BSDI Pty Ltd v Manly Council - [2009] NSWLEC 1067

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: BSDI Pty Ltd v Manly Council [2009] NSWLEC 1067
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
BSDI Pty Ltd
RESPONDENT
Manly Council

FILE NUMBER(S): 10429 of 2008

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- for 90 place childcare centre, impact on adjoining properties in terms of bulk and noise; traffic generation and parking adequacy; intersection of two main roads; internal amenity for children and amenity of outdoor play areas.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Roads Act 1993
Manly Local Environmental Plan 1988
Manly Development Control Plan

DATES OF HEARING: 19, 20 & 21/11/2008, further written submissions received on 3 and 9/12/2008

DATE OF JUDGMENT:
20 March 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr D. T. Miller, barrister
instructed by Gadens Lawyers
RESPONDENT
Ms. C. Schofield, solicitor
of Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

20 March 2009

10429 of 2008 BSDI Pty Ltd v Manly Council
JUDGMENT

1 The applicant in these proceedings is seeking to demolish the existing structures on the site and construct a two-storey child-care centre with associated carparking to accommodate 90 children. The number of children by age groups: 30 places for the 0-1 year olds; 32 places for the 2-3 year olds; and 28 places the 3-5 year olds.

2 The subject site is known as No. 114 Frenchs Forest Road, Seaforth being lots 1 and 2 in DP 134651 and part portion 79 in DP 752038. The former service station on the site ceased operation in approximately 2003.

3 The site is located on the north eastern corner of the intersection of Frenchs Forest Road and Clontarf Street. The site has a frontage of 46 metres to Frenchs Forest Road and some 29 metres to Clontarf Street with a northern boundary of 49 metres and an eastern boundary of 30.5 metres. This yields a total site area of 1464 square metres. The site slopes from the Frenchs Forest Road frontage down to the north eastern corner and falls approximately 4.4 metres across the eastern property boundary, and 2.3 metres on the northern boundary.

4 Adjoining the site to the north at No. 6 Clontarf Street there is a single storey dwelling house and council has recently granted consent for the erection of a new two-storey dwelling. On the eastern side at No. 112 Frenchs Forest Road is a part one and part two storey weather board dwelling house with an elevated terrace at the rear. Further to the east are properties Nos. 106 to 110 and these with No. 112 have the benefit of a separate access within the road reservation off the main road. Diagonally opposite the subject site on the opposite side of the major roads is a heritage listed property known as ‘Dalwood Home’. This contains a number of community facilities within the grounds. The aerial photograph at Figure 1 shows the location of the site in its context.

5 The Court met on site and heard from a number of resident objectors. Dr Ramadi of No. 6 Clontarf Street adjoining the subject site expressed concern to the Court about the access to the carparking proposed for the child-care centre and concern about the noise generated by the proposal.

6 Mr Greg Mitchell advised the Court that there had been many accidents in the area and in his opinion the site should become open space.

7 Ms Lesley Lawson advised that there had been a constant history of traffic accidents and the proposal would generate additional traffic to Montauban Avenue.

8 Mr Peter Brandt of Frenchs Forest Road, expressed concern about the concentration of traffic for the drop off and pick up associated with a 90 place child-care centre. In his opinion it is an inappropriate site and the size and scale is inconsistent with the residential nature of the area.

9 Mr Leon Vanvliet expressed concern about the traffic and noise and the conflict with traffic with the bus stop and the entry to the carpark and the bank up of cars.

10 Mr Ross Wheeler expressed concern about parking on the verge and blocking access to his property.

11 Mr Cartwright of No. 112 Frenchs Forest Road adjoining the subject site considers that the development for 90 children is too large and that his property would be impacted by noise in particular on his rear deck. On his side boundary that adjoins the subject site a 4 metre high wall is proposed.

12 Mr Trumbell expressed concern about the amount of traffic generated by the development and the need to turn right from Montauban Avenue and the traffic difficulties that would be experienced in Montauban Avenue.

13 The Court heard from a number of experts to the proceedings and joint reports were prepared. On behalf of the applicant evidence was given to the Court by: Mr Andrew Darroch consultant town planner; Mr Neil Gross consultant acoustic engineer; and Mr Graham Pindar consultant traffic engineer. For the respondent council evidence was given by: Mr James Cother council planner; Mr Louise Challis consultant acoustic engineer; and Mr Siva Pirabhahar traffic engineer with the council.

Issues

14 The council provided a Statement of Contentions as follows:

Statutory Planning Framework

15 State Environmental Planning Policy No. 55 - Remediation of Land applies to the subject site given its previous use as a service station with many underground tanks. The applicant submitted numerous documents including a site validation report. The SEPP contains provisions for the carrying out of remediation works and clause 18 requires notice of completion of remediation works and the council requires this as a deferred commencement condition to be satisfied prior to the consent operating.

16 The subject site is zoned residential known as zone No. 2 under the Manly Local Environmental Plan 1988. The aims and objectives of the plan relevantly include: to ensure that new development does not detract from the very special visual quality of the municipality.

17 Clause 10 requires that consent shall not be granted to the carrying out of development unless in the opinion of the consent authority the development is consistent with the objectives of the zone.

18 The objectives of the zone relevantly include:

19 The heritage provisions are contained in clauses 18 to 20 of the LEP and the standard heritage provisions require that consent shall not be granted unless the carrying out of the development will not impact on the heritage item and its setting. (clause 19)

20 The Manly Development Control Plan for child-care centres was adopted in October 2004 and this contains the following aims and objectives:

21 The DCP contains a number of general locational considerations and performance criteria include:

22 For carparking and access the performance criteria are:

23 The objectives for indoor and outdoor play areas include:

24 The requirements for outdoor spaces include that outdoor play areas should have a north or north east orientation to allow maximum solar access and outdoor play areas should be located away from neighbouring properties to minimise noise impacts to adjoining properties. An appropriate hedging should be planted along the fence lines to create a playground buffer zone between adjoining properties.

25 The subject site is zoned residential and the guidelines set out in the Manly Development Control Plan for the residential zone applies to all forms of residential development in the zone with the objectives of the DCP also applying to non-residential development in the residential zone.

26 The DCP contains requirements for excavation with the objective being to retain the existing landscape character and limit change to the topography and vegetation of the area. The controls also relate to setbacks and the rear setback provision requires an 8 metre setback and side setbacks shall provide sufficient access to the side properties for maintenance and planting of vegetation and sufficient separation from neighbouring properties.

Evidence

Planning issues

27 Mr Cother did not consider a 4 metre high wall was an acceptable visual impact for the property at No. 112 and that the impact would not just be from the deck but inside the living room area of No. 112 where it would be visual in a 25 percent view arc. However, he conceded that this would not be a determinative reason for refusal of the development application.

28 Mr Darroch is of the opinion that the deck is elevated some 1.8 metres high and that the 4 metre fence for the length proposed is not unreasonable and would not have an unacceptable amenity impact on No. 112. He said the top part of a fence could be of polycarbonate. Furthermore, he is of the opinion that the 4 metre wall would also attenuate the noise from the traffic on the major roads.

29 Mr Cother is also of the opinion that a 4 to 6.1 metre wall for the playscape No. 2 for 60 children is inappropriate and that it would be imposing for small children. He also expressed concern about the internal amenity of the lower ground area for playscape No. 1 as this has no north facing windows and it is setback some 22.5 metres from windows to the back of the wall and it represents the only play area for 44 children. In his opinion this represents poor indoor amenity being located underneath a suspended roof terrace.

30 Mr Cother is also of the opinion that the bulk of the building to No. 6 is too great in terms of its length along the side boundary and its proximity.

31 The planners prepared a joint report to address a number of contentions. They agreed that most parent/carers would drive to the child-care centre however, it is a legitimate expectation that some would make their way to the centre as pedestrian. They defer to the traffic experts in terms of the safety associated with the crossing at the pedestrian refuge on Clontarf Street located north of the site Mr Cother points out that the DCP states that:

Sites on arterial roads or busy intersections should be avoided.

