Land and Environment Court of New South Wales CITATION : BSDI Pty Ltd Hunters Hill Childcare Trust v Hunters Hill Council [2008] NSWLEC 1470 APPLICANT BSDI Pty Ltd Hunters Hill Childcare Trust PARTIES : RESPONDENT Hunters Hill Council FILE NUMBER(S) : 10632 of 2008 CORAM: Hussey C KEY ISSUES: Development Application :- Demolition of dwellings in conservation area, construction of childcare centre, impact on conservation area, overdevelopment of site, noise/odour/privacy amenity impacts. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Hunters Hill LEP No 1 Hunters Hill DCP No 26 - Child Care Centres CASES CITED: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 DATES OF HEARING: 16, 17, 29 , 30 October 2008 DATE OF JUDGMENT: 21 November 2008 APPLICANT Mr A. Galasso, SC Ms S. Duggan, barrister Instructed by Mr A Whealy LEGAL REPRESENTATIVES: of Gadens Lawyers RESPONDENT Mr J. Cole, solicitor of HWL Ebsworth Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 21 November 2008 10632 of 2008 BSDI Pty Ltd Hunters Hill Childcare Trust v Hunters Hill Council JUDGMENT Background 1 This appeal was lodged against council's refusal of a development application for the demolition of 2 dwellings and construction and operation of a 90 place childcare centre situated at 5 & 7 Church Street, Hunters Hill. 2 The issues identified for the appeal are summarised as follows: o Impact on the Heritage Conservation Area in terms of heritage, streetscape and character. o Traffic and parking. o Suitability of the location in terms of noise and odour impacts due to the sites proximity to a main road and freeway corridor. o Overdevelopment of the site. o Precedent. o Public interest matters raised by objectors. 3 During the proceedings leave was granted for amended plans to provide more detailed information and adjust the basement location to enable retention of a mature Lilli pilli adjacent to the rear boundary. 4 As the proposal does not comply with the development standard for the provision of 'garden area', a SEPP 1 objection to this standard was submitted. The site 5 This development site comprises Lots 5 & 6 DP 4614 Church Street, Hunters Hill. The site has a total area of 1498 sq m. Each lot is currently occupied by a single storey dwelling house, which fronts onto Church Street. No 5 is a corner lot, which also has frontage to Durham Street. The location of the site is shown on attachment A. 6 The Hunters Hill Pre-School adjoins the site to the east and there is a single dwelling adjoining to southern boundary ( No 7 Durham Street). 7 The Durham Street frontage faces the Burns Bay Road Freeway. The Church Street freeway overpass and on-ramp intersection is located approximately 40m to the west of the site. Surrounding development consists predominantly of 1 and 2 storey dwelling houses. There are a number of residential flat buildings situated on the northern side of Church Street, east of the site. These flats were constructed in the 60's on a former quarry site. The proposal 8 This development involves: o The demolition of the 2 dwellings at Nos 5 and 7 Church Street (named "Kambala" and "Tuncurry"). o The construction of a predominantly single storey childcare centre with additional space in the roof. This incorporates a basement carpark for 19 vehicles with access from Church Street. Seven of these spaces are designated for staff spaces. A lift is proposed from the basement to the two upper levels. o The alteration of the front fence arrangement by retaining the existing masonary wall and adding a 400mm landscaping recess to then enable erection of an internal acoustic timber fence 1.8m high. o The ground level includes 2 activity rooms for 0-2 year olds and 3 activity rooms for 2-3 year olds. o The attic level is to accommodate 10 children between 0-2 years. o Outdoor play areas are located around the western and front northern perimeters of the site. This includes designated play areas, which are covered by sunshade sails. o The centre is to accommodate 90 children, to be supervised by 13 staff. The hours of operation are 5 days/week between 7 am and 7 pm. Planning controls 9 The following planning controls are relevant in the assessment of this proposal: i) Hunters Hill LEP No 1 ; under which the site is zoned Residential 2(a2) and the proposal is permissible with consent. Of relevance clause 16A contains a development standard requiring the provision of a garden area equal to or greater than 50% of the site. Also, Clause 19A deals with the conservation area controls. ii) Hunters Hill DCP No 26 - Child Care Centres. This DCP contains general locational considerations based on the following objectives: o To encourage child care centres in areas of need, of a high quality and which are compatible with the neighbouring land uses. o To ensure that the development will not adversely affect the amenity of the existing neighbourhood by way of noise, loss of privacy and traffic, heritage and conservation. o To ensure that the site is generally suitable for child care centres in terms of its topography, adjacent land uses and pedestrian safety of the area… o Clause 2.3 contains Built Form and Building Appearance controls. iii) Hunters Hill DCP No 15 – Residential Development This DCP is required to be read in conjunction with DCP 26. The evidence 10 Detailed evidence was presented by: · Mr M Adamson; Consulting planner for council. · Mr G Patch; Heritage architect for council. · Mr C McClaren; Traffic consultant for council · Mr P Sutton; Council's arborist · Mr L Challis; Acoustic consultant for council. · Mr A Darroch; Consulting planner for applicant. · Mr D O'Toole; Heritage consultant for applicant. · Mr G Pindar; Traffic consultant for applicant · Mr M Harley; Consulting arborist for applicant. · Mr N Gross; Acoustic consultant for applicant. · Mr J Wasserman; Air quality consultant for applicant. 