Hunters Hill Ventures Pty Ltd v Hunters Hill Council

[2016] NSWLEC 1614

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hunters Hill Ventures Pty Ltd v Hunters Hill Council [2016] NSWLEC 1614
Hearing dates:	29 November 2016
Date of orders:	24 February 2017
Decision date:	20 December 2016
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	Orders at [93]
Catchwords:	DEVELOPMENT APPEAL: Pursuant to S97(1) – no agreement at conciliation – residential amenity impact – childcare centre – parking – pedestrian access – resident objections
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 Zhang v Canterbury City Council [2001] NSWCA 167
Texts Cited:	Roads Maritime Services NSW Guide to Traffic Generating Developments NSW Office of Environment and Heritage NSW Industrial Noise Policy
Category:	Principal judgment
Parties:	Hunters Hill Ventures Pty Ltd (Applicant) Hunters Hill Council (Respondent)
Representation:	Solicitors: Mr Gough, Storey & Gough Lawyers (Applicant) Ms. J Hewitt, HWL Ebsworth Lawyers(Respondent)
File Number(s):	2016/00192136
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97 (1)(b) of the Environmental Planning and Assessment Act 1979 (the Act), against the deemed refusal of development application number 2016/1073 lodged with Hunters Hill Council. The application seeks approval for the construction of a childcare centre for 88 children with 17 staff over a basement car park. The development is proposed over two lots at Joubert Street, Hunters Hill.

2. The appeal was subject to mandatory conciliation on 29 September 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34(4)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34(4)(b)(i) of the LEC Act.

3. Prior to the hearing leave was granted by the Court on September 22 2016 for the applicant to rely on amended plans (prepared by Art Made Architects, dated 10/1/12016) that had been informed by the conciliation and expert joint conferencing process.

4. At the commencement of the proceedings by the representative of Council advised the Court that the following information had addressed the issues initially raised by the council and detailed in the statement of facts and contentions (Exhibit 1).

1. A reduction in the number of children proposed, with a concurrent reduction in staffing numbers and parking generated by the centre;

2. The amended architectural plans that incorporate a change to the building form;

3. acoustic assessment and noise logging;

4. amended traffic impact assessment;

5. amended arborist report;

6. landscape plan, incorporating retention of a number of existing trees;

7. stormwater details;

8. an updated plan of management for the operations; and

9. the conditions proposed for any consent.

In the Councils view, the matter outstanding for determination by the Court is whether the issues raised in the resident submissions have been adequately considered.

5. The issues before the Court therefore are:

1. whether the agreements between the experts are well founded and satisfy the matters for consideration in s79C (1)(a)-(c) of the Act; and

2. to consider the matters raised the submissions made by the public in response to the notification of the development application (s97C(d) and (e)) in the determination of the application.

The site and its context

6. The site is legally described as Lot A and Lot B in DP382736, commonly known as 22 and 22A Joubert Street, Hunters Hill (the site). The site has a 58.55m frontage to Joubert Street and a 21.33m frontage to Figtree Road.

7. The site has a cross fall of approximately 7m and an area of 17866m². Each lot currently contains a single storey house. Vehicular access to both lots is from Joubert Street.

8. The site is located opposite the Saint Marlo Reserve and the precinct is characterised by its leafy setting, mix of housing types and a number of heritage items.

9. The site is located in proximity to a number of heritage items and is within the Hunters Hill Conservation Area No. 1- the Peninsula and the Landscape Conservation Area C450.

The proposal

10. The amended application proposes the following development:

1. Demolition of the two existing detached dwellings, removal of 20 trees, and the demolition of existing in ground pools on both properties.

2. Excavation for the underground car park and construction of an 88 space childcare centre. The centre will accommodate children across the age groups as follows:

1. 16 x 0-2 year olds;

2. 25 x 2-3 year olds;

3. 47 x 3-5 year olds;

4. as well as 14 staff members (including positions such as cook and manager).