32 Mr Cother makes the observation that the provision of footpaths in the vicinity of the site is inadequate although it was agreed that the 10 metre wide verge leading to the entry of the child-care centre could be used by pedestrians even though there is no footpath.

33 On the issue of noise from the child-care centre on the property known as 112 Frenchs Forest Road. The experts agreed that if the dwelling is double glazed with openable windows then it would only be an inconvenience during certain periods. On the question of the height of the boundary wall the planners agreed that if the acoustic wall was provided with clear polycarbonate screening above a height of 2 metres it would make the wall visually acceptable when viewed from No. 112 Frenchs Forest Road.

34 Mr Darroch stated that:

35 The planners agreed to a condition requiring the skylights on playscape one to be increased to permit greater natural light into the lower ground floor. Mr Darroch states that if there is concern over the level access to natural light it can be ameliorated by increasing the area of the skylights. In his experience it is not necessary for an east facing elevation with northern windows but acknowledges the skylights and windows can be enlarged significantly. Mr Cother on the other hand states that:

36 On the issue of bulk of the centre to the northern dwelling Mr Darroch states that:

37 On the other hand Mr Cother is of the opinion that:

The cumulative impact of the built elements including the playscape and acoustic wall would detract from the visual amenity for the occupants of No. 6 and that landscaping along this boundary is an unsatisfactory solution to reduce the visual impact. He states that: increasing the setback of the elevated playscape and activity room No. 1 from the side boundary and reducing the size of the eave overhang would assist in the reduction of visual bulk by providing greater articulation to the building form.

38 On the issue of the extent of excavation the planners did not agree. Mr Darroch is of the opinion that:

The excavation reduces the rear of the site to a level consistent with its existing lower level and consistent with the level of the private open space of the adjoining residential properties.

39 Mr Cother on the other hand considers that “the extent of excavation substantially alters the topography and limits the site to provide a landscape setting that defines the locality.” He also considers the depth and extent necessitates the construction of extensive retaining walls along the southern and eastern boundaries with minimal or no scope for the planting of endemic species to soften their impact. Mr Darroch on the other hand says that the excavation would only be experienced from within the centre and not from surrounding residential neighbours or the public place. He considers that the excavation goes along way towards integrating the development into the residential area by minimising the bulk and scale of the proposed building making it compatible with its residential neighbours consistent with the objectives of the DCP.

40 On the issue of the setback to Frenchs Forest Road Mr Darroch states that:

The development is on the bend of Clontarf Street and Frenchs Forest Road ant the proposal addresses Clontarf Street and makes it clear through its design and siting that this is the entry and primary street frontage.

41 On the question of the setback of playscape area one from the rear eastern boundary Mr Darroch states that:

The DCP requires an 8 metre setback and the proposal has a 7.2 metre setback and that this element is limited to a 1.8 metre band balustrade to the upper level play area and that the building is setback an additional 7.8 both above and below this element with the provision of canopy trees.

42 Mr Cother states that: “the departure from the numerical control does not significantly offend the setback objectives within the Residential DCP, however, there is an expectation that new buildings comply.” He is further of the view that the increase in setback (800 mm) would increase the level of sunlight available to the lower ground floor play area, reduce the visual impact of the elevated terrace on the property to the north and provide a greater visual separation between the structures on the site and the windows and deck on No. 112 Frenchs Forest Road.

43 The planners agreed on the issue of privacy for No. 112 Frenchs Forest Road in that this could be achieved to a satisfactory level by moving the shade structure within the sand pit 2 metres to the north.

44 On the question of landscaping the planners agree that there is a short fall in the provision of open space across the site, 44.3% is provided as open space whereas 55% is required by the Residential DCP and this represents a short fall 156 square metres.

45 The Child Care DCP sets out the following objectives for landscaping:

46 Mr Cother is of the opinion that soft open space is not maximised across the site with artificial turf provided within the majority of the upper and lower playscape areas. Mr Darroch considers that the artificial turf should be included in soft open space as this is common practice with child-care centres in his experience.

47 When Mr Cother was questioned on the extent of a view arc for the 4 metre high wall Mr Cother stated that it would be some 25% when standing in the living room and also on the deck and he said that this would not be determinative reason to warrant refusal of the application. Mr Darroch on questioning stated that the acoustic boundary wall is 1.8 metres above the deck and the floor level of the dwelling at No. 112. He considers that the house is elevated that the 4 metre extent of wall would not impact on either the living area or the garden area for No. 112. Mr Cother is of the opinion that a wall with dimensions of 4 to 6.1 metres in height is inappropriate for a child and this wall is adjacent to a major playscape area.

48 On the question of natural light the planners agreed that the sky lights on the trafficable playscape areas could be extended to provided greater natural light to the lower level. However, Mr Cother is of the opinion that as a new building it should be designed to provide for suitable amenity for the children.

Noise

49 The acoustic experts provided a joint statement and evidence to the Court as well as setting out a number of conditions that in their opinion would provide for a satisfactory amelioration of the noise impacts on adjoining properties. Mr Challis provided further clarification to the Court that the assumptions are based on the windows to the road to be closed and all windows closed when there are noisy activities within the play centre. With the 0 - 2 year old area internal space being closed at all times. Mr Challis advised that the masonry wall to No. 112 would need require an increase in height next to the bedroom window and that the bedroom window be double glazed and filtered and silenced to provide for a fresh air filter for ventilation.

50 Mr Challis is of the opinion that there is a need for a masonry wall adjoining the side boundary of No. 112 Frenchs Forest Road and that there would need to be an increase in the masonry wall adjacent to the bedroom window and the bedroom window would also need to be double glazed with a fresh air filter and silencer.

51 The assumptions made by the acoustic experts are the windows to the road are to be closed at all times and that the other windows are to be closed when there are noisy activities. For 0-2 year age groups these windows would be closed all the time.

Parking and traffic

52 The traffic engineers did not agree on the adequacy of the parking spaces both in terms of number and accessibility. Mr Pindar referred to the council’s DCP that requires one parking space per employee and notes that there are 15 full time staff and two casual. He also refers to the RTA guidelines that would require eight for staff as it is generally accepted that one space per two employees is required. In his opinion it would be highly extremely improbable that the demand be for 10 carers at any one time. With a 6.8 minute period allowed for dropping off children this would allow nine cars per hour for each space. Mr Pindar on questioning agreed that there had been no surveys carried out for basement parking with a lift in terms of the time required to drop off children. Mr Pindar is of the opinion that the children would arrive over about a two hour period whereas Mr Pirabhahar says that 80% would arrive in a one and half hour time frame. Mr Pindar uses a 50/50 split for each hour this equates to some six trips per hour difference between the experts.

53 Mr Pirabhahar considers that calculated into the turn over of parking spaces is the increased dwell time required over and above the RTA guideline. Ms Schofield asked questions regarding an average dwell time of 10 minutes and with five spaces for parents, 30 cars per hour could be accommodated which is inadequate for a demand of 36 taking the RTA’s guideline of 72 trips an hour for a two hour period. Mr Pindar suggested that staff could meet children and escort them into the centre however it is recognised that children must be signed in. Council’s traffic expert is of the opinion that the dwell time for the set down of children should be factored in as between 10 and 15 minutes whereas the applicant’s consultant has used the RTA Guidelines of 6:8 minutes.

54 Council’s engineer considers that the three spaces provided on Frenchs Forest Road should be deleted which reduces to 20 spaces the parking number available. With a requirement for one per staff this requires 15 for staff which leaves only five for parents to drop off and pick up children. Mr Pindar on the other hand considers that there is no reason why the three car parking spaces cannot be accessed off Frenchs Forest Road. He said the RTA Guidelines would require one space per four children which includes a ratio of approximately one for every two staff members. This would leave adequate parking for carers and parents as one space can have a turnover rate of nine cars per hour in Mr Pindar’s opinion.

55 The traffic experts agreed that there is no concern for the traffic numbers in Montauban Avenue that may be generated as the number of vehicles would be below the environmental capacity of the road design. On the issue of the sight lines for the three spaces that have access from Frenchs Forest Road, Mr Pindar suggested that the access for the dwelling houses from 106 to 112 is the same as for the three proposed spaces and that over the last five to 10 years there have been no reported accidents.

