Galluzzo v Campbelltown City Council

[2015] NSWLEC 1215

Land and Environment Court

New South Wales

Medium Neutral Citation:	Galluzzo v Campbelltown City Council [2015] NSWLEC 1215
Hearing dates:	9-10 June 2015
Date of orders:	17 June 2015
Decision date:	17 June 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: Construction of new buildings to extend an existing child care centre; whether consistent with the character of the locality.
Legislation Cited:	Campbelltown (Urban Area) Local Environmental Plan 2002
Cases Cited:	Galluzzo v Campbelltown City Council [2005] NSWLEC 522; Galluzzo v Campbelltown City Council [2009] NSWLEC 1425
Texts Cited:	Campbelltown (Sustainable City) Development Control Plan 2012
Category:	Principal judgment
Parties:	John Galluzzo (Applicant) Campbelltown City Council (Respondent)
Representation:	Mr P Rigg (Applicant) Ms K Gerathy HWL Ebsworth Lawyers
File Number(s):	10799 of 2014

Judgment

1. Mr Galluzzo authorised lodgement of Development Application 1416/2014/DA-C with Campbelltown City Council on 11 June 2014 seeking consent to construct a new building to provide for the expansion of an existing child care centre.

2. The council refused consent and Galluzzo is appealing that decision.

The site and its context

3. The site is and L-shaped allotment described as Lot 101 DP 602622, No 1 Blomfield Road located on the corner of Blomfield and Campbelltown Roads Denham Court and has frontages of 48.6m and 137.92 to each road respectively with site area of approximately 10,000sqm. The site contains a residential dwelling with associated outbuildings towards the rear (east) of the site. Its vehicle access is from Campbelltown Road. Child care centre buildings around a play area are located mid-block with its carpark adjacent to and accessed from the Blomfield Road frontage.

4. Part of the site, being the frontage to Campbelltown Road is subject to a road-widening reservation with this area currently unused and containing vegetation. Neither the council nor the applicant was able to advise the Court of the extent of the use of that area for on-site septic disposal. The site is not sewered and it is apparent that this area or the area immediately adjacent to the existing childcare centre buildings/play area is used for that purpose.

5. Campbelltown Road forms the boundary between Liverpool and Campbelltown local government areas (LGA).

6. The site is in a low density rural residential area characterised by detached dwellings on relatively large, open rural allotments with significant setbacks. Opposite the site, within the Liverpool LGA, are a range of commercial developments including a service station, caravan park and retail shop/landscape supplies business. Further to the east of the site along Campbelltown Road the area is being developed for urban housing as part of the Edmondson Park Release Area with Zouch Road (approximately 400m to the north east) forming its western boundary. The area between Zouch Road and the site and that land to the east and south of the site are rural residential properties.

7. Blomfield Road is a cul-de-sac that services around 13 rural residential properties.

Background and the proposal

8. The child care centre was approved by this Court in 2005 (Galluzzo v Campbelltown City Council [2005] NSWLEC 522. That consent (existing consent) provided for the centre to cater for 50 children while the Blomfield and Campbelltown Road intersection is in its present configuration. Following an upgrade to the intersection, the consent provides for the attendance of an additional 24 children. That work has not been undertaken by the applicant.

9. A subsequent appeal to expand the child care centre was dismissed (see Galluzzo v Campbelltown City Council [2009] NSWLEC 1425.

10. The council and the operator of the existing childcare centre entered consent orders in separate Class 4 proceedings limiting the number of attendees to 50 children as, prior to those orders being made, the centre had exceeded 50 enrolments.

11. Parking for 22 cars is currently provided at the south western end of the site with separate ingress and egress driveways off Blomfield Road.

12. The current proposal is to construct a new free standing building comprising an additional two indoor play areas and adjacent outdoor play areas. That building would be constructed to the immediate south west and a minimum distance of 1.761m from the existing dwelling and the northern building element. A setback of 1.5m from the boundary with the adjoining property, Lot 102 Blomfield Road is proposed to the southern play area and wall of the southern building element. A 2.1m high acoustic fence is proposed to enclose that southern play area with the area between the fence and boundary landscaped with 1.2m high screen plantings that would reach a height of 3-4m at maturity. The play area would be cut into the site approximately 1m and retained around its perimeter. Similarly, the north western play area would be enclosed by a 1.8m high acoustic fence with additional 1.8m acoustic fencing installed adjacent to the existing play area.

