Doodha v Hornsby Shire Council
[2006] NSWLEC 818
•30/11/2006
Land and Environment Court
of New South Wales
CITATION: Doodha v Hornsby Shire Council [2006] NSWLEC 818 PARTIES: APPLICANT
RESPONDENT
Jahangir Doodha
Hornsby Shire CouncilFILE NUMBER(S): 10517 of 2006 CORAM: Murrell C KEY ISSUES: Development Application :- Childcare centre, noise, setbacks, landscape, character of the area, parking and traffic LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 07/11/2006 and 08/11/2006 EX TEMPORE JUDGMENT DATE: 11/30/2006 LEGAL REPRESENTATIVES: APPLICANT
Mrs H. Irish, barrister
Instructed by Mr B. T. Goldsmith, solicitor
of B T Goldsmith PlanningRESPONDENT
Mr I. Woodward, solicitor
of Storey and Gough
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Murrell C
10517 of 2006 Jahangir Doodha v Hornsby Shire Council30 November 2006
This determination was given extemporaneouslyJUDGMENT
and it has been edited prior to publication
1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act (the Act) against Hornsby Shire Council’s refusal of a development application for a childcare centre at the site known as 28 Ramsay Road, Pennant Hills.
2 The subject site has dual frontage to Ramsay Road and Warne Street. It is approximately 18 m on the frontages and 50 m in length yielding a site area of some 907 sq m. There is a fall in the topography from Ramsay Road to Warne Street of some average of 7.5%. The site currently is occupied by a dwelling house with frontage to Ramsay Road and a garage with access to Warne Street.
3 The proposal as submitted to the council was for a 48 place childcare centre. The plan has subsequently been amended such that it is now a 42 place childcare centre. The council refused the development application and its reasons for refusal included: that the proposal is inconsistent with the zone objectives of the low density residential zone of Pennant Hills and would not be compatible in the area.
4 The Court heard evidence from a number of experts in these proceedings including the Court-appointed experts, Mr Tony Moody is a town planner, Mr Richard Heggie the acoustic consultant. On behalf of the applicant evidence was also given to the Court by the architect of the proposal Mr Pares Spana and Mr Robert Waughman, landscape architect.
5 The Court also had the benefit of an extensive site inspection of the area and also had the opportunity of viewing the subject site from the adjoining properties.
6 Objectors to the development also gave evidence to the Court on site and this included Mr Waite of 28 Warne Street. Mr Waite is concerned that the proposed development is one that would be out of character with the area and that he is concerned about the incremental creep of community facilities and uses in the vicinity of the subject site. He considers that the setbacks to the boundaries are inappropriate in the proposed development and he was also concerned about the adequacy of the assessment of the proposal. In particular he referred to manoeuvring for the movement of vehicles in and out of the site, the gradients, and he also expressed concern about the fact that the proposed development in his opinion is an overdevelopment of the site and the size of the development should be reduced.
7 Mr Davidson represented the Pennant Hills District Civic Trust and the Trust supports council’s refusal. Mr Davidson advised the Court that in his opinion community uses should be compatible with residential areas and not impact on the amenity of the area and they should be in character with the area. He is concerned about the environmental capacity of the site in terms of the site coverage being excessive for the proposed development and the acoustic screening and setbacks and the visual impact of the proposed development. Once again he considered it an overdevelopment of the site.
8 Mr Robert Tsia of 31 Warne Street also expressed concern to the Court. He owns the property next door to the subject site and in his opinion the proposed development would impact on the property values within the area. He is also concerned about how the noise would be managed from the subject use and is concerned about theft and vandalism and safety in the area. He also expressed concern on the amended screen boundary fence because of the impact on his property.
9 The Court heard this morning from Mr Hill who resides at Dural but owns the properties next door to the subject site that has recently been given an approval for a subdivision from four lots into seven lots. He is concerned about the fact that the parking in the area is at a premium because of the railway station which is in relatively close proximity and he is also concerned about the acoustic screening on his boundary. He considers that commonsense should dictate that the site is not suitable for the proposed development in terms of the lack of parking within the area because of the high demand. He is concerned about the erection of a 3.1 m screen fence.
10 While Mr Hill did not object to the original development application after the site inspection and the Court hearing on 8 November amendments were made such that it was considered appropriate that an acoustic screen be provided adjacent to Mr Hill’s boundary to safeguard the potential, development of his site for a dwelling house. As such it was considered appropriate that the adjoining neighbours be renotified of the amended screen fencing proposed along the boundaries.
11 Mr Hill was in the Court this morning and the boundary screen fences were explained. In terms of the re-notification the boundary fences adjacent to 31 Warne Street which is Mr Tsia’s property is described as
A 1.8 m high lapped and capped paling fence on the boundary with a 3.1 m high acoustic screen towards the Ramsay Street frontage set back 0.8 m from the boundary. The height of the screen is measured from the excavated level of the proposed children’s play area. The 7.5 m length of the acoustic screen will extend approximately 0.8 m higher or above the proposed paling fence. The top half of the acoustic screen will be transparent glass or polycarbonate construction. Between the proposed paling fence and the acoustic screen will be new landscaping intended to grow to approximately 6 m in height at maturity.
12 With respect to the boundary adjoining Mr Hill’s mother’s property, that is on the eastern boundary adjacent to 27 Warne Street it is described as:
A 1.8 m high lapped and capped fence on the boundary extending from the Warne Street boundary approximately 25 m into the site. A small portion of the fence at the Warne Street frontage will be constructed as slatted timber. From the end of the 1.8 m high paling fence towards Ramsay Street (as said) there will be a stepped, split faced concrete block raised garden planter of variable height and 1 m wide in which landscaping is to be provided that could reach a mature height of 6 m. On the side of the raised garden bed that is 1 m from the boundary will be an acoustic screen of variable height to a maximum of 3.1 m above the surface level of the proposed children’s outdoor play area. The top half of the screen will be transparent glazing or polycarbonate and the lower half will be solid but removable on occasions to access the garden for maintenance purposes.
13 It is important that I provide a detailed description of the screen fences, because they were a significant issue in the proceedings and the Court in its assessment considers that the resolution of the screening to provide the necessary acoustic amelioration for the proposed development is satisfactory and would not warrant refusal of the application.
14 The Court is satisfied having regard to the relationship of the screen fencing on the two properties, that is No.s 31 and 27, that the proposed screens will provide for amelioration and that the landscaping to be provided on the subject site is appropriate such that the landscaping provides a softening effect to the upper part of the screen which are not solid in terms of their bulk because of the translucent polycarbonate.
15 I am satisfied that with the conditions as proposed by the council in terms of the acoustics that the proposed development is satisfactory and the ameliorative measure of the screens will not have an unreasonable impact on the adjoining properties.
16 The Court has the benefit of hearing from Mr Heggie on the issue of noise and also he has provided further evidence to the Court in terms of Exhibit H to identify the noise sources and the type of noise required to exceed the appropriate or acceptable noise levels. As Mr Heggie stated,
If in the event that the noise impact on a future two storey dwelling house on the adjoining property is such that the noise impacts exceed those as conditioned then there’s the appropriate mechanism in terms of the management plan to ensure that such noise is reduced and this can be done through management of the centre.
17 I am satisfied that the conditions the noise level standard and the acoustic screens will provide for an appropriate use of the subject site for a childcare centre that can co-exist within this low residential density area. The area is one, as I stated, that is a low density area, relatively close to public transport and also has other community facilities within the vicinity.
18 It is noted on site and as demonstrated by Mr Hill’s photographs today that parking is at a premium and many of the commuters use both Warne and Ramsay Street for commuter parking. It is also noted that there is restricted parking in other areas of these streets to service the shopping centre.