56 A joint traffic report was tendered as follows:

Contention 1 Part 1: Safe Exit of Primary Access to Clontarf Street

1. The experts agree that the safety of the car parking operations (including entry and exit movements) is directly related to the ability to accommodate all demands within the site, so that queuing does not occur on-street. Therefore, the assessment of parking supply is an important consideration.

2. The experts agree that under Manly Council's Child-care Centres DCP,. the development needs to provide one space per staff member and safe drop off and pick up points within the site. The latter requirement is not quantified. Mr. Pirabhahar therefore defers to the Manly LEP which embodies the requirements of the RTA's Guidelines, which Mr. Pindar is content to also adopt. The RTA's Guideline requires 1 space/4 children and this is the total parking for both staff and parents/carers. Application of this rate to the 90 place centre results in a need for 23 spaces and these are provided, though Mr. Pirabhahar does not accept the. 3 angled spaces at the secondary access. The experts note that the RTA's Guideline does not say how these 23 spaces should be allocated. Mr. Pirabhahar prefers the Council's requirement for 15 staff spaces be provided, with the balance of 8 spaces used for parents/carers which he then concludes is insufficient. Mr. Pindar considers that 13 spaces for staff would be more than sufficient given that not all staff will drive, which leaves 10 spaces for use by parents/carers which equates to 1 space/9 children which is within the typical range and is more than the 8 spaces that would be required by Council.

3. On the basis of the above, which is the peak demand at any time, Mr. Pindar is of the firm opinion that all parking demands will be wholly contained within the site at all times and that no on-street queuing will occur.

4. Mr. Pirabhahar in his SOE asserts that there will be 15 contact staff on site, so that with the removal of the 3 angled staff spaces there will only be 5 spaces available for parents/carers, which is insufficient.

5. Mr. Pirabhahar in his SOE refers to the requirements of other councils and considers that their requirements are for parking for staff to be dealt with as additional to the RTA Guideline rate which he interprets as being only for parents and carers. He attaches these in Appendix C of his SOE and considers that Strathfield, Baulkham Hills and Blacktown Councils all require staff parking that is additional to the RTA's requirement. Mr. Pindar considers that this is a serious misrepresentation of the RTA's Guideline, which covers all parking demands; and that it is erroneous to consider staff demands as being additional to the RTA Guideline rates. Mr. Pindar also notes that the vast majority of controls for other council's are either based on the RTA's Guideline or is similar to or less than the RTA's Guideline.

6. Mr. Pirabhahar in his SOE has assessed the 36 arrivals that will occur per hour as resulting in an average time for each parent as 1.6 minutes, which he calculates as 60 minutes/36 arrivals. He then states that this is inadequate as in his experience the average time spent by a parent will be 10-15 minutes. He now accepts however that there will be 8 parent/carer parking spaces and with 36 arrivals, each parking space will need to accommodate (36/8) = 4.5 vehicles per hour. This equates to an average park time of (60/4.5) = 13.3 minutes. Mr. Pindar considers that this provides ample spare capacity given that the average 'dwell' time is 6.8 minutes based on the RTA's Guideline (Section 5.12.3 refers).

7. Mr. Pirabhahar does not accept Mr. Pindar's assumption that there is a 50/50 split between arrivals and departures and that an 80/20 split is more appropriate in the AM peak, with more arrivals. Mr. Pirabhahar considers that with an 80/20 split as a worst case scenario and with only 5 spaces available for parents and carers, there will be 58 car arrivals. This equates to 11.6 cars per space which is an average dwell time of 5.2 minutes which is less than the RTA's average dwell time of 6.8 minutes.

8. Mr. Pindar considers that the 80/20 split only relates to commuters and that the 50/50 split is accurate and reflects the RTA's research and it is commonsense that with such a short parking turnover, parents/carers will arrive and depart in equal number in any one hour. In addition, the staff arrivals and departures typically occur before opening and after closing and do- not influence conditions between the main 7-gam and 4-6pm peak times of activity. Mr. Pindar notes that while the RTA's Guideline (and the research that underpins It) does not provide the directional split (just total movements), extensive surveys he has undertaken demonstrate a 50/50 split. Mr. Pindar therefore refutes the suggestion that the car park will become congested; or that on-street queuing effects will occur. There will be no on-street queuing in his opinion as sufficient parking is provided on site in accordance with the RTA's Guidelines.

9. Mr. Pindar and Mr. Pirabhahar accept that there Is no concern relating to gap acceptance and this Issue has been resolved.

Contention 1 Part 2: Safe Exit of Three Spaces on Frenchs Forest Road

10. There is no agreement between the experts. Mr. Pirabhahar considers that these 3 spaces should enter and exit across the property boundary in a forward direction which is not possible and this is contrary to its DCP. He considers that the driveway width is excessive for what should be a Category 1 driveway and he considers that the wide driveway will encourage high entry and exit speeds, and also expose pedestrians to risk. The parking and unparking manoeuvres are also not contained within the site but occur 'illegally' on Council land. Mr Pirabhahar is also concerned over the inadequate sight lines based on NAASRA (now Austroads) Guidelines.

11. Mr. Pindar considers that in principle, the use of 3 angled spaces for long term (all day) staff parking is reasonable and that the circumstances are unique in that the apron area is in fact an access roadway serving residential properties to the immediate east of the site, which use this apron as a driveway crossing. There is also no formed footpath and pedestrians use the apron as a shared footpath/driveway which is appropriate. The apron is wide enough for cars to enter and exit across the kerbiine of Frenchs Forest Road in a forward direction which is the most important safety consideration and through traffic on the main road will not be affected. In terms of pedestrian conflicts, the reversing across the 'footpath' would be no different to what occurs at any single or double garage or indeed any right angled parking arrangement on any public road. Mr. Pindar requires further time to further investigate the legality of the proposed manoeuvres and therefore reserves his position.

12. With regard to sight lines, Mr. Pindar notes that the reference to Safe Intersection Sight Distance (SISD) in Mr. Pirabhahar's Statement is an incorrect use of the Austroads publication. Specifically, the SISD relates to sight distance requirements at public road intersections and indeed, Austroads Part 5 is entitled "Intersections at Grade". The correct reference for sight distance requirements at driveway accesses is AS2890.1, in particular Figure 3.2 of that Standard. For an approach speed of 60km/h, this requires a minimum sight distance of 65 metres which is the Stopping Sight Distance. It includes a reaction time of 1.5 sets and the braking distance for an approaching vehicle to come to a stop if necessary (assuming for example that the vehicle has stalled within the lane). It is therefore a worst-case scenario. The distance is measured along the path of travel, not in a straight line, as this is the length of road surface that must be traversed by the approaching vehicle, This also takes no account of the fact that traffic approaches on an upgrade with speeds that would be less than 60km/h due to the sharp bend (which Is signposted with a 35 km/h advisory speed), which provides a significant safety margin. Based on an approach speed of even 50km/h the required SSD Is 45 metres and the 42 metres that is available is considered sufficient. Mr. Pindar notes that the existing residences that use this driveway do not experience any difficulty with its use and there are is no adverse accident history and 3 exits in the PM peak will not create any problems.

13, Mr. Pirabhahar's view is that the assessment should be based on the design speed of 60km/h. Recent surveys by Council to the north of site (about 40 metres from the bend) showed an 85th percentile speed of 60km/h and based on this, AS 2890.1 would require 65 metres sight distance. This distance is more than the 32 metres he has measured on site and therefore the sight distance requirement is not met.

Contention 1 Part 3: Use of Montauban Avenue

14. The experts agree that there will be no environmental capacity impacts created by the expected traffic generation.

15. The experts agree that the impacts of the development on the intersection of Montauban Avenue with Clontarf Street, particularly the right turn movement out of Montauban Avenue, will be negligible (5 veh/hr) and can be readily accommodated.