11 A number of objections were lodged and they are contained in council's bundle of documents. These objections have been considered, together with the oral objections stated at the view. 12 The threshold issue in this matter concerns the balancing of the social objectives to provide adequate child care facilities in the area, relative to compliance with the environmental planning controls applicable to this site. Accordingly, one of the primary hurdles in this matter concerns the merits of the SEPP 1 objection. However, I deal with this later, in the context of the other merit issues. Heritage impacts. 13 The first element in this heritage assessment concerns the appropriateness of demolishing Kambala and Tuncurry, these dwelling having been erected around 1914. Whilst they are not listed heritage items, they are within the Heritage Conservation Area. 14 However, apart from this, there is an existing dry-stone wall, which is a listed item, traversing the eastern boundary of the property and this originally defined the boundaries of the Durham Estate. 15 The heritage consultant's agreed that the current buildings on the site are relatively well intact, notwithstanding the more modern extensions at the rear. However Mr O'Toole considers their contribution to the heritage area is limited because of the high front fences and existing landscaping which effectively screens the dwellings. 16 Against this, Mr Patch says that this demolition will have a severe adverse impact on the conservation area through the removal of recognised buildings that are of the era (1840 -1920), which have been identified as one of the salient aspects of the significance of the Hunters Hill Conservation Area. He also says that it is important to take into consideration that these 2 dwellings are prominently located at the 'gateway' to the Hunters Hill/Woolwich peninsular. 17 In resolving these disparate positions, I note that the primary aims and objectives stated in the LEP are to conserve the identity of the area as established by its heritage, character, topography and residential amenity. Accordingly, a number of more specific conservation objectives are identified and clause 19A restricts various works, particularly demolition or alterations to buildings in the conservation area. Clause 19B then allows for consultation with the Conservation Advisory Panel (CAP), which comprises various heritage experts. 18 This application was referred to CAP, who subsequently advised that: 1 Demolition of the Existing Houses: the Panel members considered the houses to be fine examples of Federation era houses, which while altered in some degree are substantially intact. The nature and height of the fences along the Church and Durham Street frontages were seen to be a response to the traffic noise, and contained mature and well-maintained gardens… It was concluded that the CAP would not support demolition of the buildings and considers them to be "on the cusp" of being of sufficient heritage value for individual listing under Schedule 6 of the Hunters Hill LEP. 2 Proposed development- it is considered that on the basis that the demolition of the existing houses is not supportable, evaluation of the proposed replacement building is superfluous. It was noted, however, that the proposed building is excessively bulky, reduces the legibility of the Durham Estate subdivision, and would have adverse impacts on the character of the conservation area, particularly since the location is something of a "gateway" site in relation to the entry onto the Hunters Hill/ Woolwich peninsular … 19 In my assessment of this part of the controls it seems the demolition proposal does not reasonably comply with the stated intent of cl 19 of the LEP. In my initial assessment, this a negative aspect of the proposal, although not fatal when considering the balancing of other relevant factors. 20 An associated element of the heritage impacts concerns the An associated element of the heritage impacts concerns the streetscape . In this regard Mr O'Toole supports the demolition because he considers the dwellings only make a minimal contribution to the streetscape, due too the significant screening provided by the high boundary walls and landscaping. He also says that there are other more prominent federation style buildings towards the east of the site which contribute to a greater extent towards the streetscape. 