3. The centre seeks operating hours of 7am to 6.30 pm Monday to Friday, however the agreed conditions of consent propose to reduce the centres hours to 7am – 6pm.

Public submissions

11. The Court heard from a number of objectors on site at the commencement of the conciliation conference. During the hearing a summary of these objections were tendered (Exhibit 8) and their central concerns of the residents with the proposal can be summarised as:

1. The bulk and scale of the proposal;

2. Inconsistency with the character of the locality;

3. Negative streetscape impacts;

4. Noise and a reduction in residential amenity as a result of the development;

5. Traffic generation and parking provision;

6. Impact of the development on the Heritage Conservation Area;

7. The intensity of the proposed centre;

8. Management of waste;

9. Inadequate landscape area;

10. Tree and vegetation loss;

11. Impacts on views;

12. Hours of operation;

13. Lack of demonstration of need for the facility;

14. Non-compliance of the proposal with Councils controls;

15. Proximity to a mobile phone tower;

16. Impact of the basement construction on adjoining residential and a nearby gas/fuel line; and

17. Impact on property values.

Planning framework

12. Section 79C(1)(a) of the EPA Act requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

13. Hunters Hill Local Environmental Plan 2012 (LEP 2012) is the principal environmental planning instrument that applies to the site. Relevant to this appeal LEP 2012 has the following aims (cl 1.2):

(a) to maintain and enhance the character and identity of established neighbourhoods in Hunters Hill by regulating the use and development of land,

..

(d) to accommodate a range of housing that will maintain the garden suburb character of the municipality, while responding to the needs of a growing population and changing demographics,

..

(h) to accommodate a range of community and educational infrastructure for residents of the municipality and surrounding areas,

(i) to promote high standards of urban and architectural design quality.

14. Pursuant to LEP 2012 the site is zoned R2: Low Density residential and the proposal for a child care centre is permissible with consent. The objectives of the R2 zone are as follows:

●    To provide for housing needs of the community within a low density residential environment;

●    To enable other uses that provide facilities and services to meet the day to day needs of residents;

●    To maintain the identity of Hunters Hill by ensuring that new buildings are compatible with the garden suburb character and heritage values that distinguish the low density localities;

●    To provide for high levels of amenity that are consistent with a low density residential environment.

15. The maximum height control for the site (cl 4.3) is 8.5m. It is agreed between the experts that the development complies with this control.

16. The maximum floor space ratio for the site (cl 4.4) is 0.5:1 It is agreed between the experts that the development complies with this control.

17. The site is within a mapped within a heritage conservation area, cl. 5.10: Heritage conservation, applies to the site, as mapped in Heritage Map – Sheet HER_002C. Clause 5.10 Heritage Conservation relevantly includes the following relevant objectives:

(a)    to conserve the environmental heritage of Hunters Hill,

(b)    to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c)    to conserve archaeological sites,

(d)    to conserve Aboriginal objects and Aboriginal places of heritage significance.

18. The consent authority must consider the effect of the proposed development on the heritage significance of the PHCA before granting consent (Sub Clause 5.10(4) of the LEP).

19. Clause 6.7 Development on River Front areas applies to the site. It is agreed between the experts that the development complies with this clause and that the precondition at cl 6.7 (3) is met.

20. The Hunters Hill Development Control Plan 2013 (DCP 2013) applies to the proposal. The DCP 2013 aims relevant to this appeal are:

(i) To maintain and enhance the character and identity of established neighbourhoods in the Hunters Hill Municipality.

(ii) To maintain and enhance biodiversity values by conserving natural features and scenic qualities that distinguish this Municipality.

(iii) To conserve identified heritage values that influence the character and identity of this Municipality.

(iv) To promote high standards of urban design and architectural quality in relation to built form, private landscapes, social and residential amenities, and levels of community activity.

…

(vi) To contain environmental impacts during construction and occupancy, which include the control of erosion and the preservation of existing trees.

