Anandakumar v The Hills Shire Council

[2010] NSWLEC 1148

Land and Environment Court

of New South Wales

CITATION:	Anandakumar v The Hills Shire Council [2010] NSWLEC 1148
PARTIES:	APPLICANT Manjula Anandakumar RESPONDENT The Hills Shire Council
FILE NUMBER(S):	10112 of 2010
CORAM:	Pearson C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Child care centre
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Protection of the Environment Operations Act 1997 Baulkham Hills Local Environmental Plan 2005 Baulkham Hills Development Control Plan
CASES CITED:	Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Zhang v Canterbury City Council (2001) 115 LGERA 373 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
DATES OF HEARING:	27 May 2010
DATE OF JUDGMENT:	23 June 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr D Briggs, solicitor DG Briggs and Associates RESPONDENT Mr C Winn, solicitor The Hills Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

23 June 2010

10112 of 2010 Manjula Anandakumar v The Hills Shire Council

JUDGMENT

1 Commissioner: This is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by The Hills Shire Council (the Council) of a development application No 1732/2008/HA for the demolition of an existing two storey dwelling and the construction of a single storey child care centre at 112 Parsonage Road Castle Hill, lot 23 DP 246505 (the site).

2 The site is on the western side of Parsonage Road with a frontage of 22.85m, and a total site area of 965sq m. Adjoining the site are single dwelling houses, of one or two storeys. The site shares side boundaries with 110 and 114 Parsonage Road and its rear boundary adjoins 24 White Cedar Drive. Azalea Grove is a small cul-de-sac across the other side of Parsonage Road.

3 The proposed childcare centre is to have a maximum of 29 children aged 0 to 6 years, four employees, and nine car parking spaces, including one designated disabled parking space. The plans have been amended during the course of the proceedings. The proposal now before the Court is for a single storey building with three separate internal play areas, an open outdoor play area of 193sq m, and a covered outdoor play area of 39.5sq m. The building has storage and laundry rooms along the northern side adjoining 110 Parsonage Road, and office, staff, store and kitchen areas along the southern side adjoining 114 Parsonage Road. The car parking proposed has a setback of 5m from the street frontage, is double sided from a single aisle, with 4 staff and one disabled spaces on the side adjoining 110 Parsonage Road and 4 visitor spaces on the side adjoining 114 Parsonage Road.

4 The issues between the parties as identified in the Council’s Statement of Facts and Contentions relate to compliance with the objectives of the Baulkham Hills Local Environmental Plan 2005 (the LEP); whether the proposed development is consistent with the objectives and development controls in the Baulkham Hills Development Control Plan (the DCP), in particular relating to setbacks, landscaping, amenity impacts, acoustic impacts and minimum allotment size; whether the proposed fencing will satisfactorily protect neighbouring amenity from adverse acoustic and other impacts; and impacts on streetscape.

5 The matter commenced on site on 14 April 2010 as a conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act). The matter was adjourned to enable further consideration of acoustic issues. The parties were unable to reach agreement and the conciliation conference was terminated. The parties consented pursuant to s34(4)(b)(i) of the Court Act to my determining the matter, and consented to the admission of evidence from the conciliation conference. An on site hearing was held on 27 May 2010.

Planning Controls

6 The site is zoned Residential 2(b) under the Baulkham Hills Local Environmental Plan 2005 (the LEP), and the proposed development is permissible with consent. Clause 2 of the LEP sets out the aims of the LEP and objectives of development under the LEP:

