Universal Childcare Pty Limited v Waverley Council [2007] NSWLEC 424

Land and Environment Court of New South Wales

CITATION : Universal Childcare Pty Limited v Waverley Council [2007] NSWLEC 424

APPLICANT Universal Childcare Pty Limited PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 11280 of 2006

CORAM: Tuor C

Development Application :- child care centre traffic and parking increased setback and compatibility with the area KEY ISSUES: hours of operation noise and height of acoustic fences impact on adjoining property conditions of consent

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Childrens Services Regulation 2004 Waverley Local Environmental Plan 1996

DATES OF HEARING: 30 & 31 May 2007

DATE OF JUDGMENT: 12 July 2007

APPLICANT Ms S Duggan, barrister SOLICITORS Gadens Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr M Staunton SOLICITORS Wiltshire Webb Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

12 July 2007

11280 of 2006 Universal Childcare Pty Limited v Waverley Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Waverley Council (the council) of a development application (DA 675/2006) under the Environmental Planning and Assessment Act 1979 (the Act) for a child care centre building at 70 – 74 Dover Road, Rose Bay (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be upheld and development consent granted. The site and its context 3 The site is located on the northern side of Dover Road, near the intersection of Old South Head Road. It forms part of the land previously occupied by the King David Preparatory School (the former school land extended from 66-74 Dover Road and through to Strickland Street). 4 The site comprises three allotments (lot 27 DP7700 and lots A and B DP306846), which have a combined splayed frontage to Dover Road of about 38m and an area of 1542sqm. The site is occupied by a single storey school building setback from Dover Road and a single storey house that occupies the south east corner of the site. There are a few trees around the perimeter of the site including a large Eucalyptus botryoides (T21) in the north west corner. 5 Adjoining the site to the east is a new dual occupancy development (76A Dover Road). Adjoining the site to the west is part of the former school (66 Dover Road). Council has approved a 40 place child care centre on this land. Further to the west is a Telstra building, which adjoins retail/commercial development that fronts Old South Head Road. To the north the site adjoins part of the former school, which is currently vacant and its future use is unknown. 6 Opposite the site is characterised by two storey houses of varying styles on relatively large allotments. The proposal and its history 7 The development application was lodged on 9 November 2006 and was notified to adjoining and nearby residents. Council received 20 objections. 8 An appeal against council's deemed refusal of the application was lodged on 22 December 2006. Council's Independent Hearing and Advisory Panel and the council officer's report recommended approval of the application subject to design changes including the further setback of the proposal from the weest boundary. Council refused the application on 22 May 2007. 9 The application proposes the demolition of the existing buildings on site and the construction of a two storey building to accommodate two child care centre with a total of 112 children and basement car parking for 18 cars (4 staff and 14 customer spaces). Planning Framework 10 The site is zoned 5(a) Special Uses (School) under Waverley Local Environmental Plan 1996 (LEP 1996). The proposal is permissible with consent. The rest of the former school site is also zoned 5(a). Land to the east and south is zoned Residential 2(b). 11 Waverley Development Control Plan 2006 (the DCP) applies to the site. Part E provides controls for child care centres and Part I relates to Land Use and Transport. The evidence 12 The Court heard acoustic evidence from Mr S Cooper, the court appointed expert and Mr N Koikas, for the applicant. Mr C McLaren, for the council and Mr G Pindar, for the applicant provided traffic evidence. Mr A Darroch, town planner for the applicant provided oral evidence. Council chose not to provide any expert planning evidence. 13 The Court heard evidence on site from a number of residents whose main concern was the cumulative impact of the child care centres on this site and the adjoining site (66 Dover Street), particularly the traffic likely to be generated and its impact on queuing to Old South Head Road. The residents considered the parking provided on site to be inadequate and the basement arrangement to be unacceptable. They were concerned that parents would park in the street to take their children to the centre and utilise either resident parking spaces or double park. In addition the residents were concerned about the size of the centres and combined number of children and the hours of operation, which exceeded those of the former school. They considered the building to be uncharacteristic of the residential area with insufficient setback and landscaping. 14 Ms S Bartley, 76A Dover Road was concerned about the noise, privacy and overshadowing impacts of the proposal on her property. She expressed concern that the design of the acoustic fence would be unacceptable when viewed from her rear outdoor area. During the hearing the acoustic experts proposed an alternate solution that reduced the height and the visual impact of the fence. Mr Darroch prepared an assessment of the impact of the proposal on solar access and privacy. 15 In relation to solar access, the proposal is set back further from the east boundary than the existing house on the site and there is no material increase in height or length. The proposal is therefore likely to reduce the overshadowing impact when compared to the existing house. In relation to privacy, Mr Darroch prepared sight lines and proposed an alternate arrangement for the shade structure over the play area which would mitigate any impacts. The issues 16 The Amended Statement of Issues before the Court contained 9 issues. A number of issues were resolved through expert evidence or conditions. The key issues can be summarised as whether: