Doherty v Sutherland Shire Council

[2007] NSWLEC 208

Land and Environment Court

of New South Wales

CITATION:

Doherty v Sutherland Shire Council [2007] NSWLEC 208

PARTIES:

APPLICANT
Terri Doherty

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10907 of 2006

CORAM:

Brown C

KEY ISSUES:

Development Application :- Consent Orders - modification of existing childcare centre to increase numbers of children from 19 to 29 - acoustic fence - air quality - car parking

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

04/04/2007

EX TEMPORE JUDGMENT DATE:

4 April 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr L. McMahon, solicitor
SOLICITORS
Matthews Folbigg

RESPONDENT
Mr J. Reilly, solicitor
SOLICITORS
Home Wilkinson Lowry

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

4 April 2007

10907 of 2006 Terri Doherty v Sutherland Shire Council

JUDGMENT

1 This matter comes before the Court for Consent Orders in relation to a modification to Development Application No. DA06/0145 for an existing childcare centre at 215 Kingsway, Cronulla (the site). The modification seeks to increase the number of children from 19 to 29. While the appeal comes before the Court for Consent Orders there was a dispute over some conditions.

2 The proposal seeks two major changes. The first change is the erection of an acoustic fence towards the rear portion of the site along the eastern boundary. The purpose of the fence is to limit noise from the childcare centre to the adjoining property. The fence provides for a length of 17.5 metres, vertical height of some 1.9 m and an overhang into the site, giving an overall height of some 3.5 m. On the basis that there is little impact on the streetscape and there has been no objection to the fence from the adjoining residential property owner I accept its suitability.

3 The second issue relates to the council’s conditions 38 and 48. These conditions collectively require the preparation of an air quality report three times over a period of 10 years because of the proximity to the heavily trafficked Kingsway. As part of the development application, the applicant provided an air quality report. This report identified 6 readings for the 24-hour Average PM 2.5 Concentrations between 8 December 2006 and 15 December 2006. The results were compared to the ambient air quality goals of the NSW Department of Environment and Conservation of a 24 hour maximum of 25 micrograms per cubic metre. The results indicated a peak of 30 micrograms per cubic metre and three other readings between 20 and 25 micrograms per cubic metre.

4 The applicant opposes the conditions on the basis of the additional cost and the unnecessary nature of the condition. To support this position Mr Scott Fishwick, an air quality expert, provided evidence and indicated that the readings were undertaken with a system called Dustrak. This system was not endorsed as an appropriate or an authorised collection measure, but gave a reasonable indication of the concentration of particulates. Mr Fishwick indicated that the Dustrak system is notably poor in times of precipitation and based on his research, the reading of 30 micrograms per cubic metre coincided with a time of precipitation.

5 The council relied on Sutherland Shire Development Control 2006 (DCP 2006) and the previous development control plan (Development Control – Child Care Centres 2001) to raise the issue of air quality in relation to childcare centres on major roads. Chapter 9, cl 2.a.1(b) of DCP 2006 identifies objectives for the plan and states “child care centres are not to be located or designed so as to pose a health or safety risk to children using the centre”.

6 In balancing the evidence, I am satisfied that the condition should be imposed for a number of reasons. Firstly the readings obtained would suggest that there is potentially a problem in relation to the ambient air quality goals of the NSW Department of Environment and Conservation. While I accept the applicant’s evidence that the single reading that exceeded the standard may have been caused by precipitation rather than particulates, other readings suggest a general level of concentration of particulates close to the appropriate standard. Considering the type of use proposed in this application I accept that it is necessary to take a cautious approach. Secondly I also accept that the approach suggested by the council for three tests over a period of 10 years is not overly onerous considering the potential impacts.

7 The only other issue discussed in these proceedings was not raised by the parties but by the Court and related to the number of car parking spaces available on site. As I understand the council’s requirements provide for 7 car parking spaces whereas only 3 car parking spaces can be provided on site.

8 Mr Craig McLaren, the applicant’s traffic engineer provided evidence and indicated that he had undertaken surveys and made observations at the site when 29 children were using the centre. In his opinion, the parking available in the Kingsway and on site can adequately accommodate the movements associated with a 29 place childcare centre. He indicated that the alignment and multiple lanes in the Kingsway will allow people to enter and leave their vehicles in a safe manner from the kerb lane without causing any conflict with passing vehicles. The kerb parking was also seen to be suitable as this area adjoins a large area of public reserve. The council’s traffic engineer also supported the use of this area. Having heard the evidence of Mr McLaren, I accept his conclusions.

9 Condition 40 was also in dispute. This condition requires general compliance with the amenity of the neighbourhood. The applicant opposed this condition as it was unspecific however the council sought its imposition. I accept that it can be removed as it is non-specific and any issues associated with amenity impacts are more appropriately dealt with as part of other conditions within the consent.

10 For these reasons I endorse the Consent Orders and make the following orders.

1. The appeal is upheld.

2. Development Application 06/0145 to increase the number of places at an existing child care centre to 29 children and construct an acoustic fence at 215 Kingsway Woolooware is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits D and 4.

___________________

G T Brown
Commissioner of the Court