13. The two indoor rooms and associated play areas are designated as accommodating 20 children each and cater for 3-6 year olds. Ramps, verandahs and pathways would connect the proposed building to the existing building. Access to the new buildings would be through the existing child care centre building.

14. The application proposes an increase in the number of children accommodated at the site from 50 to 130, 40 in the new building and 90 in the existing centre. The centre would operate as one individual centre under one manager and is leased to that provider by the owner of the land who resides in the dwelling.

15. Three of the parking spaces within the existing carpark would be removed and the carpark realigned to provide truck manoeuvring area and access to an extended driveway to be built to the north west of the existing play area to service a new staff carpark that would be constructed adjacent to the proposed new building. That carpark would provide parking for 11 cars and increase the available on site parking to 33 spaces.

16. The applicant was unable to assist the Court as to whether the proposed new driveway would render the on-site septic disposal area inadequate and have any detrimental impact on existing trees.

17. Hours of operation would be identical to that approved under the original consent being Monday to Friday 7am to 6pm and Saturdays 8am to 12 pm.

18. Whilst not detailed in the application, it was agreed that a minimum of 21 staff would be employed on site with additional staff possible in management and food preparation roles.

The issues

19. The contentions in the case are whether the development is contrary to the zone objectives; whether fencing, landscaping, site location, setbacks, density of development, carparking and access are appropriate and whether the development will adversely affect the existing dwelling on the site and adjoining development. Contentions in relation to noise have been resolved through the joint planning process.

The planning controls

20. The site is zoned 7(d5) Environment Protection 1 Hectare Minimum Zone under Campbelltown (Urban Area) Local Environmental Plan 2002 (LEP). A child care centre would be permissible as an innominate use in that zone.

21. Clause 25 of the LEP is in the following form:

25 Zone 7 (d5)—Environmental Protection 1 hectare Minimum Zone

(1) What land is within Zone 7 (d5)?

Land is within Zone 7 (d5) if it is shown coloured orange with red edging and lettered “7 (d5)” on the map.

(2) What are the zone objectives and what effect do they have?

The objectives of this zone are:

(a) to conserve the rural-residential character of the land by maintaining a minimum area of 1 hectare for lots used for rural-residential living, and

(b) to protect environmentally important land and watercourses possessing scenic, aesthetic, ecological or conservation value, and

(c) to allow some diversity of development, but only where it is unlikely to have a detrimental effect on the quality and character of the locality or the amenity of any existing or proposed development in the locality.

Except as otherwise provided by this plan, consent must not be granted for development on land within this zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone.

A further objective of this zone is to encourage a high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development.

22. That part of the site adjacent to Campbelltown Road is zoned 5 (c)—Special Uses Sub-Arterial Roads Zone. Child care centres are prohibited in that zone however, pursuant to the provisions of clause 52(3) of the LEP, until such time as the land is acquired for road widening purposes, the land may be used for any purpose with consent. In determining whether to grant consent the consent authority must take into account the following matters:

(a) the effect of the proposed development on acquisition costs,

(b) the imminence of acquisition,

(c) the cost of reinstating the land for the purpose for which the land is zoned,

(d) in the case of land within Zone 5 (b), the need to carry out development on the land for the purpose of classified roads or proposed classified roads, within the meaning of the Roads Act 1993.

23. The council has exhibited Draft Campbelltown Local Environmental Plan 2014 (draft LEP) and resolved to forward it to the Minister for making subject to certain requirements. Under that plan the site would be zoned E4 Environmental Living. Child care centres would be permitted with consent in that zone. The road widening provisions would remain and be zoned SP2 Infrastructure.

24. Campbelltown (Sustainable City) Development Control Plan 2012 (DCP) applies to the site with the version effective as of 3 July 2013 relevant to the application at the time it was lodged with the council. Sections particularly relevant to the application are 1.1 Introduction; 1.2 Aims of the Plan; 2.3 Views and Vistas and 2.5 Landscaping. Specific provisions for child care centres are contained in Part 8.

