Shirley v Waverley Council [2010] NSWLEC 1134

Land and Environment Court of New South Wales

CITATION : Shirley v Waverley Council [2010] NSWLEC 1134

APPLICANT Michael Shirley PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 10681 of 2009

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- increase in child care numbers, works associated with providing the requirement for open space

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan

DATES OF HEARING: 16 April 2010 and 19 April 2010

EX TEMPORE JUDGMENT DATE : 19 April 2010

APPLICANT Mr P Jackson (solicitor) SOLICITOR Pikes Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Ms C Morton (solicitor) SOLICITOR Sparke Helmore Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

19 April 2010

10681 of 2009 Michael Shirley v Waverley Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 This is an appeal under the Environmental Planning and Assessment Act 1979 under s 97 against Waverley Council's refusal of a development application for an increase in the number of child care places at the centre and for works associated with providing the necessary amount of open space required under the regulations of the Department of Community Services. 2 The subject site is 28 and 30 Bourke Street, Queens Park. To clarify, it is noted that there are two kindergartens that operate side by side under separate licences. It is not proposed that those licences be amalgamated or the sites be amalgamated but that they would continue to operate individually. I also note that there is a shared use of open space areas. 3 By way of background, the kindergarten was established some 23 years ago and has been operational since that time. The council approved a development application previously for 49 children on the subject site. However, the regulations in 2009 increased the requirements for space per child, in particular open space per child and this has the effect of limiting the number of children that can be accommodated on the premises to 44 children at this point in time. 4 The development application is for 51 children and the proposal is for nine children on the upstairs deck area at any one time. I note that this would be for relatively limited periods approximately two hours per day. 5 The development application submitted to the council is to provide for additional outdoor open space areas and as such the development application shows an extension at the rear upper level of the Bourke Street terrace houses with a deck area to allow for additional open space for the children to be accessed directly via a stairway from the existing open space at ground level. 6 To put in context that part of the subject site, known as No. 28 has a double street frontage, that is to Bourke Street and to Isabella Street. The Isabella Street portion of the subject site at 28 provides for the playground area and trees in what would have formerly been a long backyard. By contrast No. 30 does not run the full length from Bourke through to Isabella, but at the rear of No. 30, is No. 37 Isabella Street where traditionally the backyards backed onto each other. The two lots have a total area of 596 square metres. No. 28 is 9 metres by 43 metres in length. No. 30 is 8 metres by 25 metres in length. 7 The area surrounding can be described as a varied form of development both in age and architectural style. It is noted that the council now propose for it to be in conservation area. The subject site has two terrace style dwelling houses at the front of the properties to Bourke Street. The residential flat or the residential unit at No. 28 gains its access via the kindergarten. The residential property at No. 30 provides access directly from Bourke Street. 8 The configuration of the allotments must be considered in this application. It is noted that there are very few blocks that run between Bourke and Isabella Street, that is have a double frontage, that being the subject lot at 28; No. 16 No. 12 and No. 10 and 4 Bourke. The majority of the allotments in this block have a dwelling on the Isabella Street side as well as Bourke Street with subdivisions through the middle of the block between Bourke and Isabella. Once again there is no consistency in terms of where the subdivision line occurs. It would appear that the blocks as originally subdivided under the original subdivision plan would have run through from Bourke to Isabella and over the years the majority have been re-subdivided to provide both a dwelling to Bourke Street and a dwelling to Isabella Street. 9 The council refused the application on the basis that it would have unacceptable amenity impacts on the locality and it was not consistent with the zone objectives in particular bulk and scale. It would have amenity impacts on the flats, that is the internal amenity for the development itself, and that the quality of the outdoor open space at an upper level was not considered appropriate for a child care facility. 10 The subject site and surrounding area is zoned residential A under the Waverley Local Environmental Plan 1996 and under this LEP there are a number of aims for various uses. The specific aims of the Waverley LEP for community needs are: (a) to ensure the social needs of existing and future residents are met through the provision of community facilities and services, and (b) to ensure that Waverley continues to be an accessible community. 11 The plan also provides for specific aims for affordable housing, heritage and for housing. Housing includes aims to provide for a range of residential densities and to encourage a range of housing types to meet the changing housing needs of the community. And there are general aims to the plan to include improve the amenity, safety, environmental quality of the built and natural environment, to provide for the economic and efficient use of the land and provide opportunities for public participation in the decision making process. 12 The zone objectives for the residential 2A low density zone include: (a) to allow for housing only in the form of dwelling houses and boarding houses, (b) to maintain and improve the amenity and existing characteristics of localities, predominantly characterised by dwelling houses, and, (c) to allow certain non-residential uses of low intensity which are compatible with the character and scale of low density housing. 13 It is noted that development that is permissible with consent includes child care centres, dual occupancies and dwelling houses. 14 The council provided a Statement of Facts and Contentions and the issues can be summarised as follows: * the proposal is an over development; * the zone objectives are not met * the functionality of the centre and the dwellings would be impacted and the proposal would compromise the living environment of the upstairs flats;; * the proposal would represent unreasonable bulk and scale and an encroachment into the rear established building line to the detriment of neighbouring properties; and * the proposal would result in unacceptable visual and acoustic privacy impacts upon adjoining properties. 15 The Council cited the Waverley DCP and the aims of the child care centre DCP as relevant matters in the proceedings. 16 The design of the upper level outdoor space was considered by the council to be inappropriate and was considered to be small, awkward shaped and would not be able to be effectively used. The amenity impacts of the proposal on No. 30 Bourke Street was initially raised however shadow diagrams have since been provided. 