…

21. Part 2 of the DCP provides general requirements which apply to all development applications that include Character (2.2) and Heritage Conservation (2.4). The aims of this part are as follows:

(a) Conserve and enhance character and environmental identity of the Hunters Hill Municipality by the appropriate use and development of land, existing buildings and structures.

(b) Maintain and enhance qualities of existing buildings and structures, tree covered streetscapes and scenically prominent landscape settings which are important elements of this Municipality’s heritage, scenic quality and environmental identity.

(c) Complement provisions of the Hunters Hill LEP 2012 to ensure that future development does not detract from existing character of landscape settings, streetscapes, residential gardens and buildings which contribute to this Municipality’s heritage, scenic quality and environmental identity.

22. Pursuant to cl.2.2.4 Desired Character new commercial development is required to demonstrate reasonable compatibility with predominant patterns of existing buildings nearby through:

• Setbacks for lower storeys of any proposed street facade should be the same as, or similar to, existing traditional shop buildings nearby.

• Proposed walls which would face a residentially zoned property should have side and/or rear setbacks to accommodate a screen of ‘deep soil landscaping’ between neighbouring buildings.

• Heights of proposed front facades should be compatible with existing commercial or mixed-use buildings nearby.

• Proposed side and/or rear facades that would adjoin a residential building should be compatible with the height of those neighbouring residential buildings.

• Compatibility with the height of existing buildings may be achieved where new developments incorporate a pronounced setback between lower storeys and any upper storeys that would be taller than those existing buildings.

23. At cl. 2.4.3 DCP 2013 details the general requirements for Heritage, which requires all development proposals to evaluate likely effects in relation to identified values or significance of a heritage item and its setting, or the identified values and significance of a heritage conservation area.

24. In relation to proposals for development within a heritage conservation area cl 2.4.5 seeks to maintain and enhance qualities that have been documented by a heritage impact statement and ensure that development is responsive to and doesn’t detract from qualities which are influenced by elements of the area’s existing character.

25. Part 4.2 of DCP 2013 provides specific controls in relation to childcare centres. This part of the DCP has the following objectives:

(a) Encourage development of child care centres in appropriate locations that meet community needs.

(b) Ensure that child care centres are compatible with neighbouring land uses.

(c) Ensure that child care centres are located and employ high quality design in order to avoid health or safety risks to children and staff.

(d) Minimise potential adverse impacts related to noise, traffic and on-street parking which might affect residential areas and the environment or amenity of neighbouring properties.

(e) In residential areas, ensure that built form and landscape design of child care centres would integrate appropriately with the surrounding environment.

26. The DCP provides specific objectives and controls in relation to operating hours of such childcare centres (cl4.2.4):

Objectives

Ensure that hours of operation are compatible with the amenity of residential areas and have minimal impact upon neighbouring dwellings.

Controls

Operating hours for any child care centre that is proposed within or adjoining a residential area shall be limited to weekdays between 7:00 am and 6.30 pm.

27. At cl 4.2.5 the DCP provides the following controls in relation to the built form and appearance:

(a)Child care centres must comply with built form controls that apply to the applicable land use zone.

(b) The design and layout of child care centres must respond to character of the existing neighbourhood and streetscape

(i) For new buildings in a residential zone, single storey building forms are preferred. Two storey forms may be considered only in situations where no other option is available.

(ii) Exterior materials and finishes, together with landscaping and fencing, should be consistent or compatible with general characteristics of the existing neighbourhood and streetscapes which surround the development site.

(c) New developments should promote view sharing by minimising the loss of existing views for adjoining or nearby properties, or views that are significant features of any street or reserve, while providing views from the proposed development:

28. As a result of cl4.2.5(a) the controls in Part 3: Residential Development are relevant to the assessment of the application.

29. Similarly cl 4.2.6 Landscaping requires that Child care centres in residential zones must comply with landscape controls that apply to the applicable zone. The objectives of this control are as follows:

(a) Preserve and enhance amenity and streetscape character of the surrounding neighbourhood.

