Aussie Glo Pty Limited v Ku-ring-gai Council
[2007] NSWLEC 60
•17 January 2007
Land and Environment Court
of New South Wales
CITATION: Aussie Glo Pty Limited v Ku-ring-gai Council [2007] NSWLEC 60 PARTIES: APPLICANT
RESPONDENT
Aussie Glo Pty Limited
Ku-ring-gai CouncilFILE NUMBER(S): 10601 of 2006 CORAM: Murrell C KEY ISSUES: Development Application :- 50 place childcare centre, streetscape, parking, noise and landscape LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Ku-ring-gai Development Control Plan No. 57DATES OF HEARING: 1/11/2006, 19/12/2006 and 17/01/2007 EX TEMPORE JUDGMENT DATE: 17 January 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr P. Clay, barrister
Instructed by Mr N. Shedadie & CoRESPONDENT
Mr A. Hudson, solicitor
of Wilshire Webb
JUDGMENT:
ENVIRONMENT COURT
OF NEW SOUTH WALES
Murrell C
17 January 2007
10601 of 2006 Aussie Glow Pty Limited v Ku-ring-gai Council
This determination was given extemporaneously
and has been edited prior to publication.
JUDGMENT
1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Ku-ring-gai Council’s refusal of a development application for a 50 place childcare centre.
2 The subject site is on the corner of Fiddens Wharf Road and Ellsmore Avenue, Killara. The site is zoned Residential A under the Ku-ring-gai Planning Scheme and childcare uses are permissible with consent in the zone.
3 The council adopted Development Control Plan No. 57 for childcare centres, this details the requirements of childcare centres including: preferred locations for sites; the requirements of childcare centres; and relationship with other policies and plans of the council. This DCP also refers to car parking and vehicle access and site building and design, indoor play area specifications and other facilities within the centres as well as outdoor play spaces. There are guidelines for applicants in submitting development applications and guidelines for the assessment of the application.
Evidence
4 The Court heard from the Court-appointed expert, Ms Kerry Gordon, a consultant town planner, who provided her written reports to the Court and also verbal evidence. Subject to a number of minor amendments Ms Gordon assessed the development as satisfactory.
5 Mr Matthew Harrison, the acoustic Court-appointed engineer, also provided evidence to the Court in the form of reports and provided oral evidence to the Court. He also assisted the Court by providing what he considered to be appropriate conditions for amelioration of the noise impacts.
6 The Court also heard from Ms Hawkins, council’s engineer and expert in traffic matters and Mr Robert Varga for the applicant provided a report to the Court.
7 Ms Robyn Pearson is the executive planner of Ku-ring-gai Council and she gave evidence to the Court and assisted the Court on issues raised by the council.
8 The Court met on site at the commencement of the hearing and heard from a number of objectors and on returning to Court a summary of their objections was placed on the Court record. At the end of the first day of the hearing the Court adjourned to allow the applicant the opportunity to address issues raised by the Court, including noise and the location of the main pedestrian access located adjoining the property known as Nos. 19 to 21 Ellsmore Avenue.
9 The council also renotified the amended plans and a number of objectors availed themselves of the opportunity of giving further evidence to the Court, including Mr and Mrs Lane of 31 Fiddens Wharf Road. Their main concerns are that: the proposal does not comply with council’s setback requirements in the DCP; the basement parking was not satisfactory; and noise and the extent of fencing required to ameliorate the noise was out of character with the area and unsightly.
10 Mr and Mrs Hoskins of 29 Fiddens Wharf Road also expressed concern about noise, parking, traffic and safety and Mrs Marshall of 20 Fiddens Wharf Road, on the opposite corner of Ellsmore Road, is concerned about the noise impact, in particular from the number of children playing and the loss of amenity that this would cause to residential properties in the area. She is also concerned about the height of the fences and the impact of the development on the enjoyment of her property generally.
11 Mr P Padmanabhan of 17 Ellsmore Avenue is also concerned about the setbacks and the safety of children and parking.
12 Dr and Mrs Seet of 19 to 21 Ellsmore, owners of the property adjoining the subject site on Ellsmore, are concerned about the trees on their property and the potential danger of branches falling on the childcare facility. They are concerned about the future potential redevelopment of the vacant lot that is part their property at No. 19 and the impact of the centre. For all intents and purposes No. 19 is a vacant lot that currently provides a garden to the residence located on No. 21. They are also concerned about having an entry, albeit now an entry mainly for disabled persons, that adjoins their boundary and they are concerned about the noise impact on their amenity.