19 The other major issue in the proceedings is that with respect to the parking and the basement parking. The Court expressed concern about the provision of basement parking and the applicant has provided further evidence and on the evidence of the applicant the basement parking would not be an impediment to approval of the development application for a childcare centre. It is noted that there have been other childcare centres approved although it is also noted that whilst basement parking has been approved in those centres, at the same time a proportion of ‘at grade’ parking has also been provided. Council’s controls and the RTA guidelines do not prevent the provision of parking in a basement arrangement as proposed in the subject development application.
20 The basement parking is for 12 vehicles that is 1.5 spaces over and above the requirement of council’s Development Control Plan for parking. Council’s Development Control Plan corresponds with the RTA guidelines for parking, which is one space per four children attending the centre, and this includes the requirement or the provision of parking for staff within that figure.
21 It is noted that there are 42 children proposed to attend the centre and this requires six full time staff. There may be staggered shifts but this requires six staff at any one time and because of the basement parking arrangement, which was also agreed to by the Court-appointed expert, it may be appropriate that there be a limit on the amount of staff parking in the basement such that there is greater comfort in knowing that parents can access the basement parking with a greater degree of opportunity for a space to be available than in other situations that may be at grade. And as such there is a condition imposed to limit the amount of staff parking. It has often been put to the Court that this staff parking ratio is generally intended to be at one per two staff members. The Court also notes the proximity of the railway station and some staff may avail themselves of the opportunity to use public transport.
22 It is clear that if parents in selecting a childcare centre have an aversion to basement parking then they in all probability would not choose this childcare centre and this would be a factor in the minds of people enrolling their children in this childcare facility.
23 The Court considers that it would be appropriate for the Local Traffic Committee to assess whether it is appropriate for the frontage in Warne Street, the approximate 8 m area left (after the 6 m wide egress and ingress access point for the basement parking) for this to be a time restricted parking area of ten to fifteen minutes in the peak periods of morning and afternoon drop-offs and pick-ups for children. That would be a matter for the Local Traffic Committee’s consideration with its expertise.
24 If in the event that such a space was approved by the local traffic committee then the number of car parking spaces for staff could be four, otherwise it would be three spaces and the other spaces would then be available for parents.
25 The on-street parking space would provide for a turnover of parents and carers dropping and picking up children, in particular if there was a preference for an on-street space. But as I said, people will make the decision as to whether they send their children to this centre, having regard to the fact that the basement parking is for the drop-off and pick-up arrangement for the centre. On the evidence before me this would not warrant refusal of the application.
26 The plan of management provides for, amongst other matters, the supervision of children, and apart from the acoustic management and the program for the centre’s operation on a daily basis, also provides a mechanism for neighbour complaints in terms of noise and/or parking issues that may arise from the centre by providing for a contact such that there is a mechanism for the continual monitoring and recourse of residents in terms of concerns that they may have about the operation and management of the centre.
27 The Court has considered the LEP, that is the low density residential zone, Residential A, and the objectives that are as to follows:
to provide for the housing needs of the population of the Hornsby area to promote a variety of housing types and other land uses compatible with a low density residential environment, and to provide for development that is within the environmental capacity of a low density residential environment.
28 The plan requires in terms of cl 7(2) that the objectives of the zone be taken into account before development consent is granted and I am satisfied that the proposed development satisfies the objectives when read together. The proposal will provide for other land uses compatible with the low density residential environment and within the environmental capacity.
29 I am satisfied that the site as proposed with the landscaping and the provision of canopy trees will provide for a contribution in terms of the environment of Pennant Hills today.
30 While the subject development application exceeds the site coverage this is by a small amount equivalent to the disabled access ramp along one of the boundaries. I am satisfied however that the exceedance of the site coverage is not a matter that would warrant refusal of the application and does not create impact unreasonably on the adjoining property.