(1) The aims of this plan are:
(a) with respect to the natural and built environment of the Baulkham Hills local government area, to conserve and enhance the natural and built environment of Baulkham Hills for present and future generations, and
(b) with respect to the community of that area, to encourage a strong sense of community identity and economic well being throughout Baulkham Hills through the development of local communities that are safe, liveable and offer a diversity of land use and economic opportunity, and
(c) with respect to use of resources within that area, to promote the efficient utilisation of land, services and support facilities in existing urban areas and to provide for the orderly growth of new urban areas that promote a high level of residential amenity, and
(d) with respect to flexibility, to create a broad framework of controls and allow the opportunity for more detailed provisions relating to matters of local significance to be contained in development control plans.
(2) The objectives for development of this plan are:
(a) with respect to the natural and built environment of the Baulkham Hills local government area, that development should:
(i) recognise and implement the principles of ecologically sustainable development, and
(ii) protect and enhance the area’s biodiversity, and
(iii) ensure that environmentally sensitive areas are suitably protected, and
(iv) address all natural hazard concerns, including flooding, landslip, subsidence, salinity, tidal inundation, land contamination and acid sulfate soils, and
(v) respect, improve and integrate with the local character of the locality in which it is carried out, and
(vi) rehabilitate the natural environment where damaged by previous activities, and
(vii) have regard to the land uses that form the rural and urban environment of the Shire, and
(viii) minimise the use of non-renewable resources and maximise the use of renewable resources, and
(ix) incorporate energy saving mechanisms and water saving mechanisms, and
(x) minimise waste and pollution, and
(xi) promote buildings designed for adaptive re-use, and
(xii) conserve the heritage significance of existing significant fabric, relics, settings and views associated with the heritage significance of heritage items and heritage conservation areas, and
(xiii) conserve and enhance the natural, cultural and environmental heritage of the area, and
(xiv) positively contribute to the retention and maintenance of items of indigenous and non-indigenous heritage, and
(b) with respect to the community of that area, that development should:
(i) integrate land use and improve access to open space, employment opportunities, public transport, community facilities and commercial services, and
(ii) reinforce the retail and commercial centres hierarchy within the area, and
(iii) provide opportunities for tourism and recreational development in appropriate locations, and
(iv) provide for home-based activities that are compatible with the character and amenity of the neighbourhood or place in which they are to be located, and
(v) maximise positive social impacts and minimise potentially detrimental social impacts, and
(vi) provide informal surveillance of public spaces, and
(vii) optimise the shared use of streets and parking facilities, while improving or creating an efficient pedestrian environment, and
(c) with respect to use of resources within that area, development should:
(i) protect localities from inappropriate development and ensure that local amenity is maintained and enhanced, and
(ii) provide choice in housing for residents, and
(iii) ensure that urban housing type varies and is designed and constructed in a manner that can accommodate (or be adapted to the needs of) a variety of household types, and
(iv) contribute to the synergy between land use activities.

7 Clause 13 of the LEP provides:

(2) Except as otherwise provided by this plan, consent must not be granted for development unless the consent authority is satisfied that the proposed development:
(a) is consistent with one or more of the aims of this plan and any relevant objectives for development, and
(b) is not contrary to achieving the objectives of the zone within which it will be carried out.

8 The objectives for the Residential 2(b) zone are:

The objectives are:
(a) to identify residential areas of a predominantly single dwelling, low-density character, and to maintain that character, and
(b) to ensure that new housing respects and complements the heritage and environmental character of surrounding low-density development, and
(c) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours, and
(d) to allow a range of development, ancillary to residential uses, that:
(i) is visually integrated with development carried out on the land and in the surrounding area, and
(ii) serves the needs of the surrounding population without conflicting with the residential intent of the zone, and
(iii) does not place excessive demand on services.

9 The Baulkham Hills Development Control Plan (the DCP) applies. The relevant provisions are those in Part D Section 8 – Child Care Centres, Part D Section 2 – Signage, Part D Section 1 – Parking, and Part D Section 3 – Landscaping. Part C Section 3 contains general provisions for development in residential zones.

10 The objectives for child care centre developments are set out at part 1.2 of the DCP:

Council’s overarching objectives for child care centre developments are to:
(i) Ensure child care centre developments are of a high quality and are compatible with neighbouring land uses.
(ii) Ensure that child care centre developments will not detrimentally affect the environment of any adjoining lands and ensure that satisfactory measures are incorporated to ameliorate any adverse impacts arising from the proposed development.
(iii) Encourage innovative and imaginative design, with particular emphasis on the integration of buildings and landscaped areas.
(iv) Ensure the location and design of child care centres does not pose a health or safety risk to staff, children or visitors.
(v) Ensure adequate and useable outdoor play areas are provided for use by children.
(vi) Ensure adequate car parking is provided for staff and visitors.
(vii) Ensure consistency with the aims and requirements of the NSW Department of Community Services.
(viii) Implement the principles of Ecologically Sustainable Development.

11 Additional objectives covering a range of specific issues related to child care centre developments, including site requirements, hours of operation, setbacks, indoor and external play areas, height, design and streetscape, visual and acoustic privacy, vehicle access and parking, landscaping, fencing, lighting, and food preparation, are provided in part 3 of the DCP.

