Land and Environment Court of New South Wales CITATION : Wang J S v Hurstville City Council [2007] NSWLEC 483 APPLICANT: PARTIES : Jin Song Wang RESPONDENT: Hurstville City Council FILE NUMBER(S) : 10481 of 2007 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Whether the proposed childcare centre is in a safe location for children, given that it would be close to Forest Road and LPG tanks Whether it would cause unreasonable traffic congestion in the street Hurstville Local Environmental Plan 1994, (HLEP) State Environmental Planning Policy No. 33 - Hazardous and Offensive Industries, (SEPP33) State Environmental Planning Policy No. 55 - Remediation of Land, (SEPP55) Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment - Disposal of stormwater in catchment provisions, (GMREP2) and Draft Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment - Disposal of stormwater in catchment provisions, (Draft GMREP2) Development Control Plan No. 2 - Car Parking, (DCP2) LEGISLATION CITED: Development Control Plan No. 6 - Child Care Centres, (DCP6) Hurstville Development Control Plan No 1-Hurstville LGA Wide DCP, (DCP1) Development Control Plan No. 14 - Exempt & Complying Development, (DCP14) Development Control Plan No. 15 - Contaminated Lands, (DCP15) Development Control Plan No. 19 - Access and Mobility, (DCP19) Development Control Plan No. 23 – Advertising, (DCP23) Environmental Planning and Assessment Act 1979, ss79C and 97 DATES OF HEARING: 02/08/2007 EX TEMPORE JUDGMENT DATE : 2 August 2007 APPLICANT: Mr A P Gough, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Storey and Gough RESPONDENT: Mr P R Rigg, solicitor SOLICITORS: Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 2 August 2007 10481 of 2007 – Jin Song Wang v Hurstville City Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Hurstville City Council (the council) to refuse a development application to demolish the existing structures and to erect a childcare centre at Lot 285, DP 36537, being No 23 Peake Parade, Peakhurst. The council now seeks a consent award. 2 I have concluded that the consent orders sought by the parties may be endorsed. The land 3 The land is situated on the eastern corner of Peake Parade and Pearce Avenue at Peakhurst. It is rectangular in plan shape with a 5.1m splay to the western corner. The land has a frontage of 23.4m to Peake Parade and 37.2m to Pearce Avenue, giving an area of 1,075m2. The land slopes down about 4m from northwest to southwest and down from the rear boundary with the petrol station site to the Peake Parade frontage. 4 There are no significant trees or vegetation located on the land. There are four (4) street trees on the nature strip in front of the land on the Peake Parade frontage. These comprise two (2) Bottlebrushes, one (1) Eucalypt and one (1) Angophora. It is proposed to remove one (1) of the bottlebrush trees to allow for the construction of a driveway crossing. There are two (2) individual existing vehicular crossings providing access to the land from Pearce Avenue. 5 Erected on the land are two (2) single-storey buildings, previously utilized as scout halls. 6 Adjoining the land to the northeast is a single-storey dwelling house; to the northwest is the junction of Pearce Avenue and Peake Parade. The rear of the land adjoins a residentially zoned land, previously used as a petrol station. 7 Abutting to the rear is a redundant service station with two (2) workshops attached to the sales building. The shell of the service station building and the fuel canopy and forecourt paving remain on the land. 8 Single-storey fibro dwelling houses abut the land in Forest Road. The area is generally residential in character, interspersed with various community and recreational uses as well as the non-conforming service station use. Relevant planning controls Hurstville Local Environmental Plan 1994, (HLEP) 9 Under the provisions of the HLEP the land is zoned residential and the proposal is permissible with consent. 10 Relevant provisions of HLEP are: Part 1: Clause 2. - Aims, objectives etc.; Cl. 3. - Land to which plan applies; Cl. 5. - Interpretation; Part 2: General Restrictions on Development of Land (Zoning objectives and provisions); Part 3: Cl. 13. (1) Floor space ratios; Cl. 14. - Tree preservation orders; Cl. 15. - Services; Cl. 22. - Excavation, filling of land; C1. 22A. - Acid sulfate soils; Clause 25A. - Advertising and signage. State Environmental Planning Policy No. 33 - Hazardous and Offensive Industries, (SEPP33) 11 The following provisions of SEPP33 are relevant - Part 1: (2) Aims & objectives; (5) Land to which Policy applies; Part (2): (8) Consideration of Department Guidelines; Part 3: (12) Preparation of Preliminary hazard analysis; (13) (a) - (e) Matters for consideration by consent authorities; (14) Advertising of applications. State Environmental Planning Policy No. 55 - Remediation of Land, (SEPP55) 12 Under SEPP55 the following provisions are relevant: (2) : Objects of this Policy; (5) Land to which Policy applies; (7) Contamination and remediation to be considered in determining development applications. Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment - Disposal of stormwater in catchment provisions, (GMREP2) and Draft Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment - Disposal of stormwater in catchment provisions, (Draft GMREP2) 13 The GMREP2 and its draft apply to the land. Development Control Plan No. 2 - Car Parking, (DCP2) 14 The relevant provisions under DCP2 are: Clause 1.3 - Land to which this DCP applies; Cl. 1.4 - Aims; Cl. 2.1 - Parking Provision; C1. 2.1.1 - Table of Parking requirements; Cl. 2.1.2 - Layout; Cl. 2.1.3 - Ramps, Transitions & Driveways; Cl. 2.1.4 - Circulation/Access/Egress; Cl. 2.1.5 - Underground/Basement Parking Areas; Cl. 2.1.6 - Parking for People with a Disability; Cl. 2.3 - Safer by Design. Development Control Plan No. 6 - Child Care Centres, (DCP6) 15 The relevant provisions of DCP6 are: Part 1: - General Information; Cl. 2.1 - Locational Criteria; Cl. 2.2 - Building Form; Cl. 2.3 - Access & Parking; Cl. 2.4 - Landscaping; Cl. 2.5 - Design and Spatial Requirements; Cl. 2.6 - Specific Requirements; Cl. 2.7 - Visual Privacy and Acoustic Amenity. Draft Amendments to Development Control Plan No. 6 - Child Care Centres, (Draft DCP6) 16 The relevant provisions of Draft DCP6 are: Recommendation 5 (Corner lands); Recommendation 9 (Reference to SEPP 33); Recommendation 11 (Location of child care centres in relation to other centres); Recommendation 12 (Parking); Recommendation 13 (Access and egress); Recommendation 14 (Two storey child care centres not supported in Residential Zones due to amenity impact); Recommendation 15 (Provision of 2m landscaping strip); Recommendation 16: (Streetscape); Recommendation 17: (Viewing window); Recommendation 18 (Hours of operation); Recommendations 19-20: (Acoustic assessment); Recommendation 20: (Number of cots); Recommendation 21: (Staffroom requirements); Recommendation 22: (Outdoor shading); Recommendation 23: (Indoor play space reference on checklist). Hurstville Development Control Plan No 1-Hurstville LGA Wide DCP, (DCP1) 17 The relevant provisions of DCP1 are: Section 2.2 - Neighbour Notification and Advertising of Development Applications; Section 3.1 - Car Parking; Section 3.3 - Access and Mobility; Section 3.7 - Drainage and On-Land Detention Requirements; Section 3.8 - Fences Adjacent to Public Roads; Section 5.4 - Child Care Centres; Section 5.8 - Advertising and Signage; Section 6.6 - Contaminated Lands; Appendix 7.1 - List of Amendments to this DCP; Appendix 7.3 - Definitions; Section 7.17 - Development Application Requirements and Checklists a) - e) Child Care Centres. 18 The council adopted amendments to DCP1 on 30 May 2007. In regard to hours of operation; land frontage; separated ingress/egress; non-applicability of savings and transitional provisions. Recommended amendments in respect to provisions for height; setbacks; number of children; 33% of spaces are to be for 0-2 year olds; screen landscaping; and prohibition of bright colours on building finishes; general controls. Development Control Plan No. 14 - Exempt & Complying Development, (DCP14) 19 The relevant provisions of DCP14 are: Part 1 and Part 2.1 - Advertising Signs. Development Control Plan No. 15 - Contaminated Lands, (DCP15) 20 The relevant provisions of DCP15 are: Part 1: Advice to Applicants; Part 2: Clause 2.3 Council Procedures for Subdivision and Development Applications; Part 5: Independent Auditing Clauses 5.1 - 5.5. Development Control Plan No. 19 - Access and Mobility, (DCP19) 21 The relevant provisions of DCP19 are: Part 2. Assessment Criteria; Clause 2.2 Assessment Table; Clause 2.3 Council's Assessment; and Part 3. Detailed Design. Development Control Plan No. 23 – Advertising, (DCP23) 22 The relevant provisions of DCP23 are: Parts 1, 2 and 3. The proposal and its history 23 Development application No 20060064 was lodged with the respondent council on 22 February 2006 to demolish the existing structures and to erect a two-storey childcare centre on the land. 24 The proposed childcare centre would cater for fifty-eight (58) children. Originally, there were proposed to be five (5) children in 0-2 year age group, sixteen (16) in the 2-3 year age group and thirty-seven (37) in the 3-5 year age group. Before the commencement of the hearing the applicant amended the number of children in the 0-2-age cohort to 10 and reduced the number in the 2-3-age cohort to 8 and forty (40) in the 3-5-age cohort. Twelve (12) staff would be employed at the centre, during the hours of operation proposed to be 7.30am to 6.00pm Monday to Friday. 25 The proposal would involve the demolition of the existing scout hall and associated structures on the land and the erection of a two-storey purpose-built childcare centre, with partially excavated ground level parking and storage areas. 26 The proposed childcare centre would be setback 5.7m from the Peake Parade frontage and 3m from the Pearce Avenue frontage. 