Huntington and MacGillivray v Strathfield Municipal Council

Case •

[2005] NSWLEC 391

•

05/26/2005

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION:

Huntington & MacGillivray v Strathfield Municipal Council [2005] NSWLEC 391
PARTIES:

APPLICANT
Phillip Huntington

RESPONDENT
Strathfield Municipal Council
FILE NUMBER(S):

10615 of 2004
CORAM:

Murrell C
KEY ISSUES:

Development Application :- Childcare centre for 76 children - streetscape - parking - noise - residential amenity
LEGISLATION CITED:

Strathfield Planning Scheme Ordinance
Draft Strathfield Local Environmental Plan 2003
Development Control Plan for Childcare Centres No. 18
State Environmental Planning Policy No. 55
Development Control Plan No. 8
DATES OF HEARING: 10-11/03/2005 and 26/05/2005
EX TEMPORE JUDGMENT DATE:

05/26/2005
LEGAL REPRESENTATIVES:

APPLICANT
Mr M Ball, town planner

RESPONDENT
Mr A Seton, solicitor
SOLICITORS
Marsdens Law Group


JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Murrell C

      26 May 2005

      10615 of 2004 Huntington and MacGillivray v
      Strathfield Municipal Council

      JUDGMENT

1 This is a verbal judgment for an appeal against Strathfield Municipal Council’s refusal of a development application for the property known as 35-37 Mintaro Avenue, Strathfield, on the corner of Cross Street, the site is on the north-eastern corner and comprises two residential allotments. The corner allotment is a vacant allotment, and the adjoining property has a two storey dwelling house erected that is proposed to be demolished for a childcare centre containing basement parking for eleven vehicles, and a childcare centre at ground floor, and a caretaker’s residence flat at the second level to Mintaro Avenue.

2 The site is relatively flat, sloping some 2 m from the north to the south, and the area can generally be described as a low density residential area with tree lined streets. The area is currently undergoing change with the erection of many new dwelling houses, or alterations and additions to dwelling houses, still maintaining a low density residential feel, and with vegetation or landscaping for the new residences, as well as the existing residences in the area.

3 The statutory planning framework and controls under which I must consider the development application include the Strathfield Planning Scheme Ordinance that zones the subject site Residential A. The proposed development is permissible with consent, being identified or defined as a childcare centre. The relevant provision in the Plan is cl 41B which states that the council shall not grant consent unless it is satisfied that any proposed building will be compatible with other development that is proposed, or likely to be carried out, in the vicinity. And C, any proposed buildings will be unlikely to adversely affect the amenity of existing residential development by way of overshadowing, overlooking, noise, hours of operation or otherwise.

4 The Draft Strathfield Local Environmental Plan 2003 maintains the same zoning for the subject site although there are additional aims and objectives. The objectives of the draft Plan include:

          (d) to maintain and enhance the existing amenity and quality of life.
          (e) to ensure new development is compatible with the designed future character.
          (f) to protect the environment and the areas from inappropriate development and
          (k) to ensure development embraces ESD quality urban design, public and private safety.

5 The general provisions and objectives of the plan must be taken into consideration when determining a development application, as identified in cl 12. The Residential 2A zone has a number of objectives, and those of particular relevance include:

          (a) to nominate established areas where a predominantly single dwelling house character should be maintained and reinforced.
          (c) To ensure all development (including alterations and additions) is compatible with the scale, density, urban design, streetscape and landscape characteristics, and respects the amenity of residents.
          (d) to provide opportunities for non-residential activities and development which is of the type and scale compatible with the surrounding environment and does not detract from the residential amenity.

6 The Development Control Plan for Child Care Centres No. 18, Strathfield provides further guidelines for childcare development, and the purpose of the DCP is to encourage development that is sympathetic to the streetscape, appropriate for the surrounding built and natural environment, having a minimum impact on surrounding land uses, and are functional and economical. It is also noted in the DCP reference is made to the Department of Community Services requirements, that they are not necessarily reiterated in the document.