12 The relevant provisions at issue in this appeal are parts 3.1 Site Requirements, 3.4 Setbacks, 3.10 Visual and Acoustic Privacy, and 3.14 Fencing. Part 3.1 states that all child care centres in rural and residential zones are to have a minimum site area of 1,000sq m, and a minimum site width of 22m. The objectives of part 3.1 are:

(i)To ensure that the site for a child care centre is of a sufficient size to meet the minimum area requirements for indoor and outdoor play space and car parking.
(ii)To ensure that the proposed site allows for adequate setbacks and high-quality landscaping, and has due regard to the health, safety, and amenity of adjoining land uses.
(iii) To facilitate a design that minimises adverse impacts on the amenity and privacy of adjoining commercial, residential or rural development.
(iv) To ensure that the site and surrounds are located in a healthy and safe environment and do not present any potential hazards to children.

13 Part 3.4 Setbacks refers to the provisions of Part C Section 3 – Residential of the DCP for setbacks, and states the following objectives:

(i)To ensure that setbacks are consistent with the locality and achieve development that is complimentary to the streetscape.
(ii)To provide sufficient separation between developments to maintain privacy, health, safety and amenity, and minimise overshadowing of adjoining properties.
(iii) To allow adequate space for vehicle manoeuvring.
(iv)To ensure that adequate area is provided to permit high quality landscape planting for the development.

14 The objectives of the Visual and Acoustic Privacy controls at part 3.10 are:

(i) To site and design buildings to ensure visual privacy of adjacent dwellings and to avoid overlooking of living spaces and private open spaces.
(ii) To ensure that noise generated from the development does not adversely impact upon the amenity of the surrounding area.
(iii) To ensure that the scale of acoustic fencing is in keeping with the character of the surrounding development.

15 The acoustic privacy controls are:

Use of the child care centre:
(a) Fencing shall be constructed of solid materials, (eg lapped and capped timber, brick or masonry), which will contain and manage noise generated from the development.
(b) The development is to be designed to limit the potential for noise to affect neighbouring properties. Consideration should be given to the orientation of outdoor play areas and materials used in the building to reduce reliance on acoustic barriers.
(c) The use of the premises including outdoor play areas and car parking areas shall not give rise to “offensive noise” as defined in the Protection of the Environment Operation Act 1997. The sound level output shall not exceed 5dB above the ambient background level at the receiver boundary.

16 Part 3.14 Fencing includes a requirement that fencing behind the building line have a minimum height of 1.8m. The objectives of this part of the DCP are:

(i) To ensure that fencing is of a high visual quality, compliments the character of the area and is integrated with the surrounding landscape.
(ii) To contain noise within the property without unreasonable transmission to adjacent dwellings.
(iii) To protect the privacy of the proposed child care centre and that of adjoining dwellings.
(iv) To provide for the safety and security of children.

17 Part C Section 3 – Residential of the DCP applies to all activities permissible in the residential zones. Part 2.5 Streetscape and Character requires:

(a) The proposed development must:
contribute to an attractive residential environment with clear character and identity;
address the street and boundaries to the site with a building form compatible with adjoining development in terms of street elevation and presentation; and
retain, complement and sensitively harmonise with any heritage item or conservation area in the vicinity that are identified in Council’s local environmental plan.
(b) The proposed development should maintain neighbourhood amenity and appropriate residential character by:
providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing; using building form and siting that relates to the land form;
adopting building heights at the street frontage that do not dominate the streetscape;
retaining where possible and providing landscaping in the front and rear yards in particular tall planting in scale with the building proposed; and
considering where buildings are located on neighbouring properties.

18 The objective of part 2.5 is “to ensure that the appearance of new development is of a high visual quality, enhances the streetscape and complements surrounding development.”

19 Part 2.14 addresses building setbacks for dwellings and requires a minimum road frontage setback of 10m. Part 2.15 Fencing has at its objective “to ensure that fencing is of a high visual quality, compliments the character of the area and is compatible with the proposed development.”

Evidence

20 The Council publicly notified the development application and received written objections, copies of which are in the Council’s bundle of documents in evidence before the Court. The Council re-notified the amended plans, and the written objections received in response are provided in the Council’s bundle of documents. The written objections raise concerns relating to the adequacy of car parking; adverse impact on the character of the area and visual amenity of neighbours; compliance with site area requirements; noise impacts; visual impact on streetscape; proposed fencing; traffic generation; safety; lack of demonstrated need for the facility; proposed landscaping; and the inclusion of commercial premises in a residential area.