27 Thirteen (13) car parking spaces would be provided on the land, comprising six (6) staff spaces, six (6) visitor spaces (stacked behind the staff spaces) and one (1) disabled parking space. Access to the proposed parking area would be via Peake Parade. 28 Stairs and a ramp would lead to the first floor of the childcare centre from the ground floor; these are located on the northwestern side of the land. The proposed childcare centre would comprise an entry foyer with pram park space, foyer with sign-in bench, office, staffroom with kitchenette, kitchen, cot room with space for five (5) cots, three (3) playrooms each with locker storage and craft sinks, two (2) storerooms interconnected between playrooms, laundry, disabled toilet, staff/visitor toilet, and two (2) bathrooms, one (1) with change bench and bench bath. 29 An external toy store to the southeastern corner of the land, a sand pit 3m from the northeastern side property boundary, and landscaped areas to the southern rear boundary and northwestern side boundary are proposed. A large verandah would be provided along the southern rear wall of the building. 30 It is proposed to remove one (1) Bottlebrush tree to allow for the construction of the driveway crossing. It is further proposed to plant four (4) street trees (Eucalypts) on the nature strip in Pearce Avenue, to complement the streetscape. Various plantings are also proposed throughout the land. 31 The maximum building height would be 6.9m and the floor space ratio (FSR) would be 0.42:1. A sign measuring 4500mm x 800mm is proposed. Amended proposal 32 On 22 May 2007 the applicant submitted amended plans to the Court incorporating the following: · A land analysis plan including details of existing buildings. · Outline of the existing building on the land shown on the ground floor plan. · Staff outdoor area added to the ground level plan. · Existing building is shown on the plan and rear fencing has been changed from 2m high lapped and capped paling fencing to 1800mm high 2-hour fire-rated masonry fencing. · Existing building outline shown on elevations and section and rear fence detail changed. · Driveway section added to Sections drawing, and rear fence changed and staff area added. · Shadow from fencing shown on winter shadow diagrams. Stop-the-clock 33 On 28 February 2006 the council wrote to the applicant indicating that the 'stop-the-clock' procedure had been invoked. The applicant was requested to withdraw the application as a result of non-compliance with locational criteria. The council also suggested that should proposal be pursued amended plans and additional information to address non-compliances with the council's requirements for childcare centres should be provided. Also, additional information was requested in regard to ridge levels, signage details and colours and finishes. 34 On 11 April 2006 the applicant submitted amended plans/ additional information and sought to pursue the application. 35 On 12 September 2006 the council requested additional information (detailed land contamination report). 36 On 7 November 2006 the applicant submitted additional information regarding contamination investigation and sampling. Notification 37 Between 21 April 2006 and 8 May 2006 the adjoining residents and occupants were notified by letter and they were given fourteen (14) days in which to view the plans and submit any comments on the proposal. In response, the council received three (3) objections. On 20 April 2006 the application was also advertised for this period in 'The St George and Sutherland Shire Leader'. The objections were from the residents and occupants of Nos. 8, 17 and 18 Peake Parade. 38 The issues raised by the objectors were: · Traffic congestion in Peake Parade. · Proximity to other childcare centres. · Request for data on age group of children living within 1 km of the land. - Parking of vehicles on the adjoining roads. · Placement of traffic signage. · Stacked parking. · Vehicle manoeuvring. · Can Section 94 contributions be used to fund landscaping of Peake Parade. · Children playing in the street. · Safety of vehicles turning during the peak hour. · Compliance with Council's Development Control Plan. · Pedestrian access. · Overlooking from administrative staff. · Overdevelopment. · Shadowing. · Appearance of the childcare centre. · This type of development would be more appropriate within a commercial zone. · Traffic congestion. · Cumulative impact on traffic due to the subject and pre-existing development. · Driveway location from Peake Parade. · Location of proposed childcare centre next to a service station. - Relocation of northeastern wall. · Can the external toy storage shed be relocated? · Can the driveway circle be relocated to Pearce Avenue? · Placement of rubbish bins. The council's decision 39 By notice dated 6 March 2007, the council refused the application for the following reasons: 1. The proposal does not comply with the criteria of Development Control Plan No 6 - Child Care Centres, in that it is located within 300m of a main road and adjoins a petrol station land (836 Forest Rd). 