21 However, Mr Patch says that the cumulative effect of removal of the existing dwellings and also the removal of vegetation, including the large Liquidamber in the front garden area will have a detrimental impact on the streetscape and character of the area. This impact is exacerbated by the 9m width of the proposed driveway to the basement carpark and front acoustic fence specification, which is not a representative element in this conservation area. 22 Another element concerns the compatibilty of the proposed new building with existing buildings in the area and in terms of the character of the area and impacts on the significance of the conservation area. In this regard, Mr O'Toole supports the proposal on the following basis: o The new building would be substantially screened from the public domain by the high boundary walls. o The conservation area is mixed in its built form. Along this part of the street is a mixture of a school, Federation style dwellings, more contemporary single dwellings, a whole row of residential flat buildings, a community hall and an electricity substation. Therefore no architectural type dominates. o Within the immediate vicinity of the site are several buildings of the built form as proposed here with one storey building that has a steep roof that contains an additional attic level. o The proposed materials, and the asymmetrical roof form of the proposed building are also consistent with surrounding properties. o In this location, a ramp leading to the basement car level is not inappropriate given the surrounding structures around the site. The residential flat buildings on the opposite side of the street Wide driveway is that lead to car parking at the lower level. o In addition, Council has approved other basement level car parking entrances in the conservation area. 23 In my assessment of the competing evidence, I initially accept that this site is in a prominent location and does form somewhat of a gateway to the Hunters Hill/Woolwich peninsular because it contains the first residential properties on the southern side of Church Street sighted when entering the peninsular via Church Street. Accordingly, the existing streetscape presentation comprises the masonry front, behind which is mature vegetation that allows views of parts of each dwelling. These views include the gabled roof styles, chimneys and various period window treatments. 24 From my observations at the view, it appears to me that the proposal would result in a significant change to the streetscape. The proposal necessitates the removal of the mature Liquidamber in the front garden and this will open up views of the new structure on the site. Although some of these views may be restricted by the shade sails in the front yard areas that cover the children's play areas, which is not a common element in the streetscape. 25 It therefore seems to me that the view opportunities of the new building would reveal a more commercial style building that does not exhibit many of the federation elements present in the existing dwelling and those surrounding. My understanding of the heritage controls is that preference is to be given to building elements such as roof pitch/form, style of windows and doors and external finishes to achieve a reasonable degree of compatibility with existing buildings in the conservation area. 26 Whilst the proposal addresses these concerns to some extent, I nevertheless consider the scale of the new building, which presents an effective built form across the 2 allotments does not present a satisfactory degree of compatibility with the existing detached, single residential buildings nearby. It also seems to me that the 'double-fencing' proposal to achieve acoustic goals is an uncommon feature, which does not positively contribute to the streetscape, compared to that existing. 27 In this regard, I give diminished weight to Mr O'Toole's opinions based on the compatibility with other non-residential buildings in the neighbourhood. Whilst there other commercial type buildings nearby in Church Street and several residential flat buildings, I do not consider the planning controls set these as a benchmark for the restrictive controls imposed under cl 19A of the LEP. Instead, it seems to me that higher weighting is to be given to the conservation of buildings in this zone. Therefore, I am satisfied the existing dwellings that are "on the cusp" of heritage classification make an overall positive contribution to the streetscape as compared to the proposal, which is negative by comparison. 28 Another aspect of the streetscape impact is the proposed driveway to the basement carpark. This driveway is approximately 9m wide and incorporates side retaining walls up to 4m high at the entry. In this regard I accept council's submissions that this presents a foreign element in the streetscape. However, by reference to the threshold question of the suitability of the site for the child care centre, I do not consider this alone fatal to the application, but it does not provide any enhancement of the streetscape and therefore is a negative aspect of the proposal. In this regard, I accept the submission that an alternative driveway from Durham Street would likely have less adverse impacts. But that is not part of this application. 