Shirley v Waverley Council [2011] NSWLEC 1154

Land and Environment Court New South Wales

Medium Neutral Citation: Shirley v Waverley Council [2011] NSWLEC 1154 Hearing dates: 20 and 21 April 2011 Decision date: 21 April 2011 Jurisdiction: Class 1 Before: Murrell C Decision: (1)The appeal in respect of the property known as 28 and 30 Bourke Street, Queens Park, is upheld. (2)The development application submitted to Waverley Council and as amended for a raised play platform is determined by the granting of consent subject to the conditions in annexure A. (3)The exhibits are returned to the parties with the exception of exhibits 6 and M. Catchwords: DEVELOPMENT APPLICATION - construction of raised play platform for childcare centre and increase in numbers of children - impact on adjoining properties, privacy and overlooking Legislation Cited: Waverley Local Environmental Plan 1996 Category: Principal judgment Parties: Michael Shirley (Applicant)

Waverley Council (Respondent) Representation: Solicitors Mr P Jackson (Applicant) Pike Pike and Fenwick

Ms C Morton (Respondent) Sparke Helmore Lawyers File Number(s): 10094 of 2011

Extempore Judgment 1COMMISSIONER: The applicant in these proceedings is seeking to construct a raised platform for a play area for the child care centre in the rear of the premises at 28 Bourke Street, Queens Park. The other part of the development application is that the number of children is proposed to be increased from the existing approved number of 49 to 51. The Court notes that currently there are fewer children accommodated on the subject site than the approval allows because of the requirements for outdoor open space playing area per child, as required by DOCS. As such there are currently only 44 children accommodated on the subject site. 2By way of background, the subject site is within a finegrained urban fabric precinct even though it is in the lower residential density areas of Waverley. There is a variety of styles and period of residential properties, including heritage items, although I note it is not currently within a conservation area, with also recent new modern architecture and extensions to homes. 3The subject sites are numbers 28 and 30 Bourke Street, and number 28 has a dual frontage to both Bourke and Isabella with rear access from Isabella. Number 30 is approximately 8 x 25 m whereas number 28 is 9 x 43 m in depth. At the rear of number 30 is what is known as number 37 Isabella and No 37 is a small lot of 150 sq m with a cottage erected on same. This cottage is to the south of the boundary of where the proposed platform play area is proposed. 4It is noted that in this area there are few lots that have dual street frontage and No 28 is one of the exceptions, and in this regard it is relatively unique. Most of the properties in this area of Isabella and Bourke Streets have been subdivided over the years such that in this block there is a dwelling on each frontage. 5The Court had the opportunity of inspecting the site and the adjoining properties, together with the parties and also the opportunity of hearing from a number of resident objectors to the proposal. Those that gave evidence to the Court include the owner of number 26 Bourke Street, immediately to the north of the subject kindergarten, and concern was expressed about the loss of trees. Also the proposal would impact in terms of noise in the area, and the outlook from their dwelling house would be impacted by the loss of trees. 6The owner of number 37 Isabella Street, which is at the rear of and to the south of the playground area, is concerned about the visual impact and overlooking to his courtyard. Concern was also expressed about overdevelopment of the site and that the proposal would be noisy by having children playing on an upper deck level, and that there have been no mitigation measures provided in the proposal. Concern was also expressed about the lack of parking for staff on-site that was the subject of a previous approval, and there was also concern about the process or the lack of consultation. 7The owner of number 31 Isabella Street also expressed concern about the noise and the visual impact of the proposal with the loss of trees on the subject site, and that the noise generated would be created in a canyon effect and would impact residents both in Isabella and Bourke Streets. 8The other concerns expressed are from the property on the opposite side of Isabella Street on the corner at number 18 Cuthbert Street. He expressed concern about the height of the deck and the overlooking of the deck into his rear courtyard area. As I stated, the Court had the opportunity of going into the subject premises to understand the concerns of those parties. 9In terms of the statutory planning framework the Waverley Local Environmental Plan 1996 is the relevant planning instrument. The general aims of the LEP include: to improve amenity, safety, environmental quality of built and natural environment, to provide economic and efficient use of land, to ensure development proceeds in an ecologically sustainable way and equitable manner, provide opportunity for members of the public to participate in the process, and provide an appropriate balance and distribution of land uses. As I stated, there are specific aims in respect of housing and this includes to improve the amenity of residential areas. 