Building Blocks Early Childhood Learning Centres Pty Ltd v Maitland City Council

[2006] NSWLEC 619

Land and Environment Court

of New South Wales

CITATION:

Building Blocks Early Childhood Learning Centres Pty Ltd v Maitland City Council [2006] NSWLEC 619

PARTIES:

APPLICANT
Building Blocks Early Childhood Learning Centres Pty Limited

RESPONDENT
Maitland City Council

FILE NUMBER(S):

10106 of 2006

CORAM:

Brown C

KEY ISSUES:

Development Application :- alterations and additions to an existing dwelling for use as a childcare centre - carparking - impact on local road system - character - noise.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Maitland Local Environmental Plan 1993

CASES CITED:

Milner v Willoughby Municipal Council (unreported, Land and Environment Court, 19 April 1984) ;
Project Venture Developments v Pittwater Council [2005] NSWLEC 191

DATES OF HEARING:

11,12/07/2006

EX TEMPORE JUDGMENT DATE:

07/12/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Long, solicitor
SOLICITORS
Law & Planning

RESPONDENT
Mr G. Williams, solicitor
SOLICITORS
Thompson Norrie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

12 July 2006

10106 of 2006 Building Blocks Early Childhood Learning Centres Pty Limted v Maitland City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Maitland City Council (the council) of DA05-3947 for alterations and additions to an existing dwelling at 14 Hermitage Close Thornton (the site) for a childcare centre.

The site and surrounding area

2 The site is Lot 9106 in DP874539. It is a corner lot with a frontage of 27.06 m to Hermitage Close, a 57.73 frontage to Grange Avenue and a corner splay of 5.48 m, giving a total site area of 1,948 sq m. An existing dwelling is situated on the site.

3 The locality consists exclusively of residential dwellings of one and two storey construction located on lots of around 2,000 sq m. in a rural/residential setting.

Relevant planning controls

4 The site is located within zone 2(a) Residential under Maitland Local Environmental Plan 1993 (LEP 1993). The proposed use is permissible within the zone. Clause 16 provides that consent must not be granted if the proposed development does not satisfy the objectives of the zone. The relevant objective is objective (b). It states:

“To enable development for purposes other than residential only if it is compatible with the character of the living area and has a domestic scale and character”.

The proposal

5 The proposal provides for alterations and additions to an existing dwelling to provide for a 68 place childcare centre. This is to be made up of 15 children between 0 and 2 years, 15 children between 2 and 3 years and 38 children between 3 and 5 years. The application indicates a total of ten staff. The hours of operation are 7.30 am to 5.30 pm Monday to Friday.

6 A car parking area is provided for 17 parking spaces with ingress from Grange Avenue and egress to Hermitage Close. The Court granted leave for an additional plan that provided for 12 parking spaces, although subject to submissions from the parties on the appropriate level of car parking. The amended plan did not replace the original plan but provided a further option.

The issues

7 The council filed a Statement of Issues containing 11 separate issues. These can be grouped into the following main areas.

(1) whether adequate car parking is provided on site.
(2) whether the proposal will have an unacceptable impact on the character of the area.
(3) whether the proposal will have an unacceptable impact on the local street system.
(4) whether the proposal will have an unacceptable noise impact.
The evidence

8 The parties agreed to the appointment of Ms Robyn Hawes as the Court-appointed town planning expert and Mr Mark Waugh was the Court-appointed traffic expert.

9 Mr Ray Tumney provided evidence on noise on behalf of the applicant.

10 The Court also heard from a number of local residents on site who opposed the development application. The main grounds of objection related to the increased traffic levels, the impact on the quiet and established character of the area and the noise from children and vehicles. When the council advertised the application it attracted 27 individual submissions and three petitions containing 119 signatures, all opposing the development.

Number of car parking spaces

11 The parties disagreed on the number that should be provided on site. Although the council has a development control plan that addresses car parking, being the City Wide Development Control Plan - Car Parking Requirements (the City wide DCP), the car parking rates for specific uses in Appendix A do not include child care centres. In this absence the council have adopted the rates from the Roads and Traffic Authority (RTA) document, Guidelines for Traffic Generating Developments. This requires the provision of 17 car parking spaces, based on 1 space for every 4 children.

12 The applicant relies on the approval by the council on 20 November 2002 for a child care centre at 4 Sandalwood Avenue, Thornton where 12 spaces were required for a 61 place facility. This is based on 1 space per employee for 10 employees plus two drop-off and pick-up bays. The report of the council officer refers to Development Control Plan No 40 (DCP 40).

13 On the issue of the appropriate number of off-street car parking spaces I accept that the appropriate number is 17 spaces. As I understand the City wide DCP replaced DCP 40, although the contents remained unchanged for child care centres, that being there are no specific requirements. The figure in used for the Sandalwood Avenue childcare centre is a modification of the DCP 40 requirements for an educational establishment. In my view it is far more appropriate to use the specific rate from the Guidelines for Traffic Generating Developments rather than adapt a rate from a different land use. Mr Waugh endorsed this approach.

14 Mr Waugh also provided a supplementary statement addressing the 12 car parking space layout, and even assessing the proposal differently by using the Guidelines for Traffic Generating Developments and a 6.8 minute waiting time for vehicles using the centre. He concluded that the 12 car parking spaces would be inadequate and the 17 car parking spaces was preferable and allowed a degree of flexibility in movements into and out of the car park.

15 I am not convinced that any argument for consistency between council’s decisions or precedent can be sustained in this case. I am more inclined to agree with the comments of Cripps J in Milner v Willoughby Municipal Council (unreported, Land and Environment Court, 19 April 1984) where he states “

In any event, even if one bad planning decision were made the council is not compelled by that circumstance to repeat its mistakes.