25. The Court notes that the existing child care centre does not meet the DCP locality requirements in that it is located within 100m of the intersection of a State Road (Campbelltown Road) and within a no through road (Blomfield Road).

26. Relevant to the contentions in the case are fencing requirements in clause 8.3.4, waste management in clause 8.3.7 and additional requirements in Rural and Environmental Protection Zones in clause 8.3.9. The latter clause provides design requirements as follows:

A maximum of 50 children shall occupy a child care centre on any single allotment.

The child care centre shall be wholly located on the ground floor of the building.

Child care centres shall be setback a minimum of:

i) 20 metres from the primary street boundary;

ii) 10 metres from the rear boundary;

iii) 10 metres from the side boundary; and

iv) 20 metres from any secondary street boundary.

27. Clause 8.4.3 requires development applications for child care centres catering for 20 or more children to be accompanied by an Emergency Evacuation Plan. No such plan had been prepared by the applicant.

28. Clause 8.5 Landscaping requires the use of native, low water consumption plants and trees with a minimum of a 3m wide strip along the primary and secondary street frontage and a 1.5m wide strip along the full width of side and rear setbacks.

The evidence

29. The hearing commenced on site with two residents providing evidence to the Court. The issues raised are summarised as follows:

• Traffic and parking problems will be exacerbated resulting in safety concerns;

• Adverse amenity impacts through noise, lighting, security, traffic, loss of privacy and proximity of buildings to the boundary;

• Scale of development is inconsistent with the character of the Environmental Protection zone;

• Centre has a history of non-compliance/anti-social behaviour.

30. Expert evidence was heard from:

                          Applicant                Council

Acoustics           Mr R Stevens         Dr R Tonin

Traffic                 Mr C McLaren        Mr C Hallam

Town Planning   Mr A Rowan           Mr A McGee

31. The Acoustic experts have agreed that, subject to the construction of acoustic fences as detailed in their Joint Report, Exhibit 8, an appropriate level of amenity will be maintained for adjoining properties through the operation of the centre. This does not mean that the noise from the centre would be inaudible, rather that it would comply with relevant policies and standards. These requirements have been reflected in the council’s draft conditions of consent, Exhibit 9. However no modelling had been done of service vehicles or peak events and for this reason the experts agree that all service vehicles should attend the site throughout the day. The off-site impacts of the overflow of vehicles/persons had not been assessed.

32. They agree that the fences can be either timber or colourbond and that the top portion of the 2.1m high fence can be winged or made from Perspex so as to reduce its visual impact.

33. The Traffic Engineers’ Joint Report, Exhibit 6, was prepared on the basis that all the buildings on site would be used as a single child care centre and that the 11 car parking spaces in the new section of the site will be allocated to staff only, with no use by parents or visitors. They agree that the need for a footpath beside the new driveway to link the existing and new sections of the site is primarily a town planning issue, relating to how the centre will function and that if such a footpath is required the accessway could be reduced in width to 3m and a footpath of about 1.2m could be provided along the eastern side of the accessway.

34. Following the site inspection and consideration of the recognition by the parties of the need to ensure retention of the existing trees planted to accord with conditions of the original consent that were supposed to screen the fence to the playground, Mr McLaren prepared amended plans of the proposed accessway. Those plans also looked at works needed to provide for garbage and pumpout vehicles within the site and were tendered as Exhibit H despite the fact that the precise location of these areas had not been identified by the applicant. Mr McLaren assumed that the pumpout truck would require use of the whole of the proposed new staff carparking area and accordingly, collection would be limited to Saturday afternoons, with around 3 collections required during that period however, details were not provided to the Court of tank or truck capacity to substantiate whether this was viable. Garbage vehicles would require the clearance of two or four spaces in the existing carpark and these spaces could be signed accordingly to prevent usage during the middle of the weekdays.

35. The experts agree that the arrangements would resolve contention 9(a) subject to the proviso that the 11 new car parking spaces are used by staff only and that a Plan of Management (POM) should be prepared to address all of the operational issues.