13 Mr and Mrs Stevenson of 12 Ellsmore Avenue are concerned about the safety of residents and the children in terms of the parking and the traffic.
14 Mr and Mrs Aparna Bhat of 24 Fiddens Wharf Road are concerned about the parking, traffic, safety and the fences would be out of character with the area.
15 Mr Wilkinson of 1 Ellsmore is concerned about the safety. In particular he expressed concern about the width of Fiddens Wharf Road which is a major collector road and the behaviour of parents in parking and dropping off and picking up children and the conflicts that this would cause with other traffic within the area.
16 Mr and Mrs Wilson of 22 Fiddens Wharf Road are concerned about their driveway in terms of the juxtaposition of their driveway with Fiddens Wharf Road and the subject property and the noise emanating from the use of the premises as a childcare centre.
17 Mrs Turner of 7 Ellsmore Avenue is concerned about the traffic, parking and safety and also raises the issue of the demand or the need for the centre in the area. Mr Ray of 51 Cook Road also expressed concern to the Court about the traffic and parking.
Summary of findings
18 Given this is an extempore judgment in summary I state at this point that I am persuaded on balance the plans amended through these proceedings should be approved, subject to a ‘deferred commencement’ consent and conditions that have been carefully drafted in the light of the expert evidence. The centre is to operate in accordance with the conditions that include noise monitoring and monitoring of the effectiveness of the ‘plan of management’ for the centre and this may require modification from time to time. In particular, if there are unreasonable noise impacts on adjoining properties this may require a change to the number of children playing outside or the times and duration of play.
19 The Court raised a number of concerns at the beginning of the proceedings concerning the effectiveness or the operation and manoeuvrability within the basement car park and about the acoustic fencing and the main pedestrian street access to the premises.
20 The issues the Court raised were responded to in what are the amended architectural plans that became Exhibit G in the proceedings and the amended landscape plan Exhibit H.
21 The issue of a lack of information to accurately calculate the open space areas for the children has now been provided and the council is satisfied.
Proposal
22 The built form is a single level building with outside play areas in the frontages of Fiddens Wharf Road and Ellsmore Avenue. There are twelve car parking spaces in the basement with access from Fiddens Wharf Road and one a grade parking space.
23 The proposal is for three age groups of children in long day with a with a total of 50 places to be provided in the child care centre. The breakdown of the age groups of children is: for the nought to two age bracket there are 18 places; in the two to three-year-old category there are 22 spaces; and the three to five-year-old group there are ten spaces. The commensurate number of staff required for these groups is four, three and one respectively requiring a minimum of eight staff at any one time. There may be up to 12 staff on the premises at one time to provide cooking on the premises and to allow for changing shifts.
Assessment & Findings
24 The parking requirements have been carefully considered and I recognise that Fiddens Wharf Road is a busy collector road and clearly care would need to be taken in terms of parking and accessing the basement car park to deliver and collect children.
25 The Court made enquiries as to the operation of the basement parking to understand whether there would be conflicts on Fiddens Wharf Road with people entering the car park and finding no space to park and then the need to manoeuvre out. It is now proposed that there be an electronic system to advise of whether there are vacant car spaces in the basement.
26 Many residents expressed the concern about illegal driver behaviour and that parents and carers are often in a hurry. While the Court cannot assume people will break the law, at the same time, for childcare centres it is important that safe and convenient parking is provided.
27 Council’s traffic engineer has not raised any difficulties or issues with the parking and or location of the site. The development assessment report states:
The development would not result in a significant increase in traffic flows in Fiddens Wharf Road. It is noted that traffic speed and volume in Fiddens Wharf Road have decreased since the introduction of the 50 km speed limit. There is adequate site distance in both directions of the proposed driveway location and the proposed width of 5.5 m is sufficient for two vehicles to pass.
28 It also states that:
The expected traffic generation for this development given in the traffic report is accepted. The traffic generation is given as a number of trips per peak hour, a trip being two way. The figure which is obtained using the RTA’s figures is lower than the number of children at the centre due to being spread out over longer than one hour, allowance for siblings and the expectation that some families would walk to the centre.