16. Mr. Pirabhahar is concerned that the right turn movement into Montauban Avenue from Frenchs Forest Road in the AM peak and PM peak which will cause delays to traffic exiting right out of Montauban Avenue. Mr. Pindar considers that this will not be the case with only 14 veh/hr undertaking this manoeuvre (about one movement every 4 to 5 minutes) and will give consideration to further analysis,

Contention 1 Part 4: Accident History

17. There is no agreement between the experts. Mr. Pirabhahar had established that there have been 21 accidents over a 10 year period along the main road between each end of Montauban Avenue, over a distance of about 460 metres (about two per year). This was selected to examine the implications of the service station operations, which ceased in about 2002. He considers that the main concern relates to the right rear type accidents (7 accidents) and the run-off-road accidents (7 accidents) which are speed-related. He is concerned that the development has the potential to increase the existing accident trend in the near vicinity of the site.

57 During the proceedings the best practice guidelines for Early Childhood Physical Environments was drawn to the attention of the parties and clarification was sought on the status of same. The applicant provided a written submission following the hearing to say:

Children’s Services Regulation 2004

58 The Court also required the parties to submit written submissions on the operation of the Roads Act 1993 because of the extension of the medium strip on the corner of Frenchs Forest Road and Clontarf Streets and the creation of a secondary access from Frenchs Forest Road to the subject property and the removal of a large tree located on public land. The respondent advised that the works on the public road proposed in relation to the subject application may be carried out with consent as they are for a purpose which may be carried out with consent on the land adjoining that road (being the subject property which is zoned residential). Part 5 of the EPA Act is therefore not relevant. The respondent further advises:

Roads Act

Land and Environment Court Act

Roads Act

59 The applicant provided submissions on the above questions and agrees that the Court has the power to determine the development application.

Assessment and findings

60 In my merits assessment of the application I have considered all the evidence to the Court including that of the experts, the resident objectors and the site inspection. I have considered the application against the planning framework of the council including the LEP and DCP’s for Child-care Centres and the Residential Zone.

61 It is self evident that the site has a major constraint by its location at a busy corner of two arterial roads. The site itself is dominated by the road and noise, however, the surrounding area is predominantly low density residential development in garden settings with a quieter vegetated ambience. The role of the Court is not to determine whether the subject site is the most ideal or best location for a child-care centre but whether the site is suitable on a merits assessment.

62 The traffic experts disagreed on the adequacy of the proposed parking numbers for the centre. I am satisfied that the three car parking spaces on French's Forest Road to be used for staff only is satisfactory. I say this having regard to the site inspection and an understanding of the road configuration with the additional road reservation area for manoeuvring that also serves to access the properties to the north, 106 to 112. As such the car park with access from Clontarf Street can accommodate the necessary number of parking spaces for staff parents and carers. A total of 13 spaces is required for staff parking, three of which are to be located with access from Frenchs Forest Road, and 10 staff parking in the Clontarf Street car park and 10 spaces for parents and carers.

63 Mr Pindar's further analysis of an average dwell time of 7.5 minutes required, because of the necessity to use a lift, then this may increase the parking demand proportionately from 10 spaces to 11 spaces. Mr Pindar states that in this situation the frequency when all 10 spaces are occupied only a few occasions per hour will increase by about 10%. In addition there will be very infrequent occasions when a driver would need to wait within the turning area for a short period of time until a space becomes available, noting that there is a car departure every 1.6 minutes on average during the AM peak.

64 I am satisfied that the design of the car park and sufficient manoeuvring area for vehicles to wait is satisfactory and it is most important and in the interests of the operation of the Centre that the car parking is adequate and functional.

65 On the issue of impact on the adjoining dwellings at No. 112 Frenchs Forest Road and 6 Clontarf Street, I have considered the concerns of the residents and the council's planner. For No. 6 having regard to the relative levels of the proposal in respect of the existing and proposed dwelling at No. 112 Frenchs Forest Road, I am satisfied that the proposal will not present an unreasonable bulk or scale to this property and the built form provides an appropriate relationship with this residential neighbour. Figures 2 and 3 show the relationship of the proposal with adjoining dwelling houses both in plan and sections. In my assessment these demonstrate an appropriate outcome in terms of bulk and scale. The excavation provides appropriate relationship with the ground level of adjoining properties and in the circumstances the extent of the excavation is satisfactory.

66 The amenity of No. 112 must be carefully considered in terms of noise attenuation measures and the visual impact of a boundary wall of some 4 metres in part. In my assessment I have conclude, and I agree with the planning experts, that this would not warrant refusal of the application. The individual circumstances of the relationship of the ground level to the level of the deck and floor of the dwelling ameliorates the 4 metre wall and the amenity impacts for the occupants of No. 112 are acceptable and would not warrant refusal of the application.

67 I accept the advice of the acoustic engineers on the attenuation measures required for No. 112 and these are accepted by the applicant and are contained in the conditions.

68 Approval of this portion of the boundary fence at a height of 4.1 metres cannot be seen as a precedent for masonry acoustic walls of this height in other situations. The circumstances of the relative ground level, deck height, topography and the shielding effect from the traffic noise provided to No. 112 provide for unique circumstances for this development application.

69 On the question of inadequate landscaping and soft areas of open space contested by the council in my assessment the landscaping of the proposed development on two busy roads will be satisfactory in its context when viewed from the public domain and when also viewed from the adjoining residential properties. The subject site, while on the edge of a vegetated residential area, because of the dominance of roads will continue to be a prominent site in this residential precinct irrespective of the use. More importantly the built form of the child-care centre provides an appropriate fit with the residential area and the proposed landscaping will provide a limited satisfactory contribution to the area.

70 The council contends that the site is not suitable because of its boundaries with two classified roads and the location would cause difficulties with queuing of cars and the potential for accidents. I have given the DCP for child-care centres central focus and consideration in my assessment of the application. This states that “sites on arterial roads or at busy intersections should be avoided”. It also contains a number of other performance criteria including sites with a minimal number of adjoining residential properties will reduce the negative community impact on the neighbourhood in terms of noise and loss of privacy and that sites located within non-residential dominated area require additional considerations. I have given serious consideration to the residents and councils concerns however and, on balance, in my assessment, with the benefit of the expert evidence while the site has limitations and constraints I am satisfied that the site is suitable for the proposed development.

71 It will be self evident to prospective parents and carers that the site is located adjacent to busy roads and the background noise associated with same. However, as I stated while the site is not ideal I am satisfied the issues of car parking ingress and egress, manoeuvring on-site together with internal amenity and maintaining the amenity of adjoining dwellings and the relationship of the built form is resolved in the plans before the Court, subject to appropriate conditions.

72 A service station previously occupied the site, however it ceased operation some years ago and the zoning of the site is residential under the Manly LEP. This allows multiunit development as well as dwelling houses and child-care centres are also a permissible use. While a site validation report was provided the respondent presses the need for a deferred commencement condition to provide for a notice of completion of remediation works in accordance with clauses 17 and 18 of State Environmental Planning Policy No. 55 -remediation of land. The applicant has not persuaded me that this should be deleted. Given the sensitive land use of a child-care centre it is appropriate that this be imposed as a deferred commencement condition. I have extended the period from three to twelve months for this condition to be satisfied in the circumstances.

73 The traffic engineers agreed that the pedestrian refuge in Clontarf Street is safe although it was also agreed that the majority of children would come to the site by car.

74 On the question of the sight lines for the three car parking spaces accessed off Frenchs Forest Road the traffic experts agree that there is a sight line distance of 50 metres whereas 65 metres is recommended. Mr Pindar is of the opinion that the vehicles are travelling at a lower speed because of the design configuration of the road and that vehicles using the three car parking spaces have the advantage of using the service lane within the road reservation of Frenchs Forest Road. I accept Mr Pindar’s evidence and consider that the three spaces are satisfactory to be used for staff parking only.