7 The specific objectives include:

      • to ensure childcare centres are compatible with neighbouring land uses,
      • to ensure the amenity of adjoining neighbours is retained, including protection of privacy, access to property, and is not detrimentally affected by noise emissions.
      • to ensure childcare centres are located with adequate convenient and safe parking for visitors, but do not impose on any residential neighbourhoods or commercial areas.
      • to ensure that childcare centres integrate into existing residential environments, and are unobtrusive in terms of size, bulk and height, and the amount of landscaped area provided.

8 The overall aim is to achieve childcare centre development within the municipality which is attractive and sympathetic to the streetscape, and appropriate for the surrounding and built environment.

9 The DCP also provides for guidance in terms of what is required in the submission of a development application for a childcare centre. There is a requirement for a site analysis and design principles with the objectives of:

      • to ensure that the site layout and building design consider the existing characteristics, opportunities and constraints, and to ensure the development is of high visual quality.
      • to ensure that a childcare centre is compatible with the bulk and scale and height of existing buildings, and
      • to ensure the amenity of neighbours is maintained.

10 The site requirements are a minimum of 1000 sq m and the subject site is certainly compliant in this regard. The proposed site is some 1352 sq m, having a frontage to Mintaro Avenue of some 27 m, and a boundary to Cross Street of some 50 m. The DCP also has requirements for traffic parking and access, to ensure that the relationship between childcare centres and adjoining land uses are favourable in terms of parking traffic and vehicular access, and to ensure that a childcare centre is safe for children. The parking requirement is one space per employee, one visitor space per eight children or part thereof and two additional parking spaces provided for any associated residents. The centre should also be designed to allow safe drop off and collection of children, and safe movement and parking of staff, parents and visitors. Five, parking spaces and vehicle access points are to be located to ensure safe movement of children to and from the centre, standing areas for the dropping off and collecting of children to be provided, access in a forward direction.

11 The DCP also has guidelines with an overall height of 9.5 m, the proposed development is compliant in this regard as well. For the protection of neighbours from excessive noise, there are a number of guidelines in respect of noise, and outdoor play areas, includes landscaping and fencing to be designed to provide a noise barrier and privacy.

12 The other development control plans referred to during the proceedings include DCP 21 which relates to dwelling houses. There was some discussion as to whether in fact this was relevant. The dwelling house DCP provides the controls contemplated for residential development in this 2A zone. However, the mere fact of the development having a residential component of a unit does not in my opinion mean that the dwelling house DCP is one that should be applied. Development Control Plan No. 23 relates to the development of contaminated land and there is a small portion on the site.

13 It is noted that the development application was originally submitted to the council in December 2003 and council refused the DA in May 2004 on the basis that the proposed development was unacceptable in terms of noise, setbacks, traffic generation, incompatibility with the surrounding residential area, and land contamination. A statement of issues was also provided to the proceedings, that in many respects reflects the determination of council, that is the impact on the residential character of the area, the bulk of the building, traffic and parking, and the issue of contaminated land.

14 Evidence was given to the Court by a number of experts. The Court appointed expert for noise was Mr Cooper, a consultant acoustic engineer. Mr Long, consulting town planner, provided evidence on behalf of the applicant and Mr Brown, a consulting town planner, provided evidence on behalf of the respondent. Mr McClaren a traffic engineer provided evidence on the issue of parking and traffic on behalf of the applicant. Joint reports were also provided to the Court. The planners did not agree with respect to the impacts of the proposed development on the streetscape. There was agreement with respect to solar access and the proposed development being adequate in this regard, and the experts were of the opinion that in terms of State Environmental Planning Policy 55, the contamination of land, that they agreed that the remediation post excavation could be dealt with by way of condition.

15 The Court had the benefit of a site inspection carried out in the presence of the parties, and also heard from a number of resident objectors. There were some 50 residents present at the site inspection, and a number of people spoke on behalf of the residents. It is noted that there were a number of objections when the application was first submitted, and also when it was amended and the Court has the benefit of those objections in the council’s bundle.

16 The issues of the residents related to the character of the area, the impact of the proposal in terms of traffic and parking generation, the issues such as crime also were raised by the residents.

