Childcare Systems Australia Pty Limited v Cessnock City Council
[2007] NSWLEC 217
•20 April 2007
Land and Environment Court
of New South Wales
CITATION: Childcare Systems Australia Pty Limited v Cessnock City Council [2007] NSWLEC 217 PARTIES: APPLICANT:
Childcare Systems Australia Pty Limited
RESPONDENT:
Cessnock City CouncilFILE NUMBER(S): 11156 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Inadequate number of on site car parking spaces;
Absence of any adequate noise assessment ;
1.8 metre high metal fence will adversely impact be on the visual amenity and streetscapeLEGISLATION CITED: Cessnock Local Environmental Plan 1989 (CLEP)
Cessnock Development Control Plan 2006, (CDCP)
Environmental Planning and Assessment Act 1979, ss79C and 97DATES OF HEARING: 16/04/2007, 17/04/2007 and 18/04/2007
DATE OF JUDGMENT:
20 April 2007LEGAL REPRESENTATIVES: APPLICANT:
Mr C McEwen, SC, instructed by Ms C L Huegill, solicitor
SOLICITORS:
Clarissa Huegill & Associates Pty LimitedRESPONDENT:
Mr M Baird, barrister, instructed by
Mr R P Mallik, solicitor
SOLICITORS:
Mallik Rees Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
20 April 2007
11156 of 2007 - Childcare Systems Australia Pty Limited v Cessnock City Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Cessnock City Council (the council) to refuse a development application to demolish the existing dwellings and to erect a childcare centre at Lots 1 and 2, DP970698, being Nos 168-170 Rawson Street, Kurri Kurri.
2 I visited the land in company with the parties on the morning of the first day of the proceedings. Local residents gave evidence.
3 I have concluded that the application should succeed as, during the course of the hearing, the applicant has adequately addressed the salient issues of noise impacts and car-parking provision and these and other matters may be conditioned.
The land
4 The land is situated on the southern side of Rawson Street, about 40m west of Alexandra Street, Kurri Kurri. It is rectangular in plan with a frontage to Rawson Street of 40.2m, a depth of 50.3m and an area of 2,023m2. A 6m-wide laneway adjoins the rear boundary of the land.
5 The land has a fall of 1.2 metres and slopes diagonally across from the northeast to the southwest. Erected on the land are two dwellings, one on each existing lot. The land lacks significant vegetation however, there are two trees, a Liquid Ambar adjacent the northwestern corner and a Jacaranda adjacent the western boundary, about 20m from the frontage.
6 The existing lots are fenced. The height of the fences behind the building line varies between 1.5 metres and 1.8 metres and is constructed of timber palings to the east and the fence dividing the two properties is a metal ‘Colorbond’ fence. There is a similar ‘Colorbond’ fence is on the western boundary. Along the southern boundary with the lane the fencing is constructed of a combination of timber, metal sheeting and concrete panels. The front fence of No 168 Rawson Street is an open metal fence and No 170 Rawson Street has a brick fence that includes decorative perforations. The heights of the front fences vary between 1m and 1.2m.
7 The locality is characterised by single-storey detached dwellings. The Kurri Kurri Public School located some 80m east of the subject land, on the northeastern corner of Rawson and Alexandra Streets. The school has a number of detached single-storey buildings but the size and scale of the buildings is greater than the nearby detached housing.
8 The Kurri Kurri has a traditional strip shopping centre located about 200m from the land. This shopping precinct extends east along Lang and Barton Streets.
9 Nearby dwellings have variable front setbacks, of between 3m and 6m. The lot size is also variable, with many lots exceeding 1,000m2 in area, often 20m wide and 50m deep. There are some smaller lots scattered through the residential areas, some for dual occupancy or multiple dwelling development and then subdivided.
Relevant planning controls
Cessnock Local Environmental Plan 1989, (CLEP)
10 Under the provisions of the CLEP the land is zoned Residential 2(a) and the proposal defined, as a ‘child care centre’ is permissible with consent.