21 Evidence was given at the on site hearing on 27 May 2010 by residents of 104, 110 and 125 Parsonage Road, 22,24 and 26 White Cedar Drive, and 8 Azalea Grove, and the opportunity was taken to view the site from the rear of 110 Parsonage Road and 24 White Cedar Drive. The oral evidence was consistent with the written objections, and addressed issues of the size of the site, car parking capacity and design, acoustic impacts of the outdoor play area, the proposed fencing, the character of the area, and increase in traffic in the street and in Azalea Grove opposite the site.

22 The landscape plan now before the Court proposes the removal of seven trees. The applicant provided with the development application an arborist report by Australia Tree Management, which supported removal of these trees and recommended measures to protect other trees on the site during construction. The proposed driveway access into the parking area requires the removal of one Melaleuca quinquenervia (Broad Leaf Paper Bark) in the proposed driveway location, and two Eucalyptus sideroxylon (Mugga Ironbark) located in the front nature strip which are in poor condition. A Livistonia chinensis (Chinese Fan Palm) is within 1m of the proposed development and removal is required. Two Pinus radiata (Monterey pine) at the rear of the site are recommended for removal on the basis that dropping pine cones are large and inappropriate in a childcare setting. An Angophora costata (Smooth-barked Apple) at the rear of the site, while outside the proposed development envelope, is suffering from borer attack and has a short life expectancy and is recommended for removal.

23 Expert acoustic evidence before the Court consists of a Noise Assessment prepared by Mr Rodney Stevens of RSA Acoustics Pty Ltd dated December 2007, submitted with the development application; a Statement of Evidence dated May 2010 prepared by Mr Brian Marston; and oral evidence provided by Mr Marston on site.

24 The Noise Assessment Report prepared by RSA Acoustics provided with the development application stated that the LA90, 15 min environmental background noise level at the site was 40 dB(A). The NSW Department of Environment and Climate Change has no policy relating directly to child care centres. Applying the Industrial Noise Policy for assessment of offensive noise, an acceptable Intrusive Noise Limit would be a LAeq, 15 min of 45 dB(A), and an acceptable Amenity Noise Limit would be an LAeq, 15 min noise limit of 55 dB(A). That results in a noise appropriate limit of an LAeq, 15 min of 45 dB(A) beyond the residential boundaries for noise emissions from the Child Care Centre building and the external activity areas. The alternative criterion of ‘background plus 10 dB(A)’ based on an LA10 noise limit would lead to a LA 10 noise criteria of 50 dB(A); while this would produce a more lenient noise goal, this approach is typically applied to infrequent community events considered to be of social worth or where noise exceedence is only for a small part of the working day.

25 The Noise Assessment Report noted that the activities inside the building would generally consist of quiet play and learning activities; on occasions the internal noise levels would rise to about 73dB LAeq, 15min for extended periods. With boisterous play inside, and with all the windows and external doors fully closed, the LAeq,15min noise level from indoor play activities would be less than 37dB(A) at and beyond any residential boundary; with doors fully open, that would result in noise emissions from indoor play activities of up to 43dB(A) at and beyond the residential boundaries. In relation to external noise emissions from the outdoor play area, the report stated that the average LAeq noise level in the yard area of the nearest potentially affected residence without an intervening fence should be 44 to 47 dB(A) for a group of 10 children, and 45 to 48dB(A) for a group of 20 children. A 1.8m high fence would reduce the sound levels between the children and a standing adult by 10 to 12 dB(A), reducing the potential LAeq,15 min noise levels from 48 to 50 dB(A) to 38 to 41 dB(A) from a potential 30 children. A 1.8m fence along the rear boundary would achieve a noise reduction of 7 dB(A) to achieve the noise level limit of 43 dB(A) at 24 White Cedar Drive.

26 The Noise Assessment Report assessed noise impact due to vehicle movement in the parking area, and noise from airconditioning condenser units. The Noise Assessment Report included recommendations for ratings for windows, and recommended that a 1.8m high lapped and capped wood paling fence be constructed along both side boundaries and the rear boundary, remaining at full height to within 5.5m of the front boundary and then tapering to 1m at the front boundary.

