Elassal v Sutherland Shire Council

[2012] NSWLEC 1349

Land and Environment Court

New South Wales

Medium Neutral Citation:	Elassal v Sutherland Shire Council [2012] NSWLEC 1349
Hearing dates:	11 December 2012
Decision date:	19 December 2012
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld subject to conditions
Catchwords:	DEVELOPMENT APPLICATION: Childcare centre with Play and Party facilities
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 1 - Development Standards Sutherland Shire Local Environmental Plan 2006
Category:	Principal judgment
Parties:	Ray Elassal (Applicant) Sutherland Shire Council (Respondent)
Representation:	Mr C Gough (Applicant) (Solicitor) Ms J Amy (Respondent) (Solicitor) Solicitors Storey & Gough (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	10903 of 2012

Judgment

1. COMMISSIONER: This appeal, made under s 97 of the Environmental Planning and Assessment Act 1979 (the Act), is against Sutherland Shire Council's deemed refusal of a development application DA12/0525 for alterations and additions to an existing factory to create a child care centre and play/party area. The site is Lot 9 DP 228921, 105 Cawarra Road Caringbah.

1. The proposed development includes:

• Reconfiguration of internal and external walls of an existing factory.
• Provision of 37 parking spaces; 17 at the front or Cawarra Road entrance, and 20 at the rear of the premises off Sindone Place. Staff/management parking will be in the rear carpark.
• Construction of rooms, facilities and play areas (both indoor and outdoor) to enable the operation of a child care centre for 60 children (from ages 0-6) and 19 staff members between the hours of 7 am - 6 pm Monday to Friday;
• Construction of rooms and facilities for the operation of a Children's Play and Party Centre to be co-located but independently operated with the ground floor level of the child care premises;
• The Play/Party Centre will accommodate up to 30 children during the week between 9 am and 4.30 pm.
• On weekends, the Play/Party Centre will cater for a maximum of 60 children between the hours of 9.30 am - 8.00 pm. The space is to be pre-booked and all activities are to be held indoors. All patrons' parking will be confined to the front of the building.
• Installation of landscaping as well as structures for flood mitigation and acoustic purposes.

The site and surrounding area

1. The site is located on the south west corner of Cawarra Road and Sindone Place Caringbah. It adjoins other industrial premises to the north and west. To the east and south, across Cawarra Road and across Sindone Place, the land is zoned Zone 4 - Local Housing.

1. Situated on the site is an industrial building currently housing a sheet metal fabrication factory. There is an existing car park at the front of the building off Cawarra Road. There is vehicular access to the rear of the premises via Sindone Place; Sindone Place ends in a cul de sac. The site contains limited landscaping.

Relevant planning controls

1. The site is zoned Zone 11 - Employment zone in the Sutherland Shire Local Environmental Plan 2006 (SSLEP). The proposed development is permissible with consent.

1. The following chapters of Sutherland Shire Development Control Plan 2006 (SSDCP) apply - Chapter 1: Design Principles and Site Analysis; Chapter 3 - Urban Design; Chapter 7 - Vehicular Access, Traffic, Parking and Bicycles; and Chapter 9 - Specific Land Uses.

The issues

1. Council's Amended Statement of facts and Contentions identifies the following issues:

• Car parking and uncertain numbers of patrons for weekend operation of the proposed Play/Party Centre;
• Landscape area and landscape design - including compliance with council controls;
• Design of the child care centre in regards to safety and security concerns;
• Flood mitigation measures;
• Air quality assessment;
• Acoustic treatments;
• Inadequate information relating to identified issues;
• Matters raised by objectors including: noise, traffic, site suitability, size and scale of development, neighbourhood amenity, hours of operation.

1. Following the termination of a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979, the applicant amended plans and addressed the majority of points raised by council. Detailed Plans of management have been prepared for both the proposed Child Care Centre and the Play/Party Centre. More detailed reports have been provided to address council's concerns in regards to weekend parking, acoustic treatments, and flood mitigation measures. Council has prepared draft without prejudice conditions that reflect the changes in the amended plans.

The hearing

1. The hearing commenced on site and a number of local residents of Cawarra Road and Sindone Place made oral submissions. The issues raised by them include:

• Traffic and parking issues arising from the excessive size of the operation;
• Drivers and pedestrian safety issues arising from increased traffic;
• Weekend noise associated with the play/party centre and therefore loss of residential amenity; and
• Concerns over emergency evacuation plans.

1. With the benefit of the site view and inputs from traffic, flooding, engineering and design experts, a number of contentions were clarified and further refinements were made to the plans, Plans of Management, and to conditions of consent.

1. The final point of disagreement between the parties was whether the number of children attending the child care centre should be limited to 100 - as recommended in the council report to council's Independent Hearing and Assessment Panel, or 120 as proposed by the applicant.

1. Mr Gough for the applicant stated that the proposed child care facilities have sufficient area, both internal and external, to fully comply with the Children (Education and Care Services) Supplementary Provisions Regulation 2004, for 120 children. Ms Amy for the council conceded that she had no evidence to support the council's recommendation to limit the numbers to 100. She accepts that the applicant has agreed to council's recommended numbers of children attending the play/party centre.

1. While the parties have essentially reached agreement, in exercising the functions of the Court in these matters, I must consider the relevant matters in s 79C of the Act. I have addressed each of the issues in turn.

Car parking - weekend operation of the play/party centre

1. The council originally had concerns over the use of the rear carpark and the potentially adverse impact that would have on the amenity of the residents in Sindone Place. As the applicant had not provided details on numbers of likely patrons, there was a degree of uncertainty as to the extent of potential impacts on neighbours.