11 The definition of a ‘childcare centre’ under cl 5(1) of the CLEP, is:
- …a building or place used for the purpose of caring for children and includes:
- but does not include a dwelling being used as a domicile;
12 The development control table is found in cl 9 of the CLEP. The objectives of the 2(a) zone under the CLEP are:
13 There are no state environmental planning policies that apply to the land.
14 The Hunter Regional Environmental Plan 1989, (HREP) and the Hunter Heritage Regional Environmental Plan 1989, (HHREP) apply in the City of Cessnock. There are no provisions under these plans that specifically relate to the land or the proposal.
Cessnock Development Control Plan 2006, (CDCP)
15 The CDCP was prepared under the Environmental Planning and Assessment Act 1979 and cl 21 of the Environmental Planning and Assessment Regulations 2000. The CDCP was adopted by the council on 8 November 2006 and came into force on the 1 December 2006.
16 The aims of the CDCP are:
· provide a detailed planning document that outlines requirements for development which meets community expectations and addresses the key environmental planning issues of the Local Government Area;
· identify exempt and complying development provisions in accordance with sections 76 & 76A of the EP&A Act and clause 10A in the Cessnock LEP 1989;
· identify certain development as advertised development and to detail public notification requirements in accordance with section 74C of the EP&A Act;
· promote a more simplistic framework for dealing with Development Applications (DAs) consistent with the amended requirements of the EP&A Act;
· encourage and assist effective community participation in the decision-making process;
· provide a more accessible and understandable set of guidelines to the general public; and
· apply common or consistent requirements and procedures in the assessment of all applications.
17 The CDCP includes the following provisions:
- CHAPTER C.1: PARKING AND ACCESS
1.1.2 Purpose
To ensure that adequate off-street car parking is provided within the City of Cessnock to meet the demand for such parking created by development.
1.1.3 Aims and Objectives
Aims:
- Objectives:
To ensure that:
- Car Parking Standards
| LAND USE | PARKING REQUIREMENT | COMMENTS |
| Child care centre, and/ or | 1 space per employee, | Council may give consideration to varying the specified parking |
| Kindergarten | PLUS 1 space per 4 children enrolled for visitors and for parent parking. | requirement, depending upon the nature and type of street frontage available for the setting down and picking up of children. |
C.5 WASTE MANAGEMENT AND MINIMISATION
5.1.2 Purpose
To provide useful advice to applicants seeking Council approval for a development or other related activities on how to avoid and minimise waste and how to improve existing facilities.
5.1.3 Aims and Objectives
Aim: To reduce the demand for waste disposal.
Objectives:
· to maximise avoidance, reuse and recycling of sub-division debris/refuse,
· demolition waste, building/construction materials, household generated waste and industrial/commercial waste;
· to assist in achieving Federal and State Government waste minimisation targets in accordance with Regional Waste Plans;
· to minimise the overall environmental impacts of waste and foster the principles of ESD;
· to provide advice to intending applicants on how to prepare waste management plans, detailing actions to minimise waste generation and disposal;
· to provide advice to applicants on matters to be considered when assessing the waste implications of a variety of applications made under the Environmental Planning and Assessment Act and the Local Government Act;
· to require source separation and other design and location standards, which complement waste collection and management services, offered by Council and the private service providers;
· to provide advice to intending applicants on how to reduce and handle waste during the sub-division/demolition and construction phase;
· to encourage building designs and construction techniques which will minimize future waste generation; and
· to provide on-going control for waste handling and minimisation in premises.
D.5: OUTDOOR SIGNAGE
5.1.2 Purpose
The purpose of this Plan is to provide a policy that balances the need for advertising and information signage without adverse environmental impact. The plan seeks to clarify legal requirements and also provides design guidelines to assist developers, advertisers and sign manufacturers in the preparation of proposals.
This Plan has been prepared in accordance with SEPP 64 -'Advertising and Signage' and Cessnock LEP1989 as amended.
5.1.3 Aims and Objectives
The aim of this Plan is to provide guidelines for the construction and display of advertisements and signage in the City of Cessnock.
The specific objectives of this Plan are to:
- 5.3.7 Post, Pole or Pylon Signs (including banners and flags)
Criteria - Sign must comply with the following:
· 3 square metres and 2 metres high in rural areas.
· 8 square metres and 8 metres high in business areas, and
· 10 square metres and 8 metres high in industrial areas.