31 The proposal in terms of the built form is of a domestic scale that will be in character with the residential area albeit that there will be a wide driveway to access the basement parking. I am satisfied that in its context the development is one that will not represent an overdevelopment, is not out of scale or character with the area and will sit comfortably within the streetscape of Ramsay Road and Warne Street.
32 It is noted that council, as I stated, recently approved a re-subdivision of four lots into seven so the character of the area in terms of the low density nature of the area will change over time. Even without this change I am satisfied that the subject development will sit comfortably within the low density area.
33 The council’s Development Control Plan is the other matter that the Court must take into the consideration in the assessment of the pplication and in particular the Community Uses Development Control Plan. This control plan has a density provision with respect to the floor space ratio. The floor space ratio is not to exceed 0.4:1 and the proposed development complies. The site coverage should not exceed 40%. As I stated, it is exceeded and the Court however is satisfied that the exceedance is justified in the circumstances of this case. And that the maximum size of childcare centres, that is to maintain the character of residential areas, would be a maximum of 50 children and the proposal satisfies this requirement. It also provides for a breakdown of the age groups to be accommodated.
34 Site selection criteria were identified by the council as not being satisfied. It is noted that the objective are to provide site selection that will encourage the location of special use developments on sites with the lowest potential social environmental impacts. And the prescriptive measures for childcare centres include:
- sites with less exposure to neighbouring dwellings and noise sensitive areas;
- sites where drop-off and pick-up turning areas can be provided (it is noted that the basement parking allows for vehicles to exit in a forward movement);
- sites with safe vehicle access, that is not on main roads;
- sites which form part of an established place of worship (it is noted that this is a standalone childcare facility);
sites with close proximity to parkland; and sites within walking distance (700 m) of a railway station and employment centre.
35 The proposal satisfies the above criteria. For the criterion of a site close to populations with a large proportion in the 0 to 4 age group. This matter was discussed during the proceedings and clearly the cohorts are going to age and therefore would be difficult to permanently locate a childcare centre having regard to just this factor especially larger sites with potential for extensive play areas. It is noted that council does express concern about the size of the play area or the seven square metres per child which is required under the department’s guidelines and it is also noted that council is in the process of preparing a DCP, however this application must be assessed against the numeric requirements that I have before me now which does not require anything more than 7 sq m and it is agreed between the experts that the proposal satisfies this.
36 In selecting a site for a child care centre the DCP states “main road locations are less likely to be appropriate given lead and noise pollution levels”. It is also noted in italics at the bottom of that page that “it would be unlikely that any site will meet all the criteria and it will be necessary to weigh up the various issues outlined above before selecting a site”. In this regard I am satisfied that the subject site is suitable for the proposed development and is not an overdevelopment.
37 In terms of setbacks, the objective is to provide setbacks that complement the streetscape, providing for landscaping and to protect the privacy and solar access of adjacent dwellings. The proposed development does not adversely or significantly impact in terms of solar access and I am satisfied that the setbacks will complement the streetscape. The higher fence proposed on Ramsay Road is not inconsistent with the streetscape given this is the rear of many dwellings that front Warne Street.
38 The performance criteria provided in the DCP and side setbacks for buildings should be a minimum of 1 m however it is noted that zero boundary setbacks will be considered. Having regard to the performance criteria rear setbacks shall be 3 m. The proposed development is consistent in terms of it provides frontage to Warne Street and the play area is at the rear onto Ramsay Road.
39 The issue of parking and access in the DCP is to ensure that vehicle access to and through the development is simple, safe and direct, and to provide sufficient and convenient parking for staff members, visitors, persons delivering and picking up children. And the performance requirement is that “the driveway design should provide for safe and efficient ingress and egress”. I am satisfied the proposal also complies with this. “The driveway area should form an integral part of the overall design. Parking should be provided according to projected needs”. The car parking is a slight overprovision but nonetheless having regard to the fact that it is basement parking it is appropriate in the circumstances of this case. The driveway, whilst it is a wider driveway than in a residential area, this would be the case for any childcare centre and the basement parking in many respects ameliorates the adverse impact that many open car parking areas at grade have. For parking should be provided guidelines on site and clearly marked”, I am satisfied the development provides for this.