17 The best practice guidelines of the Department of Community Services on early childhood physical environments is also a guideline, that applicants in providing childcare facilities must take into consideration. This is not a binding document on the Court. Nonetheless it does provide for guidance and best practice, and I consider it an appropriate and relevant matter to take into consideration. This guideline include parking and traffic factors that need to be carefully considered such as:

          Potential provision of drop off areas on the site, with associated short term parking for no more than 15 minutes; parking patterns that allow for vehicles to be driven in a forward direction when entering and leaving the premises; sufficient off street parking for employees and parents; and minimum frontage to accommodate entry and exit driveway; and development should work towards minimising this impact through sensitive design.

18 It is noted that in terms of carparking and site access, at page 33, the best practice guidelines state “car entries and exits from the carparking site should be from two separate points to allow for a steady flow of traffic.” I also note that there is a provision, that states: “variations could include two minute street side pick up and drop off zones, and tandem parking for staff.”

19 While the Department’s guideline is a relevant matter to be taken into consideration, the statutory planning framework and guidelines are those articulated by the council in terms of its LEP and its Development Control Plan No. 18.

20 I will say at this point in my judgment that the development application, in my assessment, fails, and it fails for a number of reasons which I will provide greater detail. In summary I have concluded that the application fails in terms of the presentation in the streetscape. In this regard the need for a solid fence to Cross Street of some 38 m in length, albeit with articulation for planting, and the 12 m return to Mintaro Avenue is out of character.

The design of the building


21 Clearly the area is changing including modern architecture. However, the design of the subject proposal in my assessment is not one that relates well to the residential area in terms of its bulk, in terms of the length of the facades, and it has the appearance rather than being a residential building within the area, one that is more institutional or commercial. Clearly the zoning does allow childcare centres and childcare centres should be accommodated where they can harmoniously co-exist in a built form and in terms of impacts that may be created. There is a need for the high fence to the corner street because of the number of children therefore the intensity of the development with some 76 children, that is 36 two and three year olds and 44 and five year olds, require a longer and greater use of outdoor playing areas with greater numbers than many smaller child care establishments. Therefore there is a need for the solid fence in terms of maintaining residential amenity, in particular for the property to the west of the subject site, and to the south of the subject site. And I will detail the noise matters as well that were clearly articulated to the Court by Mr Cooper in his assessment of the application.

22 I will first of all go to the issue of noise. The issue of noise is something that arose in terms of what would be an appropriate noise level. The Court has had the benefit as I said of Mr Cooper’s report, and I agree that background plus ten dB(A) is appropriate for Child Care Centres, having regard to the fact that generally noise is intermittent and for limited periods. There are no noise controls in terms of the council’s policies, and I agree with Mr Cooper. In his experience he considers that background plus ten is appropriate for a childcare centre rather than background plus five, which is the normal requirement for industrial commercial noise. Mr Cooper in his report in terms of the design of the building, states that whilst the subject building may provide acoustic shielding to residential premises to the north and east of the subject site, there would be minimal acoustic shielding to the residents on the opposite side of Cross Street to the west, particularly as the dwelling under construction is a two storey dwelling.

23 Where Day Care Centres are located in residential areas and immediately abut residential premises, generally the provision of background plus 10 dB(A) requires the provision of barriers set in from the boundary fence, where such barriers may extend to a height of 2 to 2.5 m. In such cases the visual impacts of barriers and appropriate landscaping have tended to govern the practical implementation of acoustic controls. He goes on to state that in the absence of any specific criteria from Strathfield Municipal Council for Day Care Centres, I am of the view that the appropriate acoustic design is ambient background plus 5 dB(A) for mechanical plant and noise from activities inside the Day Care Centre, and ambient background plus ten for outdoor activities, where the total period of outdoor activities is no more than 1.5 hours per day, such acoustic goals are applied at residential boundaries. For dwellings having more than one floor, then the criterion is applied in the position 1.5 m above a balcony or 1.5 m above the floor level for an open window. For a lower noise level the time period of outdoor play could be increased. For example on a logarithmic basis a goal of background plus seven would apply for a total outdoor play time of three hours. He states he does not see the road traffic noise is an issue in this case but his assessments were based on the applicant’s advice of a maximum of 20 children at any one time in the outdoor play area and he used this number of children in his analysis of noise emission from the outdoor play area on the western side of the development. For the nearest residential boundary (across Cross Street to the west) he determined that the centre of the play area to the ground level boundary Leq contribution of 46 dB(A) on the basis of a 1.8 m high colorbond fence. And this is under the criterion of background plus ten which would be 50. For the first floor level of the residence west of the play area he determined an Leq of 51 which marginally exceeds. The residents to the south and east of the site would be subject to additional distance, and the nearest residential premises to the west, and as those residences are single storey, then compliance with the design goal for the outdoor play area would be achieved.