5.6 Assessment Criteria
When assessing an application for the erection of a ‘merits’ sign(s) the Council will take into account all relevant matters listed under section 79C of the EP&A Act including the following:
· Impact of the sign on the environment in terms of external lighting intensity, duration of illumination and light scatter as well as any noise emitted from electrical equipment in a quiet rural area.
· Impact of the sign on the landscape or scenic quality of the area. Integration of the sign(s) with buildings or other landscape elements. Visibility of the sign above the horizon or with landscape as a backdrop.
· Impact of the sign on any heritage item or conservation area. This assessment will have reference to any 'heritage studies' where available. The sign shall relate to the character, style, colour, design and materials of the Heritage Item or to the architecture of the Conservation Area.
· Character of the area eg. settled, commercial, wild etc. Sign materials congruent with a district of early settlement, rural character and high scenic value.
· The effect of the nature and intensity of the business identification and promotional signage in the locality and the potential for clutter.
· Sign construction, bulk and scale to reflect turn-of-the-century technology.
· Scale of the sign relevant to nearby buildings and to viewing distance.
· Style of the sign relative to the style of development within the visual catchment area of the proposed sign. Impact of the sign on adjoining development or on the use or enjoyment of nearby buildings or land.
· Impact on vehicle and pedestrian movement and safety. Horizontal and vertical alignments of the road(s) addressed by the sign and the traffic speeds and volumes specific to the road(s).
· The effect of the proposal on the natural and man-made landscape.
· The existing and likely future amenity of the area.
· The structural integrity of the sign with particular emphasis on the ability of the sign structure to withstand wind forces, including means of attachment.
· The wording and/or graphics applied to the sign.
· Effect of illumination and light spill (where appropriate).
· Current approved signs on the property and on any adjoining properties.
· Impact of the sign on any heritage item or conservation area (see suggestions at Schedule 1)
- 5.6.1 Location of Signs
BUILDING LINES5.6.2 Illumination
Council will generally not favour applications for high intensity illuminated signs. Lighting details need to be submitted to Council with the development application for the signs. Applications need to demonstrate that illuminated signs will not adversely impact on surrounding land uses. Council may require illuminated signs to be fitted with an automatic timing device to extinguish the illumination during specified hours to avoid light spill into surrounding areas.
Illumination of signs is to be concealed or integral to the sign. Uplighting of signs is prohibited. Any external lighting of signs is to be downward pointing and focused directly on the sign to prevent or minimise the escape of light beyond the sign. Moving, flashing and running light signs project glare and light spillage and are prohibited under this Code. Illumination of signs shall generally only be permitted in business and industrial zones.
Council's Outdoor Lighting Code may be of assistance in the designing of lighting for signs and is available from Council.
5.6.3 Quality & maintenance
Signs are to be of a high visual quality. Signs should be designed for low maintenance and minimum chance of vandalism. Any sign that is considered as being unsafe or unsightly will need to be repaired, renovated, removed or replaced as appropriate in the circumstances. A sign shall not be altered in any way (except for removal) after approval has been granted. Repainting, altering, or relocating a sign will require an application to amend the consent.
Council may require a maintenance plan to be submitted with a signage application indicating the proposed methods of cleaning, replacement of defective lighting and a detailed maintenance schedule to ensure the ongoing upkeep of the sign.
5.6.4 Duration of Approval
Development approval will last for 15 years as per the requirements outlined in State Environmental Planning Policy 64 - Advertising and Signage. On expiration of this period a new development application will need to be submitted and approved by Council.
Policies
Cessnock City Council adopted a building line policy on the 20 March 1996. The policy was prepared pursuant to Clause 18 of the Cessnock Local Environmental Plan 1989 and has the following aims and objectives:
Rationale:
Building lines have been traditionally enforced by Council to control and regulate the following issues:
· traffic vision and site clearances,
· streetscape aesthetics,
· urban consolidation and lot size reduction trends,
· utilisation of climatic conditions to enhance energy efficiency and urban design,
· carparking,
· improved visibility on corner allotments,
· sloping sites and other topographical considerations,
· possible future road widening works, and
· minimisation of complaints from dust and noise pollution.
- Objectives
In developed areas to:
Ensure that new development enhances and makes a positive contribution to the character of the existing streetscape and/or environment.