16 From the evidence, the council has been anything but consistent in the application of parking rates for childcare centres. The only evidence the Court has on parking rates (apart from the reports from council officers) and including the applicant’s own expert report, is that the Guidelines for Traffic Generating Developments parking rates should be imposed.

Character

17 The question of character is an important issue. Clause 16 provides that if objective (b) is not satisfied development consent must not be granted. Objective (b) asks two questions. Firstly, is the proposal compatible with the character of the living area and secondly does the proposal have a domestic scale and character. To answer these questions it is necessary to establish the character of the area. Ms Hawes describes the character in the following terms:

The existing character of the area is defined by its landscape, as dictated by the application of the developer covenants. The streetscape is uniform and easily legible, particularly in Hermitage Close. Although the subject site sits within an area zoned for residential purposes the visual appearance of the subdivision is for all intents and purposes typical of any rural residential estate found within the local government area, characterised by large lots, no front fencing, minimal landscaping or use of the front set-back area and open rural style dividing fences between properties.

Grange Avenue presents as the access road, (partially defined by landscaping and open fencing along the side boundaries) which then opens up at the intersection with Hermitage Close to form a uniform and open landscape of rural residential style lots.

It is reasonable to conclude that the existing character of the area will remain relatively unchanged into the future, given the prescriptive nature of the developer, covenants and the pattern

18 I accept this as an accurate description of the character of the Hermitage Close and Grange Avenue area.

19 I would also add that the character extends beyond Hermitage Close and Grange Avenue streetscapes. Two properties in Hermitage Close were inspected and highlighted the consistent development form of development directed by the requirements of the s 88 instrument that attaches to the subdivision. While cl 7 of LEP 1993 effectively overrides the requirements of the s 88 instrument, the land has been almost exclusively developed in a form consistent the requirements of the private covenant. This is highlighted from the rear yards were the open fencing is provided and which creates an open and largely unobstructed view across adjoining properties.

20 The first question to be answered is whether the proposal is compatible with the character of the living area. Ms Hawes says no and with the benefit of the site view I concur with her conclusions. The planning principle in Project Venture Developments v Pittwater Council [2005] NSW LEC 191 states that in order for a new development to be visually compatible with its context it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. The planning principle defines the term compatibility as meaning capable of existing together in harmony. Front setbacks are also identified in the planning principle as an important element of urban character.

21 Ms Hawes concludes that the car parking fencing and landscaping are elements are in conflict with the character of the area. The front setbacks of almost all dwellings are dominated by lawn with occasional planting to identify certain features such as paths and boundaries. There is a significant absence of mass planting, apart from the side boundaries that have a street frontage.

22 The proposed car park encroaches on both the Hermitage Close and Grange Avenue setbacks and in my view, is clearly a discordant and foreign element in the streetscape. While the applicant has attempted to address this through hedges at the street frontage, this effect is also inconsistent in the streetscape with the consistently open and largely vacant setback of nearby dwellings. The use of 1.8 high pool fencing with acrylic panels is also inconsistent with the rural style fencing that predominates in the area. The use of the proposed fencing is particularly inappropriate with the adjoining neighbour to the west, Mr Watts, where it achieves little in terms of overcoming the overlooking problem into his rear yard.

23 For similar reasons, I find that the proposal does not have a domestic scale and character when compared to the formal layout of residential development in the area. Pursuant to cl 16 of LEP 1993, the proposal does not satisfy objective (b) and as such development consent must be refused.

24 For completeness I will briefly deal with the other issues.

Impact on the local road system

25 Mr Waugh states that the predicted traffic volumes are below the RTA recommendations for the environmental capacity of adjoining roads. Also, considering that the majority of the properties in Hermitage Close would not be subject to vehicles entering and leaving the site. I agree with Mr Waugh that this issue alone would not warrant the refusal of the application.

Noise

26 The applicant relied on the assessment by Mr Tumney. While raised as an issue by the council, the council provided no expert evidence to test his findings, beyond cross-examination. He provided oral evidence on plans that were not before him when he prepared his report and included amendments during the hearing to the shade structures on the western side of the site, the abandonment of the area to the east of the existing dwelling and presumably a change to the way the centre would operate. As an example, the amendment to the shade structures was shown in freehand and only in plan form. If the amendment to the shade structures was to address noise impacts to specific receptors in adjoining residential properties, full details of the size and elevations should be provided to allow a proper acoustical assessment. Similarly, I am unsure of what ramifications the abandoning of the play area to the east of the existing dwelling has on the operation of the centre and any licensing requirements.

27 Overall, I do not accept that sufficient detail was provided to properly allow the assessment of the noise impacts. In my view, it is an important consideration taking into account the location of the site amongst residential dwellings for the details of the shade structures. Matters such as the location and size of air conditioning and whether the abandonment of the eastern area impacts on the noise associated with the centre should be available to allow a proper noise assessment. In saying this, the outstanding noise issues are not necessarily fatal to the application but may be addressed through further evidence.

28 I am also not satisfied that the proposed Plan of Management can be relied upon in the form presented to the Court. As an example, condition 19(n) requires children to arrive at the centre within certain periods of time. This is clearly not practical and cannot be relied upon.

Orders

29 The orders of the Court are -

(1) The appeal is dismissed.
(2) DA 05-3947 for alterations and additions to an existing dwelling at 14 Hermitage Close Thornton for a child care centre is refused.
(3) The exhibits are returned.

___________________

G T Brown
Commissioner of the Court