Chella Holdings Pty Limited v Ku ring gai Council

[2005] NSWLEC 30

Land and Environment Court

of New South Wales

CITATION:

Chella Holdings Pty Limited v Ku ring gai Council [2005] NSWLEC 30

PARTIES:

APPLICANT
Chella Holdings Pty Limited

RESPONDENT
Ku ring gai Council

FILE NUMBER(S):

11260 of 2004

CORAM:

Brown C

KEY ISSUES:

Development Application :- erection of a long day child care centre
traffic and parking
bushfire threat
amenity impacts

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Rural Fires Act 1997
Rural Fire Service Regulation 2002
Ku ring gai Planning Scheme Ordinance

DATES OF HEARING:

20/01/05

 
DATE OF JUDGMENT: 

02/15/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Kondilios, solicitor
SOLICITORS
Maddocks

RESPONDENT
Mr P Rigg, solicitor
SOLICITORS
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

15 February 2005

11260 of 2004 Chella Holdings Pty Limited v Ku ring gai Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal by Ku ring gai Council (the council) of DA 0002/04 for the demolition of two existing dwellings and erection of a long day child care centre at 307-309 Bobbin Head Road, Turramurra (the site).

The site

2 The site is identified as Lot 1 DP 373145 and Lot 1 DP 13706. It is irregular in shape consisting of a rectangular shaped section with a smaller rectangle area of land on the south eastern corner. The Bobbin Head Road boundary has a length of 37.1 880 metres, the southern boundary of length of 79.57 metres, the most easterly boundary a length of 10.67 metres, the remaining eastern boundary a length of 28.955 metres and the northern boundary has a length of 52.12 metres and 27.4 metres. The site has a total area of 2262 square metres.

3 The property is generally level but with a slight fall to the south eastern corner. The site contains two existing dwellings and a detached brick shed. A number of large trees are located near the western boundary with the remainder of the vegetation generally located near the south eastern corner.

4 The surrounding area comprises a mix of architectural styles and designs with a range of one and two-storey dwellings. The surrounding area is predominantly residential in nature with the exception of the petrol station on the corner of Bobbin Head Road and Milton Road and a nursery located at 311 Bobbin Head Road.

The proposal

5 The proposal seeks the demolition of all existing improvements and the erection of a new building to operate as a long day child care centre in conjunction with a residential dwelling. The centre will provide accommodation for 84 children between the ages of 0 and 5 years, comprising 30 children between 0 and 2 years, 21 children between 2 and 3 years and 33 children between 3 and 5 years. The hours of operation are 7.00 am to 6.00 p.m., Monday to Friday. A total of 13 staff are to be employed at the centre.

6 The proposal consists of one building, basement car parking, external car parking and a number of external play areas. The building is configured with a two-storey component near the street frontage and single storey construction towards the rear of the site.

Relevant planning controls

7 The site is zoned Residential 2(c) under the provisions of the Ku ring gai Planning Scheme Ordinance (the KPSO). The proposed use is defined as a "child care centre" and is a permissible use, with consent within this zone. Schedule 9 provides aims and objectives for residential zones, although they are of limited relevance because of their general but not exclusive reference to dwelling houses.

8 Other documents are The Ku ring gai Residential Design Manual Development Control Plan 38- (DCP 38) and the Ku ring gai Council Policy on Child Care Centres.

The issues

9 The council filed a Statement of Issues containing 17 individual issues and particulars for each issue. The issues relating to built upon area (Issue 1), stormwater disposal (Issue 2), landscaping (Issue 4), contamination (Issue 5), streetscape and residential character (Issue 8), consistency with the Ku ring gai Council Policy on Child Care Centres (Issues 9, 10, 11,12 and 13), accessibility (Issue 14), RTA concurrence (Issue 15) and waste management (Issue 16) were not pressed by the council, addressed through additional conditions, amendments to the plans or the provision of further information.

10 The active issues can be conveniently grouped into the following main areas:

1) whether the proposed development adequately addresses traffic and parking (Issue 3),
2) whether the proposed development adequately addresses bushfire and evacuation risks (Issues 6), and
3) whether the proposed development adverse the impacts on the amenity of adjoining properties (Issue 17).

11 The issues raised as part of the public interest (Issue 17) are addressed as part of the consideration of the active issues.

The evidence

12 The parties agreed to the appointment of the following Court appointed experts:

• Mr Lyle Marshal, traffic and parking,
• Mr Rod Rose, bushfire and evacuation,
• Ms Kerry Gordon, town planning, and
• Mr Geoff Bird, landscaping.

