Land and Environment Court New South Wales Medium Neutral Citation: Dram Pty Ltd v Sutherland Shire Council [2017] NSWLEC 1445 Hearing dates: 3 July 2017 Date of orders: 22 August 2017 Decision date: 22 August 2017 Jurisdiction: Class 1 Before: Brown C and Bish C Decision: 1. The appeal is dismissed. 2. Development Application No. 151382 for the demolition of all existing improvements and the construction of a new childcare centre for 141 children at 1-5 View Street, Miranda is refused. 3. The exhibits are returned with the exception of exhibits 1 and A. Catchwords: DEVELOPMENT APPLICATION: demolition of all existing residential buildings and the construction of a two storey child care centre building for 141 children – inconsistency with zone objectives and character of the area - traffic and parking impacts – impact on residential amenity - inappropriate setting for a large scale child care centre – resident concerns Legislation Cited: Draft State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 Draft Sutherland Shire Development Control Plan 2015 Environmental Planning and Assessment Act 1979 Sutherland Shire Development Control Plan 2005 Sutherland Shire Local Environmental Plan 2015 Category: Principal judgment Parties: Dram Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: Mr P Clay SC (Applicant) Mr M Staunton (Respondent) Solicitors: Marsdens Law Group (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2017/00079655 Publication restriction: No Judgment 1. This appeal relates to the refusal of Development Application No. 151382 for the demolition of all existing improvements and the construction of a new childcare centre for 141 children at 1-5 View Street, Miranda (the site). Specifically, the application proposes: * a ground floor area comprising six playrooms for 97 children, reception and meeting rooms, toilet facilities, laundry and stair and lift access to the first floor, * a first floor comprising two additional playrooms and with a capacity for a further 44 children, * a large outdoor terrace provided to the east and west from each respective playroom at first floor which is enclosed by a masonry frame, glazing and timber sliding screens, * outdoor play areas are proposed to the north, south, east and west from each playroom with a large internalised outdoor play area provided in the centre of the building, * a basement car park for 34 car parking spaces with entry provided on the eastern boundary from Wandella Road with a separate vehicular exit to View Street from the basement, * the centre will provide child care facilities for: 23 x 15 months to 2 year olds; 30 x 2 to 3 year olds; and 88 x 4 to 5 year olds, * a maximum of 27 staff (including one director, one cook and two floating staff and a mixture of full time and part time staff), and * operating hours from 7am to 6pm Monday to Friday. 1. The council filed a Statement of Facts and Contentions that identified the following contentions: * inconsistency with R2 zone objectives and local character, * traffic and parking impacts, * impact on residential amenity by way of noise, traffic and acoustic fences, * inappropriate setting for a large scale child care centre, and * public interest 1. Following the submission of further plans and additional information, the council accepted that a number of the sub-issues in each of the contentions have been satisfactorily addressed. Those matters still in dispute are identified and addressed later in the judgment. 2. A number of residents provided evidence in the site inspection and endorsed the contentions raised by the council. The site 1. The site consists of Lots 5, 6 and 7 in DP 26332 and is located on the corner of View Street and Wandella Road, Miranda. It is rectangular in shape with a southern boundary along View Street measuring 51.82m, an eastern boundary along Wandella Road measuring 29.26m, a northern boundary measuring 54.75m and a western boundary measuring 32.2m giving an area of 1765.9sq m. The site is relatively flat, with a slight fall towards the north east. 2. A single storey detached brick dwelling is currently located on each lot, together with ancillary structures. The site also contains several trees, along the boundary. 3. The site is adjoined to the north and west by single storey detached houses. The locality is characterised by a variety of residential development, including semi-detached and detached dwellings, a shopping centre (Westfield 300m to the south) and an aged care facility to the east along Animbo Street (which connects to View Street adjacent to the site). Relevant planning controls 1. The site is zoned R2 Low Density Residential under Sutherland Shire Local Environmental Plan 2015 (LEP 2015). A childcare centre is a permissible use in this zone, with consent. Clause 2.3(2) requires that the Court "must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The R2 zone objectives are: • to provide for the housing needs of the community within a low density residential development • to enable other land uses that provide facilities or services to meet the day-to-day needs of residents • to protect and enhance existing vegetation and other natural features and encourage appropriate bushland restoration particularly along which lines and in areas of high visual significance • to allow the subdivision of land only if the size of the resulting lots retains natural features and allows a sufficient area for development line to ensure the single dwelling character, landscape character, neighbourhood character and streetscapes of the zone are maintained over time and not diminished by the cumulative impact of dwelt multi-dwelling housing or seniors housing. 