27 During the course of its consideration of the application the Council indicated its concern about the proposed noise level of children in the outdoor play area. The Noise Assessment Report was amended on 18 July 2008 to recommend that an acoustic barrier be located on the three sides of the property adjoining residential areas; such a barrier could be solid to 1.8m with a clear extension piece of 6mm thick Perspex, glass or acrylic to a height of 2.5m; the upper section of clear material could be 600mm at 45 degrees out over the external play areas.

28 Mr Marston’s written report addresses the question of whether there is a need for a 2.2m high acoustic fence along the side and rear boundaries. Mr Marston states:

3.1 My original opinion expressed in a written advice for a 1.8m fence height was based on my experience in preparing reports and assessing acoustic impacts of in excess of 170 child care centres.
3.2 Except in situations of overlooking residences immediately adjacent to the outdoor activity area, noise assessment calculations have indicated that 1.8 metre high fences without openings (that is, a lapped and capped type of fencing) achieve adequate noise attenuation of outdoor activity noises within a properly managed childcare centre.
3.2 In the case of Parsonage Road, the fence height is based on the noise levels would be perceived by a standing adult in the rear yard area adjacent properties.
3.4 The calculations are based on the scenario of an adult standing within the rear yard area of the adjacent residential property (ear-height of 1.6metres) in relatively close proximity to the fence line (about 2.5 metres). On the childcare centre side children are assumed to be concentrated toward the fence line with a density of about 10 children within a circle of 5metre diameter. For greater numbers of children, additional touching circles are close packed against the fence line.
3.5 Assuming a circle touching the fence line, the distance attenuation from children to adult is 14dB.
3.6 Calculations were based on measurements carried out by myself were groups of 10 children under normal supervision caused LAeq, 15min noise levels of 48-50 dB(A) at a distance of 5 metres with no intervening barriers.
3.7 The noise limit for this site was an LAeq, 15min noise limit of 45dB(A).

29 Mr Marston commented on barrier attenuations of fences of 1.8 and 2.2 metres in height where the terrain is flat, and continued:

3.10 Higher fences will provide greater barrier attenuation.
3.11 The origins of the combined lapped and capped fencing, with inclined Perspex, is a recommendation made by one of Council’s Senior Environmental Health Officer(s). I am not aware of the basis upon which that ‘acoustic’ design is based.
3.12 I am advised that the Council has approved that form of ‘acoustic’ design in another childcare centre within the local government area.
3.13 The adoption of that design by the applicant was in accordance with recommendations of the Council’s Senior Environmental Health Officer(s).
3.14 It was not my recommendation nor was considered (or is it now considered) necessary in the circumstances of this case.
3.15 I am advised that the alternative effective noise attenuation design height of 2.2 metre high fence (that is, a 1.8 metre high fence with inclined Perspex), is a preferred design for acoustic fencing by Council’s officers to solid fences of greater than 1.8 metres in height.
3.16 In another childcare centre where an acoustic design of greater than 1.8 metres was required as a consequence of particular acoustic considerations, I have designed fencing which comprises a 1.8 metres timber fence with a visually transparent material above 1.8 metres. That design was to enable adjoining property owners to receive sunlight and view over the 1.8 metre high fence.
3.17 The provision of inclined Perspex from the top of the fence to a height above ground of 2.2 metres provides no greater noise reduction and Perspex projecting vertically upwards from the fence line to height of 2.2 metres.
3.18 What is determinative is the finished height of the acoustic treatment above the ground levels of the subject site and the adjoining land. Inclined Perspex as an alternative suggested to this development does have the visual advantage of appearing lower to a person standing on the receiver side of the fence.
3.19 The increase in the design height of the dividing fencing to 2.2 metres (either as well sealed solid lapped and capped fencing, or the design requested by the Council of 1.8 metres with an inclined Perspex panel to an effective height of 2.2 metres) around the outdoor activity area will provide approximately 2dB(A) additional noise reduction.
3.20 In the present case, the subject site slopes relative to adjoining land. Where the yard to yard level changes, the barrier should be measured on the level of the higher side.
3.21 The resulting barrier attenuations for the sloping situation are as follows:
For a 1.8 metre high fence, the barrier attenuation is 12 dB for the house yard on the downhill side and 12 dB(A) on the house yard on the uphill side. The calculated resulting sound level was 41 dB(A).
For a 2 .2 metre high fence, the barrier attenuation is 14 dB for the house yard on the downhill side and 14 dB(A) on the house yard on the uphill side. The calculated resulting sound level was 39 dB(A).
3.22 Increasing the height from 1.8 metres to 2.2 metres therefore provides approximately 2 dB(A) advantage for the fences around the outdoor activity area.

