Core Sites Pty Limited v Warringah Council
[2008] NSWLEC 61
•25 January 2008
Land and Environment Court
of New South Wales
CITATION: Core Sites Pty Limited v Warringah Council [2008] NSWLEC 61 PARTIES: APPLICANT
RESPONDENT
Core Sites Pty Limited
Warringah CouncilFILE NUMBER(S): 11055 of 2007 CORAM: Hoffman C KEY ISSUES: Deemed Refusal :- childcare centre with 70 children, noise, carparking, easement, pedestrian access, drainage, fencing, security of children LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
State Environmental Planning Policy No. 56
Warringah Local Environmental Plan 2000
Warringah Development Control PlanDATES OF HEARING: 25/01/2008 EX TEMPORE JUDGMENT DATE: 25 January 2008 LEGAL REPRESENTATIVES: APPLICANT
Mr I. Hemmings, barrister
instructed by Ms T. Hunt
of Shaw Reynolds Bowen & GerathyRESPONDENT
Mr K. Webber, solicitor
of Wilshire Webb Staunton & Beattie
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
25 January 2008
JUDGMENT11055 of 2007 Core Sites Pty Limited v Warringah Council
1 This is a Class 1 Appeal, No. 11055 of 2007 between Core Sites Pty Ltd and Warringah Council in regard to the deemed refusal of a long day care child centre at No. 63 Lynwood Avenue, Dee Why.
2 The site is proposed for 70 children in a 2-storey structure set well back from the road, with play areas for the 2 -3 and 3 - 5 year olds facing north in the front setback between the building and the street. The 0 - 2 year olds are on the upper floor with a shaded area on the roof. There is a lift for internal access.
3 The drop-off and pick-up arrangement is via a one-way driveway around the building, with car parking at the rear and on the west side for fourteen (14) cars including six (6) being for staff.
4 The site is known as Lot 34A DP 400496. It is located on the south side of the splayed ‘T’ intersection of Lynwood Avenue and Fisher Road North. It is rectangular in shape and has an area of 1,672 square metres. The frontage to Lynwood Avenue and Fisher Road North and the rear boundary are 36.5 metres, and the side boundaries are 45.7 metres. A single storey brick dwelling with an attached garage is currently located in the north-west corner of the site. There is no significant vegetation.
5 The topography of the site is generally level, with a slight fall from the western boundary to the eastern boundary, and the site is generally lower than the surrounding sites, which appear to have been previously filled. There are retaining walls on the two side boundaries and the rear boundary of the property.
6 The site is burdened by two 3.048 metre wide drainage easements. The easements both extend at an angle across the rear portion of the site. The shorter easement extends from the eastern boundary to the southern boundary and is located in the south-east corner of the site. The longer easement extends from the eastern boundary to the western boundary across the rear of the site. The shorter easement does not contain any pipes and is redundant. This is somewhat supported by the fact that the building at No. 67 Lynwood Avenue has been built over the easement. The applicant advised that the longer easement contains a council stormwater drain.
7 The western boundary of the site adjoins three sites which are occupied by single dwellings, being No. 61 Lynwood and No.s 26 and 28 Stoddard Place. The site adjoins the access handle to No. 67 Lynwood Avenue along the east boundary of the site. The access handle provides vehicular and pedestrian access to a townhouse development that adjoins the site to the south. The townhouse development contains approximately 22 dwellings.
8 There is another townhouse development at No. 69 Lynwood Avenue containing approximately 26 dwellings adjoining the access handle to No. 67 Lynwood on the east.
9 The surrounding residential development consists of a range of dwelling types ranging from single dwellings to multi unit developments. Detached single dwellings characterise the development to the west of the site, whilst multi-unit townhouse developments are located to the south-east and north of the site.
10 A medium density area as identified in the Warringah Local Environmental Plan 2000 is located to the north of the site, on the opposite side of Fisher Road North.
11 The applicable statutes are the Environmental Planning and Assessment Act 1979, the Environmental Planning and Assessment Regulation 2000, State Environmental Planning Policy No. 56 Remediation of Land, Warringah Local Environmental Plan 2000, the Warringah Development Control Plan and the s 94A Development Contributions Plans.
12 The subject site is located in the Zone E2 Dee Why Lagoon Suburbs Locality under the Warringah Local Environmental Plan 2000.
13 The development falls under the definition of “childcare centre” in the dictionary referred to in the statute, and this is identified as a Category 2 development in this locality.
