play yard provided its area would still comply with the minimum area needed. 23 Mr Brown preferred Mr Gauld's fence heights that are lower than Mr Atkins' but did not agree to the fences being offset from the boundary. If the fences need to be over 2.1 metres high he said a 45 degree cantilever in perspex back into the subject site for portions above 1.8 metres high would reduce visual impact and shadowing sufficient to make impacts acceptable. As a result of this evidence, much of the town planning resolution was dependent on the acoustic fences. 24 Mr Goodyer said the minimisation of impacts on neighbours had heightened importance given this is a site that does not comply with DCP cl 5(c)(ii). 25 Mr Brown said the position of the property on the crest of the hillock meant that the neighbours would have less nuisance from activity on the site because they are lower and less noise would reach them. 26 During the Court visit to the site, height poles were put up at various heights between 2.1 metres and 3.1 metres so that the visual impact could be observed. 27 I saw in two bedrooms and a bathroom at the Allsopp's that the current 1.5 metre fence enabled views to distant hills and a considerable amount of sky view. Due to the Allsopp's house and backyard being lower than the subject site, even a 1.8 metre fence would take away the view of distant hills. The provision of a 2.1 metre high fence or a 3.1 metre fence with the top section angled at 45 degrees would create major visual impact on the current pleasant aspect. However as Mr Brown pointed out, even a 1.8 metre fence plus a new house 900 millimetres off the boundary would do the same thing and probably have more impact than the fence. 28 Towards the end of the hearing Messrs Atkins and Gauld agreed that adjacent the Allsopp house a 2.4 metre high fence would achieve the acoustic barrier needed to achieve noise levels required by the Camden Development Control Plan 2006 on Childcare Centres in cl 17.2 stage 2(e). This is partly due to the centre opening at 7am, which acoustic standards take as not being sleeping time, and closing by 6pm on weekdays only. So except for staff cars, there will be no activity before or after those times and the centre is closed on Saturday, Sundays and public holidays. 29 Messrs Atkins and Gauld did not agree on the acoustic fence from the front setback of No 14, the Allsopps, in the area between the house and the front boundary. Mr Atkins wanted the fence to start at 2.4 metres high adjacent the façade of the house and taper to 1.4 metres high at the street in order to protect the Allsopps' master bedroom window facing the street. 30 Mr Gauld said it was not needed. The existing traffic counts showed peak activity of existing cars passing 14 Burnett Avenue occurred during the playschool is morning and afternoon drop off/pickup periods. The cars passing at 60 kilometres an hour would create tyre, engine and air noise that would exceed the cars coming slowly in or out of the driveway. 31 Mr Atkins said the noise of cars changing gear up the driveway or stopping to exit with engine running then accelerating away would create nuisance noise that should be reduced. He disagreed with the proposal to limit the fence to half the width of the setback because the streetward half would be so low as to have minimal effectiveness in reducing noise. 32 The council actually supported no acoustic fence in the front setback due to the streetscape reasons and wanted the Allsopps' picket fence to remain on this side boundary within the front setback. 33 I asked the planning experts whether the boundary planting strip could be widened on the driveway and car park since Mr Hallam said it was wider than needed under the Australian standard. They agreed that the planter strip could be widened and it would result, if the driveway and car park aisle are kept at six metres width, in a vegetation strip being about 1.5 metres wide at the street boundary, about 1.8 metres wide adjacent to the front façade of the Allsopps and about two metres wide opposite the Allsopps' side bedroom windows and along to the back boundary. 34 I asked them about putting the acoustic fence on the inside of the planter strip instead of on the boundary. They did not favour that due to the 45 degree section as it would overhang the drive and perhaps be damaged by vehicles. But there was other evidence of Mr Atkins whilst on site that if there was a setback, the 45 degree section could be deleted and the section in perspex above 1.8 metres could be vertical up to the specified height. 35 Mr Goodyer had also said that 2 metres width was minimal but acceptable setback for access between the acoustic fence and a boundary fence in order to plant and maintain screen vegetation to soften the visual impact and reduce overshadowing for the neighbours. 36 In regard to the play area acoustic fences Mr Goodyer produced a plan in Exhibit 12 showing either a two metre or a 4 metre setback for the acoustic fences adjacent the Walshes, the Randalls and the Hirds at 6 Dore Place. He said even with the 4 metre setback the play area would comply with the area requirements for 39 children. Also the acoustic experts had agreed that only ten children at a time should be allowed in the yard in order to reduce noise production; as a result the yard had ample area for 10 children. 37 Mr Gauld, for the applicant went to the Camden Development Control Plan on Childcare Centres cl 17.4(b) that referred to the New South Wales Industrial Noise Policy. This gives guidance for assessment of adjustment under cl 17.2 stage 2(g) to the noise calculations under cl 17.2 stage 2(d) and (e). 