24 For the residential boundaries to the north Mr Cooper is of the opinion “there will be a significant degree of acoustic shielding provided by the proposed building and compliance with the outdoor area. The plan attached to the development application indicates a picket fence, and therefore it is necessary to provide a condition specifying a colorbond fence.” (This was subsequently an amended plan by the applicant and a masonry fence of 1.8 m is now proposed). He used the concept of background plus 10 for outdoor play areas and states that this takes into account the social and community benefits of such facilities, and the non-continuous nature of noise for outdoor play areas.

25 It was clear when the matter was considered in Court with the proposed 76 children at the centre, there will not only be longer periods of the day when children would be at play but greater a number of children at the one time. There was a great deal of discussion about “free play” and in Mr Cooper’s report he acknowledges that private day care centres generally have greater supervision and are less noisy than council day care centres. But the same time the number of children at play in the morning for the two and three year olds will be 36 children for one and a half hours in the morning from 8.30 to 10.00. And for four and five year olds outside would be between 10 and 11, that is 40 children. In the afternoon the two and three year olds between four and five and the four and five years olds between 2.30 and 4 pm which gives a total of five hours outside. He then provided further assistance to the Court in terms of the dB(A) and how the dB(A) can be reduced.

26 For the background plus 10 this equates to one and a half hours play time. Twenty children at play would be three and a half hours per day, forty children would be two hours per day. If the barrier was increased to 2.3 m, then the number of hours could also be increased.

27 In some situations it is appropriate that the height of barriers be increased, and each site needs to be considered on its merits in terms of whether it is appropriate to provide higher barriers. In the circumstances of this case the play areas are located on what is ostensibly the current vacant lot on the corner and masonry walls would be required. It would be inappropriate to extend the height of these in a residential area for the extent required to provide the necessary attenuation. The overall appearance of the building in the streetscape, together with the fence, is the reason why the application fails.

28 The development application is one that provides for a Child Care facility to accommodate 76 children and this scale and intensity of development which not allow it to fit into the streetscape in an acceptable form in this residential area and there are clear controls in terms of development for this residential area. This is not to say that a Child Care facility must mimic a dwelling house, but nonetheless the scale of this development is one that is not appropriate for the location in the streetscape. This is also coupled with the issue of parking.

29 It is noted that Mr McClaren considers that there is sufficient off street parking for the proposed development, and there is sufficient on street parking to accommodate all the parents and carers collecting and dropping children to the Centre. Mr Brown is concerned with the kerbside parking and the temptation for U turns to be made and the concern of safety for children and other users of the road. Mr McClaren’s analysis clearly indicates that the road infrastructure can accommodate the proposed development in terms of the trip generation that is 31 trips generated peak hour for the arrivals, and twenty-seven trips generated for the departures, or the pick ups from the Centre. Council’s Development Control Plan is quite clear in terms of the provision of parking. And I do note in Mr McClaren’s report he assists the Court by providing us with the Roads and Traffic Authority guidelines. He identifies what the council requirements are and the application of council requirements results in the need for 21 spaces, nine for staff, two resident, and ten visitor. His position that the 11 staff and resident vehicles in the basement carpark is appropriate, because the streets can accommodate not only the numbers of traffic, but the availability of parking on street. In terms of the Roads and Traffic Authority’s guidelines he says that the following is stated:

          Off street parking must be provided at the rate of one space for every four children in attendance.

