Land and Environment Court of New South Wales CITATION : Skoulogeni & Skoulogenis v Blue Mountains City Council [2007] NSWLEC 584 APPLICANT Spyro Skoulogeni & V Skoulogenis PARTIES : RESPONDENT Blue Mountains City Council FILE NUMBER(S) : 10100 of 2007 CORAM: Murrell C KEY ISSUES: Development Application :- child care centre, noise, traffic, safety, parking, landscape, streetscape, acoustic fencing. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Blue Mountains Local Environmental Plan No. 2 State Enviornmental Planning Policy No. 1 CASES CITED: Winton Property Group v North Sydney Council DATES OF HEARING: 28/05/2007 and 19/07/2007 EX TEMPORE JUDGMENT DATE : 19 July 2007 APPLICANT Mr N. Howie, solicitor of Wilshire Webb Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr A. Seton, solicitor of Marsdens Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 19 July 2007 10100 of 2007 Spyro Skoulogeni & V Skoulogenis v Blue Mountains City Council JUDGMENT 1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against the Blue Mountains City Council's refusal of a development application to increase the operating weeks of a child care centre from 40 to 48 weeks per year at the property known as 8 Tabor Street, Glenbrook. 2 By way of background only, and not a matter for my consideration, but previously a development application was submitted for the adjoining property at No. 10 which was to provide, for in conjunction with No. 8, a much larger centre. This is not a matter that is part of these proceedings and indeed the council refused such an application. 3 The application before the Court now relates to the extension of the number of operating weeks only for the existing centre. The application for this property also includes an extension to the rear of the subject premises which the council approved and has no issue with. 4 The Court met on site in April, and the matter was adjourned to allow the applicant to provide further details on the acoustics and of the driveway. 5 When the matter first came to the Court, a number of issues were identified by the council as follows: i. The proposed extension of operating hours from 40 to 48 weeks per year for the existing childcare centre will have an adverse impact on the amenity of adjoining and surrounding residential properties and a number of particulars were provided. ii. The proposed extension will cause an increase in traffic in the area during school holiday periods, which will result in unacceptable risk to safety of pedestrians, children in the existing street network. Once again, a number of particulars were provided. iii. Whether the proposed extension complies with the objectives of the living conservation zone of the Blue Mountains LEP, particularly objectives (a) and (e), and whether the proposed development is in the public interest having regard to the existing residential character of the area, the impact on residential amenity, pedestrian safety, increased traffic matters and matters raised by objectors. 6 The Court, as I said, met on site and heard from a number of resident objectors to the proceedings. I will identify and briefly summarise their evidence. Ms Belinda Wagenfeller of 7 Carmel Street resides with her family at the rear of the subject premises, and the Court had the opportunity of also inspecting her property which has a swimming pool at the rear and relatively steep topography up to the subject site. She is concerned about the continuation of noise that they currently have for 40 weeks of the year and that it would impact on their amenity. She commented that this is a quiet side of Glenbrook and the residents are concerned that their amenity will be further eroded by the increased number of weeks the childcare centre is open. 7 The Court also heard from Mr Malcolm Sheehan of 6 Tabor who resides at the adjoining property to the south of the subject site. He is concerned about the increase to 48 weeks of the year and that outside of the current 40 weeks this is the only time they get peace and quiet when the centre is not operating. He considers it would be an incremental increase by stealth of the operation of the commercial childcare centre. He also advised the Court about the concern for the safety of children and vehicles reversing onto the street from the current parking spaces. The noise from the children was the issue that was raised in particular by Mr Sheehan, and Mrs Sheehan also informed the Court that it disrupts the peace and quiet needed for her studies. That the removed shed in the rear yard had previously provided a noise barrier. She was concerned about the leaf blower of a morning to clean up the yard before the children's play, and she is of the opinion that the increased number of weeks should not be allowed. 8 Mrs Anne Thompson of 15 Tabor is concerned about the increased traffic and the reversing and the use of her driveway to turn around in. She considers that the use is not appropriate in terms of the increased number of weeks. She is concerned about the safety of her children and that the street is used for play during school holiday times which is when it is proposed to now extend the centre's operation. She also expressed concern about the parking and the number of cars and the traffic on three or four occasions a year when there are functions at the childcare centre. 