14 The application was notified to 119 nearby property owners and six submissions were received. A meeting was held at the council in July 2007 to discuss proposed amendments, and amended plans were submitted in August 2007.
15 The applicant submitted a justification for the variation to the required number of car parking spaces in this proposal. The amended drainage and parking details were submitted in November 2007. The council, after considering those plans and after the lodgement of the appeal, considered that there were only two contentions:
- “(1) Car parking.
- An inadequate number of car parking spaces being provided on the site for the proposed use.
Particulars:
(a) Schedule 17 of the Warringah Local Environmental Plan 2000 requires four spaces to be provided for every four children having regard to the maximum number of children authorised to be cared for at any particular time.
(b) The childcare centre is to cater for 70 children, therefore 18 spaces are required.
(c) Twelve car parking spaces and two drop-off spaces are provided within the proposed development.
(d) Clause 74 in sch 17 of the Warringah Local Environmental Plan 2000.
- The height and design of the front fence is not compatible with the existing streetscape character and inadequate measures are proposed to soften the visual impact of the fence.
Particulars:
(a) Clause 12(1A) and 51 of the Local Environment Plan.
(b) The proposed fence is not compatible with the existing streetscape character.
(c) The solid fence is not required to mitigate traffic noise.
(d) Inadequate landscaping and articulation has been provided to soften the appearance of the fence.”
16 There is a third issue in the objector’s concerns, the proposed development should not be approved having regard to the matters raised in their submissions.
17 At the on-site part of the hearing evidence was taken from resident objectors being:
- Mrs O’Flaherty, resident objector of 132 Fisher Road North who lives diagonally opposite the site across Lynwood Avenue, her house being on the intersection of Fisher Road and Lynwood,
- Mr Canning, resident objector of 133 Fisher Road North, and
- Mr T Hemmens, resident objector of 135 Fisher Road North.
18 Their concerns were, in summary, for Mrs O’Flaherty, she feared that the noise of the children at play in the front play areas of the proposal would be unacceptable as heard from her house.
19 In regard to herself and the other objectors, there was also concern about inadequate on-site car parking, the danger of using the entry driveway which is on a curve where Fisher Road North transitions into Lynwood Avenue east. Also they feared that parents might not use the on-site car parking due to the difficulty of getting access to the entry driveway and they might park on the opposite side of either Fisher Road North or Lynwood Road east and attempt to cross the busy street with children.
20 Another concern was the exit driveway which is actually in Lynwood Avenue west and enters a curve in Lynwood Avenue east where it travels to meet the intersection on another curve between Fisher Road North and Lynwood Road east. Parking of cars close to this intersection causes particular concerns both on Fisher Road North and Lynwood Road west.
21 The residents said that their experiences of the accident history of the intersection indicated that it is dangerous, and any approval of the childcare centre at this point would prove to be an additional cause of accidents. Related to this, they felt that it might be possible for a car to career across the footpath and into the play area at the front of the proposal.
22 Mr Rudd, the traffic engineer consultant to the council, and Mr Varga, traffic engineer consultant for the applicant, gave evidence on these matters.
23 There were town planning reports in evidence from Ms Sutherland, senior specialist assessment officer for Warringah Council, and Ms Francis, director of Planning Workshop Australia for the applicant. There was an acoustic report from Acoustic Logic Consultancy for the applicant.
24 There was also a new drainage plan tendered in Exhibit C, which showed the revised drainage underground pipe. It would divert water around the proposed building to connect up at either end of the site with the existing council drains.
25 The site is apparently subject to one in 100 year overland flows and possibly overland flows at lesser intervals.
26 The design is intended to deal with those problems on site. I was advised that the majority of overland flows from the upstream catchment are actually diverted over the surface of the streets; namely, Lynwood Avenue west. The water goes down the street to wherever the council takes it into major draining structures.
27 Related to this is a council requirement in the redesign of the front fence so that overland flows down Lynwood Avenue west would not enter the subject site and be diverted into Fisher Road North and Lynwood Avenue east. This had been taken care of in the redesign of the fence. Also the driveways were to be raised such that they had thresholds to prevent water entering there also.
28 The council’s concern over the front fence was resolved by a new design for an articulated fence that provided for planting on both the footpath side and the play area side. The masonry part of the fence is restricted to 1.2 metres high, and then above that in the play area there is to be a hedge and behind that a pool fence for security of the children.
29 In regard to one concern of the objectors, I note that the play area is to be elevated so that it is approximately at the same level as the ground floor of the building, and the building itself has been raised so it is above any possible one in 100 year floor level.