36. In relation to the locational requirements for childcare centres as detailed in section 8.3.1 of the DCP, the experts agree that the design of the driveway is safe and that queuing would not impede general traffic flow so a 100m separation is not required. As all traffic concentrated on the western end of Blomfield Road does not pass dwellings east of the site environmental capacity of that road will not be approached. For these reasons, they agree that contention 3 is not a reason to refuse consent.

37. The experts agreed that the design of the intersection works as proposed in Annexure A to their Joint Report, Exhibit 6, is satisfactory and resolve contentions 3(b) and 9(b), with the proviso that the design must be approved by Road Maritime Services (RMS) because Campbelltown Road is a State Road. They also agree that the intersection reconstruction should be completed prior to the enrolment of children at the centre in excess of the 50 permitted under the existing consent. The council’s draft conditions propose the works to be the subject of deferred commencement provisions and the applicant does not oppose those conditions.

38. The planners agree that:

• The development is consistent with zone objective a in terms of lot size only, b and c in terms of amenity impact subject to the provision of appropriate acoustic treatment around the perimeter of the rear-most play area to protect the amenity of No 3 Blomfield Road.

• The proposed extension, subject to the establishment and maintenance of the proposed screen planting is appropriate for the setting of the site and is functional subject to the separation of the staff and visitor parking and ensuring that children enter and leave the building though the existing buildings and therefore is consistent with the further zone objective.

• The perimeter fence of the forward most play area is 40-42m from the Campbelltown Road frontage and that with appropriate hedge planting would not be visible from that point.

• Existing and proposed planting would screen the new buildings and fences from No 3 on maturity and the type of fencing is consistent with that envisaged in the DCP.

• The development does not result in any privacy impact with the provision of the proposed fencing and landscaping.

• There is not likely to be any amenity impact to the existing dwelling on the site.

39. There is disagreement as to whether the development is consistent with objectives a and c in terms of conserving the rural residential character of the area. Mr McGee says the solid fencing proposed is not typical in the locality nor consistent with a rural residential area and the applicant relies on screen planting to obscure the fencing. He says the unsuccessful screen planting evident at the site reinforces this concern and if the plantings fail, the fencing will become quite apparent.

40. Mr Rowan says that the provision of a 1.5m wide landscaped buffer alongside bonded fencing is a DCP requirement irrespective of the zone location and the proposal satisfies the DCP. He agrees that it is reasonable for a condition to be imposed on any consent issued to require the proposed landscaping to be adequately maintained.

41. Mr McGee says a crucial element in the propagation of the area’s rural residential character is the separation of buildings from boundaries and each other. The detached dwellings are generally well-separated from each other by generous front, side and rear setbacks. Low rural-style fencing is prevalent throughout the locality, along with well-maintained gardens and lawn areas. This separation creates a perception that the locality features ‘low density’ development. As the proposal locates new buildings relatively close to the existing buildings and the site boundaries this spatial separation is not met. He says the proposed building and its outdoor play areas join two existing developments on the site to form a conglomeration of buildings, which, when viewed from Campbelltown Road would form an almost uninterrupted built form of some 90m. He considers the development as proposed will have a significant potential to further erode Denham Court’s established rural residential character by way of its proximity to boundaries, proximity to existing buildings and reliance on significant fencing to minimise unacceptable impacts on neighbours.

42. The impacts of the development on the character of the area are Mr McGee’s key concern. He says the unsympathetic relationship it has to its surroundings is another issue, exacerbated by the ameliorative measures required to minimise unacceptable impacts, which further spoil the character. The development fails to demonstrate compatibility with its surrounds and deviates strongly from the rural-residential style of development that is envisaged by the council. Notwithstanding the permissibility of the development pursuant to the LEP, the high solid fences proximity of buildings to boundaries and indeed, existing buildings as well as paved areas for carparking/mavoeuvring are all inconsistent with the character of the land use and development of properties within that part of Denham Court within the council area.

