Design 23 v Woollahra Municipal Council

[2009] NSWLEC 1114

Land and Environment Court

of New South Wales

CITATION:	Design 23 v Woollahra Municipal Council [2009] NSWLEC 1114
PARTIES:	APPLICANT Design 23 Pty Limited RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	11233 of 2008
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- alterations and additions to an existing dwelling for a 36 place child-care centre - car parking - noise
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995
DATES OF HEARING:	19,20/03/09
DATE OF JUDGMENT:	21 April 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr M Wright, barrister RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

21 April 2009

11233 of 2008 Design 23 Pty Limited v Woollahra Municipal Council

JUDGMENT

1 COMISSIONER: This is an appeal against the refusal by Woollahra Municipal Council (the council) of Development Application 178/2008/1 for alterations and additions to an existing dwelling for a 36 place child-care centre at 61 Manning Road, Double Bay (the site).

2 The issues raised by the council relate to unacceptable noise impacts on adjoining residential property and the unacceptable traffic impacts on Manning Road.

The site

3 The site is irregular in shape with a north eastern frontage to Manning Road of 30.3 m, a north western (side) boundary of 23.125 m, a southern (side) boundary of 31.775 m and a south eastern (rear) boundary of 17.15 giving an overall site area of 611.2 sq m.

4 The site is generally flat with a slope of around 1.5 m from the rear to the street frontage. A retaining wall of some 2.5 m in height is located along the rear boundary. A single storey cement rendered brick cottage is located centrally on the site with a setback of around 6 m from Manning Road.

5 The surrounding character consists of a mix of single and two-storey dwelling houses on medium-sized irregular shaped lots. Some newer contemporary residential developments are also located in the area.

6 A view of the site and surrounding areas was conducted on the morning of the first day of the hearing and at this time the Court heard evidence from a number of local residents opposed to the development for the reasons raised by the council and a number of additional matters, such as flooding.

The proposal

7 The proposed development involves the conversion of the existing dwelling into a child-care centre comprising two playrooms for a total of 36 children between the ages of 2 and 5 years old. This involves:

• the use of the existing front and side yards as play areas,
• alterations to the existing dwelling and the removal of some internal walls to accommodate the child-care facilities,
• the provision of two off-street car park spaces in the south eastern corner of the site with a new driveway to Manning Road,
• adjustments to the council verge on Manning Road to create a 24.3 m long indented parking bay to provide for 4 drop-off spaces.

8 The centre will:

• operate between the hours of 8:30 a.m. and 5:00 p.m. Monday to Friday,
• provide for outdoor play around two hours per group per day, and
• provide 4 staff members.
Relevant planning controls

9 The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 (LEP 1995). A child care centre is a permissible use within this zone. Clause 2 provides aims and objectives for the plan and cl 8(5) provides that consent shall not be granted unless the development is inconsistent with the plan and zone objectives that apply to the development. The relevant zone objective is:

(b) to allow certain non-residential development of low intensity which is compatible with the residential character and amenity of the locality

10 Woollahra Municipal Council Child Care Centres Development Control Plan (the DCP) applies. The DCP provides specific requirements for the planning, design and location of child-care centres. Relevantly, cl 2.3 provides requirements for visual and acoustic privacy and cl 2.5 provides requirements of traffic, parking and access.

11 Woollahra Development Control Plan 2003 applies in so far as it provides guidelines for residential development and aids in the assessment of residential character.

Traffic/ parking

12 The proposed development provides for 2 off-street car parking spaces and 4 spaces indented into the footpath area directly outside the site. The indented spaces have a 15 minute time limit for parking. The amount of parking required to be provided, based on the Roads and Traffic Authority (RTA) Guide for Traffic Generating Development for the proposed development, is 9 spaces. Ms Anissa Levy provided evidence for the council and Mr Dick van den Dool provided evidence for the applicant. Both traffic experts accept that the likely demand for the development is around 7 to 9 spaces. With the provision of a total of 6 spaces (on-site and in the indented kerb area), there is a deficiency between 1 and 3 spaces. These places would need to be found in Manning Road and other nearby streets.