(b) Ensure that new developments demonstrate a high visual quality.

(c) Provide attractive and natural environmental settings for future occupants.

30. Cl 4.2.7 Play Areas & Internal Amenity has the following objective relevant to the proceedings:

(b) Ensure visual and acoustic privacy for children of the centre, and also for neighbouring residents.

It is agreed between the experts that the proposal meets the internal planning and amenity controls required by the DCP.

31. The DCP at cl 4.2.8 provides objectives and controls in relation to the amenity of neighbouring dwellings which adjoin a proposed child care centres. Objective (a) and (b) are the most relevant to these proceedings.

(a) Provide visual and acoustic privacy for nearby residents within their dwellings and private open spaces.

(b) Ensure that child care centres in residential areas would not generate unacceptable noise levels.

(c) Provide adequate sunlight to neighbouring dwellings.

(d) Maintain and enhance external and distant views.

The evidence

32. The hearing commenced on site with evidence heard from a number of objectors. Their concerns are summarised at [11] and are supplemented by detailed submissions lodged with the Council during the notification period. These submissions were tendered by the Council in Exhibit 7.

33. Expert evidence was heard from:

1. Town planning: Mr Alan Caladine for the applicant and Mr Mark Adamson for the respondent.

2. Arboriculture: Mr Guy Paroissien for the applicant and Ms Catriona Mackenzie for the respondent.

3. Landscape: Ms Narelle Sonter for the applicant and Ms Catriona Mackenzie for the respondent.

4. Traffic and Parking: Mr Geoff Higgins for the applicant and Mr Craig McLaren for the respondent.

5. Acoustics: Mr Renzo Tonin for the applicant and Mr Thomas Taylor for the respondent.

34. The issues raised by the residents, that were addressed by the experts, can be grouped as follows:

1. Is the impact of the development on heritage, character and streetscape acceptable?

2. Does the development meet the objectives of Councils planning controls?

3. Are the amenity impacts of the development appropriate?

4. Is the relationship of the development to existing infrastructure appropriate?

Is the impact on heritage, character and streetscape acceptable?

35. In evidence the experts agreed that the amendments to the design, undertaken by the applicant since the refusal of the application, are now acceptable from a heritage perspective. In particular the change to the roof form to separate the mass of the proposed centre into two smaller hipped roofs of a residential scale was seen as a positive contribution to the streetscape and as consistent with the desired future character. This change to the building form, along with the retention of the existing grove of trees (Tree 1,2,3 and 5) to the southern boundary of the site (including the canopy trees eucalyptus racemosa and eucalyptus robusta) as well as the retention of the large angophora costata at the corner of Figtree and Joubert Street maintain the streetscape scale and landscape character of the site.

36. The heritage impact assessment, its methodology and conclusion are accepted by the Council. The experts conclude that effect of the proposed development on the heritage significance of the Conservation Area, in accordance with cl 5.10(4), is not significant.

37. In order to ameliorate the potential acoustic impacts of the proposal, additional site fencing is proposed by the applicant. This was considered in detail by the planning experts as the existing sandstone fencing on the corner of Joubert Street is a contributory item, and important to the character of the area. The experts concluded that this impact could be satisfactorily reduced by the imposition of the following conditions:

The relevant drawing referred to in the condition is appended to Exhibit 2.

38. On the basis of the imposition of these conditions the planning experts are agreed that the proposal has no detrimental impact on heritage, character or streetscape that would warrant the amendment or refusal of the application.

39. As part of the joint conferencing process of the landscape experts an amended landscape plan (Exhibit E) for the site was prepared to address Councils concerns in relation to the retention of the landscape character of the area, as required by the planning controls. Following an assessment of this amended plan the experts agree:

40. The changes identified in (d) above relate to the retention of the camellia sasanqua hedge, the inclusion of a supplementary syzigium hedge and the requirement for installation of the new fence posts to be supervised by an arborist when they occur in proximity to the retained trees. These changes are included in the proposed conditions.