2. The proposal indicates non-compliances in relation to staff room size as it is 3.47sgm short of the required 28sgm. 40 Previously, Development Application No. 20060064 was reported to the meeting of the Council's Development Assessment Committee held on 6 December 2006 with a recommendation for approval subject to conditions. 41 The Committee resolved: THAT the application be approved in accordance with the conditions included in the report, subject to amendments to Condition 29 requiring a colorbond fence on the north eastern boundary to the satisfaction of the neighbour, and Condition 9(e) requiring Windows 2 and 3 on the north eastern facade to be fully frosted. 42 Subsequent to the Committee's resolution, a notice of motion was received in the following terms: THAT the resolution of the Development Assessment Committee Meeting of 6 December 06 in relation to 23 Peake Pde, Peakhurst - Demolition of Existing Buildings and construction of a Two Storey Child Care Centre be rescinded on the following basis: The proposal does not comply with the criteria of Development Control Plan No. 6 - Child Care Centres, in that it is located within 300m of a main road and adjoins a petrol station land (839 Forest Rd). The proposal indicates non- compliances in relation to staff room size as it is 3.47sgm. short of the required 28sqm. FURTHER THAT if the rescission motion is successful that it be superseded by the following motion; That the application be refused for the following reasons, it does not comply with the location criteria of Development Control Plan No 6 and the staff room size is non-compliant. 43 The council, at its meeting held on 13 December 2006 resolved that the notice of motion - rescission be deferred to the next Development Assessment Committee Meeting on 7 February 2007. 44 The council, at its meeting held on 7 February 2007 resolved: THAT the resolution of the Development Assessment Committee Meeting of 6 December 2006 in relation to 23 Peake Pde, Peakhurst - Demolition of Existing Buildings and construction of a Two Storey Child Care Centre be rescinded. FURTHER THAT Development Application DA 20060064 be refused on the following basis: 1. The proposal does not comply with the criteria of Development Control Plan No 6 - Child Care Centres, in that it is located within 300m of a main road and adjoins a petrol station land (836 Forest Rd). 2. The proposal indicates non-compliances in relation to staff room size as it is 3.47sgm short of the required 28sgm. The hearing 45 The appeal was filed on 22 May 2007 against the council's refusal of the application. 46 At the hearing the court heard evidence on behalf of the respondent council from Mr T Fong, resident of No 18 Peake Parade, Peakhurst. 47 Ms D Fellows Development Assessment Officer, of the council prepared the statement of basic facts dated 21 June 2007. The Court also had before it the council's planning report. The issues 48 On 25 June 2007 the council filed a statement of issues. · Whether the siting of the proposed child care centre in terms of its proximity to a main road, that is, Forest Road, is a safe location for children. The land is within 50m of Forest Road. · Whether the location of the proposed childcare centre being adjacent to a petrol station at 836 Forest Road is considered to be safe and suitable for the intended use particularly in terms of traffic and pedestrian safety and contamination. · Whether the proposed size of the staff room is adequate. · The length of the proposed disabled car parking space is deficient. · Whether the land being within 55m of a proposed tanker unloading position is safe. · Whether the land is within proximity to a hazardous feature - LPG tank. · Whether adequate toilets and hand basins for children have been provided. · Whether the proposed childcare centre has an appropriate relationship with the neighbouring properties in terms of its design and location of play areas. · Whether the proposed centre has capacity to reduce the amenity of adjoining and surrounding residents in terms of loss of visual and acoustic privacy. · The location of the external toy storage shed in terms of distance from the neighbouring boundaries. 