29 Clearly parents and/or carers in selecting this centre would have regard to the fact that it provides basement parking rather than at grade parking and this may not be as acceptable to some people and they may choose not to send their child to this centre. This would be a factor in the choice of childcare centres. Also the same can be said for the fact it is clear that Fiddens Wharf Road is a busy road. However, the question for the Court is whether the site is suitable for a childcare centre including the proposed parking and access.
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30 The Court also raised the need to provide restricted parking outside the premises in Fiddens Wharf Road. This area could provide two time restricted kerbside spaces outside the subject premises. I note this would require the approval of the Local Traffic Committee.
31 A ‘deferred commencement’ consent is proposed so that the consent could not operate unless this approval is granted. The Court will now specify what that restricted parking is. It will be a matter for the experts on the Local Traffic Committee but clearly a 10 minute parking restriction would be preferable in terms of turnover for those particular parking spaces and parents that wish to take longer in dropping their children should then avail themselves of the basement parking. It will be a matter for the traffic committee whether that be 10 or 15 minutes restricted parking within the peak periods of the morning and afternoon drop off and pick up.
32 On the evidence before me I am satisfied that a childcare centre in terms of the traffic and parking would not create impacts that are unreasonable on the surrounding area.
33 The provision in the amended plan for the main street entrance gate to be re-located to Fiddens Wharf Road is necessary as together with time limited kerbside parking this will be a further incentive for parents availing themselves of on-street parking to use Fiddens Wharf Road as opposed to Ellsmore Avenue. This also has the advantage that the pathway and entrance adjoining No. 19 to 21 Ellsmore Avenue will generally only be used by the disabled, although others would not be prevented from using it for example parents and carers with prams. It may be that from time to time parents/carers may park in Ellsmore Avenue but the amended plans would have the effect of this occurring less with the increased ease of accessibility and parking from Fiddens Wharf Road.
34 With the decrease in the number of people using the entrance that adjoins the property known as 19 to 21 Ellsmore Avenue I am also satisfied the amended proposal would not create unreasonable noise impacts. Furthermore, in this regard the proposal has been amended to provide acoustic fencing along this boundary to ameliorate the impact of noise on the adjoining property. I am therefore also satisfied this corner location with all the play areas to Fiddens Wharf Road will not unreasonably impact on the amenity of the adjoining residential properties.
35 I have carefully considered the concerns of the residents and the Court appreciates the need to safeguard and maintain residential amenity. Childcare facilities are a permissible use in the zone and the role of the Court is to assess whether a proposed development would unreasonably impacts on the residential amenity of the area. Maintaining residential amenity is important and care needs to be taken that childcare facilities are not only designed appropriately but that they are then operated and managed in such a way as to harmoniously co-exist to maintain the residential amenity of the area. That is not to say that from time to time children will not be heard playing, but generally the residential amenity of the area should be maintained by on-going management and an operational review of the facility in terms of numbers of children playing at any on time or the duration of outside play times.
36 The Court has the benefit of the expertise of Mr Harrison, an acoustic engineer. He has recommended conditions for acoustic fencing and a maximum dBA for the measurement of noise to ensure that the childcare facility is also operated in such a way that it will not cause unreasonable impacts on the adjoining residential properties. This is a matter that can be enforced by the council. The Court also considers it appropriate for a condition to require independent monitoring of the facility when in full operation to ensure that the noise levels are not exceeded at the boundaries of the residential properties.
37 The management plan also has provision for a register of complaints such that people have a point of contact to lodge their complaints or concerns. The purpose is to ensure that the facility operates as a ‘good neighbour’ in the residential area. This also provides a mechanism to review the operation of the facility in terms of numbers of children playing outside at any one time and or the duration of outside play times to allow the maximum noise levels to be complied with.
38 I am persuaded by the evidence of the acoustic engineer that the acoustic fencing as shown in the amended plans is satisfactory. This includes acoustic fencing that has been provided on the boundary with No. 19 to 21 Ellsmore to safeguard the potential of the vacant lot for a dwelling without the child care centre creating unreasonable impacts.