29 Reference was also made to the impact on the heritage listed dry stone wall along the eastern boundary. The amended proposal has more accurately established the wall alignment and proposes a 1.8m wide pathway with handrails adjacent to the wall to provide the main pedestrian access to the centre. However this pathway is raised above the natural ground level to a variable degree, in order to achieve a reasonable accessible gradient. Consequently this elevated paving will encroach on the dry wall environment, which I consider diminishes its heritage significance. Traffic 30 The traffic issue concerns the access to the site, particularly the suitability of the developments proposed basement carpark entry/exit onto Church Street, in terms of safety and convenience considerations. These concerns were confirmed by a number of the residents who apparently experience regular traffic delays and inconvenience in Church Street adjacent to the subject property. 31 This traffic situation was assessed by Mr Pindar and Mr McClaren. Mr Pindar's surveys indicate that the Church Street/Burns Road on-ramps are generally satisfactory in the AM and PM peak with Levels of Service B and C. He supports the proposal based on the following RTA Guidelines for traffic generation: o 72 trips per hour (36 in, 36 out) during the morning peak (7-8am and 8-9am); and o 63 trips per hour (31 in, 32 out) during the afternoon peak period (4-5pm and 5-6pm). o This generation results in a deduced net increase of 70 vph in the morning peak and 61 vph in the afternoon peak. o These trips are associated exclusively with the access driveway from Church Street, which is to be left in/ left out, reinforced by the proposed construction of a short length of median in Church Street opposite the driveway. 32 Notwithstanding this, it appears that in peak periods considerable traffic delays still occur in front of the subject property, due to queing from the Burns Bay Road Freeway and ramps and this will have an effect on the utility of the basement carpark. 33 Mr McClaren disagrees with Mr Pindar's assessment based on his consideration of the "Hunters Hill Village Draft Masterplan Traffic Report", and his site observations. Accordingly, his assessment is that the adjacent Church Street and Gladesville Road intersection operates poorly and has lower Levels of Service D & E during the weekday AM & PM. His opinion is that the site is adjacent to a busy intersection and is non-compliant with the DCP provisions and therefore he does not support the proposal. 34 In the initial traffic forecasts the experts adopted completely different arrival/departure routes. Mr Pindar said that in the AM peak 75% of parents will travel to work or an alternate destination outside the Hunters Hill area (i.e. arrival direction the centre from the east) and likely drop their children on the way. This assumes the remaining 25% would return home. 35 Contrary to this, Mr McClaren found that 76% of the children attending the adjoining pre-school arrive from off the peninsular (i.e. arriving from the west). This is based on the pre-school enrolments. This arrival direction is somewhat important due to the restricted entry to the basement carpark created by the proposed central median strip, preventing direct access from a right turn movement. 36 Considering this significant difference in arrival direction between the experts and Mr Pindar's subsequent concession that it is probable a greater number of children could attend the new development from outside the peninsular, I am satisfied to rely on Mr McClaren's opinion in this regard. This is consistent with the comments from council's manager of Community Services that: 1. " The location of the proposed childcare centre is accessible for families from all areas of the Municipality. It is expected that the majority of children attending the centre will travel from the western side of the Municipality and areas such as Lane Cove." 37 Consequently, in the AM peak the west bound traffic will have to make some manner of U-turn east of the site because of the median in front of the driveway. According to Mr McClaren, this U-turn is likely to occur at, or within Herberton Street and he considers this undesirable in this location, notwithstanding the environmental capacity of the street is not exceeded. This concern is consistent with the resident's objections from Herberton Street, who say that this will exacerbate current unsafe and illegal traffic manoeuvres. 38 Apart from this, Mr McClaren also expresses concerns about the attractiveness and utility of the basement car park due to the queing effects along the site frontage. In the circumstances, he considers drivers will likely by-pass the basement and use Durham Street for drop-offs so as to avoid rejoining the traffic que adjacent to the basement entry alignment. Consequently he says this will then compound the intersection problems near Durham Street. 