75 The experts agree that it is critical that the on-site parking for the child-care centre provides safe and convenient parking. Overall the car parking provision satisfies council’s requirements and the RTA guidelines. The question is whether in the circumstances of the case council’s DCP should be varied which requires one parking space per staff equating to 15 spaces or whether the RTA guidelines of one space for four children, which includes staff parking generally regarded as one space per two employees, should be utilised in the circumstances of this case. Clearly it is important that the setting down and picking up of children be carried out in a safe and convenient manner and that the road system is not adversely impacted. In this regard it is important that sufficient spaces are provided for parent/carers to park given there is no opportunity to park on street and queuing must be contained on the site. I am persuaded by Mr Pindar’s evidence that even with an increase in dwell time it is extremely improbable that there would be a demand for ten carers at the one time. In this regard I considered both the council’s engineer’s concern for an increase in dwell time and the applicant’s evidence of increasing the dwell time by appropriately 10% because of the need to use a lift rather than at grade entry to access all the age groups in the centre.

76 I am satisfied that the centre provides sufficient spaces and these should be allocated on the basis of three staff parking with access from Frenchs Forest Road and 10 parking spaces in the main car park totalling 13 for staff and providing 10 spaces for carers and parents for drop off and pick up purposes. The functioning of the car park is critical to the overall operation of the child-care centre and it is in the interests of its operation and management that the car park be monitored to ensure there is not an unacceptable level of queuing or waiting for parents and carers. In the circumstances I consider the variation of requiring 13 car parking spaces for staff is justified with the overall quantum being met and the need to ensure sufficient parking for parents and carers on site.

77 While it is unfortunate that the pine tree requires removing for the staff parking I am satisfied that the landscape plan provides for replacement vegetation.

78 The question of air quality was raised by the council and in this regard the applicant submitted an air quality report and I note the conditions proposed by the council for the monitoring of air quality for the children.

79 While not raised as an issue in my assessment under the LEP I must include consideration of the heritage item known as “Dalwood” and the impact of the proposed development. I am satisfied that the proposal will not impact on the heritage item.

80 The internal amenity of the centre for the children is raised by the council’s planner, Mr Cother who considers that the high walls 4-6 metres will be imposing for small children. I accept that it may not be ideal but given careful design of equipment and other features this would not warrant refusal of the application. Clearly it will be a matter of choice in terms of parents and carers electing to enrol their children in the centre and with careful design a pleasant environment could be created recognising the wall between 4 and 6 metres is a constraint.

81 The location of the proposed child-care centre may not be optimal however after a careful assessment I am satisfied that the issues raised have been adequately addressed and there are no issues in isolation or in combination that would warrant refusal of the application.

82 Accordingly, the orders of the Court based on my assessment above are:

___________________

J S Murrell

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

BSDI Pty Limited v Manly Council

Premises: 114 Frenchs Forest Road, Seaforth

Proposal: Demolition of the existing structures and construction of a two (2) storey building with associated car parking and landscaping for use as a Child Care Centre

The application be approved for deferred commencement pursuant to Section 80(3) of the Environmental Planning and Assessment Act 1979, and shall not operate until the applicant has submitted the following:-

A Notice of Completion of remediation works must be issued in accordance with clauses 17(2) and 18 of the State Environmental Planning Policy No. 55 – Remediation of Land.

This consent is a "deferred commencement".

Evidence of Item A is to be submitted within a period of 12 (twelve) months pursuant to Section 80(3) of the Environmental Planning and Assessment Act 1979. The consent will then operate for a period of five (5) years.

Development Application conditions of consent upon compliance with the above matter:

Pursuant to the Building Code of Australia, the building is a Class 9b building.

1 This approval relates to the following drawing/plan nos. and accompanying documents, subject to the conditions of this consent:

A001; A002; A003; A020; A021; SD001; SA001 Amendment B dated 11/06/08 received by Council on 1 July 2008

A010 and A011 Amendment D dated 19/11/08 received by Council on 19/11/08

A030 Amendment A dated 29/02/08 received by Council 3 March 2008

Schedule of Finishes dated 18/03/08 received by Council on 18 July 2008

08/1275/DA1 and DA2 Issue B dated 28/02/08 received by Council 3 March 2008

7432 Site Survey Plan Rev 01 dated 05/02/2008 and C00 – 03 Civil Services drawings Issue A dated February 2008 all received by Council on 3 March 2008.

Statement of Environmental Effects – Child Care Centre 114 Frenchs Forest Road, Seaforth, prepared by Andrew Darroch of Mersonn Pty Ltd dated February 2008;

Seaforth Childcare Centre 114 Frenchs Forest Road – Noise Assessment, prepared by Wilkinson Murray dated February 2008;

Traffic Impact Assessment relating to a Proposed Child Care Centre at 114 Frenchs Forest Road, Seaforth prepared by Traffix dated February 2008;

Geotechnical Investigation prepared by Asset Geotechnical dated 28 March 2008;

Accessibility Review prepared by Morris-Goding Accessibility Consulting dated 29 February 2008;

Site Validation Report Former Ampol Service Station corner Clontarf Street and Frenchs Forest Road Seaforth prepared for Caltex Australia Petroleum Pty Ltd dated 20 July 2004;

2 The eastern boundary wall shall be constructed in face brick on the elevation facing 112 Frenchs Forest Road, and in accordance with the Dividing Fences Act 1991 except that the cost of the wall is to be borne by the applicant/developer. The top of the wall being RL98.45 AHD where it adjoins the dwelling at 112 Frenchs Forest Road, and reducing to RL98.06 AHD where it adjoins the deck of that dwelling. Plans are to be noted accordingly prior to the issue of the Construction Certificate. The wall is to be erected prior to the issue of the occupation certificate for the childcare centre.

3 An easily open able, acoustically effective double glazed window is to be installed on the western side of 112 Frenchs Forest Road, Seaforth (i.e. the bedroom window). Acoustically effective to mean that the acoustic integrity of that room where the window is fitted is maintained. The glazing is to comply with the appropriate Australian Standards with all costs borne by the applicant. The window is to be installed prior to the occupation of the childcare centre.

‘filtered / silenced fresh air system

4 The internal noise level in the rooms at 112 Frenchs Forest Road, Seaforth that overlook the childcare centres outdoor playing area (measured as an LAeq.15min) at those times when children are playing, shall not exceed the background noise levels that prevails in those rooms at those times when the children are not playing by more than 5dB(A).

5 The childcare centre’s air conditioning system shall incorporate a filtered / silenced make up fresh air supply that complies with the requirements of AS1668 Part 2 and which serves all relevant areas.

6 The hours of operation of the Childcare Centre are not to exceed 7:00am to 7:00pm Monday to Friday, without the prior approval of Council. The site is not to be used for any other purpose other than a Childcare Centre.

7 The number of children occupying the childcare centre must not exceed 90 without the prior consent of Council.

8 Food Premises - Notification

The food business must, before the food business commences and food handling operations, notify the NSW Food Authority through the Notification and Food Safety Information System (NAFSIS) of all appropriate trading details. Notification can be completed on-line through the NAFSIS website: Under the NSW Food Act 2003 all food handling business in NSW are required to "notify" their details to the NSW Food Authority.

9 Food Premises – Inspection

Trading must not commence until a final inspection has been carried out by Council's Environmental Health Officer and ALL conditions have been complied with.

10 Food Premises – Operation

The operation of the premises shall comply with: The Food Act 2003, Food Regulation 2004 and the Food Standards Codes.

11 A separate waste and recycling service shall be engaged / contracted by the business operating from the premises. The Council may be contracted to perform this service.

12 For the purpose of storing waste and recycling until collection a suitable area must be included on the proposal. The area must be sufficiently sized to house three (3) separate bins, waste, paper recycling and commingled recycling bins.

13 Waste and recycling bins are to be provided in the kitchen, nappy area and office area for convenience to staff and can be emptied daily to main bins for collection.

14 All parking areas, driveway widths and gradients including parking bay and aisle dimensions, circulation roadways, and loading facilities must comply with AS 2890.1-2004 and 2890.2-2002.

15 Any vehicular crossing of the footpath is located at least 2m clear of any stormwater gully pit and clear of any other utility surface infrastructure located within the road reserve. Plans are to be noted accordingly prior to the issue of the Construction Certificate.

16 Appropriate warning signs are to be installed (to highlight left in-left out) and a speed hump is to be installed 5 metres inside the vehicle access off Clontarf Street to prevent vehicles existing the premises at high speed. Details of signage and the speed hump are to be provided to Council / Accredited Certifier prior to the issue of the Construction Certificate.