Table 1: Minimum Building Line Setbacks
| SITE DESCRIPTION | MINIMUM BUILDING LINE SETBACK |
| *Residential Zones 2(a), 2(b) | 6 metres |
The proposal and its history
18 Development application No 8/2006/120/1 was lodged with the respondent council on 12 February 2006 to demolish the existing dwellings and to erect a childcare centre on the land.
19 The proposal is now shown on the plans prepared by RD Raymond Design filed on 12 April 2007 in Exhibit B including:
· face sheet and site data Drawing No. RD05198 pod 1, issue D;
· existing conditions site plan Drawing No. RD05198 pod 2, issue A;
· concept site plan Drawing No. RD05198 pod 3, issue D;
· site works plan Drawing No. RD05198 pod 3A, issue B;
· concept floor plan Drawing No. RD05198 pod 4, issue E;
· concept elevations Drawing No. RD05198 pod 5, issue D;
· street elevation and site section Drawing No. RD05198 pod 6. issue B;
· landscape intent plan Drawing No. RD05198 pod 7, issue D;
· landscape planting schedule Drawing No. RD05198 pod 8, issue A;
· fence details and signs Drawing No. RD05198 pod 9, issue C;
· shade structure details plan Drawing No. RD05198 pod 10, issue B.
20 The development is for a purpose-built childcare centre with a gross floor area of some 522m2 a roofed play area of 75.2m2, an entry porch of 8m2. The playscape would be 543.7m2.
21 On-site car parking spaces are proposed for 12 staff cars and 9 drop-off cars or 21 spaces and under the CDCP, 30 spaces are required. Under the RTA guidelines for traffic generating uses 19 spaces are required.
22 The on-site car parking is proposed in the front setback. Access to the on-site car parking spaces would be provided by a separate ingress and egress located on the eastern and wester ends of the frontage. The driveways would have a variable width ranging from 4m to 6m.
23 On-street car parking is also proposed for seven (7) vehicles, between the entry and exit points of the site on Rawson Street at 90 degrees to the proposed kerb.
24 The proposed hours of operation of the childcare centre are between 6:30am and 6:30pm on weekdays.
25 Seventy-six (76) children would attend the centre when it is operating at full capacity.
26 Facilities within the building include:
· Five activity rooms.
· Sleeping and toilet facilities.
· Kitchen, staff room and storage areas.
· Facilities for persons with a disability.
27 The external walls of the proposed building are to be of masonry construction with a rendered finish. Aluminium framed windows are proposed and the roof is to be corrugated metal.
28 Plans of the development show the main building setback 20.3m from the front boundary and 2 metres from the rear boundary, 3 metres from the west boundary and 17 metres from the east boundary. There will be a number of shade structures, an open artificial grass play area and a storage building adjacent to the main building. The land within the frontage is to be used for landscaping, car parking and for the display of an advertising sign.
29 Two existing trees on the land are to be retained.
30 A 1.5m3 bulk commercial bin is proposed to service the garbage needs of the child care centre. The bin is to be stored in a masonry enclosure with galvanised steel gates. The enclosure has a proposed height of 1.5m and is to be located 1.3m from the eastern boundary and 17.8m from the front boundary.
31 The garbage bin is to be collected on a fortnightly basis. It is expected that the garbage will consist of:
· Disposable nappies 40%.
· Scrap paper 36%.
· General refuse 24%.
32 On 30 March 2006, plans were submitted showing site grading and stormwater drainage details.
33 On 6 April 2006, a letter was sent by the council to the applicant requesting details to demonstrate compliance with the requirements of the Department of Community Service.
34 On 10 April 2006, the Local Development Advisory Committee (Traffic) resolved not to object to the development and made the following recommendations:
· a pedestrian link be provided along the eastern end of the carpark;
· the applicant submit a separate signposting & linemarking plan for Council consideration;
· the pathway across the front of the carpark be offset to allow for vehicle overhang;
· the garbage enclosure be designed to not inhibit use of the pedestrian path;
· a separate application be lodged with the Local Traffic Committee to install ‘No Stopping’ kerbside signposting over the full frontage;
· 90-degree angle parking is not to be provided over the frontage of the development;
· stop signage is to be installed at the exit from the carpark to the public street;
· footpath paving is to be constructed to Council requirements over the frontage of the development; and
· car parking for the development be provided in accordance with the requirements of DCP 2.