39. Mr Rowan says the development provides a generous setback from Campbelltown Road, maintaining the existing spatial separation of buildings between existing allotments and from frontage boundaries that characterise the locality. He say the character of the area is not defined by the buildings within allotment having to be separated from each other, that the proposal replaces an existing building that already occupies the gap between the dwelling and existing centre, is single storey in height and will have the appearance of an ancillary outbuilding complex, typical of stables and the like. The existing childcare buildings on the land are generally obscured from view from Campbelltown Road and will not be generally visible in the same context as the subject extension. The extension will appear recessive in its context given its generous distance from the road, staggered alignment, low height, existing and proposed landscaping and outbuilding appearance. The proposed extension only presents the ‘end’ elevation of the two elements, being staggered, such that they have a similar scale of presentation to Campbelltown Road as the existing workshop garage it will replace.

40. Mr McGee says the setback controls in the DCP attempt to establish separation by requiring 10m from all buildings from boundaries and effectively creates a 20m separation of buildings noting the control also applies to outbuildings. This requirement tacitly forms an ‘exclusion zone’ in which development is not encouraged. The proposal includes approximately 255sqm of development within that area, comprised of new building, covered areas and outdoor play area.

41. Mr Rowan says the development does not undermine the rural-residential character of the land as it satisfies the requirements for development permitted in the 7(d5) zone, in so far that it has a minimum site area of 1ha; is occupied by a dwelling used for rural residential living, a childcare centre is permissible in the zone; setbacks exceed those required from its road frontages and generous landscaping of the primary setback to Campbelltown Road is provided.

42. The planners agree that if consent were to be granted, it would be necessary for the draft POM (Exhibit G) to be upgraded to address waste management, landscaping, maintenance, delivery vehicles, parking usage and the like.

Conclusion and findings

47. For consent to be granted, I must be satisfied that carrying out the proposed development would be consistent with one or more of the objectives of this zone. Having regard to the evidence, I am not satisfied that the development will not have a detrimental effect on the quality and character of the locality or the amenity of that locality. The scale of the development, its footprint, proximity to boundaries and heavy reliance on landscaping to screen fences and built form combined with the extensive areas required for parking and access is inconsistent with the character of the locality. A series of buildings that are visually connected by roof form, pathways or ramps across a distance of 90m is of a scale that is uncharacteristic with the locality.

48. Whilst childcare centres are contemplated in the zone, the scale of those centres is limited by the DCP to a maximum of 50 children. The existing consent provides for up to 74 enrolments within the existing structures. The need to construct two additional play areas, offices and ancillary rooms and enclose two outdoor play areas with fencing of a height between 1.8m and 2.1m to provide facilities for up to 130 children is excessive and out of scale with the development within the locality. I am not satisfied that it has been demonstrated, as required under clause 1.1.7 of the DCP that the control is unreasonable or unnecessary in the circumstances of the case. The development will have a detrimental effect of the quality and character of the locality and the visual amenity of the existing development in the locality. It does not relate sympathetically to adjoining development despite having regard to that development both existing and permissible opposite the site within the Liverpool LGA. Accordingly, the development is not consistent with the objectives of the zone and consent cannot be granted.

49. The application is also deficient in terms of demonstrating that the proposed driveway will not impact on the viability of existing vegetation, particularly those trees adjacent to the existing play areas or that adequate area would remain to address the on-site septic disposal areas required for the existing child care centre buildings. Waste management, vehicle manoeuvring, deliveries, collection and the POM were all unsatisfactory aspects of the application and whilst these may have been capable of resolution, the failure to meet the threshold test of the zone objectives means that it is not necessary to determine those matters. I agree with the experts that improvements to the intersection of Blomfield and Campbelltown Roads should occur prior to any increase in number of enrolments above 50. This is consistent with the terms of the existing consent.

50. It is apparent that the site is at its capacity for non-residential uses in terms of built form and that any additional development of the scale proposed would be inconsistent with the rural residential character of the area.

51. The Orders of the Court are:

1. The appeal is dismissed.

2. Development Application 1416/2014/DA-C for the construction of a new building and the expansion of an existing child care centre to cater for 130 children is refused consent.

3. The exhibits, other than exhibits A, B and 1, are returned.

_______________

Sue Morris

Commissioner of the Court

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Decision last updated: 18 June 2015