9 Mrs Dawn Eley of No. 5 is concerned about the safety issues that kids get in and out of cars themselves and mothers just chat, do not supervise, the majority of vehicles are four wheel drives, it is not safe and that children play in the street in school holidays and there is congestion in the area and a community bus also uses the same street. She is concerned about the reversing movements and the increased weeks will result in more danger. Noise congestion and safety in summary are her concerns. 10 Mr and Mrs Dawsett of No. 9 are concerned about the traffic, the fact that the police have been there warning people in terms of parking and the fact that there is no kerb and guttering and people park on the verges. 11 Mrs Joanne Vanderent of No. 10 Kedron Street is concerned about the parents reversing out and the safety of children and she did say that the parallel parking would improve the parking situation, but in her opinion the site is not suitable for the increased intensity in terms of number of weeks. 12 Mr Wagenfeller of 21(A), is concerned about the safety and the fact that the proposed childcare centre is not consistent with the objectives of the zone. In his opinion, it is a relatively narrow street and police had been there warning people previously and that people park illegally and it should be parallel parking. He stated that children walk behind vehicles. Once again he mentioned the predominance of four wheel drive vehicles. 13 Mrs Suzie Hunter of 55 Hersey Street supported the application and also as did Mrs Dimity Statheos of East Blaxland also chose the centre because of its reputation and is, would be desirable for the centre to be operating 48 weeks as opposed to the 40 to qualify for the childcare benefit. 14 Mrs Deborah Sharpe also in support of the centre expressed the need for smaller private centres in the area and chose to walk to the centre on occasions as well. Mrs Lynne Holmes also expressed support for the centre and the additional hours would allow for the financial assistance. Mrs Leonie Orme also in support of the centre, is conscious of safety in dropping her children off. 15 Mrs Barbara Petersen of 7 and 11 expressed concern about the car parking and driveway arrangements and was advised that this was approved in 1992 by the council. She expressed concern about the traffic and parking in the street. 16 The Court also has the benefit of the Court appointed expert's evidence, Mr Gary Shields a consultant town planner, urban designer and traffic engineer. For the applicant, Mr McGuiness provided reports to the Court including a SEPP 1 objection and Mr Robert Varga, a consultant traffic engineer. The Court also has an acoustic report tendered today detailing the fencing required for the noise attenuation of the centre. 17 The Court has assessed the development application and it is important to note that since the application was first before the Court, it is now proposed that there be a semi-circular driveway for the centre to allow a drop off and pick up area, and it is also proposed that there be acoustic fencing provided to the western and southern boundary of the subject property, that is, to Mr and Mrs Sheehan's property at No. 6 Tabor Street and to the property at the rear, the Wagenfeller's property at No 7 Carmel Street. 18 I will address the noise matter now so that it can be understood the way this matter has evolved. The acoustic report was by Koikus provides details of what fencing is required and concludes that a background noise level was found to be 40 DBA at the rear of No. 12. The maximum noise emiision adopted is background plus 5 DBA. 19 Based on the acoustic analysis, there are up to 20 children playing in the outdoors area of No. 8. The calculated noise level at the boundary of any surrounding residential boundary will meet the nominated noise criteria, and Appendix B contains details in relation to the extent of the noise barrier required including its height. "Based on our calculations, we believe that the existing childcare centre will comply with the nominated noise criteria of background plus 5 DBA when the recommended noise mitigation measures have been faithfully implemented." 20 As such, noise is no longer an issue in these proceedings, and it could be seen on site that a 2.1 metre fence does not create unreasonable visual impacts for adjoining neighbours. I am satisfied that noise is not a reason to prevent the extension of the centre from 40 to 48 weeks per year. And indeed the attenuation measures with the acoustic fence will improve the residential amenity, in particular of the adjoining two properties for the current 40 weeks operation. 