30 Mr Marston considered the issue of acoustic impacts and fencing at the front of the building:

3.23 In respect of the proposed fencing forward of the building alignment these fence sections are unnecessary, as the noise is assessed to an energy averaged criteria.
3.24 In energy averaging, the acoustic energy of each transient noise event is energy averaged across a period of time. In terms of the energy averaged criteria, the front parking area can operate without exceeding this criteria.
3.25 The tapered dividing fence adjacent to the car parking areas within the front setback areas provide boundary demarcation and some nominal acoustic advantage.
3.26 For typical medium-sized sedan vehicles, noise comes from the wheel/road contact point, through the front grille, from under the vehicle, out through wheel wells and from exhaust.
3.27 The wheel/road contact point is at ground level. The noise via the front grille, the wheel wells, out from under and exhaust, are about 0.5 metres or less above ground level. Car door closing noise, for typical medium-sized sedan vehicles, the source is about waist height.
3.28 The tapered fence sections should therefore provide about 3 to 5 dB(A) noise reduction advantage for the transient noise levels as each vehicle enters and leaves.
3.29 In my experience, Council policies normally allow dividing fences to be maintained at a height of 1.8 metres to the building alignment and then taper down to a lesser height of the front boundary.
3.30 If that were to be allowed in this case - that is, if the dividing fence was maintained at 1.8 metres to a distance of (say) 7.5 metres from the front boundary then taper down to a height of (say) 1.2 metres in height at the front boundary, this would provide some additional noise attenuation - particularly in respect to the adjoining property at 110 Parsonage Road.
3.31 I am otherwise satisfied that the noise impacts arising from the use of the car park as designed will not result in unacceptable impacts upon the adjoining properties on Parsonage Road.

31 In oral evidence Mr Marston commented that the proposal has been amended since the original Noise Assessment Report was prepared, including by reconfiguring the internal layout and windows of the building. Mr Marston was of the opinion that the rearrangement of the car parking has addressed the concerns expressed by Mr Stevens about noise at the front of the building. There would be a reduction of 2 or 3 dB from car start up in having a fence at 1.8m to 7.5m from the street frontage. Here the LAeq criterion is met even if there is no fence forward of the front of the building so if the fence is tapered that will mitigate short sharp sounds. The articulation of the front of the building would reduce noise impacts across the side boundaries. The noise from play area C at the front of the building would go across the road over the car parking, and the distance to the other side of the road would result in a reduction of approximately 30dB, resulting in a noise level of 35 to 40 dB(A) to the residences across Parsonage Road. Noise from the internal play area B would travel into the kitchen, storeroom, staffroom and toilet, and Mr Marston recommended that all windows on the southern boundary be kept closed at all times. The northern elevation has glass blocks which are sealed. Mr Marston addressed the operation of the proposed child care centre, noting that the majority of child care centres need to have doors and windows closed to achieve compliance with acoustic requirements at boundary; and he would recommend it here. The re-arrangement of the storerooms and the distance to the rear boundary would reduce noise, and Mr Marston recommended that the doors should be closed while children are inside the play areas.

Council’s submissions

32 Mr Winn for the Council submits that the proposal is not consistent with one or more of the aims for development specified in the LEP, as required by cl13(2) of the LEP, in particular objective cl2(a)(v), as it does not respect, improve and integrate with the local character of the locality. Mr Winn submitted that there are specific concerns about the setbacks to the street, noise, impacts on the streetscape. The site area requirement in the DCP is premised on a development of this nature and size requiring a minimum area of 1,000 sq m, in order to prevent or minimise impacts of development in a residential area that is not designed to accommodate it. In relation to the public interest, the objections of residents including those not directly affected need to be taken into account.

Applicant’s submissions

33 Mr Briggs for the applicant submits that the proposal is not inconsistent with the character of the area; it replaces a two storey building with a single storey building, and the setbacks and landscaping achieve consistency. The width of the site requires central car parking access, and the car parking will be located in a leafy landscape setting. In addressing amenity impacts, the applicant has put the fencing alternatives to the neighbours, and is prepared to agree to a solid fence to 2.2m. The proposal is not seeking approval for the maximum number of children, and is sustainable on the site.