10The subject site is zoned 2A, 'Residential Low Density', and the aims are: to maintain and improve the amenity and existing characteristics of localities characterised by dwelling houses, and, to allow certain non-residential uses of low intensity which are compatible with the character and scale of low density housing. Developments that are permissible with consent include: childcare centres, hostels, bed and breakfast establishments and boarding houses, and dual occupancies. 11The Court was also taken to the council's provisions for the existing character elements. Queens Park contains a collection of predominantly nineteenth and twentieth century architectural styles, the village character of the area and the fact that the area is on the eastern edge of a park and the subdivision pattern within the area. In terms of landscaping for Queens Park area, vegetation is an element of paramount importance to the character of the area and the formal plantings of mature fig trees a most distinguishing feature in residential streets uniting themes, and the sense of enclosure created by avenues of mature trees in contrast to the openness of the parklands adjoining. 12The relevant provisions as cited by the council in the Development Control Plan Waverley 2010 , are contained in E4 'childcare centres'. This includes guidelines for applications being made to council and the number of children in childcare and the design of outdoor spaces that is that they should relate directly to the main indoor play areas, the shape of the play space, allow for constant supervision and the desirable orientation for outdoor spaces and the area to have fixed play items, et cetera. There are also provisions with respect to landscaping and that plantings may be used for shading and screening. 13The Court also had the benefit of expert evidence. For the applicant, evidence was given by Mr David Ford, arborist, Mr Visch, a BCA consultant, Mr Taylor, an acoustic engineer and Mr Anthony Betros, town planner. The Court also heard from Ms Donna Montgomery, council's arborist, and Ms Kerrie Gordon, consultant. 14As with many matters that come to this Court often details are worked through and during the proceedings there have been a number of conditions agreed to by the parties to resolve some of the issues originally identified. In the council's statement of facts and contentions, the issues raised were: contention 1 acoustic impacts, and the council still maintains that the background plus 5 dB(A) should be the standard as referenced in the development control plan. The second contention raised is visual privacy impacts on adjoining properties by the elevated playing area in the form of a proposed platform, and contention 3 is impacts upon trees. These latter two issues have been resolved by way of conditions and also by way of further details including obscure glazing and root mapping in conditions of approval. It is also noted that specific species of trees have been identified as replacement trees on the site and the arborists have agreed these to. 15The other issue includes compliance with the building code of Australia. This in fact is no longer in issue in terms of the class of the development or the class of the structure, and in this regard I accept the evidence of Mr Visch that is not controverted. 16The appeal before the Court now has a relatively narrow focus and this is the suitability of the outdoor play area in terms of council's contention 4B. This issue remains unresolved and is pressed by the council. Contention 4B - the suitability of the child play area, reads as follows: "the provision of the elevated platform compromises the amenity of the play area below, which will become an area of restricted height (limiting the provision of play equipment below) and an area which is permanently in shadow, creating a dark and very enclosed space. The area is further compromised by the location of the stairs to the platform and the support poles." 17The issue of inadequate information regarding staff has been resolved and the sub-issues (c) and (d) have also been resolved for tree maintenance. And indeed the applicant has agreed to a condition to the trimming of dead wood on a regular basis for the safety of the children. 18Referring back to the other contentions about overlooking and privacy concerns which, as I have stated, have been resolved or are no longer pressed, the Court had the opportunity of inspecting the sites adjoining the proposal, and in the Court's assessment I agree that the issue of overlooking and privacy from the use of the elevated platform is not of concern. In this regard for the property opposite in Cuthbert Street, there is very limited opportunity for overlooking. There will be trees that will filter any views to the courtyard area of that property and there is a reasonable separation distance. The ability to be able to see children playing on the upper platform is not an issue given the separation distance. Furthermore, the Court also accepts of the evidence of Mr Taylor that from an acoustic engineer, the proposed development complies with the council's requirements of 5 dB(A) above background noise levels. 