1. Clause 4.3 provides that the maximum height of buildings on the site is shown on the Height of Buildings Map where the maximum height is 8.5m. It was agreed that the proposed building satisfies the maximum height standard. 2. Clause 4.4 provides that the maximum floor space ratio (FSR) for buildings on the site is shown on the Floor Space Ratio Map where the maximum FSR is 0.55:1. It was agreed that the FSR of the proposed development is 0.49:1. 3. Clause 6.14 addresses landscaped areas in certain zones, cl 6.15 addresses energy efficiency and sustainable building techniques for commercial and industrial developments, cl 6.16 addresses urban design - general and cl 6.18 addresses urban design for non-residential development in residential areas. 4. Sutherland Shire Development Control Plan 2005 (DCP 2005) currently applies as it has not been rescinded although the council has resolved that all applications will be assessed under Draft Sutherland Shire Development Control Plan 2015 (Draft DCP 2015) until formally adopted. 5. Draft State Environmental Planning Policy (Educational Establishments and Child Care Facilities 2017 (Draft SEPP) is relevant having been advertised however no evidence was provided on any future date that Draft SEPP 2017 might be adopted or in what form. Consequently, no weight should be given to this document. Character/consistency with zone objectives The evidence 1. Expert town planning evidence was provided by Ms Deborah Laidlaw for the council and Mr Jeffrey Mead, for the applicant. The points of disagreement between the experts principally relates to whether the development satisfies the provisions of the R2 zone objectives including whether the facades incorporate an acceptable level of articulation/variation in alignment and massing, as well as the urban design matters addressed in cll 6.16 and 6.18. 2. Mr Mead states that the objectives of the zone do not prescribe that built form must be in the form of single dwellings or even a built form that reflects that typology. The fifth objective of the zone is a reference to "multi dwelling or seniors housing" and does not encompass child care development. Notwithstanding this, the proposal should respect the character of the locality. In this regard, the proposal has been designed to appear as a two storey building broken into elements that are compatible with the pattern of development in the locality. As viewed from Wandella Road, the proposal will be of similar scale and treatment to what could be expected of a residential dwelling, set behind landscaping and front fencing. 3. To View Street, the proposal is broken into two dominant "wings" each of which take on similar proportions to contemporary dwellings or dual occupancy developments that can be found in View Street and the surrounding locality. The wings are connected by the core and circulation space that adopts an entirely different architectural language, material and colour palette. While it is in the same horizontal plane as the wings, these variations result in the element appearing as a third dominant element, resulting in three dominant building elements across three original residential allotments. 4. Mr Mead notes that the R2 zone permits medium density housing to a height of two storeys and townhouse development arranged in a row across multiple allotments, as is seen in many recent townhouse development in the R2 zone in Sutherland Shire. This would be an alternative built form that would also not provide breaks between building elements. Mr Mead suggests that the unifying elements of the proposal with the local character are the inclusion of basement parking which means that the ground level is largely unaffected by parking structures or hardstand areas, provision of landscaped front setbacks to each frontage, two storey height, use of a subtle colour and material palette drawing cues from the mix of materials and colours used on surrounding buildings and provision of a strong sense of address to the street through design of fenestration on both street fronting elevations. 5. Mr Mead suggests that the "central" element of the View Street facade could be made more recessive through its architecture and materiality. The revision has potential to improve the streetscape outcome through provision of a greater setback to the upper level gallery, rationalisation of solid elements by relocation of the stair, and through glazed treatment of the façade. This element could be made to appear as a light-weight connection between two contemporary two storey dwellings 6. In relation to the View Street setback, Mr Mead states that the table in cl 2.2 of Chapter 1 Draft DCP 2015 states that "the 7.5m street setback applies to the primary (narrowest) street frontage". Clause 2.2.6 reiterates this by stating that "in the case of corner properties, the 7.5m setback applies to the narrowest street frontage. In the case of the secondary street frontage, a minimum 3m setback applies". The proposal, including the stair and blade projections, therefore easily complies with the applicable 7m control 7. Further, cl 2.2.3 states that "a variation to the established street setback may be approved where the setback proposed does not have adverse consequences for the landscape quality of the streetscape, and the proposed variation does not have adverse impacts on adjacent properties in terms of solar access, visual intrusion, view loss or privacy. 