21 The Court has the opportunity of viewing the amended plan this morning, also the opportunity of hearing from Mr Shields. Whilst Mr Shields' evidence in some respects was difficult to comprehend, at the end of the day, on further questioning he is of the opinion that with the fence noise is no longer an issue and that it would be appropriate to embrace the driveway and noise measures as now proposed by the applicant. In this regard, the respondent then asked Mr Shields questions concerning the streetscape and the SEPP 1 objection in terms of the relevant provision for landscaped area. 22 The subject site, is zoned 'Living Conservation' under the LEP, and the objectives for the living conservation are as follows: (a) to retain and enhance the character of residential areas that are formed by larger allotments and single dwelling houses within a prominent traditional garden setting; and (e) to allow for a limited range of non-residential land uses where these are conducted in association with a predominantly residential land use and are consistent with the retention of a residential character based on a landscape or an open space setting. That is objective (e). Objective (b) to enhance the landscape character and setting along roads et cetera , (c) ensure development retains prominence of landscape elements, (d) to ensure that established gardens are retained or landscape settings are re-established as part of any development of land including development involving major alterations and additions. 23 Cl 9 of the Blue Mountains LEP of 2005, requires before granting consent to the carrying out of any development on land to which the plan applies, the consent authority is to be satisfied that: the development is consistent with the aim of this plan and principles and practices of ESD; complies with the principal objective of the plan relevant to the development; complies with the locality management provisions; complies with the assessment requirements; and complies with the development provisions within the relevant part to the that development. 24 The locality provisions, in cl 13 state; "consent shall not be granted to the carrying out of any development on land to which this plan applies unless the development complies with the zone objectives within div 2 and that apply to the land and that are relevant to the development." 25 The council contends that the proposal would not be consistent with the objective; "to retain and enhance the character of residential areas." 26 The threshold question for the Court in these proceedings is the State Environmental Planning Policy No. 1 objection to vary the 60 % minimum area to be retained as soft, pervious or landscaped area required under cl 3, site coverage. 27 It is also noted that the landscape character within the 'living conservation zone', states "consent shall not be granted to development of land within the living conservation zone unless the consent authority has considered a detailed landscape plan, and except in the case of development that in the opinion of the consent authority consists of minor additions or will not involve the removal of vegetation". The detailed landscape plan prepared to comply with this clause means the development that incorporates landscape elements achieves the objectives of the living conservation zone and plantings that will establish a landscape setting and streetscape for new residential development. Subclause (c) a building form and location that retains where possible existing significant vegetation and garden settings including native and exotic species that are visually significant when viewed from a public street. 28 The proposed plan before the Court today is for the semicircular driveway and this in fact has the effect of removing the large deodar in the front setback area of the dwelling house. The dwelling house is a two-storey dwelling house with an office component upstairs, but it reads predominantly as a single-storey cottage within the streetscape, and is consistent in terms of its scale, size and bulk with the dwellings houses in the street. There is a range of architectural styles within this street. And the deodar, it is noted, is a tree that is significant in the streetscape. 29 While the council officers recommended that the extension to the number of weeks be approved, they were also of the opinion that no works should be allowed within the front setback areas. 30 Council's primary position in terms of this appeal and the amended plan that I have today is that there should be no extension to the number of weeks. That is it should remain at 40 weeks, and that no works be undertaken because the garden setting takes precedence over the driveway and safety. 31 As I said, the Court must assess and, as submitted on behalf of the council, must assess the SEPP1 Objection submitted to vary the amount of landscaped area. Currently the child care centre provides for approximately 56 per cent of soft permeable area, and with the driveway proposed it will provide for some 50.9 or 51 per cent permeable area. The LEP also contains a definition such that the soft permeable area includes open spaces as well as the vegetation on the site itself. 