Trinity Early Learning Centre Pty Limited v Warringah Council [2011] NSWLEC 1281

Land and Environment Court New South Wales

Medium Neutral Citation: Trinity Early Learning Centre Pty Limited v Warringah Council [2011] NSWLEC 1281 Hearing dates: 6 July 2011 Decision date: 06 July 2011 Jurisdiction: Class 1 Before: Murrell C Decision: (1)The appeal in respect of the property known as 26 Plateau Road, Collaroy Plateau, is upheld. (2)The development application submitted to Warringah Council and as amended for a thirty-eight place child care centre is approved, subject to a deferred commencement condition and the other conditions contained in annexure A. (3)The exhibits are returned to the parties with the exception of 2, 5, C, K and L. Catchwords: DEVELOPMENT APPLICATION - increase in places for childcare centre - impact on streetscape and adjoining properties Legislation Cited: Environmental Planning and Assessment Act 1979 Warringah Local Environmental Plan Category: Principal judgment Parties: Trinity Early Learning Centre Pty Limited (Applicant)

Warringah Council (Respondent) Representation: Representation Mr G Green, Solicitor (Applicant)

Mr C Gough, Solicitor (Respondent) Solicitors Pikes Lawyers (Applicant)

Storey and Gough Lawyers (Respondent) File Number(s): 10993 of 2010

EXTEMPORE Judgment 1The applicant in these proceedings is seeking to increase the number of places at the childcare centre at 26 Plateau Road, Collaroy Plateau from twenty to thirty-eight. 2The proposal originally submitted to the council was for a total of forty-four children. It has subsequently been reduced in number such that the applicant now seeks thirty-eight children. 3It is noted from the site inspection that the Court carried out this morning, in the presence of the parties, that the car parking space for four staff members would be accommodated within the driveway of the childcare centre. The proposal includes a modification to the grassed area at the front of the building to provide a new play area for children in the front yard. 4By way of background, the Court heard from the owner of 21 Plateau Road, opposite the site. He expressed concern about an overdevelopment / over intensification of the site given the numbers of children now sought. He did not object to a childcare centre of twenty children but considers that there would be issues of parking and traffic associated with the intensification of the childcare centre to the numbers now sought by the applicant. He also advised the Court that there have been a number of accidents and the difficulties of traffic in the street and the fact that cars for the childcare centre would be parked within the street. He considers the increased activity would impact on the peace and quiet and amenity of the residential area. He advised the Court this is a busy through road for the Plateau district and the additional numbers of children should not be accommodated because the location of the site is not suitable for a childcare centre of this size. 5The Court took an extensive walk around the subject site to understand the relationship with not only adjoining dwellings but also the streetscape. The Court notes that all entry to the childcare centre is via David Road at the rear of the subject property. The eastern side of David Road generally provides backyards and rear access for the dwellings having frontage to Plateau Road. An exception is the strata title dual occupancy adjoining the subject site at number 24, where there has been a small dwelling erected with frontage to David Road. The plans that were provided to the Court showed courtyards for the dual occupancy at number 24 to be in the front for both facing the roads. 6The council provided a Statement of Facts and Contentions however the issues have been significantly narrowed by virtue of amendments to the plans. The Statement of Facts and Contentions also states the site is within the Narrabeen North locality area, and an important part of the council 's planning regime are the character statements and the desired future character as provided in the council's current controls. 7I note the Draft Local Environmental Plan for Warringah has been exhibited and in terms of s 79C of the Environmental Planning and Assessment Act, this is a relevant matter for my consideration. I also note that it would appear to be certain however as to whether gazettal is imminent I make no comment. 8The subject site under the draft LEP is zoned R2 low density residential and it has a number of objectives including: to provide for the housing needs of the community; to enable other land uses that provide facilities or services to meet the day to day needs of residents; and to ensure the low density of residential environments is characterised by landscaped settings, harmonious with the natural environment of Warringah. Childcare centres and educational establishments are permissible in the R2 zone. 9There are also aims and objectives to the plan including as highlighted by the respondent: To maintain, enhance, existing amenity and quality of life of the local community and ensure non-residential development does not have an adverse effect on the amenity of residential properties and public places. 10The consent authority must have regard to the objectives for development in the zone when determining a development application under the draft plan. 11The current planning regime is the Warringah Local Environmental Plan and as submitted on behalf of the respondent, this is rather unique in its layout in terms of gateway clauses and the fact that there is not a traditional land use table. 