Childs Family Kindergarten Limited v Council of the City of Sydney

[2006] NSWLEC 590

Land and Environment Court

of New South Wales

CITATION:	Childs Family Kindergarten Limited v Council of the City of Sydney [2006] NSWLEC 590
PARTIES:	APPLICANT Childs Family Kindergarten Limited RESPONDENT Council of the City of Sydney
FILE NUMBER(S):	10464 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Modification application Noise .
DATES OF HEARING:	15 September 2006
EX TEMPORE JUDGMENT DATE:	09/15/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr M Seymour, barrister INSTRUCTED BY Elliott Tuthill Solicitors RESPONDENT Mr S Kondilios, solicitor Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

15 September 2006

10464 of 2006 Childs Family Kindergarten Limited v Council of the City of Sydney

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the amendment of an existing development consent which is now subject to revised 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

1. COMMISSIONER: This is an appeal pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979 against the deemed refusal by the Council of the City of Sydney (the council) of an application to amend condition 18 of Development Consent U93/00152 for an approved childcare centre operating at 61 Moore Park Road, Moore Park (the childcare centre). The condition relates to the control of noise and vibration emitted during the activities of the childcare centre.

2. I have had the benefit of an inspection of the property in the company of Mr M Seymour, barrister for the applicant, and Mr S Kondilios, solicitor for the Council, accompanied by Dr R Tonin and Mr S Cooper, being respectively the Court-appointed noise expert and the noise expert retained by the applicant.

3. It became clear to me, upon a reading of Dr Tonin’s reports and discussions with Dr Tonin and Mr Cooper on site and in the course of their evidence in Court today, that there was a degree of imprecision in the wording of the condition as presently imposed, particularly both as to the location at which compliance or otherwise was to be assessed and the ability of the childcare centre to comply with the condition.

4. These proceedings are being undertaken against a background of proceedings in other Classes of the Court’s jurisdiction with respect to noise being emitted from the childcare centre and in the context of the applicant having already constructed a significant acoustic barrier between the childcare centre and the property occupied by Mr Santo and his daughter, being the adjacent property to the east at 63 Moore Park Road.

5. During the course of the evidence of the acoustic experts, both informally on site and in the Court, it became apparent that a greater degree of certainty and a greater degree of protection to the Santo residence could be afforded by a combination of measures that were, at least in broad terms, acceptable to the applicant.

6. These involve:

• the restriction on the number and ages of the children permitted to use the front yard of the childcare centre as a playground;
• sound absorbent treatment to the walls of that area for noise suppression purposes;
• in the rear yard, a restriction on the number of children permitted to play at any time; and
• an extension in height of part of the rear yard element of the noise barrier between the childcare centre and the Santo property.

7. The precise linear and height dimensions of the extension to the acoustic barrier remain to be settled by Mr Cooper and Dr Tonin prior to the issuing of orders to give effect to the decision I am giving this afternoon.

8. However, in terms of an indication given on site and then confirmed in the Court evidence, the increase in height of the barrier will be ~ 1 m and its linear extension will be from a point somewhat to the north of the rear wall of the Santo property through to a point approximately half way along the backyard of the childcare centre. That additional barrier height will enable the imposition of a revised condition on the more onerous measuring basis adopted in the longstanding policy structure of the council to require the measuring of noise (and assessment of its acceptability) in a variety of octave bands. This is, on the expert evidence, a more stringent basis than simply one being provided on a dB basis.

9. I am satisfied that, in general terms, the approach taken by Dr Tonin and Mr Cooper is an appropriate one which will, in broad, preserve the council’s preferred policy position whilst, at the same time, enabling me to impose practical measures that will ameliorate, to some considerable extent, the noise impact on the Santo property.

10. I am satisfied that the measures outlined namely, for the front yard a limitation on ten 0-2 year old children playing in there at any one time coupled with the application of sound absorbing surface treatments to the two external walls of the childcare centre, adjacent to the Santo boundary will, to large measure, address the noise impact from this location.

11. I will return to the additional matter of time restrictions on use of this space.

12. With respect to the rear yard, I am also satisfied that the restriction of use of the rear yard to no more than fifteen children at any time coupled with the proposed increase in length and height of the acoustic barrier is an appropriate treatment for the backyard is appropriate.

