Land and Environment Court New South Wales Medium Neutral Citation: Goa v Hurstville City Council [2015] NSWLEC 1162 Hearing dates: 4,5 May 2015, conditions 18 May 2015 Decision date: 19 May 2015 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. DA2014/0125 for the demolition of an existing dwelling and the construction of a purpose-built child care centre at 22 Cambridge Street Penshurst is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, G and K. Catchwords: DEVELOPMENT APPLICATION: demolition of an existing dwelling and the construction of a child care centre – insufficient evidence on overshadowing – resident objections Legislation Cited: Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 2012 Category: Principal judgment Parties: Sarah Gao (Applicant) Hurstville City Council (Respondent) Representation: Counsel: Mr G McKee, solicitor (Applicant) Ms V McGrath, solicitor (Respondent) Solicitors: McKees Legal Solutions (Applicant) Norton Rose Fullbright Australia (Respondent) File Number(s): 11042 of 2014 Publication restriction: No Judgment 1. COMMISSIONER: This appeal relates to the refusal by Hurstville City Council of DA2014/0125 for the demolition of an existing dwelling and the construction of a child care centre for 60 children and 9 staff at 22 Cambridge Street Penshurst (the site). The child care centre is to operate between 7am and 6.30pm Monday to Friday. 2. The council's Statement of Facts and Contentions maintained that the application should be refused because the proposed development: * will have an adverse impact on the streetscape, particularly given the absence of details of building materials, * provides insufficient information on solar access to adjoining properties, acoustic fencing, landscaping, a plan of management and basement excavation, and * provides insufficient information on toilet facilities. 1. A number of residents provided evidence on the site inspection and agreed with the concerns of council, as well as the following additional concerns: * excessive number of children, * unacceptable increase in traffic in the area and impact on existing road network, * noise from children and supervising staff, * sufficient existing child care centres in the area, and * stormwater disposal and potential for flooding. The site 1. The site is Lot 101` in DP 712124. It has a 20.115 m frontage to Cambridge Street and an area of 1387 sq m. Existing development on the site consists of a dwelling house, tennis court and two small outbuildings. 2. The area is residential in character with the majority of development being single residential dwellings although a townhouse and villa development adjoins the site at the rear. Relevant planning controls 1. The site is within Zone R2 – Low Density under Hurstville Local Environmental Plan 2012 (LEP 2012). A child care centre is permissible with consent in this zone. Clause 2.3(2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 1. The R2 zone objectives are; • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area. • To ensure that a high level of residential amenity is achieved and maintained. • To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment. • To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity. 1. Hurstville Development Control Plan No1 (DCP 1) applies. Section 5.4 applies specifically to Child Care Centres. Section 5.4.5.1 provides requirements for Locational Criteria, s 5.4.8 provides requirements for Size of Centres and Child Age Groups, s 5.4.9 provides requirements for Form and Appearance, s 5.4.9.4 provides requirements for Solar Design and Energy Efficiency and s 5.4.11 provides requirements for Landscaping. The evidence, the application and the contentions in dispute 1. A joint expert town planning report was prepared by Mr Andrew Minto, for the applicant and Mr Jeffrey Mead, for the council (Exhibit 3). The joint expert report identified a large number of changes to the application to address the contentions identified by the council. 2. The applicant also provided the following supplementary reports: * Mr Craig McLaren – traffic and parking (Exhibit C), and * Mr Nick Koikas – acoustics (Exhibit B). 1. Leave was granted on 5 March 2015 for the applicant to rely on amended plans and during the hearing on 5 May 2015, leave was granted to rely on further amended plans (Exhibit G). These plans included the changes identified in the joint report of Mr Minto and Mr Mead. Landscaping plans that reflected the further amended plans were also tendered (Exhibit K) as was a further acoustic report from Mr Koikas (Exhibit H). 2. Mr McLaren and Mr Koikas were not required for cross examination. 3. Notwithstanding the amended plans and the additional expert evidence, the council maintained that insufficient evidence was still provided by the applicant to conclude that any overshadowing impacts would not adversely affect the owner of the adjoining property at 20 Cambridge Street. 