8. Mr Mead states that the proposal meets these criteria for variation even if the control were to be strictly applied. Further, cl 2.2.4 allows encroachments into a setback zone to a 6m setback for 1/3 of the frontage. Mr Mead notes that it is clear from the Draft DCP 2015 controls that a degree of flexibility is to be applied to front setbacks, beyond simply requiring that a 7.5m setback be applied to an entire frontage. With the exception of the proposed stair (3.4m) and two small box seats at the upper level (9m combined), which occupies 8% of the entire facade (in lineal rather than volumetric terms), and a series of blade projections which are intended to articulate the facade and break the horizontal mass, the proposal is setback 7m from the frontage. 9. Ms Laidlaw comes to a different conclusion. She describes the appearance from from View Street and the corner of View Street with Wandella Road as reading as a "single monolithic structure" and not as a building comprising two separate wings. In fact, save for the stairwell (which extends slightly closer to the street), the proposed building is all in the same setback/alignment with no discernible attempt to arrange the building volume into separate 'wings'. She notes that there is a fair amount of texture to the elevations, including use of different materials and architectural detail; however this is not a substitute for genuine articulation and appropriate massing of built form. 10. Ms Laidlaw further states that although the development is compliant with the FSR standard, the overall bulk and scale is significantly greater than that which would be anticipated for a development at the nominated FSR because the masonry framed structures that surround the first floor play areas and support the shade structures covering same are not included as FSR, despite the fact the frame is the same height as the upper level wall of the building and infilled by a full height louvered screen as well as the 1.5m/1.6m opaque acoustic wall. 11. Ms Laidlaw calculates that the gross floor area of 867 9 sqm (or an FSR of 0 49 1) rises by some 36% to 1188 8 sqm (or an FSR of 0 67 1) taking these structures into account. These elements add generally to the apparent bulk of the building and significantly increase its apparent width/depth. Similarly, the upper floor setback to the northern boundary is dimensioned as 7.635 m on the architectural plans, that first floor setback will actually appear to the neighbour on that side as 6 m, noting the substantial nature of the masonry framed and infilled structure 12. Ms Laidlaw concludes by stating that the apparent bulk of the building is so significant and in fact greater than might be anticipated under the allowed FSR and coupled with the failure to achieve effective articulation that the design results in a built form that is out of character with the streetscape and local residential character, in a manner inconsistent with the objective of the R2 zone 'to ensure the single dwelling character, landscaped character, neighbourhood character and streetscapes are maintained overtime ". 13. In relation to the View Street setback, Ms Laidlaw states that the reduced front setback at 7 m is measured to the wall of the building and not the fin walls, bay features or the stairwell, all of which encroach closer to the street. This encroachment further compounds the impact of the proposed building, albeit that the front setback variation of 500mm over most of the frontage is numerically small if taken at any one point. Factually, it occurs over most of the length of a building that is some 45 m long - including the central part of this elevation where the variation is significant at 5 5 m in lieu of the 7.5 m required. 14. Ms Laidlaw maintains that the pattern of development in the street which includes buildings which appear to mostly comply with a 7.5 metre setback, and where there is evidently an on-going trend for redevelopment, there is no compelling reason as to why the proposal should not comply with the applicable setback provisions. It would indeed be contrary to the public interest to approve development in a manner inconsistent with Draft DCP 2015, without adequate justification by way of the site circumstances or design of the development. Findings 1. There are a number of areas in the planning controls that raise the question of character, beyond the development standards for height and FSR and the requirements for matters such as setbacks and landscaping in DCP 2005 and Draft DCP 2015. Clauses 6.16 and 6.18 provide additional assessment criteria for development, in general (cl 6.16) and specifically for non-residential development in residential areas (cl 6.18). These clauses require the Court to "consider" the various matters in the clauses in deciding whether to grant consent. While identified as a specific contention, we note that there is no operative clause that requires consideration, or any other assessment process, of the zone objectives in the way that, for example, applies to cll 6.16 and 6.18. 