17 On the issue of acoustic impact on adjoining properties the applicant engaged an acoustic engineer and this was provided to the Court. There is no dispute that the noise issue is one that remains a contention in these proceedings. 18 The Court heard from resident objectors on site at the beginning of the proceedings to have an understanding of their concerns. In particular the adjoining property owner at No. 26 Bourke Street expressed concern about the effect on their upstairs bedroom area and that their outlook would be diminished and impacted due to the loss of aspect and the proximity of the proposed upstairs deck play area. 19 A long time resident No. 16A Cuthbert Street is concerned about the noise that travels and an upstairs area would create noise impacts. They already experienced excessive noise in their opinion from the existing use of the decks by the upstairs residential units, and the ongoing problems associated with a mixed use development. Also concern was expressed about the bulk and overlooking and the relationship to adjoining properties. 20 The owner of No. 31 Isabella Street gave evidence to the Court and they are concerned about the bulk of the extension to the upper deck area, and that it would detract from the area and block the passage of cool air to their property. They also express concern about the acoustic impact because they work from home and they use their deck in the evenings, that is their upper deck and in their opinion the proposal would impact on their amenity, in particular the acoustic concerns. 21 The licensee of the kindergarten also gave evidence as to the fact that in her opinion an upstairs open space area would not be unreasonable and that it would provide for a fully functional area for the older children of the centre. Most of the activities, 75 per cent of all activities conducted on the lower open space area would still be able to be conducted at the upper level and that equipment would be moved between the various spaces. 22 Mr Taylor provided an acoustic report to the proceedings and there is no dispute in terms of his assessment. His assessment is that the proposal would comply, subject to his recommendations in his report for noise attenuation measures. 23 On behalf of the council Ms Kerry Gordon, consultant planner gave evidence, and Mr Anthony Betros gave evidence on behalf of the applicant. Ms Gordon is of the opinion that the proposed development would encroach into the established building line and that it would represent unreasonable bulk for the area and represents an overdevelopment of the site. She also expressed concern about the functionality of the open space area and considered that the impacts on adjoining properties were unreasonable. 24 Mr Betros on the other hand considered that the proposed development is one that is not unreasonable and that whilst the amenity of the upstairs units would not be optimal, in his opinion the amenity maintained is reasonable and the open space areas are adequate for those dwelling units. Mr Betros also considered that the amenity impacts on adjoining properties could be managed by the proposed development and that this would not warrant refusal of the application. 25 The Court during the proceedings had the opportunity of examining exhibit 'K' tendered on behalf of the applicant. Exhibit 'K' shows an upper level open space play area for a kindergarten at Neutral Bay, and this was tendered to demonstrate that an upstairs area of open space can provide a functional system. I mention this because it becomes relevant in terms of my findings. Although I accept that I must assess the development application before me and not any alternatives as such 26 In terms of the bulk and scale and the building line, I do not agree with Ms Gordon in terms of the building line being encroached upon. It can be seen, especially from the aerial photograph, that the subdivision pattern, the built forms present very different building lines and that there is no consistency in this regard. In my assessment it is clear the proposed deck area would not be antipathetic to what one sees in the area and I do not accept that there is a consistent building line to be adhered given the pattern of development with the varied subdivision boundaries. This is not a reason as to why the development application should fail. 27 Similarly in terms of bulk and scale, we could see on site that council had approved a development at No. 33 Isabella Street and this has a floor space ratio of some 1.2:1 with a setback from the rear boundary of some six metres. It is noted that the floor space ratio of the proposed development, No. 28 is 0.62:1, No. 30 is 0.96:1, the control being for No. 28, 0.62:1 and for No. 30 0.84:1. In my assessment the proposal is not excessive, and it is not an overdevelopment. I say this having regard to recent developments and what one would expect in this area, as evidenced by council's recent approval at 33 in 2009. 28 The concern of the Court is the design of the childrens play area upstairs and the contrived separation of the deck and the open space area for the units and the firewall that would be required to be constructed some 2 metres from the rear windows of the units upstairs. In my assessment the design is unsatisfactory with unacceptable amenity impacts for the units. The current configuration of the units and child care centre allows for the dual use to function, however, the proposal would result in an unacceptable outcome. 29 As such in my merits assessment the site is not suitable for the proposal under s 79C(1)(c) the suitability of the site for the development and for this reason the application must fail. That is the development is inappropriate and would create unreasonable and unacceptable amenity impacts on the existing. Clearly the child care centre has co-existed with the residential units for many years and there is no reason as to why there should not be a continued co-existence, but the proposed open space area for the centre with a masonry wall within close proximity to the residential units is unsatisfactory. By way of comment the relationship of No. 28 with a caretaker's unit could be considered in any future development application and the co-use of certain areas given the requirement for access through the child care centre for the unit upstairs. 30 In my assessment I do not consider that the proposed development would have an unacceptable impact on surrounding dwellings, including the adjoining residence at No. 26. It was evident from the site inspection that given the back to back subdivision pattern and nature of the density of the urban fabric that any development or changes to the built form would be visible on the subject site, but that is not uncommon in an area of relatively small lots of land for this to occur and being able to see development from other properties is not a reason to warrant refusal in itself but rather if impacts would be unreasonable. Even though this precinct is the low density area of Waverley, nonetheless there are views into the rear yards of other dwellings as could be experienced from the site inspection when visiting the various objectors' properties. 31 I am of the view that the proposal is not an overdevelopment in the sense of built form and impacts on adjoining properties. But rather my reason for refusal is the relationship between the existing residential units and the proposed upstairs play area. It is a somewhat contrived configuration and not acceptable in design terms. The amenity of the residential flats would