Ayache v Sutherland Shire Council [2010] NSWLEC 1074

Land and Environment Court of New South Wales

CITATION : Ayache v Sutherland Shire Council [2010] NSWLEC 1074

APPLICANT: Michael Ayache PARTIES : RESPONDENT: Sutherland Shire Council

FILE NUMBER(S) : 10999 of 2009

CORAM: Tuor C

KEY ISSUES: DEVELOPMENT APPLICATION :- child care centre - residential neighbourhood - traffic and parking impacts - noise control

LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2006

DATES OF HEARING: 3 March 2010 and 26 March 2010

DATE OF JUDGMENT: 26 March 2010

APPLICANT: Ms L Amy (solicitor) SOLICITORS: VA Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Ms J Amy (solicitor) SOLICITORS: Sutherland Shire Council

JUDGMENT: - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

26 March 2010

10999 of 2009 Ayache v Sutherland Shire Council

JUDGMENT 1 Commissioner: This is an appeal against the refusal by Sutherland Shire Council (the council) of a development application to demolish the existing dwelling and construct a child care centre for 36 children and on-site parking for four cars at 37 Dwyer Street, Gymea. 2 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions filed by the Council on 11 February 2010. 3 The appeal commenced on site on 3 March 2010 as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (Court Act). The Court heard evidence from a number of residents whose principle concern was the traffic and parking impacts of the proposal. They were concerned that Dwyer Street is too narrow to accommodate additional traffic, which is likely to be generated by the proposal, particularly as there is already a childcare on the street. They considered the traffic conditions in Manchester Road and Dwyer Street to be already dangerous and that this would be exacerbated by the proposal. The residents were also concerned that the proposal provided inadequate on-site parking and that cars would park on the street. They raised concerns about the safety of the proposal for young children. The adjoining owners were concerned about the noise impacts from the proposal, particularly children using outdoor area for extended periods. 4 The Court heard expert evidence from Mr C McLaren (for the applicant) and Mr P Anderson (for the council) on traffic issues and Mr R Abelard (for the applicant) and Ms D Pinfold (for the council) on planning issues. 5 The main concern of the experts was the design of the hard stand area off Dwyer Street which provides parking for two cars (including one disabled space). Ms Pinfold was concerned that the extent of the hard stand area was excessive and did not provide adequate landscaping. In her opinion this was uncharacteristic of the streetscape. 6 The experts agreed that the concern could be addressed by a re-design of the area and a reduction in the hard stand area. The parties agreed that amended plans should be prepared to reflect this and other changes such as location of garbage areas and acoustic fencing. 7 Ms Pinfold also raised concern about the potential noise impacts. An acoustic report recommended acoustic boundary fencing along adjoining residential properties. The acoustic report indicated that a maximum of 16 children using the outdoor play area would comply with a noise criterion of 5dB(A) above background with the provision of acoustic fencing. 8 The 2-5 age group proposes 20 children playing outdoor at any one time. The experts considered this to be acceptable on the basis that the outdoor play period for the 2-5 year olds be limited to a maximum of 1.5 hours per day and a noise criterion of 10dB(A) above the background not be exceeded for this period. 9 The experts agreed that a plan of management is required to incorporate the traffic management and noise controls for outdoor play activities at the centre. 10 The s 34 hearing was adjourned for the amended plans and plan of management to be prepared. 11 The s 34 conference resumed on 26 March 2010. Ms Amy, for the council, advised that the amended plans and plan of management had been considered by the experts and found to be acceptable and that the contentions between the parties were resolved. However, the council would not enter into a s 34 agreement on the basis of the residents concerns. The s 34 conciliation was therefore terminated. The parties agreed to me disposing of the proceedings under s 34(4)(b)(ii) of the Court Act and to me considering the evidence from the conciliation conference. 12 A joint report by Mr McLaren and Mr Anderson which addressed the traffic issues and the amended plans was tendered but no further oral evidence was heard. 13 Mr McLaren and Mr Anderson stated in the joint report that: