Hayek v Camden Council

[2014] NSWLEC 1117

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hayek v Camden Council [2014] NSWLEC 1117

Hearing dates:

11, 12 February , 6 March, 27 May 2014

Decision date:

20 June 2014

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

(1)The appeal is upheld.

(2)Development consent is granted to DA No 235/2013 for the construction and use of a two storey child care centre for 108 children, basement car parking, acoustic fence provision, landscaping and associated site works at Lot 300 DP 1158545, No 35 Adams Circuit, Elderslie subject to the conditions in Annexure A.

(3)The exhibits may be returned except 1, 2, 5, 8, H and J.

(4)Pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that are thrown away as a result of the Applicant amending the development application in relation to:

(a)plans dated 7/11/2013; and

(b)plans dated 28/5/2014.

Catchwords:

Development application: Child care centre, bulk and scale, consistency with character of the area, adaptability of design, landscaping.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Camden Local Environmental Plan 2010
SEPP No 55 - Remediation of Land
Deemed SEPP No 20HawkesburyNepean River
Camden Local Environmental Plan 2010;
Camden Development Control Plan 2011

Cases Cited:

Project Venture Developments v Pittwater Council [2005] NSWLEC 191

Category:

Principal judgment

Parties:

Mr G Hayek (Applicant)

Camden Council (Respondent)

Representation:

Mr N Eastman (Applicant)
Mr C Shaw (Respondent)

File Number(s):

10564 of 2013

Judgment

Background

1. This appeal was lodged against council's refusal of a development application for a 108 place child care centre at 35 Adams Circuit, Elderslie. Insofar as a number of contentions were initially identified, some amendments were undertaken during the course of the appeal and the outstanding contentions are summarised as follows:

• Whether the proposal is consistent with the character of the surrounding area as a consequence of its bulk, scale and design.
• The design of the ground floor and first floor is inefficient in terms of unusable areas particularly the corridors, which increase the building footprint and bulk.
• Adaptability of the design.
• Landscaping.
• Fencing.
• BCA compliance in terms of access gradients and disabled access

The proposal

1. The application is for the approval of a two storey child care centre for 108 children, with basement car parking for 32 spaces, landscaping and associated site works. The child care centre will accommodate a maximum of 108 children comprising the following age groups;

(a)   (0-2 years) = 16 children

(b)   (2-3 years) = 32 children

(c)   (3-6 years) = 60 children

1. The proposal also includes acoustic fencing on the ground floor of the site, to the general rear (West) of the building and to the side (South) of the building, ranging in height from 1.7m to 2.1m. Acoustic fencing is also proposed on the first floor, to the general rear (West) of the building, ranging in height from 1.2m to 1.5m.

1. Three external playgrounds are proposed (two located on the ground floor and one located on the first floor).

1. The development proposes operating hours of Monday to Friday 7am to 6pm.

The site

1. The site is described as Lot 300 in DP 1158545 and is known as 35 Adams Circuit, Elderslie. It is located on the north western corner of Adams Circuit to which it has a 60m frontage together with a 30m frontage to Cooperworth Road.

1. The site has a total area of 1,811 sq m. It is vacant and falls from Adams Circuit with a fall of about 1.5m from south to north. It is located within the suburb of Elderslie, which is in the south western corner of the Camden Local Government Area and adjacent to the suburbs of Spring Farm, Narellan and Narellan Vale.

1. The northern and western sides of the site are bound by Bates Reserve and the eastern and southern site boundaries are bound by Adams Circuit and Cooperworth Road.

1. The surrounding area is predominantly characterised by residential dwellings associated with the developing Elderslie urban release area. The immediate area mainly comprises of low density single storey dwellings.

Planning controls

1. The following controls apply:

• Camden LEP 2010; under which the site is zoned R1 General Residential.
• Camden DCP 2011. Chapter D5.1 sets out the objectives and controls specific to child care centres
• SEPP No 55 - Remediation of Land
• Deemed SEPP No 20 - Hawkesbury - Nepean River

The evidence

1. The expert evidence in the this matter was presented in a joint planning report by:

• Mr T Byrnes, Council's consulting architect and urban planning consultant.
• Mr N Kennan; Applicant's town planning consultant

1. The experts initially acknowledged that the proposal complies with the relevant numerical controls as set out in the following table:

Element	Policy Ref.	Control	Proposed	Numeric compliance
Building Height	LEP 4.3	9.5	8.27m	Yes
Area	LEP 7.5(2)(a) DCP D5.1.3(d)	1,200 m2 minimum	1,811 m2	Yes
Car Parking	DCP B5.1	32 Spaces	32 Spaces	Yes
Setback	D5.1 (Table D20)	-	-	-
Front	-	5.5m	7.5m	Yes
Secondary Street	-	4m	4m	Yes
Side (north)	-	1.2m	3.2m	Yes
Rear ground floor	-	4m	4m	Yes
Rear First Floor	-	8m	8m	Yes

1. However, numerical assessment aside, Mr Brynes did not support the approval of the development in this case because he considered that the nature of the perceived development was inconsistent within the surrounding character and said that:

Whatever the failings of the nominal standards to adequately interpret the specifics of the objectives, it is clear that the intended planning outcome was anticipated to be achieved through smaller building as the means to assure a successful co-relationship between surrounding developments. However the application fails to demonstrate that a building of this design and ultimate size can otherwise achieve the harmony of outcome intended.

1. Mr Bryne's opinion was based on the following points presented in the joint planning report:

(i)   Intentionally any reasonable urban design outcome can reflect some degree of variation and building increase within an otherwise predominantly small scale residential enclave. But when viewed objectively, the outcome of this application as a three dimensional interpretation of an acceptable degree to which harmony can be achieved is a conspicuous failure. With obvious shortcomings on at least three of the four sides of this island site. Due largely to inadequate amelioration of building impacts on the south: the height of the building undercroft at the south east corner; unavailable depth of setback for transitional landscape provisions to the north: and the undue overexposure of building to the west. Rectification without reduction of building volume can only address minor amelioration of impacts and ignores the underlying issue of excess building overall.

(ii)   The inefficiency of the building layout at all levels is a function of too much building on the site that in turn generates an overly large car parking requirement and subsequent influence on the design and appearance of the overall scale and character of the proposal.

(iii)   The non-visual consequence being that, at the Basement level, the visitor car parking will inhibit the use of the car parking area for drop off and pick up of children and subsequently mean an unreasonable increase in the already uncharacteristic twice daily on-street demand impacts on residents in the morning and afternoon. It may be noted that the original traffic assessment was done on an earlier iteration of the current proposal.

(iv)   Apart from a potential reduction in the overall number of parking spaces as a consequence of a smaller building area it would be recommended that, as a first measure, the visitor car parking spaces be exchanged for the staff car parking spaces in the layout of the Basement car park.

(v)   At the Ground Floor level, the principal site access is offset from the main entry to the building such that visitors would be drawn directly to Playroom 3 before entering the building. If the sliding doors are to be closed permanently to avoid this confusion, then the verandah area is unable to be isolated for outdoor use in the manner proposed for Playroom 3 and to provide an adjacent outdoor play area, consistent with Playrooms 1, 2 and 4.

(vi)   Reliance upon a single opposing doors lift for accessibility for wheelchair access and others is not adequate given the need for access between two floors. Furthermore the 1.5 metre height change within the Parking Level, the two Ground Floor levels is symptomatic of an inadequate solution to convenient regular access for the disabled and lift occupants generally.

(vii)   Otherwise, providing the circuitous access through five sets of doors between the entrance and Playroom 4 is an inadequate design imposition for pedestrians and, in particular, those who might be disabled.

(viii)   At both floor levels the degree of supervision of Playrooms and Sleep Rooms from passage ways varies and is inconsistent. There is no visual observation of Sleep Room 2 from outside the room and the observation of the indoor Playroom 1 is via the Meeting room and Kitchen, save for a short dead end passage.

(ix)   The use of corridor spaces for craft activities is indicative of inefficiency of layout and circulation pattern. As is otherwise the unnecessarily long access for the disabled at the First Floor to Playroom 5.

(x)   The solution to these collective shortcomings fundamentally rest with less building, in the order of one Playroom at least, to achieve a convenient and uncompromised layout in circulation that is independent of collapse through just one incidence of mechanical failure with a lift.

(xi)   After that a more sensitive building design appearance, one that reflects the uses within the building, would also be a positive neighbourhood contribution through its architectural character as one that addresses its interface with the varying demands of its surroundings on all four sides. It is not now being met by facades that only incorporate mainly two standard sizes and patterns of windows. Which apart from their monotony reflect no consistency of purpose and are mere gestures to break up otherwise what would be even more uncharacteristically blank facades.

1. Insofar as Mr Kennan generally supported the proposal, he agreed with some of the aforementioned items, particularly the reconfiguration of the basement car park and main entry arrangements. With regard to the supervision of children, he said that windows have been provided to facilitate viewing to the majority of rooms in the facility. However, the regulations which govern the use of child care centres stipulates that children are not to be located in any part of the facility unless they are continuously supervised by staff members. As such there would be no children located in Sleep Room 2, or any other area of the facility, without being supervised by the required number of staff.

1. Apart from this, Mr Kennan considered the proposal was compatible with the character of the area because it satisfied council's strategic planning to particularly facilitate a child care facility on this site as evidenced by the 88B restriction and the fact the application meets all the council's standards relating to height and setbacks.

1. A separate contention concerns the "adaptability of the design", as required under Part D5.1 of the DCP, which requires consideration to the design of new buildings in residential zones that allows them to revert to a dwelling house if necessary. From his consideration of the design, Mr Byrnes says that regardless of the degree to which reconversion is achievable in some manner, the prospect of a compliant child care centre on this large site being capable of conversion to a "dwelling house" is not realistic and should not be a paramount consideration.

1. The next issue concerns the proposed landscaping. Mr Byrnes was not satisfied with aspects of the proposed landscaping on the basis that Adams Circuit as a street frontage warrants the same visual amelioration consideration as Cooperworth Road. Apart from no justification for a setback to a minimum standard to begin with, the distinct difference in treatment (and the more limited area for landscaping in particular) between the two streets frontages is not justified in this case, particularly where the building presence is so uncharacteristic to begin. He also considers the curtilage of the building deserves closer consideration of the north and west boundaries that are a "frontage" of another sort.

1. Furthermore, he says that the hedge effect reflected in the barrier of the straight line of landscaping along the northern boundary with an otherwise open park-like setting would be a more appropriate treatment along the otherwise over exposed western boundary and where the overlooking would have negative consequences for neighbours further to the west.

1. He considers that a more desirable landscaping outcome would be achieved with a more gradual transition of landscape treatment across the boundary between the public open space and the proposal that is less sharply defined would better justify any contention that the subject site, because it borders public open space and a recreation area enjoys a visual enlargement of the context for any (larger) building. The potential generosity of the setting to the north, that to some extent could ameliorate the inherently uncharacteristic nature of a building due to its large exposure in that direction, has been unable to be addressed by the proposal.

1. Against this, Mr Kennan says that the Council has formulated specific controls dealing with child care centres in residential areas. In particular, setbacks have been determined for both the primary and secondary street frontages, in a similar manner to that which would apply for dwelling houses on a corner lot. In this case, the Council has determined that a setback to the main street frontage should be a minimum of 5.5 m. The proposed development, with main front setback of 7.5 m, is significantly in excess of the minimum required setback and therefore satisfactory.

1. The DCP provides for a setback of minimum 4 m to the secondary street setback, which is the Adams Circuit frontage of the site. Insofar as the proposed development accords with this minimum setback, nevertheless he agrees with Mr Byrne that the acoustic fence along the Adams Circuit frontage could be articulated in manner which was proposed in a previous version of this development which would be visually better than that which is proposed.

1. With regard to the northern boundary of the site, the DCP requires a setback of minimum 1.2 m. As a setback of 3.2 m is proposed, he considers that the northern setback and its proposed landscaping, is an appropriate treatment to this boundary and to the adjoining park.

1. The other remaining contention concerns the proposed fencing. According to Mr Brynes, the security of the site is a distinguishing and potentially uncharacteristic, inhospitable appearance that in this case necessarily results in fencing to two sides of the site and the otherwise generally inaccessible northern setback area, flanked by a building facade that provides no access and limited openings to the ground floor due to their screening or sill heights. The lack of fencing setback on the boundaries therefore more readily identifies with an otherwise uncharacteristic courtyard appearance when publicly viewed from outside the site.

1. He does not consider that the proposed fencing is satisfactory in the context and says that in so much as the Adams Circuit frontage needs any assistance it can get to better address the criticisms of bulk and scale, more landscaping in conjunction with a varied fence line similar to previous proposals would be a better substitute for the length of unbroken 2.1 m acoustic fence that is hard on the Adams Circuit boundary.

1. Following discussion of this contention, Mr Kennan agreed that improved fencing could be provided and I accept that this could be covered by conditions of consent.

Findings

1. Having considered the evidence, the submissions and undertaken a view, I decided to present my initial findings on the proposal. In light of the disparate opinions on the suitability of the design for the subject site, I accepted Mr Byrnes opinion that despite the numerical compliance of the proposal, nevertheless there were several unsatisfactory design elements. Accordingly, I adopted the "amber light" approach whereby the Applicant was given the opportunity to review the various design elements.

1. The Applicant responded to this opportunity with the submission of amended plans (now marked Exhibit J), which include the following revisions:

• Basement; Alteration of entry/exit movements with revised gradients, revised parking designations and more convenient/safer lift access, provision of complying disabled car space.
• Ground floor; Revision of main pedestrian entry to provide clear visibility of main front door and access to internal service/counter area, increased circulation area in service area, revised stair arrangements with more appropriate risers for child care centre, revision of internal corridors to satisfy BCA fire safety exit routes, amendments to fencing and landscaping.
• First floor; removal/reconfiguration of Sleep Room 2 to reduce south elevation presentation, internal reconfiguration of ancillary rooms adjacent to Playrooms 5/6, elimination of unacceptable internal corridor ramps, rationalisation of internal corridors and external stairs to satisfy BCA requirements.
• Facades; Provision of balcony treatments (awnings/handrails) to minimise apparent bulk and specifications for the covered Playground 3.

1. Mr Brynes reviewed the aforementioned amendments together with some design details updated in accordance with his suggestions. In the ultimate, Mr Brynes said that whilst the proposal remains as a very large building, nevertheless it is numerically compliant with council's controls and the aforementioned amendments to the internal layout and the external elevations on a qualitative assessment basis, make it is reasonably compatible with the local area.

1. Notwithstanding Mr Byrnes conditional acceptance of the amendments, Mr Shaw submitted a considerable number of further objections to this proposal. These objections concern the excessive bulk and scale of the proposal, access and pedestrian safety concerns and that it is not compatible with the scale of development anticipated in this neighbourhood. It is his submission that the amended proposal should be refused because of its excessive scale, which is not compatible with this neighbourhood.

1. However, the determination of the application requires a balancing of a number of elements. In the first place it is apparent that the council planning controls allow a child care centre on this relatively large site and that is made clear by the current Section 88B Instrument. Insofar as there are specific controls in the DCP for child care centres, I accept that the proposal satisfies the numerical controls in the LEP and DCP, particularly the height and set back controls. The purpose of these controls is to provide guidelines for the building envelopes and footprint of appropriate buildings. As the proposal is compliant, I consider the Applicant has a reasonable expectation for approval.

1. Another circumstance of this matter concerns the establishment of this Lot 300, which has a relatively large area of 1811 sq m. The s 88B Instrument restricts uses to that of a child care centre and if the size of any future centre was to be limited to something less than the current planning controls (i.e. the DCP), then presumably the Instrument could have incorporated any such restrictions. But there are none.

1. Accordingly, I have considered Mr Eastman's submissions on the compatibility issue in terms of his reference to the following planning principle stated in Project Venture Developments v Pittwater Council [2005] NSWLEC 191:

Planning principle: compatibility in the urban environment

22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.

24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.

Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

Is the proposal's appearance in harmony with the buildings around it and the character of the street?

25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.

26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.

27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape.

28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way.

29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees.

1. It then seems to me that the following comments that Mr Kennan made initially are relevant:

31 The desired future character of the locality is generally dictated by the planning controls which apply or are proposed to apply in the future.

32 The existing controls permit residential development in the form of "Attached dwellings, Boarding houses, Group homes, Multi dwelling housing, Residential flat buildings, Semidetached dwellings, Seniors housing". There are no floor space ratio controls applying to that development and the form of development is generally controlled by the abovementioned maximum height control of 9.5 metres and various setback requirements. As stated in the Statement of Facts and Contentions, the proposed development meets all of the development standards contained in both the LEP and DCP. The built form proposed by the child care centre is, by its very nature, different to the general architectural style of development in the area.

33 In the case of the subject site, the Council, when undertaking its strategic planning for the locality, recognised that the nature of the proposed residential development in the area was such that there would be a need for the establishment of child care facilities to meet the expected demand for such facilities by the demographic which would most likely inhabit the Elderslie urban release area In this regard, the Council, when approving the subdivision of the area, specifically earmarked the subject site as one which should be development as a child care facility. To achieve that aim, a s.88B restriction was placed on the title of the site.

34 It is clearly the case that the character of the area envisaged by the Council when it undertook its strategic planning for the Elderslie Urban Release Area was that the site be established as a child care facility. The proposed development meets all the development standards established by the Council relating to height and setbacks. I am of the opinion that the proposed development would be in keeping with the strategic planning for the area and, hence, in my opinion, although not the same as residential development in the area, would be "compatible" with the character of the area.

1. In summary then I am satisfied that the amended plans merit conditional approval. They demonstrate reasonable compliance with the LEP and DCP controls and I rely on the opinions of Mr Kennan and Mr Brynes that the proposal is compatible with the character of the neighbourhood, as described in the planning controls. In this regard, I think some weight should be given to the development potential of this larger lot, which is subject to the s 88B Instrument, because it facilitates a larger scale of complying development.

1. Insofar as there were discussions about the conditions of consent, I note that there is substantial agreement to the draft conditions. However the Applicant queried the timing of lodgement of the Plan of Management (POM) prior to the issue of the Construction Certificate. I consider it reasonable that this condition can be satisfied prior to the issue of the Occupation Certificate and accordingly it becomes Condition 5 (12). I also consider that section 11 (Family/Special Events) should be expanded to require specific details to be submitted to council prior to the event to enable council's approval.

1. In conclusion, I have had regard to the zone objectives and I am satisfied the proposal is consistent with the R1 objectives to provide facilities or services to meet the day to day needs of residents and to allow community activities that support the wellbeing of the community.

Court orders

1. The Court orders that:

(1)   The appeal is upheld.

(2)   Development consent is granted to DA No 235/2013 for the construction and use of a two storey child care centre for 108 children, basement car parking, acoustic fence provision, landscaping and associated site works at Lot 300 DP 1158545, No 35 Adams Circuit, Elderslie subject to the conditions in Annexure A.

(3)   The exhibits may be returned except 1, 2, 5, 8, H and J.

(4) Pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that are thrown away as a result of the Applicant amending the development application in relation to:

(a)   plans dated 17/11/2013; and

(b)   plans dated 28/5/2014.

R Hussey

Commissioner of the Court

Decision last updated: 24 June 2014