19The owner of number 37 was concerned about the fact that he would at some stage in the future seek to do an upper storey extension to his existing property and that the proposed deck would be an unreasonable imposition in terms of the use of his property, as well as the current use of the courtyard at the rear of his property. Number 37 is a small allotment of land and there may be potential for alterations and additions to this property, but I am satisfied that the approval of the elevated children's play platform will not create an unreasonable impact or impediment to the current or future enjoyment and use of the property at number 37. I accept the condition proposed by Ms Gordon that there be obscure glazing for the western elevation for a distance of 1.5 m at a height of 1 m. The evidence is that this is appropriate in terms of the height of children that would be playing on the upper deck, that is the three to six year old age group. 20In terms of the concerns of the adjoining property owner to the north, that is at number 26, I am also satisfied the proposed development will not create unreasonable impacts. Replacement canopy trees provided in the conditions agreed to by the arborists, and I am satisfied that there will be a continuing contribution of the subject site, in particular the rear of number 28, to provide for amenity for the area in terms of canopy trees. The subject site is rather unique as submitted by Mr Jackson, in that it is the dual frontage and it does provide in many respects more trees than other properties can accommodate in this close urban fabric area. 21The issues raised by the property owner at number 31 Isabella are in terms of the lungs of the area. I am also satisfied that the proposed development with the platform deck at the rear of number 28 does allow for the continued contribution and enjoyment of trees to the area, and the proposal will not be visible from the property at number 31. 22The issue of noise. I am satisfied and accept the evidence of Mr Taylor, and indeed there was no contrary evidence submitted, that the proposed development with the 1.5 m obscure glazing, and the treatment of the soft fall area on the surface and with the underneath of the upper deck being acoustically treated for noise vibration from the children playing at ground level, is one that is an appropriate resolution such that the proposed development will not create impacts of noise that would warrant refusal of the application. 23The childcare centre in my assessment should co-exist harmoniously with the residential properties around, and the fact that the additional two children will be introduced to the premises over and above that already approved is not a matter that would warrant refusal. Indeed the noise level is within the boundaries required by council. 24There was evidence to the Court that a council approved childcare centre in Ebley Street in 2010 has a condition for the noise criteria of background plus 10 dB9A) and this is not an unusual standard to apply to child care centres. In particular as for the current development application where the use of the upper deck is for a limited period. In this casse 2 x 45 minute periods per day on Mondays to Fridays. I am satisfied on its merits the background plus 10 dB(A) is an acceptable standard in the circumstances where the use is relatively limited duration. 25In my overall assessment I am satisfied the proposal will not unreasonably impact on the residential amenity of the area. Childcare centres are a permissible use within the residential zone and I am of the view that there have been appropriate measures in the proposal to mitigate adverse noise impacts and other impacts including replacement canopy trees. 26The issue that the council says is one that warrants refusal of the application relates to the suitability of the platform play area. In the circumstances of this case based on the evidence, including my site inspection and with the benefit of the ' Best Practice Guidelines in early childhood physical environments' tendered on behalf of the applicant, for assessing the suitability of outdoor spaces and the organisation of spaces, I am satisfied that the proposal is one that warrants approval and there is no reason as to why the Court should not grant consent. 27The planning principles for the design of open space for small children is contained from p 16 and for the organisation of space it is clear that young children are not at a stage of development that makes them feel comfortable in large groups and a relatively small amount of time participating in larger groups. Therefore, within play rooms and playgrounds, space needs to be divided into a series of sub-areas, and that the shape of these spaces should suggest rather than impose particular uses, design elements can enhance the suggested uses by including clear definition like a sandpit or an elevated platform in the playground, or less definition with unencumbered corner space of a room or shade of a tree, et cetera. It also states "unless space is carefully organised it can promote negative behaviour in children. Open space without sub-areas generally results in children running around aimlessly and the lack of clearly defined spaces for setting up play activities invites unnecessary intrusion on children quietly playing, and there is a need for staff supervision..." 