17 That “Children Warning” signage plus the “Preschool” supplementary plate be installed on both the approaches, outside the Child Care Centre. The applicant is to make a separate application to Council / Roads and Traffic Authority for the erection of the child warning signage and the preschool supplementary plate.

Conditions required by the Roads and Traffic Authority (nos. 18 – 29)

18 The proposed median island extension in Clontarf Street, shown on the sketch detailed in Attachment 1 in the letter from Traffix dated 16 July 2008 (Ref. No. 07 209), is to be designed and constructed in accordance with the RTA requirements. The median island is to be a minimum width of 900mm with two southbound lanes provided at a minimum width of 3.4m (desirably 3.5m) and a northbound lane of width 5.2m. The median island extension is to stop right in and right out vehicle movements from the proposed development.

In order to carry out these works the median island is to be designed to meet RTA’s requirements, and endorsed by a suitably qualified and chartered Engineer (i.e. who is registered with the Institute of Engineers, Australia). The design requirements shall be in accordance with the RTA’s Road Design Guide and other Australian Codes of Practice. Certified copies of the civil / structural design plans shall be submitted to the RTA for consideration and approval prior to the release of construction certificate by Council / Accredited Certifier and commencement of road works.

The RTA fees for administration, plan checking, civil works inspections and project management shall be paid by the developer prior to the commencement of works.

The developer may be required to enter into a Works Authorisation Deed (WAD) for the abovementioned works. If required, please note that the Works Authorisation Deed (WAD) will need to be executed prior to the RTA’s assessment of the detailed civil / traffic signal design plan.

19 Deleted.

20 Combined entry/exit driveway to be left in left out only. Should it be necessary to carry out any work to adjust the existing driveway then the design and construction of the proposed driveway and gutter crossing off Clontarf Street shall be in accordance with RTA Road Design Guide and in accordance with AS2890.1-2004. Details of these requirements can be obtained from the RTA’s Project Services Manager, Traffic Projects Section, Parramatta (Ph: 02 8849 2144).

A certified copy of the design plans, which detail vehicle turning paths, shall be submitted to the council prior to the release of the construction certificate and commencement of road works.

21 No stopping restrictions are to be provided along Frenchs Forest Road and Clontarf Street to maximise sight distance and improve safety. The RTA must be contacted to arrange these works.

22 Post development storm water discharge from the subject site into the RTA drainage system must not exceed the pre-development discharge.

Detailed design plans and hydraulic calculations of any changes to the storm water drainage system are to be submitted to the RTA for approval, prior to the commencement of any works.

Details should be forwarded to:-

Sydney Asset Management

Roads and Traffic Authority

PO Box 973

Parramatta NSW 2124

The RTA will examine the proposal upon receipt of a deposit of $100 and will require payment of the actual plan checking cost prior to the release of its report. A performance bond may also be required before the RTA’s approval is issued.

23 All vehicles are to enter and exit the site in a forward direction except for the three staff car parking spaces can utilize the access in the road reserve that adjoins Frenchs Forest Road.

24 The proposed turning areas are to be kept clear of any obstacles, including parked cars, at all times.

25 A clear line of sight to pedestrians, cyclists and other vehicles is to be maintained at all times for the driveway entry and exit points and car parking area.

26 Suitable provision is to be made for construction vehicles on site at all times.

27 Deliveries to the child care centre are to be outside of peak traffic hours as well as child drop off and pick up times.

28 Bicycle storage facilities are to be provided on site.

29 All works associated with the development will be at no cost to the RTA.

General Conditions

30 The existing three lots are to be consolidated into one allotment and the plans lodged with the Lands Titles Office prior to the issue of the Occupation Certificate. This condition is required to ensure the site is developed in an orderly fashion.

31 Landscaping is required along the nature strip adjacent to the site. Landscaping is to reflect the landscaping on the opposite (southern) side of Frenchs Forest Road and is required to mark the entrance gateway to Manly. Planting details are to be provided to Council prior to the issue of the Construction Certificate.

32 The trafficable sky lights are to be enlarged to Council’s satisfaction and shown in the construction certificate plans.

33 That a double “holding pen” (child safety zone) gate is installed to stop a child from running directly out of the facility onto the street. Plans are to be notated accordingly prior to the issue of the Construction Certificate.

34 Access and facilities are to be constructed in accordance with the accessibility review prepared by Morris – Goding Accessibility Consulting dated 29 February 2008.

35 A minimum of one car space for the vehicle of people with disabilities in all new or refurbished buildings which provide between 10 to 50 car parking spaces, 2 for those which provide between 50 and 100 car spaces. The car spaces shall be identified and reserved at all times and be in the vicinity of lift or as close as possible to public areas and facilities. The car spaces shall have minimum dimensions and headroom to conform to Australian Standard AS/NZS 2890.1: 2004. A notice shall be displayed at the entrance to the parking station and at each change in direction indicating the location of car spaces and the maximum headroom for vehicles. Details shall be submitted to the Council/Accredited Certifier prior to the issue of the Construction Certificate.

36 The construction of a vehicular footpath crossing is required. The design and construction including allowable width shall be in accordance with the current Policy of Council and Specification for the Construction of Vehicle Crossings. All works shall be carried out prior to the issue of Occupation Certificate.

37 Separate application to Council for the construction of a Vehicular Crossing for the design, specification and inspection by Council. The design and construction including allowable width shall be in accordance with the current Policy of Council and Specification for the Construction of Vehicle Crossings. Applications shall be made a minimum of twenty-eight (28) days prior to commencement of proposed works on Council's property.

38 All surplus vehicular crossings and/or kerb laybacks shall be removed and the kerb and nature strip reinstated prior to issue of the Occupation Certificate.

39 A long section of the driveway shall be submitted with the Construction Certificate Application. The long section is to be drawn at a scale of 1:20 and shall include measured lengths and Relative Levels (RL) of the road centreline, kerb, road reserve, pavement within property and garage floor. The RLs shall include the existing levels and the designed levels.

40 Pursuant to Section 97 of the Local Government Act, 1993, Council requires, prior to issue of the Construction Certificate, or commencement of any excavation and demolition works, payment of a Trust Fund Deposit of $15,000. The deposit is required as security of compliance with Conditions of Consent, and as security against damage to Council property during works on the site.

Note: Should Council property adjoining the site be defective eg, cracked footpath, broken kerb etc., this shall be reported in writing to Council, at least 7 days prior to the commencement of any work on site.
Note: Where Council is not the principal certifying authority, refund of the trust fund deposit will also be dependent upon receipt of a final occupation certificate by the Principal Certifying Authority and infrastructure inspection by Council.

41 No obstruction shall be caused to pedestrian use of Council’s footpath or vehicular use of any public roadway during construction.

42 Any heritage listed stone kerb removed for construction of a driveway or other approved works, is to be removed without damaging it and contact is to be made with Councils Works Manager on Telephone 9976 1455 for the stone to be transported to Councils Depot.

43 Separate application shall be made to Council's Infrastructure Division for approval to complete, to Council's standards and specifications, works on Council property. This shall include vehicular crossings, footpaths, drainage works, kerb and guttering, brick paving, restorations and any miscellaneous works. Applications shall be made a minimum of twenty-eight (28) days prior to commencement of proposed works on Council's property. Applicant to notify Council at least 48 hrs before commencement of works to allow Council to supervise/inspect works.

44 Any adjustment to the public utility service is to be carried out in compliance with their standards and the full cost is to be borne by the applicant.

45 Details of the builder's name and licence number contracted to undertake the works shall be provided to Council/Accredited Certifier prior to issue of the Construction Certificate.

46 Toilet facilities are to be provided at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 person or part of 20 persons employed at the site, by effecting either a permanent or temporary connection to the Sydney Water's sewerage system or by approved closets.

47 Retaining walls being constructed in conjunction with excavations with such work being in accordance with structural engineer's details. Certification of compliance with the structural detail during construction shall be submitted to the Principal Certifying Authority.