35 On 24 April 2006, the council received amended plans to achieve compliance with requirements of the Department of Community Service. These amended plans were referred to the Department of Community Services on the 4 May 2006.
36 On 5 May 2006, a further request was made by the council for cut and fill details to be shown in a clear and simple plan.
37 On 12 May 2006, the council sent a further letter to the applicant requesting a traffic impact statement and stormwater discharge calculations.
38 On 12 July 2006, the application was re-notified and re-advertised for a period of 15 days in accordance with Section 4, Table 1 of DCP38 (this has been replaced by Section 4, Table 1 of Chapter B2-5 of the CDCP). Following the re-notification and re-advertisement, four (4) submissions were received including a petition with 136 signatories.
39 On 13 July 2006, a letter was sent to the applicant advising that the traffic impact assessment was not suitable and a further assessment, in accordance with the RTA guidelines should be prepared. The letter also requested the submission of a social impact assessment checklist.
40 On 14 August 2006, a revised traffic impact assessment and a social impact assessment was submitted to Council.
Notification
41 The application was notified to nearby owners and occupants for 15 days in accordance with the council’s Public Notification and Advertising Plan No 38, (DCP38) and the council received submissions and a petition included in Exhibit 1 Tab 1.
42 Concerns were raised in respect of:
- ADVERSE IMPACTS ON AMENITY OF EXISTING RESIDENTIAL ENVIRONMENT
· Development is not in keeping with the existing built environment.
· Increased traffic congestion and noise levels from children in a quiet residential street will adversely impact on the lifestyles of existing residents.
· The hours of operation are going to disturb the residents, particularly the elderly who have complained that they are still asleep at the centre's proposed start time of 6:30am.
· The development requires the removal of a Federation Style house existing on the site, affecting the local streetscape.
· Neighbours are concerned the development will stop them from keeping large dogs in their own backyards.
· Concerns on the impact from the noise of the traffic (vehicle and pedestrian), security, vandalism etc on the elderly people living in the neighbourhood.
ECONOMIC IMPACT
· The development will not benefit local business as ABC Learning Centres buy in bulk elsewhere.
· Existing centres will close, putting local people out of work.
· Concern for neighbouring property prices; residents to settle for lower values and it may have extensive time on the market.
NO CONSULTATION WITH DoCS
· Children's Services Regulations 2004 are either not being met by the development, or meets only the minimum requirements but are not adequate.
PUBLIC INTEREST
· This development is not in the public interest as it puts shareholder profits ahead of the welfare of local children and residents.
· Federal funds from taxpayers' money should not be used to subsidise corporate childcare providers and their shareholders.
· This development is not in the interests of the Rawson St residents, many of whom are elderly and have no need of it.
· This development is not in the interests of the wider Kurri Kurri community as it threatens to decrease the standard of early childhood education in Kurri Kurri.
SITE NOT SUITABLE FOR THE DEVELOPMENT
· The site, on a residential street, is not suited to this development.
· The site is not large enough to accommodate 76 children.
· Local drainage may be adversely affected as the site is on top of an incline, where the area is sealed, preventing natural seepage.
· The proposed enclosure is not suited to the education of young children with lack of external stimulation in the playground environment.
· The layout of the development provides children with constrained tight playground space.
SOCIAL IMPACT
· Research has shown that care provided by big corporations is inferior to that of non-profit and small private centres.
· Social networking and cohesion is lost when community managed centres are replaced by corporations.
· The proposed centre will reduce the number of children at Kurri Kurri Preschool, resulting in higher fees, making preschool education for local children unaffordable.
· Existing preschools and long day care centres in the local area of Kurri Kurri, Weston and Abermain all have vacancies. A new childcare facility with corporate backing and campaigning may result in the closure of existing community-based centres.
· Community based childcare centres provide extra services to the children that don't provide a financial return, such as on-site speech therapy. The corporate sector acts in the best interests of shareholders and would not necessarily see the benefit of providing additional services with no return.