39 For the acoustic fence on the frontage of the corner with Fiddens Wharf Road and Ellsmore Avenue in terms of streetscape presentation a 1.5 m fence is appropriate. This would not be out of keeping with many other fences that can be seen along Fiddens Wharf Road where people have erected high front fences, no doubt to ameliorate the impact of the traffic noise on residential properties.
40 I am also satisfied that a 1.5 m fence, in concert with the management plan for children playing, will further ameliorate noise for the property on the opposite corner, that is No. 20 Fiddens Wharf Road. I say this in the context of the width of the roadway that will have the effect of reducing the noise level at the receiver because of the factor of distance as opposed to an adjoining neighbour on the boundary. Indeed, on the acoustic engineer’s advice a 1.2 m fence would only be required. In the circumstances of this case I consider an increase to a height 1.5m to allay concerns is appropriate because this height will not impact on the streetscape because of the topography however a 2.1 m fence, would be excessive in terms of the streetscape.
41 The security of the centre in terms of surveillance of people entering the facility is also covered by a condition of consent to ensure that the entrances are monitored by video.
42 For the issue of parking the provision of restricted parking on Fiddens Wharf Road for the peak drop off and pick up periods will compliment the basement car parking. I recognise the basement parking complies with council’s requirements in terms of both the number of spaces and the layout. The number of spaces is also in the RTA guidelines and includes the number of spaces required for parents and carers as well as staff. It is generally considered that one parking space per two employees of staff is appropriate. In the circumstances of this case of basement parking only (except for one staff space at grade) it may be appropriate to restrict the number of staff parking spaces in the basement during peak drop off and pick up times and to also allocate the less accessible spaces to staff. This should be addressed in the management plan and monitored.
43 The issue of setbacks was raised by residents in that the proposed development did not numerically satisfy the setbacks. Development control plans, as articulated in the Court of Appeal judgment the Court must give the DCP ‘proper, real and genuine consideration’, althought it is also recognised the DCP is discretionary. I am satisfied in the circumstances of this case that the objectives of the setback requirement are met and there will be no adverse impacts on adjoining properties or the streetscape by the prposed variation and this would not warrant refusal of the application.
44 In terms of the streetscape generally I am also satisfied that the proposed built form of the childcare centre will ‘sit’ comfortably in this residential area and it is of a scale and height consistent with the streetscape and residential character of the area.
45 The demand/need for the centre is not a matter that the Court considers appropriate to comment on. Clearly if there are a large number of childcare centres in the area then this is a matter for the market forces and the applicant.
46 The Court adjourned to allow further evidence in terms of the basement car parking and the effectiveness of the operation of such a facility for a childcare centre and on the basis of the expert evidence before the Court this would not warrant refusal. However, I have imposed a ‘deferred commencement’ that requires the time limited kerbside parking to be approved before the consent operates. This will to a limited extent provide an alternative and compliment the basement parking. I accept that some members of the community may avoid basement parking and some parents may decide not to send their child to this centre because of this.
47 In my overall assessment of the amended plans, whilst I had some concerns with the original application before the Court, I am now satisfied that the proposed development is satisfactory and there is now no issues, singularly or in combination that would warrant refusal. The application is now worthy of approval subject to conditions to be complied with and as agreed to by the applicant, and subject to a ‘deferred commencement’ condition.
48 Therefore on the basis of my assessment above, having regard to all the evidence to the Court including the concerns of the objectors, I am satisfied on balance a ‘deferred commencement’ consent should be granted to the proposed childcare facility, as shown in the amended plans.
49 It is recognised that childcare facilities are not a residential use and given that they are allowed within residential areas, there is an obligation by operators that such facilities are managed in such a way to not impact on the residential amenity of an area. I am satisfied with the conditions imposed that this facility can operate in such a way.
50 Accordingly, the formal orders of the Court in this matter are:
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(1) The appeal in respect of the property known as 18 Fiddens Wharf Road, Killara, is upheld.
(2) The development application submitted to Ku-ring-gai Council for a 50 place childcare centre is determined by the granting of a ‘deferred commencement’ consent and subject to the conditions contained in Annexure ‘A’.
(3) The exhibits with the exception of G, H, 8, 9 and 16 are returned to the parties.
J S Murrell
Commissioner of the Court
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