12Clause 12 has been presented as a gateway clause as before granting consent for development, the consent authority must be satisfied the development is consistent with relevant general principles of development control. And in this regard, the provisions in cl 39 are relevant. In addition, before granting consent for development classified as category two, as the subject development is, the consent authority must be satisfied that the development is consistent with the desired future character described in the locality statement. 13As noted above childcare centres are a category two development and existing category one and two development, means development that is classified or has lawfully been carried out on the subject site. 14In terms of cl 14A(2), this refers to developments for alterations and additions, expansion and intensification and subcl (4) refers to, despite 12(2)(b) and (3) the consent authority may consent to the carrying out of the development to which the clause applies only if the consent authority is satisfied the development is: (a) of minor environmental impact; (b) does not, to any significant extent, alter the bulk, size and scale of an existing building or existing land use and results in an improvement to the existing character and is confined to the lots. 15Division four in the principles that I referred to earlier are to be satisfied. It was pointed out by the respondent that in particular, cl 43 refers to noise and development is not to result in noise emission which would unreasonably diminish the amenity of the area. In this regard, the applicant proposed an acoustic fence on both the northern and southern boundary. The council considers the northern boundary fence should be reduced in height to 3.2 m as it would be more appropriate and fitting with the local character of the area or the desired future character and satisfy the provisions of cl 12. 16I should say at this point that the original development application to the Court today was for a 4 m northern boundary fence and with further acoustic calculations it is now proposed at 3.5 and the applicant is prepared to reduce the number of children to thirty-eight to achieve an appropriate noise level. And the Court has the benefit of Mr Tonnin's calculations in this regard. 17The respondent council on the other hand, considers that the fence should be reduced to 3.2 m and consequently this would allow for an increase in the number of children to thirty-seven. The applicant contends that there is no significant impact provided by a side fence of 3.5 m. 18The Court today has the benefit of discussions with council officers and the applicant and viewing the streetscape appearance of the total development. The applicant has proffered a condition whereby a palisade fence would be provided to David Road as opposed to the current dark green colourbond fence, which is most prominent and out of character in the streetscape. The applicant has also proposed that there be further amelioration in terms of the streetscape by landscaping provided forward of the palisade fencing on the applicant's land. That is the fence is to be set back 1m from the boundary to accommodate the landscaping on th e applicant's land. 19The Court has the opportunity, as I stated, of extensively walking up and down the street, to understand the impact of the proposed fence in the context of the local area. In particular, the Court notes that the adjoining property at number 28 has a garage erected approximately a metre or slightly less, from the common boundary. And the eave height of the brick wall of the garage has an RL of some 68.06 m to the eave and a wall height of approximately 2.74 m. It is noted that the RL of a 3.5 m fence would be 67.51. 20At the end of the day the parties in this matter have cooperated as to what may be in their opinion, appropriate ameliorative measures and what would allow for, in their respective opinions, the better outcome. 21The council contends that 300 mm lower than the applicant's amended height of 3.5 m would satisfy it in terms of the streetscape, public domain impacts. In my assessment, on balance, I consider that a fence of 3.5 m would not be out of character with the area. And I say this in the context of a 3.5 m high acoustic fence is generally one that would be considered with great caution but in the context of this streetscape, having regard to the built structures to the north of the wall; having regard to the fact that the wall is set back 1 m from the northern boundary and the proposed landscaping that can be provided within that setback area; also having regard to what I consider to be a significant improvement in the streetscape today to David Road of the proposed palisade fencing and landscaping, in the total context, I do not consider that the acoustic wall set back from David Road some 10 m at a height of 3.5 m, would be dominant or an adverse impact on the public domain and the streetscape of David Road or the adjoining property to the north. 22In my assessment, the proposal is satisfactory given the amendments now proposed and also the cooperation between the parties in terms of an appropriate resolution for the landscaping. I note that council requires landscaping to be contained within property boundaries, and generally that is always a preferred course of action. As such the applicant is prepared to setback the palisade fencing from David Road to allow the landscaping to be accommodated on private property, as opposed to the council verge. 