Consideration

34 It was common ground that the proposed child care centre is permissible with development consent in the Residential 2(b) zone under the LEP. In BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, McClellan CJ considered the question of what weight should be given to the zoning of a site when considering an application for a development on it. At para 117, he said (omitting the case citations):

In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor, planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted.

35 In these proceedings, cl13(2) of the LEP requires that I be satisfied that the proposed development is consistent with one or more of the aims of the LEP and any relevant objectives for development, and that it is not contrary to achieving the objectives of the Residential 2(b) zone.

36 The applicant provided with the development application a Child Care Needs Assessment Report, which Council officers accepted as meeting the requirements for social impact assessment in part 4 of Part D Section 8 Child Care Centres of the DCP. The Council officers’ Report (which is contained in the Council’s bundle of documents in evidence) included the following comment by Community Services:

The Childcare Needs Study is satisfactory. The assessment has indicated the trend towards increased demand due to increase in population as well as the push for high quality care. The issue of viability is a commercial decision which the applicant needs to make. The application is generally supported as it addresses an identified need in the Social plan 2005-2010.

37 It may be, as suggested in the evidence provided by neighbouring residents, that the economic situation has changed since the Needs Assessment Report was prepared; however, I agree with the Council assessment that that is a commercial decision for the applicant. Any modification to the number of children, employees or parking spaces needed to meet changes proposed at a national level for staffing ratios in child care centres would require a further development consent. I am satisfied that the proposal is consistent with the aims of the LEP which include at cl2(1)(b) the development of local communities that are safe, liveable and offer a diversity of land use and economic opportunity, and with the objective for development in cl2(2)((b)(i) by providing access to a service. I am not satisfied that the proposal is inconsistent with the objective in cl2(2)(a)(v), as submitted on behalf of the Council, as for the reasons outlined below I am satisfied that it both respects and integrates with the local character of the locality.

38 The most directly relevant objective for the Residential 2(b) zone for this application is (a), “to identify residential areas of a predominantly single dwelling, low-density character, and to maintain that character”. The proposed building is a single storey building and from the street will appear similar in form to a dwelling, and its height and scale are similar to existing dwellings in the locality. The car parking is to be accessed from a single driveway, and the parking spaces are to be screened from the street and from the sides by landscaping. The proposal maintains the predominantly single dwelling, low density character, of the residential area. I am satisfied that the proposal is not contrary to achieving the objectives for the Residential 2(b) zone.

39 Section 79C (1)(a)(iii) of the Act requires consideration of the provisions of the DCP. The proper approach to that task is that while not being determinative, the DCP must be considered as a “fundamental element” or a “focal point” of the decision-making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. In Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 at [27], the Court of Appeal confirmed that while it might be open to take the view that, for reasons related to a particular site, it is not appropriate to compel compliance with requirements of a DCP, I am not entitled to take the view that the standards set by the DCP are inappropriate for reasons of general policy. It was common ground in these proceedings that to the extent that the general provisions in Part C Section 3 – Residential may be inconsistent with the specific provisions in Part D Section 8 – Child Care Centres, the specific provisions should prevail.

40 The site has an area of 965sq m, and is 35 sq m (or 3.5 percent) short of the minimum site area of 1,000 sq m specified at Part D Section 8 – Child Care Centres part 3.1 of the DCP. The site meets the minimum width of 22m specified in part 3.1 of the DCP. The objectives of the minimum site area requirement, set out in paragraph 12 above, require consideration both of the requirements for users of the site, including adequacy of play space and car parking, and of the amenity of the adjoining residential uses.

41 It was common ground that the design of the building, play areas, and car parking, meets the requirements for the users of the child care centre. The issue in these proceedings is whether the site adversely impacts on the amenity of the adjoining residential uses.

42 The side setbacks meet the requirements of part 2.14 in Part C Section 3-Residential of the DCP. The front setback requirement in part 2.14 of Part C Section 3-Residential is 10m; the proposal has a setback of 17.5m to the front of the building. I am satisfied that the design of the car parking area within that setback, with a single access driveway and screening landscaping along the front and sides, including the planting of two Tristaniopsis laurina (Water gum) in the nature strip, does not adversely impact on the streetscape, and is consistent with the objectives of providing setbacks that complement the streetscape and ensure that the development is consistent with the established character of the locality.

