Selim v Strathfield Municipal Council [2017] NSWLEC 1308

Land and Environment Court New South Wales

Medium Neutral Citation: Selim v Strathfield Municipal Council [2017] NSWLEC 1308 Hearing dates: 13 June 2017 Date of orders: 02 August 2017 Decision date: 20 June 2017 Jurisdiction: Class 1 Before: Dickson, C Decision: Orders at [58] Catchwords: DEVELOPMENT APPEAL: childcare centre in existing building – resident objections – amendments to proposal – agreement of experts – directions Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy 55 - Remediation of Land Cases Cited: BGP Properties Pty Ltd v Macquarie City Council 138 LGERA 237; [2004] NSWLEC 399 Texts Cited: Nil Category: Principal judgment Parties: Sheriff Selim (Applicant) Amani Selim (Second Applicant)

Strathfield Municipal Council (Respondent) Representation: Counsel: M. Staunton (Applicant)

Solicitors: A. Seton, Marsdens Law Group (Respondent) File Number(s): 2016/ 313443 Publication restriction: No

JUDGMENT 1. COMMISSIONER: This appeal was lodged against the refusal by Strathfield Municipal Council of development application number 2016/110. The application sought approval for the redevelopment of 6 Torrington Road, Strathfield as a childcare centre. 2. In its original form the application sought approval for: 1. alterations and additions to an existing dwelling house and use as a child care centre to accommodate 44 children between the ages of 0-6 years with 8 staff, onsite parking for 10 vehicles (including one accessible car parking space), and associated landscaping 2. The proposed alterations and additions will consist of the following: 1. Demolition of the garage at the rear and provision of a paved car parking area incorporating stacked car spaces and at grade spaces; 2. Internal alterations to adjust room sizes and wall locations; 3. Provision of outdoor play areas within the front setback and along the eastern boundary of the site with equipment; 4. Retention of the existing brick wall and paling fence along the front and side boundaries and construction of a new brick fence with metal gate along the rear boundary; 5. Construction of a 1.8 metre high solid clear polycarbonate fence along the front northern boundary, a 2 - 2.8 metre high solid clear polycarbonate fence, with awning along the northern portion of the western side boundary, and a 1.9 - 2.1 metre high solid clear polycarbonate fence with awning along the northern portion of the eastern side boundary, with Murraya hedging; 6. Construction of a patio along the eastern boundary; and 7. 2 x signs to be erected facing Torrington Road and Woodward Avenue. 1. The child care centre is proposed to operate 7am to 6pm Monday to Friday. 2. The matter commenced on site. A considerable number of objections were lodged to the development application, and the objectors were given the opportunity to express their concerns. The residents' concerns can be summarised as follows: 1. Car Parking and Traffic * The proposal provides fewer spaces than is required by the Councils planning controls. * The use of stacked parking is unsafe. * The proposal will result in a loss of on street parking. * The proposed means of child drop off and pick up is unsafe. * Concern was expressed that the change of use would increase traffic generation and increase the delays experienced by residents in the surrounding local streets. In particular residents were concerned that this impact would occur at the peak time in the locality which is in proximity to a number of schools. 1. Noise generation and Acoustic Impact * Residents expressed concern about the impact on their residential amenity from the increased noise from the children's outdoor play areas and from vehicular movements for deliveries and the drop off and collection of children. * Particular concern was raised about the potential acoustic impact to the adjoining property and its upstairs bedrooms, as it is located above the proposed acoustic barrier. 1. Use of the site for a commercial use * Whilst the residents acknowledged the use of the site as a childcare centre is a permissible use on the site, it was their view that the scale of the development proposed, in particular the number of children, is of a commercial scale. * Submissions were provided to the Court from the residents that, in their view, there was little demand for additional childcare places as the locality was well serviced by existing centres. One resident noted that the Australian Childcare Alliance report listed Strathfield as an area of potential oversupply, with only 77% of places occupied. * Residents expressed concern about the scale of the development, its operating hours, the requirement for suppliers to drop off goods and make deliveries, and waste collection will change the residential character of the street. 1. Proposal is incompatible with the residential character of the locality * The residents expressed clear concerns that in their view the development would detract from the appeal of the locality and, in their opinion, would result in a lowering of property values. * Residents expressed concern that the development is not appropriate given the heritage theme of the street; * The residents were concerned that the acoustic barriers proposed by the application were inconsistent with the streetscape, and would be over bearing and inappropriate in a residential neighbourhood. * Concern was also expressed about the signage of the business in the residential street. 1. Noncompliance with Council's planning controls. * The residents identified that the proposal was non-compliant with the planning controls governing setbacks, site width, parking, and the maximum number of children. 1. Potential contamination * Given the age of the existing home, residents expressed concern that the property may contain contaminants in the fabric of the building or the soil. * Notes of that oral evidence, as recorded and agreed by the parties' solicitors, were later tendered into evidence. 1. The planning assessment report (tendered as part of Exhibit 4) prepared for the Council meeting of 20 September 2016, notes: The proposal received (a) significant number of submissions in support of the proposal citing the following reasons: • Retention of a significant building, including no alterations to the façade or external appearance of the dwelling. Whist not heritage listed it is representative of the early era of Strathfield development; • The proposal compliments the street and the streetscape; • Provision of a needed service to the community; • Embellishes landscaping to the curtilage of the dwelling; • Is well located away from noise sources such as roads; and • The proposal includes acoustic measures such as fencing and acoustic absorption panels to minimise the impact.