2. Clause 6.16 relevantly states: 6.16 Urban design—general (1) In deciding whether to grant development consent for any development, the consent authority must consider the following: (a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development, (b) the extent to which any buildings are designed and will be constructed to: (i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and (ii) contribute to the desired future character of the locality concerned, (c) the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain, (d) the extent to which the natural environment will be retained or enhanced by the development, (e) the extent to which the development will respond to the natural landform of the site of the development, (f) the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas, (g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles. 1. Clause 6.18 states: 6.18 Urban design—non-residential development in residential areas (1) This clause applies to development, other than development for the purposes of residential accommodation and places of public worship, on land in the following zones: (a) Zone R2 Low Density Residential, (b) Zone R3 Medium Density residential, (c) Zone R4 High Density Residential, (d) Zone E3 Environmental Management, (e) Zone E4 Environmental Living. (2) Development consent must not be granted for development to which this clause applies unless the consent authority has considered the following: (a) the extent to which any proposed non-residential accommodation and its design will integrate into the locality, (b) the extent to which any such accommodation will respond to the local character, and relate to the scale, streetscape, setbacks and use of materials of other accommodation in the locality, (c) the extent to which the residential amenity of the locality will be protected from detrimental traffic-related impacts and noise associated with the development. 1. In considering the expert evidence and with the benefit of the site inspection, we agree with the conclusions of Ms Laidlaw for a number of reasons. First, we are not satisfied that the proposed form of the building has been "designed and will be constructed to strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes" (cl 6.16(1)(b)(i)) and does not "contribute to the desired future character of the locality concerned" (cl 6.16(1)(b)(ii)). Even though the proposed development satisfies the FSR standard in cl 4.4, we accept the evidence of Ms Laidlaw that the masonry framed structures that surround the first floor play areas and supports the shade structures, adds considerably to the bulk and massing of the building in the streetscape to the point where it would unacceptably impact on the predominantly residential character of the area. In coming to this conclusion we accept that the considerations required by cl 6.16 are a different consideration to that in cl 4.4 in that compliance with the FSR standard does not restrain the Court in finding that the considerations in cl 6.16 could lead to the refusal of the application. 2. Second, we also agree that the design does not respond to the residential character of the area. While not necessarily accepting Ms Laidlaw's evidence that it could be described as "monolithic" we equally do not accept Mr Mead's description that the building "is broken into two dominant wings each of which take on similar proportion to contemporary dwelling or dual occupancy". We are more inclined to describe the building as being seen as a large single building form with only the stairway providing any relief to the long elevation to View Street. We do not accept that the area described by Mr Mead as separating the two wings of the building achieves such an effect given that it is only indented by some 1.5m for a distance of 12m over an overall length of some 42m. The prominent staircase, which extends closer to the street than any other feature of the building, is a stark and overt feature in the streetscape. The building has little similarity with any residential development in the area and does not "respond to the local character, and relate to the scale, streetscape, setbacks and use of materials of other accommodation in the locality" (cl 6.18(1)(b)). 3. The negative aspects of the proposed building, addressed in the preceding paragraphs, are sufficient in their severity to warrant the refusal of the application however we will comment briefly on the other matters in dispute. Traffic/parking 1. Expert traffic and parking evidence was provided by Mr David McTiernan for the council and Mr Martin Mallia for the applicant. Following the joint conferencing, Mr McTiernan and Mr Mallia agreed on the following: * the proposed 35 car spaces satisfy the requirements in Draft DCP 2015, * the staff/visitor ratio is acceptable to the council, * the use of "No Stopping" or short term parking in Wandella Street and View Street would impact on traffic and parking in these streets however the impact is not unacceptable, * the experts cannot provide advice on the recommended ameliorative traffic measures, such as "No Stopping" beyond reference to the RMS delegations to the Sutherland Traffic and Traffic Safety Committee. 