39 Mr McClarens dissatisfaction with the proposed access arrangements is reflected in the Police comments that in any consent conditions should be imposed requiring reception staff at the centre to control carpark entry in peak times by: a) A CCTV system to allow reception staff to monitor parking space and traffic flow in the carpark. b) Traffic control lights and signs operated by the reception staff be erected on the ramp and visible to traffic on Church Street. 40 In considering these different approaches to the traffic issue, I particularly note that clause 2.1 (viii) of DCP 26 states: 1. " Sites on arterial or at busy intersection should be avoided ." 41 Accordingly I am satisfied to rely on Mr McClaren's opinion that the Church Street/Durham Street intersection, with its direct connection to the freeway ramps represents a busy intersection and therefore this site does not comply with the site suitability criteria in cl 2.1 of the DCP in respect of traffic considerations. It al Accordingly I am satisfied to rely on Mr McClaren's opinion that the Church Street/Durham Street intersection, with its direct connection to the freeway ramps represents a busy intersection and therefore this site does not comply with the site suitability criteria in cl 2.1 of the DCP in respect of traffic considerations. It also seems that the Police recommended conditions would be somewhat onerous on the operator and this confirms the unsuitability of this access/entry arrangement. Amenity impacts. 42 The sites proximity to the Freeway ,Church Street and neighbouring residential properties raised concerns about the sites suitability for the child care centre, due to potential noise pollution . This was assessed by the acoustic consultants, who agreed that satisfactory conditions of consent could be imposed on any consent. Such conditions would require the construction of an effectively designed acoustic fence along Church Street. Also conditions could cover the external façade of the new building. Accordingly I do not consider this issue would result in the refusal of the application. However the erection of the acoustic fence (ie the 2 separate elements) creates other visual impact and streetscape issues. 43 The other amenity issue concerns traffic pollutants arising mainly from the freeway. This was assessed By Mr Wasseman by way of reference to air quality monitoring stations at: o Lane Cove Country Club Air Quality Monitoring Station, and o Rozelle Air Quality Monitoring Station (near Balmain and Victoria Roads). 44 His conclusion of the air quality assessment is that: o The carbon monoxide and nitrogen dioxide levels around the proposed childcare centre are expected to be well within the NSW air quality goal. o The levels of particulate matter are expected to be well within the NSW air quality goal. o Concentrations of benzene are not at levels which, from current understanding, should pose health effects and meet the UK guideline. 45 Insofar as this methodology assessment was challenged in cross-examination on the basis that the monitoring stations were not comparable to the subject site, I do not consider it necessary to deal with this item further because in the ultimate it is not determinative. 46 Other amenity impact concerns were expressed by the owners of No 7 Durham Street in terms of additional shadowing of their balcony and loss of outlook due to the position of the new, more bulky building closer to the common boundary. They consider the proposed rear setback of 3m is unsatisfactory. 47 Reference to the shadow diagrams indicates that the proposal is likely to cast some additional shadowing on the balcony until shortly after 9am at the winter solstice. Considered alone, I do not consider this degree of impact would warrant changes to the proposal. The loss of outlook is compounded by the size of the building required to accommodate the 90 children. As it is possible this impact could be reduced by an increased rear boundary setback and consequential increase in garden area, this is an undesirable element of the proposal that contributes to my conclusion that the proposal is an overdevelopment of the site. SEPP 1 Objection to the garden area development standard. 48 The need to consider the SEPP 1 arises because of a deficiency in the garden area as required by clause 16A of the LEP. This development standard requires a minimum garden area of 50%. Accordingly, the SEPP 1 acknowledges the development standard and states that the proposal would provide a garden area of 674 sq m (45% of the site area), relative to the standard requirement of 749.3 sq m (50%). 49 I note that Mr Adamson disagreed with the garden area calculations, calculating a greater non-compliance. I deal with this subsequently. 