13 The configuration of Manning Road allows for only a single lane of traffic movement with vehicles parked at the kerb on either side of the road. There are no parking restrictions on Manning Road near the site. The consequence is that to maintain a two-way flow of traffic with cars parked on both sides of Manning Road, vehicles have to find a vacant kerbside parking space to allow vehicles travelling in the opposite direction to pass. Manning Road is also a designated bus route.

14 The experts agreed that the current traffic levels in Manning Road are in the order of 380 vehicles per hour (v.p.h.) In the peak period. There was also agreement that the Manning Road satisfies the RTA classification and performs the role of a "collector road" because it exceeds 300 v.p.h.

15 The experts provided a joint report that identified the principal areas of disagreement. These are:

1. the reasonableness of the distance that patrons would need to walk, if required to parking the street when the for indented spaces and off street car parking spaces occupied,
2. whether the environmental capacity of Manning Road is unacceptably exacerbated by the proposed development, and
3. whether the configuration of Manning Road is suitable for the proposed development.

16 The issue of the availability of on-street parking is related to the other two areas of disagreement between the experts.

17 Ms Levy states that an appropriate distance that patrons of the centre should have to walk to gain access to the centre should be around 100 m. Mr van den Dool states that patrons would simply travel as far along Manning Road as need be to find a parking space. Both experts agree that there is no appropriate standard that can be relied upon to support either position.

18 Ms Levy states that based on her parking surveys for that section of Manning Road between Epping Road and 100 m north of the site there are 11 on-street spaces available. The survey indicated that there was a peak parking demand of 6 and 4 spaces for the AM and PM peak periods respectively, indicating that between 5 and 7 spaces are available in this section of the road. Mr van den Dool also conducted traffic surveys but extended these survey area to 250 m north of the site. The available on-street car parking spaces in this survey area was 26 spaces. His survey results indicate a peak parking demand of 16 and 18 spaces for the AM and PM peak periods respectively. This provides for a capacity of 8 and 10 spaces in this section of Manning Road spaces for the AM and PM peak periods respectively.

19 Both experts agreed that the additional street parking required for the proposed development will have an impact on local residents ability to find parking adjacent to the properties, in that they may need to walk a little further, however both agreed that an increased demand for on-street parking created by the proposed development can be accommodated within reasonable walking distance of the site on Manning Road.

20 Taking into consideration the configuration of Manning Road and the levels of traffic, I accept the agreed position of the experts that the deficiency in off- street parking (1 to 3 spaces) can be adequately accommodated on-street without unacceptably impacting on the availability of on-street parking and the movement of vehicles along Manning Road. The need to use on-street parking to satisfy the amount of parking for the proposed development is not optimal and there will be an impact on local residents, as acknowledged by Ms Levy, however the extent of the impact would not justify the refusal of the application.

21 There was some disagreement between the experts on the need to provide an on-site disabled parking space. It was agreed that the need to provide appropriate turning movements for the proposed two on-site car parking spaces limited the ability to amend either of these spaces to accommodate a disabled parking space. I am satisfied however that one of the two on-site car parking spaces could be increased in size to facilitate the use by a disabled person without affecting the ability to enter and leave the car parking space. While not fully satisfying the requirements for a disabled car parking space, it would nonetheless provide greater opportunities for a disabled person attending the centre. On this basis, the absence of a disabled car parking space would not be reason to refuse the development application.

Noise

22 Mr Neil Gross provided evidence for the council and Mr Renzo Tonin provided evidence for the applicant. Both used the Association of Australian Acoustical Consultants Technical Guideline - Child Care Centre Noise Assessment for their assessment of the noise impacts of the proposed development. The appropriate outdoor play area standard is:

Up to 2 hours (total) per day - The L eq 15 min noise level emitted from the outdoor play area shall not exceed the background noise level by more than 10 dB at the assessment location.
More than 2 hours (total) per day - The L eq 15 min noise level emitted from the outdoor play area shall not exceed the background noise level by more than 5 dB at the assessment location.