1. Beyond the need to refer ameliorative traffic measures to the ameliorative traffic measures, the experts raised no reasons why the application should be refused on traffic and parking grounds. Amenity impacts The evidence 1. Mr Mead states that the span of proposed acoustic fencing between the rear alignment of 55 Wandella Street and the western boundary is acceptable. Given that the 900mm extension angles away from the boundary and will be transparent (Perspex or similar) against a backdrop of vegetation, and nearest part of the building 6m behind, Mr Mead concludes that it will not be visually dominant. The fence is to the south of the adjoining property and therefore will not cause any shadow impacts (and would be unlikely to in any case as it will be constructed with Perspex or similar panels). 2. Further, acoustic fencing is not an unusual requirement for child care centres in residential areas and many examples of it can be found in the R2 zone in the Sutherland Shire. The Draft SEPP and its accompanying Draft Child Care Planning Guideline [at 31] contemplates that acoustic fencing to residential boundaries will be provided in all cases up to 2m in height and presumably to greater heights to meet the acoustic criteria set in cl 31(2). In this case, the height of fencing for this proposal is generally kept to a maximum of 2.1m. 3. The small span of fencing that remains in disagreement is a small part of the overall proposal and will not be a dominant feature that creates a visual bulk or character issue that warrants refusal of the application. 4. Ms Laidlaw states that, as with other aspects of the proposal, the impact of the required acoustic barrier needs to be viewed in conjunction with the cumulative impact of the overall development, including the significant length and bulk of the proposed building. The rear yard of 55 Wandella Street will be significantly impacted by the proposed child care centre building, as well as a boundary fence that reaches a height of 2 7 m, albeit with the top 900mm angled away from the boundary Such fences may be characteristic of child care centres, however the test under the R2 zone and cll 6.16 and 6.18 is for development to be compatible with a "single dwelling" character. Fences of this height and design are not consistent with single dwelling residential character anticipated for the R2 zone. The design of this fence will also preclude the planting of taller trees which might otherwise assist in softening the impact both of the fence and of the proposed building behind Findings 1. The amenity impacts focused on the proposed acoustic fencing that is required to satisfy the noise goals for the adjoining properties, particularly 55 Wandella Street. The proposed acoustic fencing is 1.8m in height at the boundary with a 45 degree angled extension into the site, providing an additional 900mm in height. The parties relied on the Acoustic Assessment prepared by Renzo Tonin & Associates, dated 29 July 1016 (Exhibit 2, p112). 2. The key findings of the Acoustic Assessment are: Noise impacts from the outdoor play areas to the nearest residential receivers are predicted to comply with the Sutherland Shire Council DCP with the implementation of: • A site operational management plan that limits the number of children outdoors at any one time, as described in Section 5.1. • Acoustic fences as described in Section 5.1 • Traffic noise intrusion into the child care building is acceptable with windows and doors of play rooms / cot rooms facing the street able to be closed during peak traffic periods. • Traffic noise impact from site related traffic on public roads is acceptable. 1. We accept that an operational management plan that limits the number of children outdoors at any one time is appropriate and can be reasonably be implemented however we have some reservations over the proposed acoustic fencing and its impact on the adjoining property at 55 Wandella Street. The proposed fence runs the entire length of the common boundary of 55 Wandella Street, some 55m. While the area adjoining the entry driveway, some 12m in length has only a 1.8m high acoustic fence (without the 45 degree angled extension ), the remainder of the acoustic fence that runs beside the house and the backyard is the 2.7m high fence, including the without the 45 degree angled extension. 2. While we accept that such a fence is necessary to achieve acoustic protection for adjoining residential properties (although not for the reason suggested by Mr Mead in relation to the Draft SEPP), we do not accept that it should extend for the length proposed in this application because of the impacts suggested by Ms Laidlaw. In our opinion, the acoustic fence should be, at least for the area adjoining the backyard of 55 Wandella Street, setback into the site to allow for landscaping to screen the fence from the adjoining property. 3. On this basis, we are not satisfied that the proposed acoustic fencing "will integrate into the locality " (cl 6.18(2)(a)). Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 151382 for the demolition of all existing improvements and the construction of a new childcare centre for 140 children at 1-5 View Street, Miranda is refused. 3. The exhibits are returned with the exception of exhibits 1 and A. ___________ G Brown Commissioner of the Court ___________ S Bish Commissioner of the Court 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: 04 May 2018