Papanikolaou v Bayside Council [2018] NSWLEC 1662

Land and Environment Court New South Wales

Medium Neutral Citation: Papanikolaou v Bayside Council [2018] NSWLEC 1662 Hearing dates: Conciliation conference on 7 December 2018 Date of orders: 17 December 2018 Decision date: 17 December 2018 Jurisdiction: Class 1 Before: Smithson C Decision: See orders at [22] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Civil Aviation Regulations 1988 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rockdale Local Environmental Plan 2011 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 Category: Principal judgment Parties: George Papanikolaou (First Applicant) Anastasia Kalamakis (Second Applicant) Michael Papanikolaou (Third Applicant) Eleni Papanikolaou (Fourth Applicant) Bayside Council (Respondent) Representation: Counsel: I Hemmings, SC (Applicant) J Reid (Respondent)

Solicitors: Mills Oakley (Applicants) HWL Ebsworth Lawyers (Respondent) File Number(s): 2018/168093 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by George Papanikolaou and others (the applicant) lodged under s 8.11 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Bayside Council (the Council) of development application DA-2017/285 (the application). 2. The application sought consent under the EPA Act for the demolition of existing structures and the construction of a two storey child care centre for 42 children at Lot 23 DP 1677, being 47-47A Bestic Street, Rockdale (the site). 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation. I undertook a site view with the parties and reviewed submissions lodged in objection to the application. 4. As a result of the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties. 5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 6. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 7. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met. 8. The Statement of Facts and Contentions (SFC) filed with the Court by the Council indicates that the site is located in the R2 Low Density zone of the Rockdale Local Environmental Plan 2011 (the LEP). The proposed use is permissible with consent in the R2 zone. 9. The development was assessed under the provisions of the LEP and State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, in particular, the design principles contained in the Child Care Planning Guidelines 2017. 10. The Council raised a number of merit issues including the design of the development relative to the character of the local area, acoustic and privacy impacts on neighbours, and traffic and access concerns. These issues were addressed to the satisfaction of the Council and having regard to the objections of neighbours, with amendments to the application arising from conciliation and with the proposed conditions of consent. These amendments include reducing the size of the centre to a maximum of 40 children. 11. I am however, also required to be satisfied that the development meets the requirements of cl 6.3 of the LEP as follows: 6.3 Development in areas subject to aircraft noise (1) The objectives of this clause are as follows: (a) to prevent certain noise sensitive developments from being located near the Sydney (Kingsford-Smith) Airport and its flight paths, (b) to assist in minimising the impact of aircraft noise from that airport and its flight paths by requiring appropriate noise attenuation measures in noise sensitive buildings, (c) to ensure that land use and development in the vicinity of that airport do not hinder or have any other adverse impacts on the ongoing, safe and efficient operation of that airport. (2) This clause applies to development that: (a) is on land that: (i) is near the Sydney (Kingsford-Smith) Airport, and (ii) is in an ANEF contour of 20 or greater, and (b) the consent authority considers is likely to be adversely affected by aircraft noise. (3) Before determining a development application for development to which this clause applies, the consent authority: (a) must consider whether the development will result in an increase in the number of dwellings or people affected by aircraft noise, and (b) must consider the location of the development in relation to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF Zones) in AS 2021—2000, and (c) must be satisfied the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021—2000. (4) In this clause: ANEF contour means a noise exposure contour shown as an ANEF contour on the Noise Exposure Forecast Contour Map for the Sydney (Kingsford-Smith) Airport prepared by the Department of the Commonwealth responsible for airports. AS 2021—2000 means AS 2021—2000, Acoustics—Aircraft noise intrusion—Building siting and construction. 1. Whilst the site is situated in the 25-30 ANEF contour, aircraft do not fly over the site on a daily or even regular basis but only if required due to weather or operational factors. Nevertheless, the site is subject to occasional elevated noise levels from aircraft. The parties agreed that cl 6.3(3) therefore applies as the development will result in more people on the site being affected by aircraft noise. Further, these people will predominantly be young children, notwithstanding they may live nearby in areas similarly affected by aircraft noise. 2. Accordingly, I must consider the impacts from aircraft noise on the child care centre and be satisfied under cl 6.3(c) that the development will met the indoor noise levels in the specified Australian Standard; being Australian Standard 2021–2000: Acoustics–Aircraft noise intrusion–Building siting and construction (AS2021). 3. In this regard, the development will be constructed in accordance with the requirements and recommendations of AS2021 and a submitted Acoustics Report to ensure noise exposure for neighbours and occupants does not exceed regulated maximum noise exposure levels. This includes the provision of acoustic underlining of the Level 1 roof. 4. A condition of consent also requires that the proposed Plan of Management (PoM) for the centre be revised to include a requirement that, if in the opinion of staff, the effect of aircraft noise is detrimentally affecting the quiet enjoyment of the children, then the children must be relocated away from the uncovered area on level 1 or if appropriate, to the ground floor level outdoor play area. 5. There will also be controls on the opening of windows, primarily to minimise noise impacts on neighbours from the operation of the centre but which will also minimise aircraft noise exposure in the centre. There are also limitations on the time children can play in outdoor areas. 6. The development has also been designed so that the maximum height complies both with the maximum height permissible under the LEP at cl 4.3 of 8.5m and the aviation control height of 7.62m under the Civil Aviation Regulations, having regard to the airspace operations provisions at cl 6.4 of the LEP and to the 44AHD Obstacle Limitation Surface requirements of Sydney Airport. 7. The development is also within the maximum permissible FSR for the site of 0.5:1. 8. Based on the advice of the parties, I am satisfied under cl 6.7(3) of the LEP that the proposed water and drainage system has been designed, or will by a condition of consent be designed, having regard to the site's soil characteristics affecting on-site infiltration of water. Further, it includes, to the extent practicable, on-site stormwater retention for reuse and avoids, minimises and mitigates any disturbance or impact of stormwater runoff on adjoining properties and specified environmental factors. This includes the requirements for onsite stormwater detention and on-going management. 9. Whilst being designated as having class 5 acid sulphate soils (ASS) on LEP maps, the parties advised that the site is not within 500m of any ASS class 1 to 4 soils having regard to the requirements of cl 6.1 of the LEP. 10. I am also satisfied that the essential services required for the development, namely water, electricity, sewerage and stormwater drainage are available having regard to cl 6.12 of the LEP, and that the site has suitable road access, being situated on the corner of Bestic and Cameron Streets. A condition also requires the provision of an electricity substation should Ausgrid determine such infrastructure is required. 11. On the basis of the amended application arising from conciliation, and in accordance with the agreement between the parties, the Court orders that: 1. The Applicant is granted leave to rely on the amended plans, copies of which are at Annexure "A", for the purpose of the development application. 2. The Court is satisfied as to the matters specified in clauses 6.3(3)(c), 6.7(3) and 6.12 of the Rockdale Local Environmental Plan 2011. 3. The appeal is allowed. 4. The Applicant is to pay the Respondent's costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $3,500.00 within 28 days. 5. Development application no. 2017/285 for a child care centre including the demolition of existing structure, the construction of a two storey building and the provision of vehicular access from Cameron Street at 47-47A Bestic Street, Rockdale is approved subject to the conditions in Annexure "B". ………………………. Jenny Smithson Commissioner of the Court Annexure A (Plans) Annexure B (C) 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 December 2018