38 The only disagreement between the acoustic experts was the adjustment for intermittent noise. Mr Gauld said the New South Wales Industrial Noise Policy only applied that adjustment at night. The play centre would be closed at night so it should not apply, he said. 39 Mr Atkin's said that given: o the low background noise level of the site and neighbourhood, and o the fact that the proposal is not residential, and o that he and Mr Gauld agreed there would be intermittent noise from children at play, he made the decision to apply the adjustment of 5 decibels anyway. That decision is supported, he said, by two other Court appeals. 40 The applicant submitted those two other cases are distinguishable because they were where relevant councils had no noise performance criteria. Camden does have specific criteria adopted after public consultation and adopted in its development control plan. Those provisions should be applied. 41 I agree with that submission and as a result it seems to me that the fence heights shown in Exhibit 11 by Mr Gauld of 2.1 metres should be applied around the play areas. 42 However that does not necessarily mean I accept the fences should be on the boundary. Seeing the view from the Allsopp's and Mr Walsh's and the Randalls, I can appreciate their concern about the additional visual bulk of the acoustic fences on their boundaries. They will exceed the normal 1.8 metres height and reduce the current openness of their yards that in the Randall's case are set up for entertainment. This is a residential area of high amenity and the play school is different to having a single house as a neighbour. 43 Amenity and openness are key characteristics that the neighbours value. I have formed the opinion that the acoustic fences around the play area is unacceptable on the boundary and they should be set in by 2 metres. This will preserve existing trees on site adjacent the Randalls' fence and enable more shrubs and small trees to be planted within the setback. This will soften the visual impact of the acoustic fences and achieve acceptable separation as sought by the development control plan in cl 5(c)(ii). 44 In regard to the Allsopps, with the planting strip widened to 2 metres adjoining their house and yard, the acoustic fence of 2.4 metres height agreed by the experts can be set on the inside of the 2 metre landscape buffer. At the rear of the Allsopps' house where the landscape strip would otherwise narrow below 2 metres width the car park should be amended so that the 2 metre width can be maintained for the full length of the Allsopp property. 45 This can be done by moving the car parking slightly eastward into the outdoor play area. 46 By having the play area acoustic fence set 2 metres in from the boundary instead of 4 metres, more than sufficient area should be retained in the play area to comply with the requirements for 39 children. 47 In considering the plans before me in Exhibit A, I found there were so many changes during the hearing and in the draft conditions that they were unsuitable for any consent. I directed the parties to consider the matters raised in this judgment and to prepare updated plans and to notify them to neighbours for comment. On resumption of the hearing updated plans were tendered in Exhibit O. The respondent tendered Exhibits 18 to 21 that included a response from the Allsopps; and a comment from the council engineer. The Court-appointed engineer, Mr Hallam, also commented on those matters. There were revised draft conditions from the respondent with a preferred four metre buffer set back for the acoustic fence to 7 Childs Place. 48 In considering the additional evidence I have formed the opinion that the objectives of the Development Control Plan for childcare centres can be achieved by the proposal as modified, and I confirm that the 2 metre setback of the acoustic fence to the play area and 2.1 metre high acoustic fence will achieve the requirements applicable. 49 I accept Mr Hallam's opinion that the car park as revised has appropriate dimensions. The aisle width is 6 metres for the most part, there being only a point location at the disabled parking space where it is 5.889 metres wide and, as he said, the vehicle is a disabled space and any vehicle would likely be less than 5.5 metres long so the affective aisle width will be 6 metres. And there is additional space to manoeuvre given the 3.2 metre width of the parking space. I do agree, however, that to give a driver options of unloading a disabled child from either side of the vehicle, the pedestrian path at the end of the car space should be one metre wide instead of 727 millimetres. The extra width can easily be achieved by moving the garbage enclosure. 50 Overall the proposal should be approved subject to condition A2(1) and (2) and (4) being deleted. Condition A3 should include a management plan for the landscaping between the acoustic fences and the boundary. 51 Condition 2.0(10) is sufficient for enforcement without the need for certification prior to construction certificate but I agree to inserts agreed between the parties regarding wheel stops in parking places. 52 In condition 4.0(3) and (5) the applicant's draft conditions are adopted. At the front setback adjoining the Allsopps I accept the applicant's expert that the road traffic will exceed the noise of cars in the driveway and no acoustic fence there is warranted. 53 Therefore the orders of the Court are: 1. The appeal is upheld. 2. Deferred commencement consent is granted to a play school at 16 Burnett Avenue, Mount Annan for 39 children as shown in the amended plans in Exhibit O being drawing numbers M144/SKO1C and SK02C by Rudder, Littlemore and Rudder, all as amended by and built in accordance with the conditions in Annexure A hereto. 3. The Exhibits are returned to the parties except for Exhibits 10, 18, 19, 20 and Exhibit O. ___________________ K G Hoffman 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.