41. The conditions proposed to affect these changes are:

42. The landscape experts are agreed that, with these changes and subject to conditions, the proposal provides an acceptable landscape character and streetscape.

43. I am satisfied that the effect of the proposed development on the heritage significance of the Conservation Area, in accordance with cl 5.10(4), is not significant, and that there are no heritage matters that warrant the refusal of the application.

44. I concur with the conclusion of the experts and I am satisfied that in accordance with cl 6.7, Development on River Front Areas, that the visual impact of the development meets the objectives of the control and is appropriate.

45. On the basis of the above I am satisfied, subject to the conditions proposed, that the developments impact on heritage, character and streetscape is acceptable.

Does the development meet the objectives of the controls?

46. The principal building form controls in LEP 2012 are cl 4.3 Maximum Height, and cl 4.4 Floor Space Ratio. The development complies with these controls. In addition to these clauses, the impact of the development on heritage and the scenic values of the area are addressed by clause 5.10 and 6.7. The evidence from the experts is that there is no detrimental impact on heritage, character or streetscape that would warrant the amendment or refusal of the application, and that the requirements of LEP 2012 are met.

47. DCP 2013 provides specific controls in relation to childcare centres. This part of the DCP has the following objectives:

(a) Encourage development of child care centres in appropriate locations that meet community needs.

(b) Ensure that child care centres are compatible with neighbouring land uses.

(c) Ensure that child care centres are located and employ high quality design in order to avoid health or safety risks to children and staff.

(d) Minimise potential adverse impacts related to noise, traffic and on-street parking which might affect residential areas and the environment or amenity of neighbouring properties.

(e) In residential areas, ensure that built form and landscape design of child care centres would integrate appropriately with the surrounding environment.

48. On the basis of the evidence of the experts these objectives are met by the amended proposal. As the proposed development is permissible in the zone, the concerns raised by the residents of a the lack of a demonstrated need for the facility and concerns in regards to the impact of the development on property values in the area can be given little weight in the assessment of the application.

49. Of concern to the residents was the applications compliance with the locational criteria for childcare centres (most relevantly (ii) and (v)) at cl 4.2.3 (b) of DCP 2013 as reproduced below:

Sites in the following locations, with the following characteristics, are not preferred for the development of child care centres:

(i) Sites that are located on arterial roads or near busy intersections.

(ii) Sites that are located as part of, or that are adjacent to, a residential flat building.

(iii) Sites that have been exposed to contaminated soils or buildings.

(iv) Sites that are located within 30 metres of an electricity transmission easement which carries lines equal to or greater than 132kV capacity.

(v) Sites within 300 metres of a mobile phone tower.

50. Evidence from the Councils was that the intent of (ii) was to minimise the acoustic impact of a child care use on adjoining residential dwellings, and the planning experts agreed that the intent of the control is to limit the number of neighbours to the use to reduce the potential for acoustic amenity impacts. In relation to (v) the evidence of the experts is that the tower in question is approximately 220m away and it is appropriate in the circumstances of the case to apply flexibility as the development meets the objectives of the control.

51. The relevant provisions of DCP 2013 are a mandatory consideration under s79C(1)(a)(ii) of the Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). However, the introduction of the provisions in s79C(3A) has mandated a more flexible approach to the matters the subject of dispute between the parties. As noted by Moore, SC in Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 at [68] section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards.

52. The DCP at cl 4.2.8 provides objectives and controls in relation to the amenity of neighbouring dwellings which adjoin a proposed child care centres. Objective (a) and (b) are the most relevant to these proceedings.

(a) Provide visual and acoustic privacy for nearby residents within their dwellings and private open spaces.

(b) Ensure that child care centres in residential areas would not generate unacceptable noise levels.

(c) Provide adequate sunlight to neighbouring dwellings.