30 As a result, the concern over any vehicles crashing into the play area is resolved. There would be the masonry retaining wall of the front fence, and approximately one metre height of soil which would absorb the impact from any car, if they could manage to career across the 12 metre wide footpath at that point. The extra width in the footpath is caused by the reconfiguration of the roadways to create the intersection between Fisher Road North and Lynwood Avenue west. The council is satisfied with those rearrangements for the front fence.
31 The first concern of the objectors and the council is inadequate on-site car parking. Mr Rudd and Mr Varga had agreed that the appropriate design parameters were the Roads and Traffic Authority parameters which require one space for five children. Therefore the calculation of the number of car spaces shows it is sufficient for both staff and parents.
32 In support of their recommendations and to explain the matter to both the Court and the objectors, Mr Varga said that of the 70 children the normal expectation is that 35 would arrive between 7.30am and 8.30am and the other 35 arrive between 8.30am and 9.30am in the morning.
33 The Roads and Traffic Authority guides say that for 70 children you could expect 28 arrivals in any peak hour, and therefore the additional 7 to make up the 35 would come from local residents who would walk to the site. The RTA also says that from its surveys the average stay for drop-off or pick-up per car is 6.8 minutes, and with 35 arriving in any one hour the average would be seven cars on-site per 15 minutes.
34 Inside the 14 car spots provided, six would be for staff and eight would be for parents. Therefore, even if the seven cars stayed for the full 15 minutes, there would be one spare space for parents. In effect, Mr Varga said, there would be much more capacity because if the average stay is 6.8 minutes there would be a capacity, with eight car spaces for parents, to have 16 cars come and go and every 15 minutes. This extra capacity would take care of any rush of parents in any 15 minute period.
35 In regard to afternoon pick-ups, the normal period for this to occur is between 2.30pm and 6.30pm. Therefore, the dispersal of parent cars is over a much longer period and therefore should not create any peak problems.
36 The objectors were also concerned about deliveries of supplies, sales people or people on particular programs coming to the site. The applicant was happy to accept a condition that restricted any such visits between 9am and 4pm in the afternoon so that there would be no conflict with peaks. A suitable condition was incorporated in Exhibit 7.
37 The objectors were also concerned that if there were eleven staff, the six staff car parks would be insufficient and the others would have to park in the street. Mr Varga said he had conducted a survey on a school day of locally available on-site street parking within 150 metres of the site. He had conducted this at peak periods between 7.30 and 9.30am and 2pm and 8pm at night. There are 103 total spaces within that distance from the site, of which he found 75 per cent were vacant in the survey periods.
38 There were 12 vacant car parking spaces on either Lynwood Avenue west or Fisher Road North on the same side of the road as the subject property. So there is additional parking capacity in the street if the on-site parking is not used by parents. This would account for additional parking needs; that is, the 12 in near proximity and 103 within 150 metres of the site that might be needed for Christmas, fetes or other family orientated activities of the centre.
39 However, it was noted that such activities could only occur Monday to Friday between 7am and 7pm. This alleviates to some extent the residents fears that there would be overparking of the locality at times that they might need to use it.
40 In regard to parents being not likely to use the entry driveway because of the difficulty of getting to it, the residents said: anybody coming from the north or the west, if they came by Fisher Road, because of the danger of turning right into the drive entry, would need to travel past the site 200 metres, go around a roundabout and come back to the entry. They felt that if the car parking is inadequate on-site, parents could be tempted to make a dangerous turn or if they are in a rush they might think that parking on the opposite side of Fisher North or Lynwood East is a quicker way of getting children into the centre.
41 Mr Rudd and Mr Varga pointed out, first of all, that they believe the parking capacity on-site would be adequate and convenient, and much safer than trying to cross the busy Fisher Road North or Lynwood East during peak periods. Also, the distance to the actual entry lobby of the building would be much shorter within the carpark than trying to walk children a considerable distance of perhaps fifty to 100 metres, if one parked elsewhere out in the streets. It seems to me that this is a reasonable proposition put by the experts in regard to that matter.
42 In regard to the safe use of the exit it was noted that the exit driveway comes into the kerb, perhaps fifteen metres from the intersection of Fisher Road North and Lynwood West. Drivers coming out of there have to cross a double centre line in order to go to Fisher Road North, and Mrs O’Flaherty and the others attested to the fact that cars often park right up to the intersection in Lynwood west.