28In terms of accessibility, the section also notes that "controlling access to specific units in the playground is often desirable in order to reduce the potential for groups of children to be disrupted by the intrusion of large numbers, eg steps to an elevated platform or a gap in a raised garden bed around a specific space will make it possible for only one or two children to enter areas at once". It is noted also that there are comments in the guidelines about scale, that is, elements which are scaled to the size of children help to support their independence and autonomy, and well-scaled items will, for instance, allow children to master equipment. 29For the design of the space area, the platform itself is 2 m above the ground. In terms of the amenity of that space, I am satisfied that whilst it will be shaded for a large part of the time, at the same time the upper deck does provide for greater solar access than what is currently received on the ground of the subject site by the existence of the relatively new dwelling approved to the north of the playground area. 30I am satisfied that the amenity is appropriate. It is in scale with what is suggested in the guidelines. It will allow for some climbing equipment, although not the full range of same, but the space is not antipathetic to what the guidelines provide for, and in this regard it is not a reason that would warrant refusal of the development application. Clearly, when parents and carers are enrolling children, they inspect such facilities. If the space is not one that is to their liking and that may be a reason for a decision in choosing an alternative childcare centre, but in terms of the amenity for a play space area for children, I am satisfied that the proposal will provide appropriate amenity. 31There was one issue raised in terms of the objectors' letters about the fact that the proposed childcare centre does not provide for the parking that was required in the previous approval. The evidence to the Court is that the applicant has made a payment in lieu by way of a contribution as provided for in the earlier consent at that point in time. 32For the picking up and dropping off of children, this is always a matter that needs to be given close attention and in the plan of management now proposed in the conditions of consent this is specifically addressed. Also the use of the upper deck platform for the 2 x 45 minute play periods. The need to strictly control the activities is not considered necessary in my determination of the conditions but rather this should be left to the plan of management. There is a condition to be imposed, which requires that the noise generated is not to exceed the background plus 10 dB(A), which is consistent and in line with previous approvals granted by the council in this regard. 33Therefore on the basis of my assessment and having regard to all the evidence to the Court, including that of the objectors, I have carefully considered their concerns and there are no outstanding issues that would warrant refusal of the application before the Court. The proposal is satisfactory and I do not consider that it represents an overdevelopment of the site. The additional number of children, from 49 to 51, can be accommodated to comply with the revised open space requirements of the Department of Community Services. 34In terms of the conditions, these are matters that are generally now agreed to between the parties after a great deal of consultation. The conditions in particular that I refer to are those that go to the trees and ensuring the longevity of the trees in the location of the support pillars for the platform area, and also the need for the replacement trees. 35It is necessary for a condition requiring a restrictive covenant bearing in mind that the platform play area is for the use of the childcare centre that is licensed at number 30 Bourke Street. A s 88E instrument is agreed to by the applicant, to ensure that there is the appropriate burdens and benefits associated with the properties when number 30 is operating as a childcare centre requiring the platform to be removed from the rear of No 28 in the event that No 30 no longer is used as a childcare centre. 36In my overall merits assessment I am satisfied the development application for the additional two children, from 49 to 51 places, and for the erection of a platform play area for a maximum of nine children at any one time, should be approved. 37Accordingly, the formal orders of the Court are: (1)The appeal in respect of the property known as 28 and 30 Bourke Street, Queens Park, is upheld. (2)The development application submitted to Waverley Council and as amended for a raised play platform is determined by the granting of consent subject to the conditions in annexure A. (3)The exhibits are returned to the parties with the exception of exhibits 6 and M. J S Murrell Commissioner of the Court Annexure A