32 The underlying purpose must be considered, as set out for in the judgment of Winton Property Group v North Sydney Council (2001) where Lloyd J considers the appropriate questions to be asked when considering a SEPP1 objection. There is no dispute that the provision is amenable to a SEPP1 application and variation and one must have regard to what the underlying purpose or object of the standard is. There is no specific or overtly stated objective of the standard in the LEP. 33 However, one is guided by the general provisions and in that regard it is reasonable to say that the underlying purpose of the landscape or the permeable area is that there be a landscape setting and that there be an appropriate amount of open space for the curtilage of dwelling houses, for the residential zone, that is, and the issue is whether the threshold question of the SEPP1 objection should be allowed. 34 The Court is also directed to the aims and objectives of the policy, and the aims and objectives of the policy clearly state that the policy provides for flexibility in the application of planning controls by virtue of development standards in circumstances where strict compliance with those standards would in any particular case be unreasonable or unnecessary or tend to hinder the attainment of the object of the Act under s 5. Such objects include orderly and economic development, ESD and other such matters. 35 Going to the issue of the SEPP1 objection and the landscape character of the area, the permeable area that is maintained on the subject site, as submitted by the respondent, but it is not just a matter of looking at the percentage difference from the standard. One must have regard to what the underlying objective is. I must also have regard to the fact that the child care centre currently on the site provides for some 56 per cent and the proposal is to reduce it to some 51 per cent. 36 I also note that the officer's report said that in the short to medium term the removal of the deodar tree would have an impact on the landscape of the area. I have had regard to the concerns of the council in terms of the streetscape and in terms of the landscape provision, and I am satisfied with the landscaping that has been provided in the Botanica landscape plan that there will be an appropriate setting in the longer term by the provision of a large canopy tree in the front setback area. The test is not just in the short to medium term, but the test must have regard to what is provided in a landscape plan, and the plan in my assessment will enhance the streetscape appearance of the proposed development. I agree with Mr Shields that with the formalised paving and the variation in the paving and the enhancement of the site with the landscaping proposed and the significant canopy tree in the front, I am satisfied that the SEPP1 objection should be upheld and that the underlying purpose or object of the standard is satisfied in the circumstances of this case. 37 The circumstances of this case are matters that the Court must also turn its attention to in that the SEPP1 objection allows for development where strict compliance with the standard would be unreasonable or unnecessary, and in my assessment would also tend to hinder the attainment of the objects of the Act. Having been satisfied in terms of the SEPP1 objection, the Court can now turn to a merits assessment. 38 It was submitted on behalf of the council that the current operation of the child care facility is already unacceptable. On the other hand, the council's primary position, as I stated, is to do nothing; that is, not to allow for any works within the front area and not to allow for the extension of operating weeks from 40 to 48. 39 Whilst not a matter for the Court in these proceedings, I note that the council approved the application in 1992 which allowed for the vehicles to reverse onto the road. In the Court's assessment and in the Court-Appointed expert's assessment this is a most unsatisfactory situation and it would be most short-sighted of the Court not to require works which will improve the safety for children and amenity of the area. In particular, I heard quite clearly from the residents their concerns that were echoed numerous times about the parking situation in the street. It is clear that the width of the street is such that it can accommodate the traffic for a 20 place child care centre, and this is not disputed by the experts. The issue is that the parking that was approved by the council has led to a most unsatisfactory situation and, in fact, potentially dangerous situation. 40 The approval of this development application requires the applicant to carry out certain works which will improve the safety for children and the parking situation associated with the child care centre. In my assessment this represents a balanced approach to the determination of this matter. 41 I am satisfied that the additional eight weeks with the acoustic fencing and with the greatly improved or vastly improved parking situation for the child care centre, together with effective management in terms of instructions to parents when dropping off children and the conditions proposed by the council that this would be a situation of a development that could co-exist in a harmonious way within the residential area. Small child care centres such as this clearly fit with the residential character of an area more than larger centres. This centre is for a maximum of 20 children. 