13 In addition, a number of local residents provided further evidence on site and later in Court, opposing the proposed development.

Traffic and parking

14 Mr Marshall's evidence addresses three main areas. These are:

• conflicts within the parking area
• the accessibility of the car parking spaces, and
• the provision of on street parking.

15 Mr Marshall rejects any suggestion of conflict within the car parking area between vehicles and pedestrians. He proposes an amendment that provides a further 4 drop-off/pickup points around the access driveway while still allowing vehicles to use the access drive way.

16 In response to the concern that the basement car parking area is not likely to be used for parents dropping off or picking up children; he states that the principal purpose of the basement car parking area is to provide parking for staff and residents of the development. In his opinion, adequate parking is provided elsewhere on site to facilitate the safe drop-off and pickup of children.

17 Mr Marshall states that the provision of five kerbside parking spaces along the site frontage, for parent drop-off and pickup, in peak times is satisfactory on traffic safety grounds based on the RTA Guide to Traffic Generating Developments.

18 In considering the comments of Mr Marshall, it must be remembered that the proposed development satisfies the council’s requirements and also the requirements of the RTA for on-site car parking without the need to rely on the additional 4 spaces on the access driveway and the additional 5 kerbside spaces.

19 On this issue, I accept Mr Marshall's comments that the car parking spaces located around the access driveway provide an additional and useful opportunity for the dropping off and picking up of children and are not in conflict with objective (g) in Schedule 9. While the spaces may temporarily interfere with the use of some spaces in this area, I accept that the benefits of providing these spaces outweigh the potential short-term inconvenience to the users of the other spaces.

20 Based on the compliance with the councils and RTA guidelines for car parking provision, I did not understand the applicant to rely on the provision of kerbside parking. These spaces were simply seen by Mr Marshall as providing further suitable and safe parking opportunities, particularly as some parents are likely use the kerbside to drop-off and pick up children. I accept Mr Marshall's evidence that this can be done with safety, based on his assessment using the RTA Guide to Traffic Generating Developments and considering the road alignment and traffic volumes on Bobbin Head Road.

21 The impact on the existing traffic volumes on Bobbin Head Road was a matter raised by a number of residents. Concerns were expressed that the additional traffic from the centre will affect traffic exiting Banks Road and Milton Street onto Bobbin Head Road. While not specifically addressed by Mr Marshall is his report, I did not understand his comments on-site, to support this concern. I also note that the traffic report submitted with the development application by McLaren Traffic Engineering specifically addresses this issue and concludes that the proposed development will not affect the Banks Road and Milton Street intersections.

22 Concern was also expressed over the potential conflict with vehicles leaving the site and traffic travelling along Bobbin Head Road. It was suggested that the combination of vehicles travelling at excessive speed and the bend in the road near the Milton Street intersection created an unsafe location for the ingress and egress to the site. This was not a specific matter raised by the council, as I understand that adequate sight distances are available in both directions. Even if the concerns of the residents are correct and there is a problem with the speed of vehicles using Bobbin Head Road and the safety of the alignment of this road near Milton Street, it is a matter appropriately addressed by other authorities, such as the Police Department or the RTA.

23 I also note that the General Terms of Approval from the RTA require a median to the constructed to prohibit right turns into and out of the site. This construction was a matter supported by the council and agreed to by the applicant. Even though the construction of the median will create some inconvenience for some properties opposite the site, I accept that it is a worthwhile safety initiative for the proposed development. For these reasons, the potential conflict with vehicles leaving the site and traffic travelling along Bobbin Head Road could not support the refusal of the development application.

24 The General Terms of Approval by the RTA were generally accepted by the applicant, including conditions described as "advisory comments to council for consideration in the determination of the development application". Condition 8 required the installation of an RTA approved guardrail along the site frontage. While accepting the imposition of the condition if the Court thought inappropriate, the applicant submitted its principal position was that it was unnecessary as the guard rail was required only because of the existing road conditions and not necessarily because of the proposed development.

25 While there is some merit in this submission, I am inclined to support the condition as the accident potential is increased with the additional vehicle movements and increased activity created by the proposed use when compared to the existing residential use of the properties.

Bushfire and evacuation

26 Mr Rose’s evidence addresses two main areas:

• the reduction in the Asset Protection Zone (APZ), and
• evacuation in time of bushfire.