4. The contentions relating to insufficient evidence on the appearance of the development in the streetscape, excessive number of children, noise, acoustic fencing, landscaping, plan of management, basement excavation, and inadequate toilet facilities were not pressed by the council following the submission of further details and/or the inclusion of conditions of consent. Overshadowing/loss of sunlight 1. Section 5.4.9.4 of DCP 1 states: 5.4.9.4 Solar Design and Energy Efficiency The design of buildings should minimise the overshadowing of neighbouring private open spaces and/or windows to habitable rooms. Where a new building is being constructed for a child care centre or alterations and additions proposed, the building must not unreasonably obscure sunlight to the windows of habitable rooms, solar collectors or rear yards of adjoining properties. Design should allow at least 3 hours of sunlight between 9am and 3pm midwinter (21 June) to adjoining private open space. Where a new building is being constructed for a child care centre or alterations and additions proposed, shadow diagrams must be prepared and submitted showing the impact of a proposal on adjoining sites. Shadow diagrams need to illustrate the shadows cast at 9am, 12 noon and 3pm on 21 June, with particular emphasis on the impact on adjoining habitable rooms. Such diagrams must be prepared by an architect or surveyor and be based on an accurate survey of the site and adjoining development. Where adjoining development relies on solar access for heating or cooling systems, that access should be preserved. 1. Mr Minto and Mr Mead agree that the shadow diagrams did not identify the "the windows of habitable rooms" in the adjoining property although they agree that the shadows cast by the proposed acoustic fencing are likely to be acceptable. 2. Section 5.4.9.4 states that new buildings "should minimise the overshadowing of neighbouring private open spaces and/or windows to habitable rooms" and "must not unreasonably obscure sunlight to the windows of habitable rooms, solar collectors or rear yards of adjoining properties". There was no disagreement that the shadow diagrams provide an accurate depiction of the shadows cast by the proposed building and acoustic fencing, that consists of a 1.8m high solid fence with a transparent barrier erected at 45 deg to a maximum height of 2.4m. The most recent shadow diagrams provided the shadows cast by this fence. 3. I agree with the conclusions of Mr Minto and Mr Mead that any overshadowing is likely to be acceptable. The test in s 5.4.9.4 is not one of no overshadowing on adjoining properties but that any overshadowing is minimised and not unreasonable. In this case, and even if the widows in the adjoining property were associated with habitable rooms, the orientation and setbacks of the adjoining dwelling and proposed building and fencing clearly limit the availability of sunlight to these windows, given any reasonable redevelopment of the site. 4. The lots run generally in an east-west orientation so the north facing windows of the dwelling at 20 Cambridge Street are always likely to be deprived of large amounts of sunlight given that a building, of some form, is likely to be located directly opposite and to the north. As the proposed building satisfies the front, rear and side setback requirement in s 5.4.9.2 and the height requirement in s 5.4.9.1, some overshadowing of the windows is inevitable. With compliance with the setback and height requirements, that directly relate to overshadowing of the adjoining property, I am satisfied that the proposed development minimises the overshadowing of windows to habitable rooms and does not unreasonably obscure sunlight to the windows of habitable rooms. 5. With the benefit of the shadow diagrams, I am also satisfied that the proposed development, including the proposed acoustic fencing, minimises the overshadowing of neighbouring private open spaces and not unreasonably obscures sunlight to the rear yards of adjoining properties. Also based on the shadow diagrams, I accept that the proposed development allows at least 3 hours of sunlight between 9am and 3pm midwinter (21 June) to the adjoining private open space of 22 Cambridge Street. 6. For these reasons, overshadowing from the proposed development would not be a reason to refuse the application. The resident concerns Excessive number of children 1. Section 5.4.8 addresses Size of Centres and Child Age Groups. The objectives are: Ensure that Child Care Centres are of a manageable size of overall number of children and minimize adverse impacts on the amenity of the surrounding residential areas. To ensure that the number of spaces for under 2 year olds reflects the demographics of the local government area. 1. The requirements for capacity are: The maximum number of children to be accommodated in a child care centre within Residential zones are as follows: o R2 Low Density Residential: 40 children. Council will consider a variation to the controls under this Clause for Child Care Centres in the R2 zone where the site is located adjacent to a retail/commercial area or other non-residential zoning. 