Land and Environment Court of New South Wales CITATION : Grima v Holroyd City Council [2007] NSWLEC 759 APPLICANT Val and Marian Grima PARTIES : RESPONDENT Holroyd City Council FILE NUMBER(S) : 10151 of 2007 CORAM: Tuor C Development Application :- alterations and additions to an existing childcare centre to increase the number of children KEY ISSUES: impact on residential amenity and streetscape noise, carparking and open space. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Holroyd Local Environmental Plan 1991 DATES OF HEARING: 22/08/2007 and 10/10/2007 EX TEMPORE JUDGMENT DATE : 10 October 2007 APPLICANT Mr C. Gough, solicitor of Storey and Gough LEGAL REPRESENTATIVES: RESPONDENT Mr G. McKee, solicitor of McKees JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 10 October 2007 10151of 2007 Val and Marian Grima v Holroyd City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the deemed refusal by Holroyd City Council (the council) of a Development Application (DA450/2007) under the Environmental Planning and Assessment Act 1979 to demolish an existing dwelling and for alterations and additions to an existing childcare centre to increase the number of children from 29 to 74 at 56 Hampden Road, Wentworthville. 2 The site, its context, the history of the proposal and the planning controls are in the Statement of Facts and Contentions prepared by the council and filed on 4 June 2007. 3 The main issue in dispute between the parties was that the proposed increase in the number of children does not comply with cl 9 of Holroyd Development Control Plan No 27 - Guidelines for Development of Childcare Centres (DCP 27) which provides: Any proposed childcare centre in residential zones should be limited in size to accommodate not more than 45 children. Pursuant to clause 35 of Holroyd LEP 1991 a building shall not be erected or used for non-residential purposes within 2(a) or 2(c) where the building would have an FSR in excess of 0.5:1. Development in residential zones shall have an appropriate size, scale, bulk, etc sympathetic to the surrounding residential environment. 4 Council submits that the exceedence in the number of children results in: · unacceptable noise impacts, · a demand for extra onsite parking, which is to be provided in the front setback area, and has an unacceptable impact on the streetscape, and · insufficient open space. 5 Council also submits that the proposed number of children does not meet objective 3(d) of DCP 27 or Objective 1(c) of the Residential 2(a) zone of Holroyd Local Environmental Plan 1991 (LEP 1991). 6 Objective 3(d) of DCP 27 aims: To ensure that potential impacts from Child Care Centres on surrounding residential areas, such as those created by noise, traffic generation and on street parking, are minimal. 7 Objective 1(c) of the Residential 2(a) zone is: To enable development for purposes other than residential only if it is compatible with the character of the living area and has a domestic scale and character. 8 Council did not submit that strict compliance with the limit of 45 children in DCP 27 was required, but that the proposed increase to 74 resulted in an unacceptable impact. Council submits that 55 would be more appropriate. 9 The appeal was heard on 22 August 2007. The Court visited the site and heard from a number of residents. The main concern of the residents related to the noise and traffic impacts of the existing operation of the centre and a concern that these would be exacerbated by an increase in numbers. The residents also considered the provision of parking in the front setback area to be uncharacteristic of the area and that the number of children was excessive and would not provide an appropriate environment for young children. 10 The Court heard expert evidence from Mr N Koikas, acoustic consultant for the applicant, and was referred to the independent planning assessment of the proposal undertaken on behalf of council by Mr S Bennet, which recommended approval of the application. 11 At the conclusion of the hearing on 22 August 2007, I provided preliminary findings where I accepted council's submission that the increase in numbers to 74 was not consistent with the planning controls. A lesser number of children (approximately 60) would achieve more acceptable amenity impacts on the adjoining neighbours and the streetscape. 12 The reasons for these findings can be briefly summarised as follows: 13 Mr Koikas recommended that a 2.1 m high acoustic fence be provided on the boundary which, together with appropriate management of the children and a limit on the number of children outside at any one time to a maximum of 37, would achieve the noise criteria of background plus 5dB(a). 14 Currently all 29 children play outside at one time. Reducing the overall number and limiting the maximum number of children outside at any one time to less than 30 would therefore not increase the noise impacts above the current levels. The provision of the acoustic fence may mitigate the current impacts, which a number of the adjoining residents found to be of concern. 15 The reduction in the proposed number of children would facilitate a reduction in the number of car spaces to be provided on site to meet the requirements of DCP 27. This would enable more landscaping to be provided to screen the car parking from view and better meet objective 1(c) of LEP 1991. 