(d) Maintain and enhance external and distant views.

53. The application proposes operating hours that are consistent with the requirements of clause 4.2.4, namely weekdays between 7:00 am and 6.30 pm.

54. At cl 4.2.5 the DCP provides controls in relation to the built form and appearance. The experts have concluded in their evidence that these controls are satisfied by the amended proposal, subject to amendments to fencing, and hedging at the interface with the public street.

55. Similarly cl 4.2.6 Landscaping requires that Child care centres in residential zones must comply with landscape controls that apply to the applicable zone. The objectives of this control are as follows:

(a) Preserve and enhance amenity and streetscape character of the surrounding neighbourhood.

(b) Ensure that new developments demonstrate a high visual quality.

(c) Provide attractive and natural environmental settings for future occupants.

As noted at [42] the landscape experts are agreed that, with these changes and subject to conditions, the proposal provides an acceptable landscape character and streetscape.

56. It is agreed between the experts that the proposal meets the internal planning and amenity controls for child care centres, required by the DCP at cl 4.2.7.

57. On this basis, I am satisfied that the development, subject to the conditions proposed, meets the objectives of the applicable planning controls.

Are the amenity impacts of the development appropriate?

Acoustics

58. The DCP at cl 4.2.8 provides objectives and controls in relation to the amenity of neighbouring dwellings which adjoin a proposed child care centres. Objective (a) and (b) are the most relevant to these proceedings.

(a) Provide visual and acoustic privacy for nearby residents within their dwellings and private open spaces.

(b) Ensure that child care centres in residential areas would not generate unacceptable noise levels.

(c) Provide adequate sunlight to neighbouring dwellings.

(d) Maintain and enhance external and distant views.

59. In their joint report the acoustic experts identified the following as the relevant acoustic issues for the assessment of the application:

1. Noise emissions from the operation of the proposed childcare centre potentially impacting residential or other sensitive neighbours;

2. Noise intrusion from traffic on the proposed childcare centre; and

3. Noise impacts resulting from traffic generated by the proposed child care centre.

- Impact on adjoining residential developments

In order to address these concerns the applicant under took additional noise logging to establish the relevant background noise at both the ground level, and at an elevation equivalent to the first floor of the adjoining residential units.

60. The relevant control is that the 15 minute noise level emitted from the site (including playground noise and indoor activity noise) shall not exceed the background noise by more than 5dB(A) at the assessment location (Exhibit 6).

61. The noise logging undertaken by the applicant results in the generation of the following noise criteria for the development:

62. Mr Tonin, utilising the sound power levels recommended by the Association of Australian Acoustical Consultants for different age groups of children playing, was able to provide the following prediction of noise levels at the nearest receivers. It should be noted that a negative result in the following table indicates that the predicted level is below the criteria of a 5dB(A) increase in noise.

63. These results assume the construction of the following boundary fencing to achieve the predicted levels at the specific receiver locations:

These fencing requirements are included in the proposed conditions of consent.

64. Mr Taylor, the expert for the Council concurs with the methodology and the conclusions of the acoustic report prepared by the applicant.

65. The experts concluded that the updated acoustic information and modelling adequately addresses the issues and provided the recommendations in Section 5 of that report are implemented, acoustic impacts at the most sensitive receivers are predicted to be acceptable (Exhibit 6). The recommendations are included in the proposed conditions of consent.

- Impact of traffic noise on the childcare use

66. The experts agree that the proposed fencing [64] will ensure that noise from traffic on Burns Bay road will comply with the requirements of the NSW Industrial Noise Policy for school playgrounds.

- Impact of traffic noise generated by the childcare use

67. As part of the additional modelling the report from Mr Tonin models the impact of the additional traffic generated by the development on residents in Martin and Figtree Street. The existing properties on Joubert Street were excluded given as the increase in noise levels at the facades of houses on Joubert Street will be insignificant given the contribution of existing noise from Burns Bay Road (Exhibit 6). The results of this modelling is included below:

As the increase is predicted at less than 2dB, the report concludes that the traffic noise impacts in local streets are acceptable. Mr Taylor, the expert for the Council accepts this conclusion.