42 As such I am satisfied with the improved parking situation, the noise attenuation, that the child care centre will be able to co-exist as a non-residential use in the residential area that is not only consistent but also, in terms of the council's objectives for the zone, will enhance the amenity. The objective being to retain and enhance the character of residential areas that are formed by larger allotments and single dwelling houses within a prominent traditional garden setting. It is noted that the garden setting of this development is not so much a garden setting and the prominence is the specimen tree. There will continue to be a specimen tree within the frontage which will provide for an appropriate framing in terms of the dwelling house. As I stated, the dwelling is one that is compatible in terms of its size, bulk and scale with the area, and the use of it as a child care centre will not change that situation. 43 The character of the residential area in my assessment of this development application will be retained and enhanced having regard to the fact that child care centres are a permissible use with development consent. In this regard, they should 'fit' into a residential area. That does not mean that one will not know that there is a non-residential use within this dwelling house but it will be one that in my assessment is appropriate and compatible. 44 It was submitted on behalf of the council that the operation is currently operating unacceptably and the Court would not approve the development application unless it rectified the noise, parking and driveway situation. I am satisfied that the safety of the children should be paramount and that the development application provides for an improvement to the existing situation, and an extension of 40 to 48 hours per week is or should be approved and will not impact adversely on the residential amenity of the area, having regard to the acoustic attenuation measures and having regard to the improved parking situation. 45 There were very impassioned submissions made by resident objectors and it is important to assess the essence of their concerns. As I stated, it was repeatedly stated by residents they were concerned about the safety of children. I am satisfied that the safety of children will be enhanced by the proposed development. 46 The other issue the residents were concerned about was the intensification or the extension from 40 to 48 weeks in terms of their residential amenity. The residential amenity in terms of the noise, as I stated, there is no argument and that is not contested as a reason for refusal of the application with the acoustic measures now proposed. The amenity issue is also one that has been created because of the informal parking situation and the parking spaces that had been approved by the council whereby there was reversing onto the street without a kerb and gutter. The proposal before me now will also allow for a parking space at the front of the premises with kerb and guttering which can provide for ten minute parking during the peak periods; that is, 8 am till 9 am and 3 pm to 4 pm of an afternoon. 47 The development application, as I stated, is not to increase the number of children. It will remain a 20 place centre, which is not considered by the Court in any way an overdevelopment of the site. Clearly the drop-off and pick-up area will improve the situation, and for a small centre a drop-off area as now proposed is considered appropriate. 48 The council proposed a number of conditions. At the end of the day there is only one condition which is contested by the applicant. That relates to whether a marshal or whether someone to supervise the parking is required. Council's condition 16 proposed is as the proposed driveway will not facilitate vehicles to pass, a parking marshal is to be employed on site at pick-up and drop-off times to ensure efficient and safe use of the circular driveway by vehicles and pedestrians. I consider that it would be appropriate to have a person between the peak period of 8 am till 9 am and 3 pm till 4 pm of an afternoon to supervise the efficient use of the semicircular driveway for the drop-off and pick-up to the child care centre. 49 Clearly the parents should be advised in terms of the management plan, and this should include advice to parents in terms of the drop-off and pick-up situation, such that those that wish to conference with teachers would park in the street and not prevent through vehicle access on the semicircular driveway. These are matters that can be clearly communicated to the parents by way of the management plan and on enrolment. 50 Accordingly, the formal Orders of the Court are: 1 The appeal in respect of the property known as 8 Tabor Street, Glenbrook is upheld. 2 The development application submitted to Blue Mountains Council as amended and shown in ex L is approved subject to the conditions in annexure A 3 The exhibits except 3, 12 13 H, L, M, and N are returned to the parties. ___________________ J S Murrell Commissioner of the Court DK/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.