16 The amount of open space originally included three areas which I found do not provide usable open space and therefore do not meet the requirements of 7 sq m per child under the Childrens Services Regulation 2004 (Regulation). Area 2 is a courtyard off the staff room and not readily accessed by children. Area 3 is a 2.25 m wide passageway to the south of the building with direct access from the playroom only via a laundry. Area 4 is a passageway about 1m wide, again with no direct access from the playroom. A reduction in numbers would better ensure compliance with the Regulation. 17 The applicant sought leave to amend the application to reduce the number of children. Council did not oppose this. The amended application seeks approval for an increase in children from 29 to 64 and parking for 15 cars. 18 The amended application has slightly reduced the size and configuration of the building and consolidated the outdoor play area to the rear of the site to comply with the requirements of the Regulation. No issue was raised by council with the bulk and scale of the building, although further internal changes were required to provide disabled access and useable ramps, which the applicant has agreed to. 19 Despite the changes, council maintained its principle concern that the proposed increase in the number of children to 64 resulted in unacceptable impacts. Council considered the number of children should be limited to 55 or at the most 60. 20 Council raised concern that the 2.1 m fence required to mitigate noise impacts was excessive in bulk and resulted in overshadowing of the open space of the townhouses to the south. 21 Mr McKee, for the council, submits that the fence should be set back 1 m from the boundary with landscaping provided on either side. This would reduce the area of open space and therefore the number of children that could be accommodated in the centre. Mr Gough for the applicant submits that the number of children outside at any one time would be limited to a maximum of 25. This is less than the number of children that currently play outside and less than the 37 that Mr Koikas based his assessment on. 22 I do not accept council's submission that the height of the fence is excessive and would result in an unacceptable impacts that would require it to be set back 1 m. This fence is proposed to be 1.8 m lapped and capped with an additional 300 mm perspex. As such the fence is not uncharacteristic of a domestic environment or of excessive bulk and will not result in unreasonable overshadowing. The limitation of the number of children outside to a maximum of 25 and the provision of the fence should reduce the current noise levels and comply with the noise criteria. A condition has been included to monitor and confirm that the centre, when operating, meets the noise criteria. 23 In relation to car parking, the centre currently provides no car parking on site. Mr Gough's submission is that increase of 35 children requires only 8 car spaces on site under DCP 27. However, to address the residents' concerns, the applicant has provided 15 spaces which comply with the requirements of DCP 27 for a new 64 place centre. He acknowledged that space 15 was stacked but as this is to be used by staff the arrangement is acceptable, particularly as there is adequate on-street parking. The increase in landscaping, and the slope of the site would effectively screen the car park from view. 24 Mr McKee submits that a reduction in the number of children would facilitate a greater amount of landscaping to be provided. He further recommended changes to the proposed landscaping, which the applicant has agreed to. 25 The amended proposal provides a 2.7 m landscaping strip at the street frontage and a further 2 m strip within the car park. These areas are sufficient to provide canopy planting as well as shrubs which together with the site being set down below the footpath level, will screen the parking. While this area will be different to dwellings and setbacks in the street, it is compatible and meets the objectives of the zone. A reduction in the car spaces by one or two spaces and the resultant reduction in children numbers is therefore not warranted, particularly as the provision of on-site parking will improve the current arrangement, where all parking is off-site, and on balance is acceptable. 26 While the proposal exceeds the maximum number of children under DCP 27, the objectives of this control are not articulated in the DCP. The proposal is well below the floor space ratio component of the control of 0.5:1. Mr Bennet stated that the purpose of the control "is to ensure that childcare centres do not have an adverse impact on the amenity of surrounding residents from noise and traffic generation". 27 I do not accept that the purpose is so limited. Limiting the number of children will also limit the requirement for on-site parking, the overall size of the building, the provision of adequate open space and landscaping, thereby better achieving compatibility with the residential locality and minimising impacts. While the proposal exceeds the numerical requirements of cl 19 in DCP 27, it achieves the objectives of the control. Orders 28 The Orders of the Court are therefore: 1. The appeal is upheld. 2. The development application (DA450/2007) to demolish an existing dwelling and for alterations and additions to the existing childcare centre to increase the number of children from 29 to 64 and parking for 15 cars at 56 Hampden Road, Wentworthville is approved subject to the conditions in Annexure A. 3. The exhibits except Exhibits 8, J and K, may be returned. ___________________ Annelise Tuor Commissioner of the Court EM/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.