68. No view loss, solar or privacy impacts are raised as a contention between the parties. On this basis of the above acoustic assessment, I am satisfied that the development, subject to the conditions proposed, meets the objectives of cl 4.2.8 of the DCP and is acceptable.

Traffic

69. In response to the contentions from the Council, the applicant undertook additional modelling of the impact of the development on Martin and Figtree Streets. This included surveys in the AM and PM peak to establish the base case scenario for the current traffic volumes. The modelling was then conducted on an assumed distribution of traffic to and from the development of 50% to Martin Street and 50% to Figtree Street.

70. Applying the Roads Maritime Services NSW Guide to Traffic Generating Developments (RMS Guidelines), the report found that both Martin Street and Figtree Street have modelled traffic volumes that are within the guideline of 200 vehicles per hour, for local roads. The traffic impact assessment concluded:

71. Council’s traffic expert, Mr McLaren advised the Court that he accepted the methodology, outcomes and conclusion of the traffic impact assessment.

72. The traffic assessment was completed when the application proposed 98 children and 17 staff. As a result of the amended plans the proposal has reduced the capacity of the centre to 88 children and 14 staff. As a result I can comfortably conclude, on the basis of the evidence, that the impact of the development on traffic will be within the RMS guidelines and appropriate.

73. The development provides sufficient on-site parking to meet the Councils requirements for on-site parking, with a short fall of 1 space. The development proposes to remove the redundant driveway crossing at 22 Joubert Street, resulting in a net gain of one on-street parking space. The Councils expert has provided evidence to the Court that in accordance with cl 5.3.3 (e) of DCP 2013 the use of this space is acceptable on the basis it is utilised for staff. This is incorporated in the proposed conditions as follows:

74. The application proposes operating hours that are consistent with the requirements of clause 4.2.4, namely weekdays between 7:00 am and 6.30 pm. No objection is raised by the parties to the imposition of these hours.

75. In addressing the Court the residents raised concerns in relation to the proposed waste management of the facility. The future operation of the centre is addressed, in part, through the Plan of Management (Exhibit F) which would form part of any consent. In relation to waste management this requires daily waste removal to the waste collection area provided on the lower ground floor. In the draft conditions Council requires additional information on the generation and collection of waste to ensure the frequency of collections is appropriate. This condition, extracted below, requires an updated waste management plan, including:

76. At s80A(1) the Act provides the power to impose such a condition, and other conditions detailed in this judgement. However given that the scope of changes proposed by the draft conditions, and the importance of the conditions to the satisfactory operation of the facility, I find that it would be more appropriate that this information be provided prior to the determination of the application.

77. I accept evidence of the experts and I am satisfied that the development, subject to the conditions proposed, will have no impact on the amenity of the residents within the vicinity of the site that would warrant the refusal of the application.

Is the relationship of the development to existing infrastructure appropriate?

78. The potential impact of basement excavation on the adjoining properties was raised by residents. This has been addressed by the Council by the imposition of conditions requiring the preparation of dilapidation reports for the adjoining properties, and the application of bonds to provide security to ensure the development is constructed in accordance with the consent.

79. As identified at [11] residents expressed concerns regarding the proximity of the proposed childcare centre to the mobile phone tower located in the vicinity of Ryde Road and Howard Place. It was estimated by the experts that the facility is located some 220m from the site. DCP 2013 has a preferred distance of 300m from such a facility. Council does not raise this as a concern and the experts provided evidence to the Court that there is no clear evidence of any safety risk, and the proposal meets the objectives of the DCP control in relation to locational criteria.