13. I am satisfied, on the evidence of Dr Tonin and Mr Cooper, that that will provide significant amelioration and compliance, except in occasional de minimus aspects, with the appropriate noise requirements at a receiving point on the balcony or at the kitchen window of the Santo residence. That measuring point involves a departure from the council standard of requiring such measurement to be at the boundary but I am satisfied, from my view of the site, that that is an appropriate departure.

14. Ms Santo, who gave evidence in these proceedings both informally on site and in Court, has put, with respect to the rear yard, her concern as to the impact of noise on her father when he is undertaking gardening activities in that yard.

15. Dr Tonin and Mr Cooper were specifically questioned on this and indicated that, because of the fact that Mr Santo (when undertaking such activities) would be behind and lower than the acoustic barrier, there would be a lesser degree of noise impact at that location than at the most impacted point at the rear of the Santo residence – that being at the south western corner of their balcony.

16. With respect to the front yard, Ms Santo put the proposition that her father (who suffers from a variety of illness with respect to which I have some evidence) also seeks enjoyment of the front yard for fresh air and gardening recreation. It was her evidence that he is not concerned about the traffic noise from the busy use of Moore Park Road but was more impacted by the intermittent and sometime abrupt noise generated by children at play.

17. With respect to the general proposition as to what regard I should have to Mr Santo’s illnesses, whilst I have obvious sympathy with him for those illnesses from which he suffers, I am obliged as a matter of law to have regard to broad planning principles and practices and it would be entirely impermissible for me to impose planning restrictions arising from the unfortunate circumstances of one individual.

18. It is therefore not proper for me to impose any restrictions simply to deal with Mr Santo’s illnesses.

19. It is, however, in my consideration of these matters, appropriate for me to consider what additional restrictions, if any, should apply to the use of the front yard of the childcare centre for the purposes of protecting the future enjoyment of the property immediately to the east by the present and any future residents of the property.

20. Mr Seymour has had instructions from his client that his client is prepared not to oppose the imposition of restrictions that would limit the use of the front yard of the childcare centre so that it is not used by children at play between 7.30am (that being the opening time of the centre) and 9.30am; and 4.30pm and 6.00pm (that being the closing time of the centre).

21. His client has also indicated, with a degree of further and understandable reluctance, that, if I were minded to impose a midday exclusion period for use of the front yard – that not being agreed to by the applicant – such restriction period should be no greater than between 11am and 1pm.

22. I am satisfied that it would be reasonable to impose such a restriction for those hours in order to provide a degree of amenity on a broad and long term planning basis for the present and future residents of 63 Moore Park Road.

23. The appeal is thus resolved subject to the settlement of the precise dimensions of the addition to be made to the acoustic barrier and a precise definition, descriptively, in the conditions, of the sound absorbing treatment to be applied to the two walls at the front of the premises, and to a revision of the proposed Noise Management Policy to be incorporated in the conditions of consent to reflect the outcome of this decision.

24. The Noise Management Policy will also incorporate, as use of the front yard as play space is now to be reinstated as a permissible use, the restriction on the ramp along the rear fence line with 63 Moore Park Road to being for emergency use only during normal hours of operation of the childcare centre but being available for maintenance and other purposes outside those hours.

25. Dr Tonin and Mr Cooper will need to settle the terms of the conditions with respect to the barrier and the sound absorbing treatment and it would be appropriate for me to grant them a period of 14 days within which to do that.

26. In order to provide a further degree of comfort to Ms Santo and her father, the conditions will also require a provision offered in the applicant’s proposed conditions for future testing verification of the measures after they have been implemented. That will be a testing regime which is:

• at the applicant’s cost;
• without notice to the applicant; and
• within the first three months of the operation of the revised conditions of consent and after the barrier and noise absorbing treatment have been installed.

27. I note, in giving the following directions, that the applicant has undertaken to meet the necessary additional costs to be incurred by Dr Tonin – which costs arise after the conclusion of today’s hearing.

28. I therefore give the following directions:

1. Dr Tonin and Mr Cooper are to settle by the close of business on 29 September appropriate terms of conditions about the sound absorbent treatment and the increased acoustic fencing;
2. As a consequence of that, the respondent is to file and serve settled revised consolidated conditions of consent by the close of business on Friday 6 October;
3. I set the matter down for call over on 12 October;
4. If directions 1 and 2 are complied will, I will vacate the call over; and
5. Liberty to re-list on two days’ notice if there are any matters of concern arising out of these directions.

Commissioner of the Court