48 A sign must be erected on the subject site in a prominent position stating that unauthorised entry is prohibited and giving details of the name of the builder or the person responsible for the site and 24 hour contact details. The sign is to have dimensions of approximately 500mm x 400mm. Note: The sign is not required if the building on the site is to remain occupied during the course of the building works.

49 All construction works shall be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans with certification being submitted to the Principal Certifying Authority during construction from a registered surveyor certifying ground and finished ridge levels.

50 Consent given to build in close proximity to the allotment boundary is in no way to be construed as permission to build on or encroach over the allotment boundary. Your attention is directed to the provisions of the Dividing Fences Act which gives certain rights to adjoining owners, including use of the common boundary. In the absence of the structure standing well clear of the common boundary, it is recommended that you make yourself aware of your legal position which may involve a survey to identify the allotment boundary.

51 Four (4) certified copies of the Structural Engineer's details in respect of all reinforced concrete, structural steel support construction and any proposed retaining walls shall be submitted to the Council/Accredited Certifier prior to the issue of the Construction Certificate.

52 Where any excavation extends below the level of the base of the footing of a building on an adjoining allotment of land, the person causing the excavation shall support the neighbouring building in accordance with the requirements of the Building Code of Australia.

53 The floor surfaces of bathrooms, shower rooms, laundries and WC compartments are to be of an approved impervious material properly graded and drained and waterproofed in accordance with AS3740. Certification is to be provided to the Principal Certifying Authority from a licenced applicator prior to the fixing of any wall or floor tiles.

54 A suitable sub-surface drainage system being provided adjacent to all excavated areas and such drains being connected to an approved disposal system.

55 The implementation of adequate care during demolition/ excavation/ building/ construction to ensure that no damage is caused to any adjoining properties.

56 An adequate security fence, is to be erected around the perimeter of the site prior to commencement of any excavation or construction works, and this fence is to be maintained in a state of good repair and condition until completion of the building project.

57 Building work shall not progress beyond first floor level until such time as Registered Surveyors details of levels are submitted to the Principal Certifying Authority. These levels shall confirm that the works are in accordance with the levels shown and approved in the development approval.

58 On completion of the building structure a report from a Registered Surveyor is to be submitted to the Principal Certifying Authority confirming that the building has been completed in accordance with the levels as shown on the approved plan.

59 Four (4) copies of Architectural Drawings consistent with the development consent and associated specifications are to be submitted to Council/Accredited Certifier prior to the issue of the Construction Certificate.

60 An approved water interceptor shall be provided within the property, across the driveway at the property boundary, and all stormwaters shall be conveyed by underground pipe to Council's street gutter to the satisfaction of the Principal Certifying Authority.

61 All demolition is to be carried out in accordance with AS2601-2001.

62 Asbestos cement sheeting must be removed in accordance with the requirements of the WorkCover Authority.

63 Demolition must be carried out by a registered demolition contractor. Documentary evidence of registration must be submitted to Council prior to the commencement of demolition work.

64 Care shall be taken to prevent any damage to adjoining buildings.

65 A system of Onsite Stormwater Detention (OSD) or Onsite Stormwater Retention (OSR) shall be provided within the property in accordance with Council's “Specification for On-site Stormwater Management 2003”. The design and details shall be submitted with the Construction Certificate Application and be approved by the Council/Accredited Certifier prior to the issue of the Construction Certificate. The specification can be downloaded from Council's web site free of charge or a hardcopy can be purchased from Council.

66 A copy of the approved Onsite Stormwater Detention (OSD) or Onsite Stormwater Retention (OSR) plan showing Work as Executed (WAE) details shall be submitted to Council prior to the issue of the Occupation Certificate. The work as executed plan shall be in accordance with Council's standards and specifications for Stormwater Drainage and On-site Stormwater Management 2003.

67 Any work shall not prohibit or divert any natural overland flow of water.

68 A positive covenant in respect of the installation and maintenance of onsite detention works is required to be imposed over the area of the site affected by onsite detention and/or pump system prior to the issue of the Occupation Certificate for the building and prior to the release of the trust fund deposit.

69 A Fire Safety Schedule specifying the fire safety measures (both current and proposed) that should be implemented in the building premises shall be submitted with the Construction Certificate application, in accordance with Part 9 Clause 168 of the Environmental Planning and Assessment Regulation 2000. Note: A Construction Certificate cannot be issued until a Fire Safety Schedule is received.

70 The building being erected in Type B, Construction for a Class 9b building in accordance with the Fire Resistance Provisions of the Building Code of Australia.

71 All building work must be carried out in accordance with the provisions of the Building Code of Australia.

72 The construction, fit-out and finishing of the premises shall comply with: Australian Standard AS 4674-2004 (Design, construction and fit-out of Food Premises), the Food Act 2003, Food Regulation 2004 and the Food Standards Code.

73 A garbage room or garbage receptacle storage area shall be provided within the site in an approved position constructed in accordance with the requirements of Council.

74 The garbage room shall be ventilated to the external air by natural ventilation or an approved air handling exhaust system.

75 The reconstruction and/or construction of footpath paving and any associated works along all areas of the site fronting Clontarf St and Frenchs Forest Rd. These works shall be carried out prior to the issue of the occupation certificate by a licensed construction contractor, at the applicant’s expense and shall be in accordance with Council's Specification for Civil Infrastructure Works and Paving Design Guide.

76 The pedestrian footpaths and pavements in the streets surrounding the proposed development shall be constructed as per Manly Council's Paving Design guidelines dated February 2002. a detailed design showing the above details shall be submitted with the application for Construction Certificate and shall be approved by the Council/Accredited Certifier prior to the issue of the Construction Certificate.

77 No building materials, waste containers or skips may be stored on the road reserve or footpath without prior separate approval from Council, including payment of relevant fees.

78 The collection of garbage from the premises is not to occur between the hours of 10.00pm and 5.00am Monday to Sunday, without the prior approval of Council, to minimise disruption to neighbouring properties.

79 A Waste Management Plan is to be submitted with the application for a Construction Certificate in accordance with Council's Development Control Plan for Waste Minimisation and Management.

80 Landscaping is to be carried out in accordance with the approved Landscape Plan submitted in conjunction with the Development Application. Evidence of an agreement for the maintenance of all plants for a period of 12 months from the date of practical completion of the building is to be provided to the Principal Certifying Authority prior to issue of the Final Occupation Certificate.

81 All disturbed surfaces on the land resulting from the building works authorised by this approval shall be revegetated and stabilised so as to prevent any erosion either on or adjacent to the land.

82 The felling, lopping, topping, ringbarking, wilful destruction or removal of any tree or trees unless in conformity with this approval or subsequent approval is prohibited.

83 No tree other than on land identified for the construction of buildings and works as shown on the building plan shall be felled, lopped, topped, ringbarked or otherwise wilfully destroyed or removed without the approval of Council.

84 Precautions shall be taken when working near trees to be retained including the following: - do not store harmful or bulk materials or spoil under or near trees - prevent damage to bark and root system - do not use mechanical methods to excavate within root zones - do not add or remove topsoil from under the drip line - do not compact ground under the drip line.

85 Any ancillary light fittings fitted to the exterior of the building are to be shielded or mounted in a position to minimise glare to adjoining properties.

86 A sediment/erosion control plan for the site shall be submitted for approval to the Council/Accredited Certifier prior to the issue of the Construction Certificate. Implementation of the scheme shall be completed prior to commencement of any works on the site and maintained until completion of the development.

87 All materials on site or being delivered to the site shall generally be contained within the site. The requirements of the Protection of the Environment Operations Act 1997 shall be complied with when placing/stockpiling loose material, disposing of concrete waste, or other activities likely to pollute drains or water courses.

88 Any future structures to be erected on the site shall be the subject of a Development Application and Construction Certificate Application.

89 A Construction Certificate Application is required to be submitted to and issued by the Council/Accredited Certifier prior to any building works being carried out on site.

