Land and Environment Court of New South Wales CITATION : El-Hazouri v The Hills Shire Council [2009] NSWLEC 1043 APPLICANT Anthony El-Hazouri PARTIES : RESPONDENT The Hills Shire Council FILE NUMBER(S) : 11157 of 2008 CORAM: Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- alterations and additions to an existing dwelling for a 33 place child-care centre - consent orders - objector issues LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Baulkham Hills Local Environmental Plan 2005 DATES OF HEARING: 18/02/09 EX TEMPORE JUDGMENT DATE : 18 February 2009 APPLICANT In Person LEGAL REPRESENTATIVES: RESPONDENT Mr C Winn, solicitor SOLICITORS The Hills Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 18 February 2009 11157 of 2008 Anthony El-Hazouri v The Hills Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by The Hills Shire Council (the council) of Development Application No. 87/2009/HA for alterations and additions to an existing dwelling for a 33 place child-care centre at 49 Jasper Rd, Baulkham Hills (the site). 2 The proceedings were conducted as an On Site Hearing on 18 February 2009 and the judgement reflects the relevant contents of the Statement of Facts and Contentions and the reasons for the decision given on-site. 3 The site is Lot 31 in DP 609185. It is a corner lot and has a frontage of 21.335 m to Jasper Rd, a 48.82 m frontage to Justine Ave and a total area of 1039.5 sq m. The site contains a single storey dwelling house and associated garage and carport structures. The locality is predominantly made up of single dwellings of one and two storey construction. 4 The site is zoned Residential 2(b) under Baulkham Hills Local Environmental Plan 2005 (LEP 2005). Child-care centres are permissible with consent in this zone. Requirements for the development of child-care centres are addressed in greater detail in Baulkham Hills Development Control Plan – Child Care Centres - Part D – Section 8 (the DCP). 5 The Statement of Facts and Contentions identified 8 issues in dispute. These are amenity impacts (Contentions 1 and 7), car parking (Contentions 2 and 7), site width (Contentions 3 and 7), play area requirements (Contentions 4 and 7), acoustic impacts (Contentions 5 and 7), landscaping (Contentions 6 and 7) and the public interest (Contention 8). 6 Following reconsideration by the council, the appeal now comes before the Court for consent orders. In accordance with the Practice Note – Class 1 Development Appeals (cll 35 and 36) the "consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account". 7 In considering the consent orders, the Court had the benefit of a site view, letters of objection when the application was advertised, evidence from local residents on site, specialist reports provided with the development application, reports from council officers, a report from Mr Michael Ball, the parties single expert on the town planning issues, a joint report on acoustical issues from Ms Juliana Naidovski for the council and Mr Brian Marston for the applicant and a joint report on traffic and parking issues from Mr Aziz Madadghar for the council and Mr Andrew Morse for the applicant. All experts raised no objection to the proposed development. 8 The following local residents provided evidence in opposing the proposed development: o Ms Vicki Pickup of 4 Justine Ave, o Ms Jan Fontana of 5 Justine Ave, o Ms Maria Medvidovic of 47 Justine Ave, o Mr Anton Medvidovic of 47A Justine Ave, o Ms S Read of 43 Jasper Rd, o Ms Sharon Barnett of 53 Jasper Rd, and o Mr Jones of 63 Jasper Rd. 9 Additional residents beyond those giving evidence, attended the site view. 10 The residents raised the following concerns on site: o the unsuitability of the site for a child-care centre, o the operation and visibility of the carpark, o excessive noise, o the use of trees in the landscaping scheme, o the visual impact of the acoustic fencing, o increased traffic and the existing poor intersection of Jasper Rd and Justine Ave, o vehicular access from existing dwellings in Jasper Rd, and o the amount of outdoor play area. 11 I will address each of these concerns individually. 12 The unsuitability of the site - the use of the site for a child-care centre is permissible in the Residential 2(b) zone with consent. Consideration of the suitability of the site must be based on an assessment of the application against the detailed controls in the DCP. As stated by Mr Ball, any impact on the residential character has to be considered in the context of a permissible use in the zone and the consistency with the provisions of the DCP. A development generally compliant with the DCP could reasonably be expected to be seen as consistent with the objectives of the zone. This is clearly the case for the proposed development because of the substantial compliance with the relevant DCP requirements. Where there are departures from the DCP, such as the minimum frontage and front setback requirements, the impacts of the departures are minimal and have no material affect on the perception of the development. 