23It was submitted on behalf of the respondent that a 4 m or even a 3.5 m high acoustic fence is unusual and clearly this approval of a 3.5 m fence should not be seen as a precedent. It must be assessed on its merits and in the context of the surrounding area, having regard to not only to the side boundary setback, but also the setback from David Road of some 10 m. This provides for some openness, which is not inconsistent with what one would consider to be appropriate for a residential area. 24I accept that childcare centres will not always look like a residential dwelling, however it is important that they be complementary and 'fit in' with the streetscape and not dominate or be excessively bulky. In this regard, the respondent took me to cl 66 of the LEP, " that buildings have a visual bulk and architectural scale, consistent with structures of adjoining properties and not visually dominate the street or surrounding spaces ." In this regard, I am satisfied that the proposed masonry acoustic fence to reflect the material of the building is appropriate and the wall will not dominate the street. Acoustic walls are necessary to allow child care centres to harmoniously coexist within a residential area by ameliorating noise to an acceptable standard. The Macquarie dictionary defines compatible as to "to harmoniously co-exist". I am satisfied that the proposed childcare centre with 38 places can harmoniously co-exist within this residential area. 25The question of compatibility of uses in the LEP there is a definition as follows: "complementary and compatible use means an activity (a) that maintains and where possible enhances the amenity of a locality; and is of a scale and intensity of the activity that predominantly serves the local residents (this is not an issue); and it is of a local intensity low impact. I am also satisfied the proposal is consistent with the LEP. 26The applicant is to provide further information on two matters to satisfy a 'deferred commencement consent'. The deferred commencement conditions relate to the drainage which will be a plan submitted to the council for storm water drainage and the other deferred commencement condition, to provide for certainty, is that the landscape plan and details of the fencing are to be provided to the satisfaction of the council prior to the consent being operational. 27The other condition in issue between the parties is the number of children. Based on my assessment above, I have determined the total number of children for the centre to be 38 consisting of 12 places in the nought-to-two range, and for the older age group this will be 26 providing for a total of thirty-eight places at the centre. 28The terms of the management plan are agreed between the parties. The management plan also contains a condition such that all access to the childcare centre, and importantly having regard to the busy street of Plateau Road, the centre is to be accessed only from David Road. This is to be provided in the plan of management as well as other matters that council requires to be addressed and the plan of management is to be referred to in the conditions such that it is to be complied and it is only to be varied with the consent of the council. 29In terms of the use of the outside play area, on the basis of the acoustic advice, I am satisfied that it is appropriate to allow children to play outside from 8 am and to allow the hours of operation to be from 8am to 5pm for the outside area and the overall hours of the centre to be 7.30 am to 6 pm Monday to Friday. I am satisfied with the measures proposed the residential amenity of the area will be reasonably maintained. 30The other conditions are as generally agreed to between the parties. 31In conclusion, in my assessment under s 79C, I am satisfied that the subject site is suitable for the proposed increase in children's numbers from twenty to thirtyeight places, and I am satisfied the proposal in terms of the planning regime is not antipathetic but rather consistent with the requirements and the desired future character of the area which contemplates that non-residential uses may be located within the subject area provided the impacts make for an appropriate fit. 32I refer to subcl (4), which is, " consent can only be granted if there is a minor environmental impact ." I am satisfied the proposal to increase the number of children the provision of the acoustic walls and the additional landscaping will be a minor environmental impact and will not significantly alter the bulk and scale. And I am also satisfied the proposed development will not significantly alter the bulk and scale of any existing building on the land. With reference to the provision: 'results in the improvement to the existing character of the locality in which it occurs', this is a very high hurdle in terms of it being a positive test. However, I am also satisfied the proposal with the ameliorative measures satisfies this. 33Accordingly based on my assessment above, the formal orders of the Court are: (1)The appeal in respect of the property known as 26 Plateau Road, Collaroy Plateau, is upheld. (2)The development application submitted to Warringah Council and as amended for a thirtyeight place child care centre is approved, subject to a deferred commencement and the other conditions contained in annexure A. (3)The exhibits are returned to the parties with the exception of 2, 5, C, K and L. J S Murrell Commissioner of the Court Annexure A - Conditions of Consent Plan of Management 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. Decision last updated: 29 September 2011