27 Mr Rose states that the required APZ of 20 metres is unnecessary in this instance. This conclusion is confirmed by the issuing of a bush fire safety authority in accordance with s 100B of the Rural Fires Act 1997 by the NSW Rural Fire Service.

28 I agree with Mr Rose that the 20 metres APZ. is not required in this instance. An APZ is required were a bushfire hazard exists on or adjacent to the development site (cl 4.2.1, Planning for Bushfire Protection). In this case, the site is surrounded by urban development.

29 In relation to evacuation, Mr Rose notes that a bush fire safety authority issued on 30 March 2004 contains, as part of the General Terms of Approval, a requirement for an evacuation plan to the submitted for approval. This evacuation plans was submitted by the applicant and a new bushfire safety authority, dated 15 December 2004 was issued by the NSW Rural Fire Service. The new authority confirms the suitability of the evacuation plan.

30 Notwithstanding this, Mr Rose suggests that the evacuation plan should be amended to identify the centre as the appropriate "refuge area", rather than moving children and teachers to another site. In conjunction with this, he states the applicant has agreed to provide a power generating plant of sufficient size to operate the child-care centre air-conditioner in the event of power failure and a bushfire smoke threat. He states that this has been discussed with the NSW Rural Fire Service who concurs with this amendment to the evacuation plan. In his opinion, this provides a safer and more appropriate outcome than evacuating the child-care centre.

31 Mr Rose further states that as an "instructed evacuation" cannot be ruled out, the bushfire and evacuation plan should continue to provide a plan for offsite refuge and egress. In his opinion, the current bushfire and evacuation plan adequately addresses this requirement.

32 There was widespread opposition to the location of the child-care centre from local residents because of the potential bushfire impacts. Many residents spoke of their concerns and their previous experience with bushfires in the area and the potential risks associated with evacuation brought about by the limited access along Bobbin Head Road and the developments further south along this road.

33 In considering this issue, and while I do not dismiss the concerns of the residents lightly, greater weight must be given to the evidence of Mr Rose and the assessment carried out by the NSW Rural Fire Service that culminated in the issuing of the bush fire safety authority for the development. The evidence provided by the council indicates that the NSW Rural Fire Service were requested to confirm that they had considered the characteristics of the population in the North Turramurra Peninsula in their assessment of the application (Exhibit 3, Fo 258) and had done so (Exhibit 3, Fo 260). Mr Terence O Toole, the responsible officer from the NSW Rural Fire Service was subpoenaed to attend the hearing and confirmed the position of the NSW Rural Fire Service and supported the conclusions of Mr Rose.

34 In response to a number of residents concerns over the poor water pressure in the area, I note that s 100B(2) of the Rural Fires Act 1997, relating to the issuing of bush fire safety authorities, requires consideration of the "provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bushfire."

35 In issuing the bush fire safety authority, the NSW Rural Fire Service is to have regard to the criteria set out in cl 46 of the Rural Fire Service Regulation 2002. This relevantly includes:

(ii) the siting and adequacy of water supplies for fire fighting,
(iii) the capacity of public roads in the vicinity to handle increase volumes of traffic in the event of a bushfire emergency,
(iv) whether or not public roads in the vicinity battling with fire trail network have two-way access,
(v) the adequacy of arrangements for access to and egress from the development site for the purposes of an emergency response;
(vi) the adequacy of bushfire maintenance plans and fire emergency procedures for the development site

36 The Rural Fires Act 1997 imposes a heavy responsibility on the NSW Rural Fire Service and there was no evidence to suggest that they had not fully considered the bushfire risks to the proposed development even though their findings were not supported by the local residents.

Amenity impacts

37 Potential amenity impacts relate to two adjoining properties, being 1 Milton Road and 305 Bobbin Head Road. Both sites were inspected on the site view.

38 The property at 1 Milton Road has a southern boundary that adjoins External Play Area 2. Part of its western boundary adjoins External Play Area 1. Mr Sherwood, the property owner expressed concern over potential noise impacts from these play areas on the enjoyment of his rear yard.

39 In considering this matter the Court had the benefit of an acoustical study carried out for the applicant by Koikas Acoustics Pty Limited. The study indicates that if a boundary fence is constructed from appropriate materials and the children are adequately supervised by adults when playing outdoors, no undue noise impact will occur to adjoining residential properties. As I understand, the amended plans provide for the appropriate fencing suggested by the acoustical study.

40 The property at 305 Bobbin Head Road is located along the southern boundary of the site. The owner of the property, Mr Kaye indicated that his concerns related to overshadowing, visual bulk, the proximity of the garbage bins and car parking spaces and loss of privacy.

41 During the hearing, the applicant amended the plans for part of the building adjoining Mr Kaye’s property. The changes provided for a reduction in overall height by 500 mm and the use of translucent glass in the fixed windows adjoining the common boundary.

42 While overshadowing was not a specific issue raised by the council, Ms Gordon was directed to undertake a further assessment, involving a comparison with the relevant requirements in DCP 38. Even though this planning document is not directly relevant as it relates to residential development, it does provide a guide for the assessment of solar access. The parties were given the opportunity to further address the Court through written submissions on Ms Gordon’s further assessment. Both parties provided further submissions; the applicant’s submission from Mr Kondilios and the council’s submission from Mr Rigg and a further submission from Mr Kaye. Their submissions essentially confirm their original positions.

43 The further assessment of Ms Gordon addresses DCP 38 requirements for setbacks (cl 5.1.3), building envelope (cl 5.2.2), solar access (cl 5.2.11) and the length of unarticulated walls (cl 5.2.8). In relation to overshadowing, the applicant provided new shadow diagrams that reflected the amended plans and this formed part of Ms Gordon’s assessment.

44 In her assessment, Ms Gordon states that the proposed development satisfies the requirements for setbacks and building envelope. In relation to the length of the unarticulated walls requirement, Ms Gordon states that while the two-storey component of the southern facade exceeds the 8 m requirement, it is articulated and as such complies with the requirement. The single storey component has an overall length of 19.5 m with an unrelieved wall length of 15 metres. This wall length breaches the 12 m control by 3 m, in that it does not contain any relief by way of any modulation.

45 In considering the concerns of Mr Kaye against the form and layout of the proposed development, I accept that the proposed development is satisfactory in terms of its relationship with the adjoining property and not in conflict with objectives (b), (c), (d) and (e) in Schedule 9. Even though the building exceeds the requirements for the length of the unarticulated walls, it is single storey in this location and largely screened by fencing. With the amendments to reduce the height by 500 mm, the previous amendment to reduce the overall length by some 8 m and the provision of landscaping, the departure could not support the refusal or amendment of the application. The use of translucent glazing in non-opening windows along this elevation provides a suitable response to the concerns over any loss of privacy from the windows.

46 In terms of solar access, Ms Gordon states that the DCP 38 requirements are more onerous than generally accepted standards however the proposal complies with the requirements in relation to the impact on the formal living room, formal dining room, kitchen, patio and swimming pool area. The proposal breaches the requirements in relation to the informal dining area. While the informal dining area window receives solar access at all times between 9.00 a.m. and 3.00 in midwinter, it does not provide solar access to over 50% of the window for 4 hours. Notwithstanding this, Ms Gordon states that the proposal is well designed to provide an excellent level of solar access to Mr Kaye’s property.

47 On basis of Ms Gordon’s solar access assessment I also find the proposal to be acceptable. The objectives in cl 5.2.11 and objective (a) in Schedule 9 require a “reasonable level” of solar access to be maintained to adjoining development and on the basis of the significant compliance with the council requirements for solar access, the location of Mr Kaye’s property directly to the south of the site and the fact that the impact on the informal dining area window is not the direct result of any breach of the setback and building envelope controls I find that the objectives are satisfied.

48 Mr Kaye expressed concern over the location of the garbage storage area adjoining his dwelling and the potential odour and noise impacts. I accept his concerns are valid and propose a condition to relocate this facility from the common boundary.

49 The nearest car parking space to Mr Kaye’s dwelling is some 2 m from the common boundary and adjoining the front section of his dwelling that is set back around 3.5 m at this point. With the erection of a 1.8 m fully lapped paling fence between the car parking space and Mr Kaye’s dwelling, I am not convinced that any noise generated by vehicles using this car parking space could support the refusal or amendment of the application for this reason.

Orders

50 For the foregoing reasons, the Orders of the Court are;

1) The appeal is upheld.
2) DA 0002/04 for the demolition of two existing dwellings and erection of a long day child care centre at 307-309 Bobbin Head Road, Turramurra is approved subject to the conditions in Annexure A.
3) The Exhibits are returned with the exception of Exhibits 1, 2, and C.
___________
G T Brown
Commissioner of the Court