80. At the onsite hearing residents raised concern in regards to the potential impact of the construction works on an underground Fuel/ Gas line in proximity to the site. The applicant tendered a plan from the service Dial Before You Dig (Exhibit G) which indicates that the pipe is contained within Figtree Road and traverses Joubert Street north of the subject site, therefore being outside the influence of any construction works related to the proposal.

81. I accept evidence of the experts and I am satisfied that the development, subject to the conditions proposed, satisfactorily addresses existing infrastructure.

Conclusion

82. I have reviewed the comments made by experts, and their agreement, and I am satisfied, subject to the proposed conditions (Exhibit 9), that they appropriately consider the issues raised by the contentions and the appropriate planning controls and I accept their conclusions.

83. On the basis of the evidence provided I find that the impact of the development on heritage, character and streetscape is acceptable, the development meets the objectives of Councils planning controls, and does not have an unacceptable impact on the amenity of the proximate residents.

84. In addition, in evaluating the development application I find that the amendments and conditions are appropriately responsive to public submissions and the potential impacts of the development [s79c(1) (b)(e)]. There are no material issues raised by the residents that remain to be considered.

85. For the reasons set out in the preceding paragraphs, I am satisfied that in accordance with the s79C of the Act, having considered the development control plan and relevant planning controls, and the submissions from the public, that there are no matters that would warrant the refusal of the application.

86. In accordance with s80 of the Act in determining an application, a consent authority can either: (a) grant consent to the application, either unconditionally or subject to conditions; or (b) refuse consent to the application.

87. Relevantly pursuant to s80A(1) of the Act the consent authority may impose a condition of development consent if:

(a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or

…

(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C(1), or

(g) it modifies details of the development the subject of the development application, or

…

88. Relevantly s80(4) requires that conditions are expressed in terms of outcomes or objectives and requires conditions to expressed in a manner that identifies both of the following:

(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,

(b) clear criteria against which achievement of the outcome or objective must be assessed.

89. The proposed conditions identify a number of matters that require further attention by the applicant by way of amended plans and documentation. Given the importance of these issues, their scope, and their relationship to concerns raised by the residents it is important to achieve the certainty sought by s80(4) on the development to be approved by the Court.

90. Having reviewed the agreed conditions (Exhibit 9), I find that the outcomes of the development would be more certain if the changes proposed by the conditions are made to the application prior to the grant of consent.

Directions

91. The applicant is to amend the proposal to:

1. Update the development application, ensuring that the documentation is internally consistent, to incorporate the changes detailed in:

1. Conditions of Consent Part B Condition 1 (page 6 of Annexure A); and

2. Any agreed recommendations and changes outlined in the expert reports tendered in the proceedings.

2. The applicant is to file and serve the amended plans no later than February 13 2017.

3. The respondent is to file, no later than two weeks after the filing of amended plans, amended consolidated conditions of consent, including:

1. any agreed conditions outlined in the expert reports tendered in the proceedings; and

2. updating the revision numbers of the amended architectural drawings and supporting materials in condition 1.

4. Orders will be made in chambers.

Addendum made on 24 February 2017

92. In accordance with the directions in my judgment of 20 December 2016, on 23 February 2017 the parties provided me with agreed amended conditions of consent and amended plans. I am satisfied that the conditions of consent and amended plans accord with my findings and accordingly I make orders in chambers as follows:

93. The orders of the Court are:

1. The appeal is upheld;

2. Consent is granted to Development Application No. 2016/1073 for the demolition of existing structures and the construction of a single-storey and basement building to be used for a childcare centre with a maximum capacity for 88 children and 14 staff. Lot A and Lot B in DP382736, subject to conditions in Annexure A and the amended plans in Annexure B.

3. The exhibits are returned with the exception of A and 1

…………….

D M Dickson

Commissioner of the Court

192136.16 Annexure A (C) (104 KB, pdf)

192136.16 Annexure B (12.1 MB, pdf)

Amendments

24 February 2017 - Addendum made on 24 February 2017

Decision last updated: 24 February 2017