1. The council proposed that the maximum occupancy of the play/party centre on weekends should be 60 children. The applicant has agreed to this and has incorporated this into the Plan of Management (POM) for the Play/Party Centre. Council has imposed this capacity limit as a condition of consent.

1. It is also agreed and conditioned that parking for weekend patron will be restricted to the Cawarra Road carpark. A supplementary traffic report shows that 17 parking spaces are available on site and up to four on-street parking spaces in Cawarra Road at the front of the premises. As the nearby industrial premises are closed on weekends, the likely demand for on-street parking will be low and there should be little if any adverse impact on nearby residents.

1. Access to the rear carpark off Sindone Place will be restricted to staff and management with the gate to be accessed with a swipe card. Potential patrons will be told of the parking restrictions when bookings are made; appropriate signage will be installed.

1. I am satisfied that these measures will minimise the parking and traffic issues raised by the objectors and there is no reason to refuse the application on this basis.

Landscape area and design

1. The original landscape plans showed that the landscape area did not comply with the controls in cl 36(5)(i) of SSLEP. The applicant lodged an objection pursuant to s 6 State Environmental Planning Policy No 1 - Development Standards.

1. The applicant subsequently provided amended plans to show compliance with the controls and which incorporate design changes and species selections suggested by council's landscape officer. During the hearing, further minor changes were suggested to provided better screening and amenity between the rear play area and car park.

1. Conditions have been imposed to ensure that the construction of a flood mitigation barrier will not impact on the vegetation growing along the northern side of Sindone Place.

1. Subject to these minor changes being incorporated into the plans, landscaping is no longer an issue that warrants refusal of the proposal.

Design issues - security and access

1. Council's amended Statement of Facts and Contentions details concerns about the paths of travel between the car parks and the entrance to the child care centre as well as access to the centre through play areas.

1. The council is satisfied that these issues have been addressed in the amended plans. I agree with the parties that these are not issues that warrant refusal of the application.

Flood mitigation measures

1. Constructive discussions between council's engineer and the applicant's water engineer have resolved council's concerns as to how flood mitigation measures would be implemented.

1. Amongst other measures, a bund wall will be constructed along the Sindone Place boundary to the 500 mm freeboard height. Construction details indicate how the wall is to be constructed without causing damage to the strip of vegetation along Sindone Place. A speed bump across the entrance to the rear car park will act as the bund wall in that area and the roadway will be regraded to comply with relevant standards.

1. The masonry wall on the northern boundary will be retained so that any water falling on the site can be diverted into the stormwater system.

1. As these issues have resolved, there is no reason to refuse the proposal on the basis of flooding.

Air quality

1. As the site is located in an industrial area, there is a potential health risk to children attending the centre. The air quality reports show all atmospheric pollutants to be within acceptable levels. Following the provision of further information regarding an unexplained spike in the graph of the data (bushfire smoke), the council's questions have been answered.

1. Conditions of consent have been imposed that require the applicant to prepare an Air Quality Management Plan. Further monitoring will be triggered by any change of use in the adjoining industrial sites.

1. I agree with the parties that this issue does not warrant refusal of the application.

Acoustic issues

1. The local residents are concerned that noise from the weekend operation of the Play/ party centre will have an adverse impact on their amenity. Council also raised concerns over the adequacy of the information regarding acoustic measures associated with the child care centre.

1. A supplementary acoustic report has addressed the council's concerns. The upper outdoor play area wall will be a rendered masonry wall; no acoustic treatments are required for the entrance doorway; new windows in the southern wall are fixed highlight windows with 6.38 mm laminated glass; and the ground floor wall is to be 2.4 m high lapped and capped timber or metal.

1. In regards to the weekend activities, the conditions of consent mandate that the Play and Party Centre shall be operated in accordance with the approved POM (this also applies to the Child Care Centre POM). Part 4.0 Noise Management in the Play/Party POM states:

The Children's Play and Party centre is specifically located towards the northern boundary, being the furthest point away from residential properties along Sindone Place.

All play activities are performed indoors in a sound insulated building and will be of little impact to the nearby residential properties. Notwithstanding the above all patrons will be informed of the importance of noise minimisation when entering and exiting the site via appropriate signage at exit points.

1. I am satisfied that these conditions, as well as the weekend parking restrictions will minimise any adverse acoustic impacts on neighbouring properties and there is no reason to refuse the application on this basis.

Inadequate information

1. This contention has been addressed.

Matters raised by objectors/ public interest

1. With respect to the issues raised by the objectors and the extent to which they may represent the public interest, I am satisfied there is no evidence to support any of these issues being grounds for refusal.

1. The matters raised by objectors principally go to traffic, traffic safety, parking and weekend noise.

1. In its amended Statement of Facts and Contentions, council raises no issues with traffic. Where the original plans showed an exit from the front carpark into Sindone Place I note that has since been deleted.

1. I consider that the applicant has addressed the parking and noise issues and that council has imposed appropriate conditions. Council has also imposed a condition requiring an application be made to provide a 'No Stopping' zone on the northern side of Sindone Place.

1. In my view there are no unique circumstances in regards to the proposed activity, location of the site and its relationship to neighbouring properties that would warrant refusal on the issues raised by objectors.

Conclusions and orders

1. On the evidence before me and after consideration of the relevant matters under s 79C of the Act, I am satisfied that there are no grounds for refusal of the proposed development.

1. Therefore the Orders of the Court are:

(1)   The appeal is upheld.

(2)   Consent is granted to Development Application DA 12/0525 for additions and alterations to an existing factory at 105 Cawarra Road, Caringbah to create a child care centre and play/ party centre in accordance with council's conditions attached as Annexure A to the orders.

(3)   The exhibits are returned.

________________________

J Fakes

Commissioner of the Court

Decision last updated: 19 December 2012