TRAFFIC CONGESTION
· Traffic and parking in the street is already congested from close-by Kurri Kurri Public School, in particularly when parents are dropping off and picking up children. Traffic will be more dangerous with another school in the street, where parking will extend even further, adding to the congestion that currently exists.
· Failure to provide adequate off street parking is a safety hazard to small children.
· The entry to the carpark of the proposed centre is only house blocks from the intersection with Alexandra St, which adds to the potential for accidents.
WASTE MANAGEMENT AND MINIMISATION PLANS INADEQUATE
· No provision has been made to facilitate recycling.
· Children will not learn the mentality of 'waste as a resource' if they don't see it happen everyday.
· No provision has been made to compost food scraps.
The council’s decision
43 By email notice dated 5 October 2006, the council refused the application for the following reason:
1. The development does not comply with Council's DCP 2.
44 On 9 October 2006 the applicant was given formal notice of the council’s decision.
The hearing
45 The appeal was filed on 24 November 2006.
46 At the hearing the court heard evidence on behalf of the respondent council from:
· Ms Janet Fletcher, resident of No 25 Old Buttai Road, Buttai, and Board member of the Kurri Kurri and District Pre-School Kindergarten Inc.;
· Ms Janelle Gallagher, resident of No 61 Weston Street, Weston, and Manager of the Kurri Kurri and District Pre-School Kindergarten Inc.;
· Mr and Mrs Brian and Heather Sutherland, residents of No 189 Hopetown Street, Kurri Kurri;
· Ms Sharon Cremona, resident of No 172 Rawson Street, Kurri Kurri;
· Ms Kelly Anthony, resident of No 18 Alexandra Street, Kurri Kurri; and
· Mr Keith Blackmore – consultant town planner.
47 Mr Harold Pryor, resident of No 166 Rawson Street, Kurri Kurri, wrote to the Court on 9 April 2007 expressing his concerns, [Note: Exhibit 1 Tab 1. He was unable to attend the on-site hearing.
48 On behalf of the applicant Mr Nick Juradowitch gave evidence.
49 Mr Neil Pennington – Court-appointed acoustic expert and Mr Terry Keating – Court-appointed traffic expert.
50 Mr Peter Giannopoulos, Town Planner of Cessnock Council prepared the statement of basic facts dated 29 January 2007.
The issues
51 On 31 January 2007 the council filed a statement of issues.
1. The proposed development fails to provide an adequate number of on site carparking spaces to meet the demand created by the development as required by Cessnock DCP 2 - off street vehicle carparking (now chapter 1 part C of Cessnock DCP 2006).
2. The proposal for on street parking of seven vehicles is unsatisfactory in view of the geometry of the entry/exit access drive and in view of the limited sight distance and the failure of the proposal to comply with the standards specified in AS 2890.1 - off street carparking 2004.
3. In view of the absence of any adequate noise assessment report the Court cannot be satisfied that the noise impact on the neighbourhood is satisfactory in all the circumstances.
4. Is the proposed 1.8 metre high metal fence an adequate noise abatement barrier and what will its impact be on the visual amenity and streetscape of the neighbourhood.
5. In view of the objectives of the residential 2(a) zone specified in the Cessnock LEP can the Court be satisfied that the development is "of a type, scale and character which will maintain residential amenity" of the area especially when considering the following:
(i) hours of operation;
(ii) traffic noise;
(iii) operating noise;
(iv) neighbourhood character;
(v) building alignment;
(vi) the design of the building and the nature of operation;
(vii) the proposed waste management plan and the provisions of schedule 4 of DCP 2006 which requires "in all cases the location of the site should reflect consideration of ... proximity to side occupants in adjacent properties in terms of noise and odour control" bearing in mind the proposal includes the use of a 1.5 metres3 commercial bin storage within 1.3 metres of a side property boundary close to the adjoining residents (No. 166 Rawson Street) which bin is proposed to be emptied every two to three weeks.
6. In light of the above issues and the objections received should the development be approved.
7. Annexed to this document is a summary of issues raised by the objectors.
52 The following emerged as the salient issues:
· inadequate number of on site carparking spaces;
· absence of any adequate noise assessment; and
· 1.8m high metal fence will adversely impact be on the visual amenity and streetscape.
