Land and Environment Court of New South Wales CITATION : D'Souza v Hornsby Shire Council [2007] NSWLEC 838 APPLICANT Lena Anne D'Souza PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10238 of 2007 CORAM: Tuor C KEY ISSUES: Development Consent :- s96 application to increase number of children from 16 to 24 at an existing child care centre noise impact and provision of on site parking LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Hornsby Shire Local Environmental Plan 1994 DATES OF HEARING: 12/09/2007 and 29/11/2007 EX TEMPORE JUDGMENT DATE : 29 November 2007 APPLICANT Mr A. Pickles, barrister Instructed by Mr P. Saab of Macquarie Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr T. Pickup, solicitor of Storey and Gough Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 29 November 2007 10238 of 2007 Lena Anne D'Souza v Hornsby Shire Council JUDGMENT 1 This is an appeal against the refusal by Hornsby Shire Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the application) to modify a Development Consent (2025/02). Council approved the development application on 3 December 2003 for conversion of an existing house into a childcare centre at 18 Wentworth Avenue, Waitara (the site). 2 The application seeks to increase the number of children from 16 to 24. No internal or external changes are proposed to the existing centre The site and its context 3 The site has an area of 1,208 square metres, and is located on the eastern side of Wentworth Avenue. It contains an existing childcare centre for 16 children. The front of the site has been excavated and provides four off-street parking spaces. There are a number of storage sheds located in the rear yard of the site. The outdoor play area for the centre is also located at the rear of the site. 4 The site is located approximately 850 m from Hornsby railway station and 600 m from Waitara railway station. Wentworth Avenue is a cul-de-sac, and is located approximately 450 m from the Hornsby commercial centre area. 5 Development surrounding the site comprises low density residential development. To the south of the site there is a single-storey weatherboard and tiled dwelling (16 Wentworth Avenue) to the north of the site is a single-storey brick and tiled dwelling (20 Wentworth Avenue). Planning framework 6 The site is zoned Residential A (Low Density) under Hornsby Shire Local Environmental Plan 1994 (LEP 1994). The proposal is permissible with consent. 7 Hornsby Community Uses Development Control Plan (Community Uses DCP) is relevant, particularly the parking and access and acoustic elements. Hornsby Car Parking Development Control Plan (Car parking DCP) also applies and provides the same requirements for parking as those in the Community Uses DCP. Issues and evidence 8 The Court visited the site on 12 September 2007 and heard evidence from the adjoining owners, Mr and Mrs Tiltins, 16 Wentworth Avenue, and Mr and Mrs Morrison, 20 Wentworth Avenue. Mr and Mrs Turnbull also gave evidence on site. 9 The main concern of the residents was the noise generated by the existing operation of the centre and the impact of increased traffic and on-street parking. These concerns reflected the issues raised by council in the proceedings. 10 The Court heard expert evidence from Mr Jenkins, traffic consultant, and Mr Cooper, acoustic consultant, for the council. Mr Hazell, traffic consultant, and Mr Craig, acoustic consultant, provided evidence for the Applicant. 11 At the conclusion of the hearing on 12 September 2007, it was agreed that the appeal be adjourned to enable independent noise monitoring to be undertaken by Mr N Koikas to quantify the level of noise emitted from the existing childcare centre. Monitoring was undertaken, and Mr Cooper and Mr Craig prepared a further joint report and provided evidence at the resumed hearing on 29 November 2007. Noise 12 The monitoring undertaken by Mr Koikas was for a limited period and did not involve children undertaking active play. Mr Cooper stated that: there is no factual material related to the current operation…. concerning such outdoor play... In the absence of any outdoor play related to the subject site, Mr Koikas has referred to measurements at other childcare centres, and has provided data in relation to those centres to give an indication of the range of noise levels associated with outdoor play. I have found the method of using spatial averaging technique over a play area to determine an Leq level addresses the variation in noise level over the sampling period. I have found the predicted levels by this method to be satisfactory for the assessment of a childcare centre against the "black and white" go/no go criteria. 13 The experts agreed that the appropriate criteria should be background plus 10 dB(A) for a maximum of 1.5 hours per day, and background plus 5 dB(A) for the rest of the time. They agreed that background plus 5 dB(A) could be achieved by educational or passive play such as art and craft activities, and that background plus 10 dB(A) could be achieved for active play, provided the number of children engaged in active play was no more than 6 with adequate supervision. 14 The Plan of Management has been amended for the 2 to 5 year age group to limit the number of children outside to a maximum of three groups of 6 children to be located at the sandpit, the deck and the swings. Only the group at the swings are to be engaged in active play, with the other two groups engaged in educational, or art and craft activities. This outdoor activity is to occur for one hour in the morning and 30 minutes in the afternoon, at which time the under-2s may also be outside. 