43 Mr Rudd and Mr Varga said it would be appropriate to apply to the council’s traffic committee to have “no parking” signs placed on the northern side of Lynwood Avenue west in order to facilitate easier turning.
44 There was also a concern about cars unrelated to the proposal and travelling north on Fisher Road North and then wanting to turn left into Lynwood west. Because of the obtuse angle of the corner such cars often go over onto the wrong side of the road, where parents cars might be waiting to turn out of Lynwood west. The traffic experts felt that this is a matter of safety for individual drivers. The safety sight distances due to the configuration of the intersection gives ample visibility for these manoeuvres and drivers being responsible, and seeing any car waiting in Lynwood west would be able to take the appropriate safe manoeuvre.
45 There was another concern in regard to parking opposite the Lynwood west intersection and on the north-eastern side of Fisher Road North. The traffic experts said that although it is not directly related to the proposal, it would certainly facilitate movements and possibly reduce fears of the local residents about accidents on that intersection, if there is no parking on the curve of the corner of Fisher Road North, on the opposite side to the subject proposal. This would give more ability for drivers to manoeuvre when people are using the intersection.
46 The applicant is happy to accept conditions that it should make an application to the council’s traffic committee in this regard.
47 In regard to the accident history, the residents gave no specific figures for the accidents they attested to. Mr Varga had checked the RTA’s statistics and found that in the last six years up until 2006 only four accidents had been recorded. Two were for cars turning right out of Lynwood west, being hit by a car coming from the north on Fisher Road, and these occurred on a Saturday, at 9.25am and 7.30pm. There was another accident of one car in Lynwood west hitting a parked car at 11.30pm on a Friday night, but it did not appear to be related to the subject intersection. There was another accident of one car travelling west in Lynwood east hitting a car turning out of Lynwood west, and this occurred at 12.50pm.
48 There were no injuries and no fatalities recorded in these accidents at the intersection. Mr Rudd felt that it was perhaps on the lower end of accident rates at similar intersections in his experience. Mr Varga had updated his check for the 2007 statistics, which had not yet been released to the public, and there had been no accidents in 2007.
49 They said that in regard to accident black spots they relied on the RTA’s statistics, and repeated that the sight safety distances at this intersection, gave ample safety for drivers This is due to its configuration, partly related to the 12 metre wide footpath outside the subject site..
50 In dealing with Mrs O’Flaherty concern about noise of the children at play, it was noted that this was not dealt with by the acoustic expert. The report is about noise of drop-off and pick-up in the rear car park affecting the neighbours at No. 67. That latter concern has been dealt with satisfactorily by an acoustic screen fence across the rear of the property.
51 On the question of children being a disturbance to Mrs O’Flaherty, I note the applicant’s submission that her house is diagonally across the street, a minimum of 20 metres from the nearest corner of the play areas. The furthest corner of the play areas would be 45 metres or more away from her house.
52 Mrs O’Flaherty’s house fronts both Lynwood west and Fisher Road North, the latter being a main access road to the Cromer residential and industrial areas, and therefore carrying significant amounts of traffic. The residents confirm it is a busy road and therefore it must have elevated background noise levels during the day.
53 The play areas of the childcare centre are conditioned to be used only between 9am and 5pm Monday to Friday, and in the middle of the day between 11am and 3pm only two hours of play is allowed. During these times noise of children at play is unlikely to be unacceptable at the distance of separation in Mrs O’Flaherty’s house, given the likely elevated traffic noise. In any case, there is an overriding condition providing for noise from the site not to exceed 5 dBA above background noise at any residential boundary. Action can be taken if required by the Council.
54 Overall in considering this application it seems to me that the issues of concern to the council and the objectors have been dealt with satisfactorily. Indeed the council, by the end of the hearing, with the applicant accepting the conditions put forward in Exhibit 7 including some handwritten amendments thereto, had no further objection to the proposal.
55 I have formed the opinion that there is no reason why the Court should not approve the development.
56 Therefore the Orders of the Court are:
1. The appeal is upheld.
2. Development Consent is granted to a long day care centre for 70 children at No. 63 Lynwood Avenue, Dee Why. Granted as shown on plan Nos 52207-DA1D option 2A, DA2B, DA3C by HSA Architects and landscape plan LPDA07-216/1C and /2 by Conzept Landscape Architects amended by and built in accordance with the conditions in Annexure A hereto.
3. The exhibits are returned to the parties except Exhibits A, B, C 6 and 7.
___________________
- K G Hoffman
Commissioner of the Court
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