The evidence and findings
Inadequate number of on-site car parking spaces
53 The council’s position with regard to the number of on-site car parking spaces, forcefully put by Mr Baird, was that off-street car parking spaces should be in accordance with CDCP. The statement of environmental effects indicates that there would be eleven fully qualified staff on site at any time, [Note: Exhibit D, para 3.0]. This complement of staff would be broken down into ten contact and one non-contact member. Thus under the provisions of the CDCP would require 30 spaces to be provided on-site at the rate of 1 space per employee, giving 11 spaces, plus 1 space per 4 children enrolled for visitors and for parent parking giving 19 spaces. In oral evidence Mr Keating had determined that under CDCP 32 spaces would be required, because he had allowed for up to 13 staff, [Note: Exhibit 1, Tab 7, p 6]. Also, proposed Condition 3 confirms the number of staff members at 13, [Note: Exhibit 6]. However, CDCP does envisage some flexibility might be applied to the provision of on-site car parking, depending upon the nature and type of street frontage available for the setting down and picking up of children.
54 Under the RTA Guidelines of 1 space per 4 children, 19 spaces are required on site for both staff car parking and children drop off. Thus under this prescription, the proposed provision of 21 spaces on-site would be in excess of requirements by 2 spaces.
55 The applicant supports the provision of 21 on-site car parking spaces, given the ready availability of on-street car parking. As the residents pointed out when parents attend special occasions at the Kurri Kurri Public School, three or four times a year, car parking in the street is at a premium and sometimes driveways to private dwellings are parked out. On most occasions it was agreed that car parking is available on-street in the vicinity of the land.
56 The local traffic committee was opposed to providing marked spaces on-street and even suggested that no-stopping signs be erected across the frontage of the land.
57 Mr Court-appointed traffic engineer, Mr Keating, indicated in evidence given on-site and in the court that on occasions, he would expect there to be congestion within the proposed on-site car park especially during the morning peak hour if no reliance were placed on the provision of some car parking within the street.
58 In answer to Mr Baird’s question, “Assuming on-street not available does that cause you concern?” Mr Keating said, “It does at the peak time. That would create potential for some congestion and difficulty in accessing the site.”
59 He agreed with Mr McEwen, SC, that there is a “…high availability of on-street parking.”
60 Mr Keating agreed with Mr McEwen, SC, that there would be a spread of hours for pick-up and set-down of children due to the casual operation of the centre, safety associated with the on-site car park, and high availability of on-street parking were factors in determining whether the provision of car parking is reasonable. He agreed that with these matters present a variation from the council standard was warranted.
61 I am satisfied that as the design of the on-site car parking area would be convenient with a drive-through configuration and despite there being on occasions congestion the proposed 21 spaces would be adequate and I would not refuse the application for reason of inadequate car parking. In coming to this conclusion I have focussed my attention on the provisions of the CDCP and the flexibility available in its application and carefully considered the evidence of the Court-appointed expert. Although he considered 90 degree parking across the frontage would not be unreasonable, I would not require specially allocated on-street car parking.
62 Mr Keating stated that the increased traffic generation expected from this development would not have an adverse impact on surrounding road network and intersection capacity. I accept the evidence of Mr Keating that the road system would be able to accommodate the additional traffic and that the width of the car spaces as conditioned would be adequate.
Absence of any adequate noise assessment
63 During the course of the hearing further noise information came to light that required Mr Pennington, the Court-appointed acoustic expert, to recalculate noise impacts and attenuation. Mr Pennington assessed the noise impacts appropriately and with the proposed attenuation in place, I am satisfied that noise impacts would not warrant refusal of the application.
64 Mr Pennington applied a standard of background noise + 10 Db(A) and suggested noise attenuators to ensure that level was obtained throughout the day and even at the lowest background level of 32 Db(A) in the morning around 11.00am. At other times of the day the background noise levels were higher and given the same noise attenuation measures in place the amenity would be the greater.
65 His assessment concluded, before the additional information came to hand, that the proposed acoustic fences would enable the noise criteria to be met and reasonable levels of amenity achieved in nearby dwellings. This, he pointed out met the noise attenuation criteria set by the Court in recent similar cases, [Note: Exhibit 1 Tab 6, p 12]. During the hearing the height of the fences changed and incorporated a Perspex panel sloping over the land above the top of the fence, and special glazing was required to the windows facing onto and near the lane. These fences were conditioned. With these conditions in place I am satisfied that refusal on the grounds of noise would not be warranted.