90 Should you appoint Council as the Principal Certifying Authority (PCA) to undertake inspections during the course of construction then the following inspection/certification are required:

Silt control fences
Footing inspection - trench and steel
Reinforced concrete slab X 3
Framework inspection
Wet area moisture barrier
Drainage inspection
Landscaping inspection
Retaining wall steel inspection
OSD Tank steel inspection X 3
Health inspection
Final inspection

The cost of these inspections by Council is $3,450 (being $230 per inspection inclusive of GST) . Payment of the above amount is required prior to the first inspection. Inspection appointments can be made by contacting the Environmental Services Division on 9976 1414.

At least 24 hours notice should be given for a request for an inspection and submission of the relevant inspection card. Any additional inspection required as a result of incomplete works will incur a fee of $110.

91 An Occupation Certificate is to be issued by the Principal Certifying Authority prior to occupation of the development.

92 All excavated material should be removed from the site in an approved manner and be disposed of lawfully to a tip or other authorised disposal area.

93 All demolition and excess construction materials are to be recycled wherever practicable.

94 De-watering from the excavation or construction site must comply with the Protection of the Environment Operations Act 1997 and the following:

a. Ground water or other water to be pumped from the site into Council's stormwater system must by sampled and analysed by a NATA accredited laboratory or Manly council for compliance with ANZECC Water Quality Guidelines.

b. If tested by NATA accredited laboratory, the certificate of analysis used by the laboratory must be forwarded to Manly Council as the appropriate regulatory authority under the Protection of the Environment Operations Act 1997, prior to the commencement of de-watering activities.

c. Council will grant approval to commence site de-watering to the stormwater based on the water quality results received.

d. It is the responsibility of the applicant to ensure that during de-watering activities, the capacity of the stormwater system is not exceeded, that there are no issues associated with erosion or scouring due to the volume of water pumped.

e. Turbidity readings must not at any time exceed the ANZECC recommended 50ppm (parts per million) for receiving waters.
f. Also the developer must contact the Department of Infrastructure, Planning and Natural Resources and comply with any of their requirements.

95 Detailed plans of roof trusses indicating type and position of trusses, design wind classification, manufacturer name, stress grade of timber used, and method of bracing and fixing trusses are to be submitted to the Principal Certifying Authority prior to the commencement of roof framework.

96 Roof and framing including provision for tie downs, bracing and fixings are to be designed by a practising Structural Engineer. The Engineer is to specify appropriate wind category relating to the site terrain, house design and height of the structure, with details being submitted to the Principal Certifying Authority prior to the commencement of framework.

97 The capacity and effectiveness of erosion and sediment control devices must be maintained to Council satisfaction at all times.

98 A copy of the Soil and Water Management Plan must be kept on-site at all times and made available to Council officers on request.

99 Stockpiles are not permitted to be stored on Council property (including nature strip) unless prior approval has been granted.

100 Stockpiles of topsoil, sand, aggregate, spoil or other material shall be stored clear of any drainage line or easement, natural watercourse, kerb or road surface.

101 Drains, gutters, roadways and access ways shall be maintained free of sediment and to the satisfaction of Council. Where required, gutters and roadways shall be swept regularly to maintain them free from sediment.

102 Building operations such as brick cutting, washing tools or paint brushes, and mixing mortar not be performed on the roadway or public footway or any other locations which could lead to the discharge of materials into the stormwater drainage system.

103 All disturbed areas shall be stabilised against erosion to Council satisfaction within 14 days of completion, and prior to removal of sediment controls.

104 Stormwater from roof areas shall be linked via a temporary downpipe to a Council approved stormwater disposal system immediately after completion of the roof area. Inspection of the building frame will not be made until this is completed to Council satisfaction.

105 The applicant and/or builder must prior to the commencement of work, install at the periphery of the site, measures to control sedimentation and the possible erosion of the land. The measures must include:-

i. siltation fencing;

ii. protection of the public stormwater system; and

iii. site entry construction to prevent vehicles that enter and leave the site from tracking loose material onto the adjoining public place.

106 Building or construction work must be confined to the hours between 7.00am to 6.00pm, Monday to Friday and 7.00am to 1.00pm, Saturday, with a total exclusion of such work on Public Holidays and Sundays. Non-offensive works where power operated plant is not used and including setting out, surveying, plumbing, electrical installation, tiling, internal timber or fibrous plaster fixing, glazing, cleaning down brickwork, painting, building or site cleaning by hand shovel and site landscaping, is permitted between the hours of 1.00pm to 4.00pm Saturdays. Note: That the Protection of the Environment Operations Act 1997 may preclude the operation of some equipment on site during these permitted working hours.

107 The operation of the childcare centre and of mechanical services are not to give rise to an offensive noise within the meaning of the Protection of the Environment Operations Act 1997.

108 Details of the method of termite protection which will provide whole of building protection, inclusive of structural and non-structural elements, shall be submitted to the Council/Accredited Certifier prior to issue of the Construction Certificate. Attention is drawn to the provisions of Australian Standard 3660.1 "Protection of Buildings from Subterranean Termites New Buildings" and to Council's Code for the "Protection of Buildings Against Termite Attack".

109 Prior to issue of the Occupation Certificate, a durable termite protection notice shall be permanently fixed to the building in a prominent location detailing the form of termite protection which has been used in accordance with Council's Code for the "Protection of Buildings Against Termite Attack".

110 This approval shall expire if the development hereby permitted is not commenced within 5 years of the date hereof.

111 The use of the premises, shall not give rise to air impurities in contravention of the Protection of the Environment Operations Act 1997 and shall be controlled in accordance with the requirements of this Act.

112 Vehicle emissions are to be monitored through sight and odour be centre staff during high volumes of traffic and during peak pick up and drop of times at the western boundary of the entry and exit point of Clontarf Street in order to minimise potential exposure of concentrated vehicle emissions to vulnerable population(s). Should the emissions be visual or emit any odour the following precautions are to be taken to minimise the risk of exposure of vulnerable population(s):

Vehicles are to be turned off during long delays.

Windows and doors are to be closed to minimise an increase of indoor air pollution.

Infants and children are to be taken directly from the child are centre to their collection vehicle.

Notify the NSW EPA Pollution Line on 131 555 should air quality be of concern either from vehicles or other such source that may be constituted as a pollution incident.

Note: The Protection of the Environment Operations Act, 1997 outlines the duty to notify of pollution incidences.
The air quality monitoring requirements are to be incorporated into the Childcare Centre’s Plan of Management, a copy of which is to be provided to Council prior to the issue of the Occupation Certificate.

113 That excavation be undertaken in accordance with the recommendations of the Geotechnical Investigation, dated 28 March 2008, prepared by Asset Geotechnical Engineering Consultants. This condition is imposed to ensure that excavation is undertaken in an orderly manner.

114 A dilapidation report in regard to adjoining properties and Council land is to be submitted to the Council / Accredited Certifier prior to the issue of the Construction Certificate.

115 The operation of the centre shall follow the adopted Plan of Management, undated, which may be amended from time to time with the Consent of Council.

116 The doors and windows along the northern and eastern side of the Child Care Centre are to be closed during noisier internal play activities. The doors from the indoor play activity areas must only be open for access during quieter times. This condition is imposed to limit the transfer of offensive noise to adjoining properties.

______________________

J S Murrell

Commissioner of the Court

ljr

06/05/2009 - minor typographical errors and paragraph numbers - Paragraph(s) numbering

Citations

BSDI Pty Ltd v Manly Council [2009] NSWLEC 1067

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CITATION:	BSDI Pty Ltd v Manly Council [2009] NSWLEC 1067 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT BSDI Pty Ltd RESPONDENT Manly Council
FILE NUMBER(S):	10429 of 2008
CORAM:	Murrell C
KEY ISSUES:	DEVELOPMENT APPLICATION :- for 90 place childcare centre, impact on adjoining properties in terms of bulk and noise; traffic generation and parking adequacy; intersection of two main roads; internal amenity for children and amenity of outdoor play areas.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Roads Act 1993 Manly Local Environmental Plan 1988 Manly Development Control Plan
DATES OF HEARING:	19, 20 & 21/11/2008, further written submissions received on 3 and 9/12/2008
DATE OF JUDGMENT:	20 March 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr D. T. Miller, barrister instructed by Gadens Lawyers RESPONDENT Ms. C. Schofield, solicitor of Pikes Lawyers