50 As there are no stated objectives for the development standard, the SEPP 1 refers to the objectives of the LEP and derives the underlying objective as : 1. " to provide sufficient garden area to accommodate tree planting to maintain the tree covered character of the Municipality, which is reinforced by the DCP control that require the provision of 7 trees for sites in excess of 1200 sq m." 51 The SEPP 1 submits that compliance with the development standard is unnecessary or unreasonable due to the following circumstances: o The proposal is for the provision of a new purpose built childcare centre on the site containing the existing dwellings that are on lots of less than 900 sq m, which is required for a dwelling. o The childcare centre provides basement parking for the required 19 car spaces and this necessitates an area of approximately 60 sq m being required for the driveway, which consequently reduces the available garden area.. This is a safer option to the alternative on-site or on-street parking. o A further reduction in the garden area arises from an inherent contradiction between the NSW Childcare regulations and the planning controls because the regulations require that outdoor open space areas be provided with shade structures, which is at odds with not building over garden areas. The proposal includes a further 52.5 sq m of verandah areas provided for shading. o The site accommodates a number of mature and well established trees located around the periphery, which are to be supplemented. This will maintain the garden character and soften and screen the proposed buildings. o The shortfall arising from the provision of on-site parking access and the verandah shade structures is adequately off-set by the number and maturity of the trees so the objective of maintaining a garden setting is satisfied and therefore strict compliance is unnecessary. 52 The SEPP 1 then contends the objection is well founded because the objectives are achieved in that extensive areas of landscaping are provided with a depth of soil and substantial planting of lawns and gardens that achieve the benefits of the landscaping. 53 In addition to this, reference is made to the public benefits achieved by the provision of the childcare centre, considering the unsatisfied demand for such a facility. 54 However, Mr Adamson does not support the objection for a number of reasons including his calculation of a greater deficiency resulting in a garden area in the order of 31%. He excludes the basement area outside the building footprint, the verandah areas and the designated drying areas. Mr Adamson also says that the utility of the limited garden area is comprised by the inclusion of the shade sails. 55 For my determination of this objection, I note that "garden area" is defined in clause 16A of the LEP as: 1. " any area within an allotment which has not been built on and which, in the opinion of the council, is designed, constructed or adapted for outdoor living or outdoor recreation, but does not include decks, balconies or swimming pools(…), driveways, parking areas, drying yards or other service areas." 56 Accordingly, I have considered this SEPP 1 objection in the context of the LEP aims and objectives. It appears to me that these controls place a high value on the conservation of the heritage identity of the area, including the treed environment and townscape quality. It is apparent to me from the view that the dominant features of this identity include the many federation houses set within generous garden settings that include mature vegetation and trees. 57 In this regard, I consider it appropriate to consider the identity of the area as the broader peninsular area that is part of the overall conservation area, rather than that defined by the immediate neighbouring properties. 58 I therefore consider this development standard endeavours to achieve more than provision of areas for large trees as stated in the objection. It seems to me that it is an important control to achieve a desirable balance between the built upon area and the associated garden area. This limits the building form so as to achieve the desired level of compatibility with the scale of existing buildings in the vicinity. 59 Insofar as there was a disagreement between the planners regarding the calculations of the garden area, I do not consider it reasonable to include the verandah areas or the drying areas, as shown on the proposed plans. Under these circumstances, I consider the resultant garden area would be less than 40%, particularly allowing for the deletion of the drying area. My assessment is that this non-compliance is excessive in the circumstances and that a complying development would more likely achieve the objectives of the standard. Therefore I do not consider the SEPP 1 objection is well founded and in this regard I rely on the opinion of Mr Adamson. Conclusions 60 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent, primarily because it represents an overdevelopment of this site. It is apparent to me that the planning controls for this part of the Hunters Hill municipality form a comprehensive raft to which development should demonstrate reasonable compliance. In this regard, the conservation controls appear pre-eminent based on the provisions of the LEP No 1 aims and objectives. 