49 The following emerged as the salient issues: · Whether the proposed childcare centre is in a safe location for children, given that it would be close to Forest Road and LPG tanks. The evidence and findings 50 When the matter came to the Court the parties had resolved most of the issues. The parties were agreed that the following contentions might be addressed by conditions of consent: · The size of the proposed staff-room can be conditioned to be at least 28m2 in size to comply with the council's requirements. · The length of the disabled car parking space can be conditioned to be at least 6m in length. · The proposal can be conditioned so that eight childrens' toilets and hand basins are provided. · The external toy shed can be conditioned to be at least 1.5m from the northeastern boundary. Proximity to Forest Road 51 The issue was whether the land would be safe for children, given that it is close to Forest Road. 52 The council was originally of the view that the siting of a childcare centre within 50m of a main road would be of significant concern in terms of the safety of children and their parents when accessing and leaving the centre. The council was concerned that parents in a hurry might not utilise the car parking facilities on the land and may park in the surrounding areas and need to cross Forest Road to access the land. 53 This issue was not pressed and the Court was satisfied that if parents proceeded with due care to the childcare centre, this issue would not be a reason to refuse the application. Proximity to LPG tanks 54 The issue was whether the land would be safe for children, given that it would be close to LPG tanks. 55 The council was originally of the view that the positioning of a child care centre next to a service station, a potentially hazardous use, would be unsafe in terms of the possible presence of contaminants and fire source risk. The council was concerned that the storage of LPG tanks would have hazardous implications including the remote possibility of explosion and leakages. 56 This issue was not pressed and there was little evidence on which to base a refusal of the application. The Court was satisfied that provided the operation of the storage of LPG was in accordance with relevant standards this issue would not a reason to refuse the application. Proximity of other childcare centres 57 In his objection dated 4 May 2006, Mr Fong raised concern about the supply of other childcare establishments in the area. He gave evidence that within 1200m there are many childcare centres and that this use was proliferating in the local area. He was concerned that it would become like another form of 'auto alley'. He had carried out a 'Google' search of the area and identified other childcare centres nearby, [Note: Exhibit 5]. 58 He also pointed to the fact that in other parts of St George and Sutherland area there seems to be a proliferation of childcare centres. He agreed that there are new families coming in to the area but he asked, "Is it really necessary". He urged the Court to refuse the application, as this is a small suburb with many childcare centres. 59 The council did not press this issue and I consider this is a matter for the applicant to decide whether the distribution of childcare centres in the area would allow a new centre to be profitable. I consider this to be not a reason to refuse the application. Traffic and parking 60 Mr Fong also raised concern with regard to traffic and parking. He said that he had two cars in his household and with the additional traffic in the street likely to be generated by the proposed childcare centre it would be difficult to back out into the street. Also, he was concerned that visitors who drive to his residence might find it difficult to park on street when the childcare centre were operating. 61 Mr Fong explained that Pearce Avenue has become a short cut via Bonds Road to the M5 and that the proposed childcare centre would only add to the traffic congestion. He also asked, "Where is the infrastructure". He said that local children play on the pavement of Peake Parade in the afternoons and their safety needs to be considered. 62 The council did not press this issue. The traffic and parking report by Gennaoui Consulting confirmed, [Note: Exhibit 5, p 9] The proposed long day care centre …is not likely to unduly affect traffic conditions in the surrounding area. Therefore there is no reason why Council should not approve this development on traffic and parking grounds. In order to ensure that sight distance for exiting vehicles is maintained, it is recommended that no standing restrictions be imposed between the entry driveway and Pearce Avenue. 63 I am satisfied that Peake Parade is sufficiently wide to continue to provide a level of service "A" as indicated in the Gennaoui report. As a result I would not refuse the application for this reason. At times there might be a greater level of congestion due to parents picking up and setting down children at the proposed childcare centre however this is not sufficient reason to refuse the application in the face of positive expert evidence. 64 For the above reasons, the appeal is upheld by consent. Conditions 65 The conditions are those in Exhibit 1 as amended during the hearing. Consent orders 66 The consent orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 20060064 lodged with the respondent council on 22 February 2006 to demolish the existing structures and to erect a childcare centre at Lot 285, DP 36537, being No 23 Peake Parade, Peakhurst, is approved subject to Conditions 1 to 130 in Annexure A. 3. The exhibits except for Exhibits A, B, C, D, E, F, G, H, J, K, 1 and 6 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.