15 Mr Cooper and Mr Craig agreed that with this limitation on outdoor play, the proposal would comply with the noise criteria. 16 Compliance with the Plan of Management and the noise criteria has been included in the conditions of consent. The conditions also include the requirement that the noise level be independently monitored within 6 months, and that the height of the north-south boundary fence be increased by an angled perspex screen. 17 Mrs Tiltins had previously objected to any increase in the height of the fence, however I am satisfied that the proposed increase, being of perspex and tilted, will not add to the bulk or overshadowing impact of the fence but will improve the noise attenuation, even based on the existing operation of the centre. 18 The proposed conditions also include the requirement that once the monitoring has occurred, if the noise criteria are not met, council can require further management measures, including reduction in the number of children, to ensure compliance with the noise criteria. 19 The Plan of Management also restricts active play on the deck area, requires the play structures in the sandpit to be relocated, and introduces a system for complaints to be dealt with. 20 I am satisfied that if the conditions of consent and the Plan of Management are complied with, an acceptable noise environment which complies with the criteria agreed to by the experts will be achieved. I note that the current consent has no requirement that the centre operate in accordance with a Plan of Management, nor is there a restriction on the number of children or the period of time children can be outside engaged in active play. 21 While the amendment proposes an increase in the number of children at the centre, the Plan of Management and the proposed conditions are more restrictive than the current approval and will improve the existing noise environment. I therefore do not consider a trial period is required as the proposed conditions enable the reduction in numbers if the noise criteria are not met. In contrast, if a trial period was unsatisfactory the consent would revert to the original approval, which contains no noise criteria or management restrictions on the number of children and outdoor play. On site parking 22 The other issue related to the number of on-site car spaces to be provided. The Community Uses DCP requires one space per four children. The current approval provides four spaces for 16 children. The proposal does not increase the number of spaces to be provided, and there is therefore a shortfall of two spaces based on the Community Uses DCP requirements. 23 Mr Hazell agreed that the proposed increase did not comply with the numerical requirements of the Community Uses DCP. He undertook a survey of the car parking characteristics of the existing 16 place childcare centre which indicated: ..a peak parking demand of 4 in the morning peak, for only 1 minute at 7.23am, and 2 cars in the afternoon, from 5.37 to 5.41pm. The general morning parking demand was 3 vehicles, which included two staff. 24 Mr Hazell concluded that a 24 place centre would generate the need for one additional space to be accommodated on-street, which could be provided directly in front of the site and would not impact on adjoining properties, given that there is a low on-street parking demand. 25 Mr Jenkins was concerned that Wentworth Avenue is only 7m wide, and that if two cars are parked on either side of the street it is not wide enough for an emergency vehicle to pass. He considered that the increase in the number of children in the childcare centre would increase the likelihood of this occurring. 26 Mr Hazell stated that: … generally people will tend not to park opposite one another in narrow streets if a convenient alternative is available, particularly when there is low on-street parking demand. 27 I accept Mr Hazel's evidence. The Community Uses DCP requirements are based on the RTA guidelines, which recognise that in certain situations the number of off-street spaces may be reduced, particularly if there is capacity for on-street parking, as is the case in Wentworth Avenue. 28 The blocking of emergency vehicles can occur now, but is unlikely. The situation will not be exacerbated by one additional car parking in the street for a short period of time. While the proposal does not meet the numerical requirements of the Community Uses DCP for parking, it meets the objectives of the control To provide sufficient and convenient parking for staff members, visitors and for persons delivering and picking up children. 29 Of itself, the provision of car parking is not a reason to refuse the application. Orders 30 The orders of the Court are: 1. The appeal is upheld. 2. The application under s 96 of the Environmental Planning and Assessment Act to amend Development Consent (2025/02) to increase the number of children from 16 to 24 at the Tiny Tots Childcare centre, 18 Wentworth Avenue, Waitara, is approved subject to the conditions in Annexure "A". 3. The exhibits, except Exhibits 1, 2, 11, 15, G and H may be returned. ___________________ Annelise Tuor Commissioner of the Court Cc/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.