61 Notwithstanding this, I accept the evidence that there is a demonstrated demand for childcare centres in the area and that DCP 26 encourages this provision. But this is on the basis that such centres are compatible with the character and scale of existing buildings in the area and they must comply with the same standards for built form controls as provided under the DCP of the respective zone i.e. Residential 2(a) in this case. 62 Consequently, the 'garden area' development standard is a threshold control in this matter. This standard requires the provision of 50% of the site to be garden area, but the proposal provides marginally less than 40% in my assessment of the relative components of this area. In my opinion, this standard is to conserve the 'garden suburb' character of this area, which identified by the existing the character dwellings set within landscaped gardens that includes space for mature vegetation. As such it provides a restriction on the allowable building footprint, which I do not consider is satisfied in this proposal. 63 However in acknowledging the deficiency in the garden area, the applicant main submission is that the site is suitable for this proposal and that greater weight should be given to the need to provide the childcare centre. Furthermore, that it must be a 90 place centre in accordance with the maximum allowed under the DOC's regulation to be efficient and effective. Also, on the basis of its enquiries, the applicant submits that there are very few suitable sites and therefore the discretion available in determining the SEPP 1 objection should be allowed. 64 Supporting submissions were made regarding the principles stated in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399, wherein the Chief Judge stated: 114 Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However, care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment… 118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 65 If this main submission regarding the availabity of suitable sites is to be accepted, this would indicate that achievement of the DCP policy objectives would result in the provision of fewer, larger childcare centre, which may require dispensation of some of the development controls. However I note that the Council submissions are that availability of suitable childcare sites is not so critical that the development controls are to be substantially reduced. Instead, childcare centres should fit within the LEP framework. 66 From my consideration of the evidence, I am not convinced by the applicant's enquiries that the availability of suitable sites is so critically limited, necessitating the variations proposed in the subject application. Instead it seems to me that the development controls are a starting point in the selection of the suitability of a site for a particular use and consequently limit the size and scale of any development proposal. 67 On this basis, compliance with the development standard would require a smaller building footprint and resultant area for the centre. Therefore, if the minimum size centre is required to have 90 places to achieve effectiveness, then this site is most likely not suitable for this use, considering the prevailing planning context. Otherwise achieving reasonable compliance with the objectives of compatibility with the established amenity and character of the conservation area is not likely to be obtained. In accordance with the previously stated reasons, I do not consider the SEPP 1 objection to the garden area, development standard is well founded and this results in the refusal of the application. 68 Another important critical aspect of this proposal is its location at what I consider is a busy intersection. In this regard I rely on the evidence of Mr McClaren, Mr Adamson and the residents that the access arrangements to and from the centre are unsatisfactory at this busy and congested intersection for a childcare centre of this scale. As such it does not reasonably satisfy the general locational considerations in clause 2.1 of the DCP. 69 Whilst I accept that the LEP and DCP allow for changes, nevertheless childcare centres are to be integrated into the existing residential environment and conserve the identity of the area. I accept Mr Patch's opinion, which is consistent with the advise of the CAP that Kambala and Tuncurry make a significant contribution to the conservation area, which would be diminished by their demolition and replacement by the proposed large scale childcare centre building, its associated acoustic fence and shade sails in the front setback area. In this regard, I consider this is critical because of the prominent location of this site at the gateway to the Hunters Hill peninsular conservation area. Court orders 1. The appeal is dismissed. 2. The SEPP 1 objection to the garden area development standard in clause 16A of LEP 1 is disallowed. 3. Development consent to DA No 08 – 1038 for the demolition of 2 dwellings and construction of a 90 place childcare centre at 5 7 Church Street, Hunters Hill is refused. 4. The exhibits may be returned except for M, 8 and 12. ________________________ R Hussey Commissioner of the Court 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.