1. Mr Minto and Mr Mead accept that the most important objective relates to the ability to minimise impacts on neighbouring properties. Given that there are no acoustic issues when the recommendations of Mr Koikas are adopted, including limiting the maximum number of children playing outside to 30, they agree that the 60 children proposed in the application is acceptable. As a basement car park is provided, the streetscape impacts that result from the car parking off Cambridge Street are also acceptable as the amount of visible parking would be consistent with a smaller child care centre. Consequently, there is satisfaction with the objective relating to the number of children and the adverse impacts on the amenity of the surrounding residential areas notwithstanding that the proposed number of children exceed the number specified in s 5.4.8. 2. I agree with the conclusions of Mr Minto and Mr Mead that overshadowing of the adjoining property would not be a reason to refuse the development application. Traffic/parking 1. The amount of off street parking satisfies the requirements in s 5.4.10.1 so inadequate off street parking cannot reasonably be a reason to refuse the application. 2. Section 5.4.10.2 requires "due consideration to the impacts of the development on traffic and safety". This consideration is addressed in Mr McLaren's report where he states (at p 10): The level of traffic generated by the proposed child care centre will be accommodated by the surrounding road and land use environments with minimal impact when due regard is given to residential amenity, road safety and traffic flow efficiency considerations. 1. In the absence of any expert evidence to contradict Mr McLaren's conclusions, I accept his conclusions and find that increased traffic and inadequate parking are not reasons that would support the refusal of the application. Noise 1. Section 5.4.14.2 requires: Council requires a suitably qualified acoustic consultant to undertake an acoustic assessment, which is to include recommended noise attenuation measures. 1. The report of Mr Koikas states (at p 28): …based on the acoustic recommendations provided in this report being implemented in the building design and construction, Koikas Acoustics certifies that the proposed Child Care Centre development at No. 22 Cambridge Street, Penshurst will satisfy the nominated criteria. 1. The recommendations largely provide for: * acoustic fencing of varied height and construction around parts of the site perimeter, * a limit of 30 children playing outdoors, and * supervision of outdoor activities. 1. In the absence of any expert evidence to contradict Mr Koikas's conclusions, I accept his conclusions and find that noise generated by the proposed development is not a reason that would support the refusal of the application. Sufficient existing child care centres in the area 1. Section 5.4.6 provides requirements for Cumulative Impacts from Centres within Residential Areas. The objective is: To ensure that potential cumulative impacts on residential amenity including traffic and parking, 1. The controls in this section provide diagrams that identify the suitable location of a child care centre when there are multiple child care centres within an area. In my understanding, the location of the proposed development satisfies the locational requirements in the diagrams in s 5.4.6. It has also been found that there are no residential amenity issues that would warrant the refusal of the application. 2. For these reasons, the allegation of cumulative impact cannot be supported. Stormwater disposal 1. It was suggested by the residents that no easement existed to dispose of stormwater from the site however this was not accepted by the council or the applicant. The council also sought a Deferred Commencement condition that requires the person with the benefit of the consent to obtain a separate development consent for all drainage works to be carried out within the existing Easement to Drain Water (DP 841133), including the written consent of each of the owners of the property burdened by the easement for any work in the easement. 2. The Deferred Commencement requires a CCTV survey of the full length of the pipeline within the easement that includes a clear view of the pipe connection to Sydney Water's drainage system and Certification by a Registered Surveyor that the pipeline and accompanying pits are fully contained within the Easement to Drain Water. The applicant accepts the need for the CCTV survey and Certification but submits that the requirements should be an operational condition, given the undisputed agreement on the existence of the easement and the terms of the existing easement. 3. I agree with the applicant and accept that an operational condition relating to the disposal of stormwater is sufficient to address this concern. Orders 1. There being no reason that warrant the refusal of the application, the orders of the Court are: 1. The appeal is upheld. 2. DA2014/0125 for the demolition of an existing dwelling and the construction of a purpose-built child care centre at 22 Cambridge Street Penshurst is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, G and K. ___________ G T Brown Commissioner of the Court 11042 of 2014 (C) Brown (136 KB, pdf) 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: 19 May 2015