13 The carpark - the main car parking area is located off Justine Ave. The visibility of the carpark and its operation was a concern raised by Ms Pickup who resides opposite the carpark. While a car park accommodating 9 car parking spaces is not a normal feature of a residential area, it is a feature required for the use of a premises as a child-care centre. The DCP requirements for the carpark location, size and screening are set out in cl 3.12 Part D Section 8 of the DCP and I accept the evidence of Mr Ball that the car park location is acceptable, if considered against the relevant standards and objectives of cl 3.12. 14 Similarly, I accept that the operation of the carpark is acceptable. There was no disagreement that the layout conforms to Australian Standard AS 2890.1; the standard called up by cl 3.12 Part D Section 8 of the DCP. It was suggested that the carpark should include additional pedestrian walkways and turning areas however these are not matters required to provided by the DCP and as such their absence could not be a reason to refuse the application. 15 Noise – noise was raised by Ms Fontana who adjoins the northern boundary of the site that contains the carpark. The area adjoining the subject site on Ms Fontana's property is used for outdoor recreation. Given the operating hours of 7.00 am to 7. 00 pm Monday to Friday, the limited morning and afternoon peaks for carpark use, a 1.8 m lapped and capped boundary fence and a setback of some 10 m to the adjoining dwelling, I am not satisfied that noise from the use of the carpark would warrant the refusal of the application because of noise. I accept the objectives (ii) and (iii) in cl 3.10 Part D Section 8 of the DCP are satisfied. This was a conclusion also reached by the acoustic experts. 16 Trees - Ms Maria Medvidovic of 47 Justine Ave and Mr Anton Medvidovic of 47A Justine Ave reside along the eastern boundary of the site. They oppose the inclusion of tress in the landscaping along this boundary because of overshadowing and potential damage to services. Clause 3.13 Part D Section 8 of the DCP states that "trees and shrubs shall be provided along….side boundaries". I am not satisfied that the trees should be removed however species that are limited to a height of around 6 m should be suitable and minimise any overshadowing while still satisfying the requirements in the DCP. The potential damage to services is not a reason for the removal of the trees from the landscaping scheme. 17 Acoustic fence – an acoustic fence made up of a 1 8 m high solid fence with an angled Perspex or glass component for an overall height 2.2 m on the eastern boundary was opposed by Mr Anton Medvidovic for aesthetic reasons. While I accept that the fence will be different to the normal fencing in the area, the eastern boundary of the site adjoins a battle-axe handle that provides access to 47A and 47B Justine Ave so the height and construction does not directly impact on private open space areas although I accept that it would be visible for people using the battle-axe handle. It is a negative aspect of the proposal but is not sufficient to justify a refusal. I note that the DCP provides for a minimum height of 1.8 m and I accept the objective (iii) in cl 3.10 and objectives in (i) and (ii) in cl 3.14 Part D Section 8 of the DCP are satisfied. 18 Intersection of Jasper Rd and Justine Ave – this issue relates to the available sight distance for vehicles turning right from Justine Ave into Jasper Rd. It was suggested that the sight distance was inadequate however the traffic experts agreed that the sight distance was around 60 m, which satisfies the minimum sight distance of 45 m and falls just below the desirable sight distance of 69 m in cl 3.2.4 of Australian Standard AS 2890.1. 19 Vehicular access from existing dwellings – Ms Read stated that vehicular access is already difficult from a number of properties in Jasper Rd and if vehicles park in Jasper Rd to drop off and pick up children then visibility would be worse and safety could be a problem. I accept that this could potentially occur and greater care would need to be taken when leaving these properties if this did eventuate however as the main entrance is in Justine Ave any on-street parking is more likely to occur in this street. 20 The amount of outdoor play area – this matter was addressed by Mr Ball and found to be acceptable based on cl 3.6 Part D Section 8 of the DCP. 21 As there are no reasons raised by the objectors that would stop the development application being approved, the Orders of the Court, by consent, are: 1. The appeal is upheld. 2. Development Application No. 87/2009/HA for alterations and additions to an existing dwelling for use as a 33 place child-care centre establishment at 49 Jasper Rd, Baulkham Hills is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits C. D G and E. _________ G T Brown Commissioner of the Court 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.