23 The most significant noise impact is on the adjoining property at 59 Manning Road. This property is currently developed with a single storey brick cottage with a carport and brick garage adjoining the common boundary of the proposed child-care centre. However approval has been granted for the redevelopment of the property by the demolition of the existing brick cottage and the construction of two detached dwellings, each of two storey construction. Dwelling 59A adjoins the site. The owners of the property gave evidence on the site view and stated that they proposed to construct the two dwellings and opposed the proposed child care centre.

24 In terms of noise impact on the existing dwelling at 59 Manning Road, the experts agreed while there are some noise exceedences from the outdoor play area adjoining this property however the exceedences are minor and largely inconsequential. The impact on the proposed dwelling at 59A raises additional issues largely because of its location closer to the common boundary, alack of shielding from existing structures and the two storey construction. Both experts agree that the exceedences are significant and further remediation would be needed. Any remediation would however have to be carried out at 59A Manning Road as it is not possible to carry out the necessary works on the site of the proposed development. The remediation needed to satisfy the appropriate noise criteria at 59A Manning Road would involve:

• an acoustic barrier to be constructed above the parapet wall along the southern end of the proposed building,
• the installation of 10.38 mm laminated glazing to the front lounge, study, bedroom 1 and bedroom 2, and
• the mechanical ventilation of the proposed dwelling so that windows can be closed to satisfy the appropriate noise criteria.

25 The remaining question on the noise issue is the appropriateness of imposing the noise remediation requirements on the approved but not constructed dwelling at 59A Manning Road. Mr Wright, for the applicant, submits that the approval of the dwelling is not a relevant consideration and should be given little or no weight. He submits that there is no basis for taking into consideration an approved but not constructed dwelling in the assessment of the proposed child-care centre. If the owners of the property do not choose to accept the proposed remediation measures then it should not be a reason to refuse the development application. It is not a reasonable proposition that the applicant should be required to deal with every possible consequence on the adjoining land.

26 Mr Rigg, for the council, submits that the Court is bound to consider those matters in s 79C of the Environmental Planning and Assessment Act 1979, particularly the likely impact of a development, the suitability of the site and the public interest. It is imperative that the Court take into account the approved development on 59A Manning Road otherwise those matters in s 79C would not have been properly considered. It is incumbent on the applicant to address the impacts generated by the proposed development on the site rather than seek to impose unreasonable requirements on an adjoining owner. As the owner of 59A Manning Road has rejected the proposed noise amelioration measures, the only option for the Court is to refuse the development application.

27 In balancing the opposing submissions, I am persuaded by the submissions of Mr Rigg. I see no other reasonable alternative other than to give significant weight to the approved dwelling at 59A Manning Road. There can be little dispute that the approval of the two dwellings at 59 Manning Road has reached a relatively high level of certainty. Only greater certainty would be achieved through the approval of Construction Certificate plans and actual construction however because of the relatively recent approval of the proposed development this could not be reasonably expected. I am less troubled over the timing of any construction, as the critical issue in my view is if, not when the approved dwellings will be constructed.

28 I have also given significant weight to the evidence of the owners of 59A Manning Road who stated that the two dwellings were to be constructed and that the necessary noise amelioration measures were unacceptable to them. In accepting that the opportunity is available for the Court to impose a condition requiring the modification of a consent previously granted (s 80A(5) of the EPA Act), I am not satisfied that it is appropriate in this case as the proposed noise amelioration measures are particularly onerous. Mechanically ventilating the proposed dwelling, the need to keep windows closed and the construction of a large acoustic barrier to overcome the impacts of adjoining development are not matters that should be imposed on an unwilling neighbour. These are significant changes to the approved dwelling and I accept the evidence of the owners that the changes would impose unnecessary and unwanted constraints on the enjoyment of their property.

29 In accordance with cl 8(5), I find that consent should not be granted as the development is inconsistent with zone objective (b), in that it is not compatible with the residential character and amenity of the locality.

30 As the proposed development is to be refused it is not necessary to deal with the other issues raised by the local residents.

31 The Orders of the Court are:

1. The appeal is dismissed.
2. Development Application 178/2008/1 for alterations and additions to an existing dwelling for a 36 place child-care centre at 61 Manning Road, Double Bay is refused.
3. The exhibits are returned.
___________
G T Brown
Commissioner of the Court