1.8m high metal fence will adversely impact be on the visual amenity and streetscape.
66 Mr Pryor was concerned for the height of the dividing fence on his boundary near the bedrooms at his dwelling at No 166 Rawson Street, abutting the subject land to the east. He said that a 2.2m or 1.8m high brick or wood fence would create a ‘concentration camp’ effect, but despite this, were the child care centre approved, he asked for a ‘Hebel’ block fence to block the noise of cars entering and leaving the site near his bedroom window. Also he suggested that he preferred a masonry fence.
67 There was no expert evidence regarding a masonry fence on this boundary. The applicant sought to erect an acoustic ‘Colorbond’ fence to 2.2m in height, constructed in accordance with pod 3 D and pod 9 C. However, should Mr Pryor of No 166 Rawson Street, prefer, in accordance with the alternative in Condition 12, then the fence construction for that part of the fence that is 2.2m in height shall be altered so that it “…shall be 1.8m constructed of lapped and capped timber and the balance of the height to 2.2m in the Perspex as set out in condition 12(a).” [Note: Exhibit 6 Condition 12]. Mr Pennington was of the opinion that such a fence would attenuate noise of vehicles and children received at the outside wall of Mr Pryor’s dwelling. However, should the applicant and Mr Pryor agree a masonry fence in lieu, could be erected under the Dividing Fences Act. This is not within the power of the Court to require, as the parties did not address this during the hearing.
68 The existing fence on the common boundary of No 166 and the subject land is around 1.2m in height and the proposed would be either 1.8m or 2.2m and thus would cut off some view of the sky from within the bedrooms of Mr Pryor’s dwelling. However, balancing the need to attenuate noise with the provision of a view of the sky, I am satisfied that a reasonable balance has been struck from a planning point of view. Even with a fence at 2.2m in height, I am satisfied that the bedroom windows along this side of Mr Pryor’s dwelling would still receive sufficient daylight. The section in Exhibit H shows the 45-degree plane off the sill of the window would strike the fence around 200mm below the top of a 2.2m high fence. Thus much daylight would continue to be available over the top of the fence. Were the fence only 1.8m in height most of the daylight would continue to strike the windows. The shadow diagrams in Exhibit C suggest a similar result.
69 Ms Cremona was concerned for the likelihood of noise within the bedroom of her dwelling at No 172 Rawson Street, Kurri Kurri. She explained that her son, who works shifts and occupies the bedroom near the proposed front entrance sometimes, needs to sleep during the day and would be disturbed by the activities within the proposal.
70 Condition 13 stipulates that a 1.8m high timber acoustic fence would be erected in accordance with the approved plan, on the western common boundary of the land with Ms Cremona’s dwelling at the cost of the applicant. I am satisfied on the evidence of Mr Pennington that this would assist in attenuating noise from within the centre received at Ms Cremona’s dwelling. I would not refuse the application for reason of noise impacts on abutting dwellings.
71 I have also taken into account that Ms Cremona’s dog is housed abutting the common boundary with the proposal. The noise of children and cars would be remote from the dog’s yard and thus I expect that the dog would not be often disturbed. The building, as well as the fence would shield any barking should it occur. Windows to the Sleep Areas Nos 1 and 2 on the western side of the proposal would be glazed in 10.38mm glass to attenuate noise to the interior.
72 For the above reasons, the appeal is upheld.
Conditions
73 The conditions are those in Exhibit 6 as amended during the hearing. I have deleted Conditions 29 and 30 that would have required the construction of angled parking spaces on the verge in Rawson Street.
Orders
74 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 8/2006/120/1 lodged with the respondent council on 12 February 2006 to demolish the existing dwellings and to erect a childcare centre at Lots 1 and 2, DP970698, being Nos 168-170 Rawson Street, Kurri Kurri, is approved subject to Conditions 1 to 65 in Annexure A.
3. The exhibits except for Exhibits A, B, C, D, G, H, K, 6 and 7 are returned.
S J Watts
Commissioner of the Court
sw
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
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