43 The objectives of the Visual and Acoustic Privacy controls at part 3.10 of the DCP are set out at paragraph 14 above. There was no issue in these proceedings as to visual privacy or overlooking, and the central issue has been in relation to the impacts of noise generated from the development.

44 Mr Marston is an experienced acoustic engineer with thirty years experience, including completion of 170 acoustic reports for childcare centres. Mr Marston’s evidence addressed the proposal in its present form, and included detailed consideration of noise impacts to the rear, side and front of the site, and was not contradicted. I accept his evidence that compliance with the proposed conditions to keep the windows and doors closed while the indoor play areas of the centre are in operation will mitigate potential adverse impacts from noise generated in the internal play areas. In relation to the outdoor play area, I accept his evidence that a solid fence along the side and rear boundaries of the site will limit noise to the adjoining residential properties to within the noise appropriate limit of 45 dB(A) beyond the boundaries of the site. While Mr Marston’s evidence was that a fence of 1.8m would achieve that, his evidence was that a higher fence at 2.2m would achieve a greater reduction in noise, and it is therefore appropriate that this be installed. I am satisfied that the proposal meets the control at part 3.10 of the DCP.

45 The objectives at part 3.10, and part 3.14, also require consideration of the scale of acoustic fencing proposed. The owners of 110 Parsonage Road and 24 White Cedar Drive expressed concern about the visual impact of a Perspex extension and expressed a preference, if consent is granted, for a boundary fence to 2.2m rather than 1.8m with a Perspex extension. Based on the site view, a solid, lapped and capped, fence would be consistent with existing fencing in the locality, and would achieve the objective at 3.10(iii) that it be in keeping with the character of the surrounding development, and would achieve the objectives in part 3.14.

46 The overarching objectives for child care centre developments at part 1.2 of the DCP include a requirement that they be compatible with neighbouring land uses. The issue of compatibility was considered by Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191:

Planning principle: compatibility in the urban environment

22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.
23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.
24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.
Are the proposal’s physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.
Is the proposal’s appearance in harmony with the buildings around it and the character of the street?

47 In terms of physical impacts, the focus in these proceedings has been on noise impacts. I am satisfied, based on the evidence of Mr Marston, that the physical impacts of the proposed development in the form of noise meets the requirements of the DCP and are acceptable, with the provision of acoustic fencing and the requirement that windows and door be closed. The proposed conditions of consent include a condition requiring preparation of a noise management plan to address activities likely to cause noise and proposed actions to alleviate any offensive noise, including a complaints procedure; a condition limiting the sound level output from the rear of the site to not exceed 5 dB(A) LAeq (15 min) above the ambient background level at or beyond the received boundary, and a similar limitation on the car parking area; a condition relating to location and screening of airconditioning units; and a condition requiring two separate acoustic assessments to be undertaken within three months, and again within 12 months, from the issue of an occupation certificate.

48 In terms of visual impacts, I am satisfied having regard to the design of the building, the setbacks from the street frontage, the tapered fencing forward of the building line, and the screening landscaping, that the proposed development is in harmony with the surrounding buildings and the character of the street, and is thus compatible in the sense defined by Roseth SC. In particular, the front setback to the building line is not out of character with the varied setbacks in the immediate vicinity, including those of the adjoining dwellings.

49 I am satisfied that the proposed development is compatible with the neighbouring land uses, and meets objective (i), and that the design of the building and the proposed conditions of consent incorporate satisfactory measures to ameliorate any adverse impacts, and thus meets objective (ii). It was common ground that the other objectives in part 1.2 are met.

Conclusion

50 The proposed development meets the requirements of the LEP. The proposal does not meet the site area requirement at part 3.1 of the DCP; however, it does meet the objectives of that control, the objectives of the other specific controls in the DCP, and the overarching objectives for child care centre developments in the DCP, and I am satisfied that in the circumstances of this case it is appropriate to depart from the control in part 3.1. The proposed conditions address potential adverse impacts and provide a mechanism for monitoring and managing any adverse impacts. The development application should be approved, subject to conditions in the form agreed between the parties, with two amendments.

51 The agreed conditions as filed by the parties after the hearing require amendment to the specification of trees to be removed in condition 5, and to include as a condition the requirement that the acoustic fencing at the rear of the proposed building be a timber lapped and capped fence to a height of 2.2m.

52 The parties are to file amended conditions by Friday 25 June 2010, following which final orders will be made in chambers.

Linda Pearson