40 The DCP requirement that “driveway and parking spaces are to be designed to provide clear vision for drivers and should be separated from play areas,” the proposed development satisfies this. I have the benefit of the council assessment in terms of parking and traffic and the council is satisfied that “the proposed development will not exceed the capacity of the road system, and the proposal is well within it and the Council is also satisfied with the manoeuvring and the car parking as provided in the plan.
41 For terms of the element of design in the DCP this is “to promote building design that enhances the character and amenity of the area and has regard for the topography”. I am satisfied the proposed development complies and this overlaps with my comments earlier.
42 The DCP states “the design of the building should complement the streetscape” and I am satisfied that with the amendment to provide for the detention basin, such that it will provide for a greater opportunity for deep soil planting, the proposal allows for the provision of canopy trees in deep soil.
43 There are many elements that I have given consideration to but in particular the above are the ones that have been specified by the respondent and the applicant in their submissions.
44 The element of landscaping is “to provide attractive landscapes which reinforce the function of a street enhancing amenity, and to preserve significant stands of trees and natural vegetation”. It is noted that the prescriptive measure requires a landscape buffer of a minimum of 2 m as opposed to the setback provisions that require 1 m depending upon the scale. However it is noted that this is depending upon the scale of development to soften and screen it from adjoining development. The proposal is a single storey childcare centre and I am satisfied that the reduced setbacks with the landscaping to ameliorate and soften the acoustic screens is appropriate in the circumstances of this case. The 2 m landscaping would be required if the proposed development was of a larger scale and often larger scaled childcare centres are not consistent with the character of a residential area and therefore require greater landscaping buffers.
45 The element of acoustics, is “to provide a reasonable acoustic environment for residents and to minimise the effect of noise on receivers”. I am satisfied that with the screening as proposed that this element is satisfied. Also there are conditions which should provide comfort to adjoining residences with maximum noise levels set.
46 The Court has had the opportunity of comprehensively assessing this development application and after the Court met on the first occasion there were amendments proposed and during the course of that day. There were also amendments discussed with the Court-appointed experts and I agree with Mr Moody’s assessment of the application that the proposed development as we see in the plans as amended is one that is appropriate and there are no issues in Mr Moody’s assessment that would warrant refusal of the application.
47 The plan of management has been amended and it is noted that there is the opportunity for further amendments to the plan of management if there are issues that arise during the operation of the childcare facility.
48 The issue of s 79C, in particular the suitability of the site, I am satisfied that the site is suitable for this 42 place childcare centre and indeed centres with less than 50 children, in accordance with council’s Development Control Plan are encouraged as opposed to larger centres within residential areas.
49 While childcare facilities, are a permissible use in the zone and noting that there are many other community uses that are also permissible in this low density residential zone it must be contemplated that there will be non-residential uses. At the same time being a low density zone it is important that such non-residential uses, community facilities, childcare facilities and the like, are compatible in terms of the built form and also can harmoniously co-exist without unreasonably impacting on the residential amenity of adjoining residential properties.
50 The conditions are as generally agreed. The condition with respect to the access ramp I do not consider necessary and there is now the opportunity of the additional canopy tree in the front yard with the relocation of the detention tank.
51 Accordingly on the basis of the Court’s assessment the formal orders of the Court are:
1. The appeal in respect of the property known as 28 Ramsay Road, Pennant Hills is upheld.
2. The development application submitted to Hornsby Shire Council and as amended is approved subject to the conditions contained in Annexure ‘A’.
3. The exhibits are returned with the exception of 2, 3, 10, C, E and F.
___________________
- J S Murrell
Commissioner of the Court
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