      This equates to 19 spaces for the proposed development. The RTA guidelines also state:
          Given the short length of stay the RTA surveys found an average length of stay of 6.8 m. Parking must be provided in a convenient location, allowing safe movement of children to and from the Centre. Consideration could be given to reducing the parking required if convenient and safe on street parking is available, provided that the use of such parking does not adversely affect the amenity of the adjacent area.

30 Mr McClaren also states that the application of the RTA guidelines requiring 19 spaces, “typically 50% of the parking is allocated for staff, and this is accommodated on-site. In regard to the 10 parent spaces, the RTA guidelines allows consideration to be given to reducing the on-site parking required if convenient and safe on street parking is available, provided that the use of such parking does not adversely affect the amenity of the area.”

31 In terms of the trip generations which I referred to earlier, the peak activity occurring, he says that this level of traffic activity equates to one arriving vehicle every three to four minutes in peak hours, and that parents’ vehicles will park either in Cross Street or Mintaro Avenue near the site, and tend to continue in the same direction of travel, due to the nature of the surrounding road network. This level of traffic activity will be readily absorbed by the adjacent road network with minimal impact in terms of traffic flow efficiency, road safety and residential amenity considerations. However in terms of the case of Zang v Canterbury City Council a judgment of the Chief Judge of New South Wales, one must have particular regard to the provisions of a development control plan and give them real genuine consideration in an assessment of development applications. I am not satisfied that it has been demonstrated that council’s requirement for the onsite parking for parents, carers, should be completely ignored by the provision of no parking. I have had regard to the RTA’s guideline which says that parking may be reduced, where there is sufficient on street parking. However, in terms of safe and convenient parking for an establishment of 76 children it would be inappropriate for the Court to grant approval to a development that provides for no off street carparking, and/or a drop off area for children.

32 The boundaries of the property in terms of Cross Street and Mintaro Avenue, according to Mr McClaren can generally accommodate the majority of the vehicles required, and the overspill in front of other residential properties is not an issue. While I agree there is no restriction on parking on public roadways outside other people’s homes and it is not the inconvenience to other residential properties as such but the appropriateness of allowing a childcare facility of this intensity without the provision of any drop off zone or any on-site parking for carers parents. I also understand that this is not a green fields situation, and one cannot always have the luxury of providing the maximum or ultimate number of carparking spaces. Nonetheless Strathfield Municipal Council has developed its own development control plan, cognisant of the requirements of its local government area which is not a green fields area. The development application does not provide for any on-site parking for carers and parents, and clearly this is a deficiency in the development application. And this, together with the impact of the development in terms of the streetscape and not being in character with the area, is the reason why the application fails.

33 The RTA guidelines clearly say that the amount of parking may be reduced. Yes, and it is appropriate in many circumstances where there is some on-site parking and a drive through drop off, pick up, zone, to have the number of carparking spaces reduced because there is accommodation of vehicles within the area or within the streets. However, this is not the situation presented here.

34 The issue of streetscape I should comment on further. Mr Long, on behalf of the applicant is of the opinion that the proposed development fits in with the streetscape in terms of the residential area, and it was also submitted on behalf of the applicant that schools and churches are also allowed in the residential zone, that is clear, but the development control plan states that developments for childcare centres must fit in with the residential nature and character of the area. Also the draft plan states this as well. That is to ensure childcare centres integrate into existing residential environments and are unobtrusive in terms of size, bulk, height, and amount of landscaped area provided.

35 The evidence given on behalf of the council by Mr Brown provides a discussion of the streetscape and I accept his comments. The area is predominantly detached housing on generally consistent sized allotments. It is apparent that the major influence in establishing character of this street is the size of dwellings, the lot sizes, and the set backs afforded to the lots, site coverage, and the location of open space. Redevelopment has occurred in the form of new detached dwellings being constructed, with a consistency in built form, in that they are generally two storeys in nature and built to front and side setback requirements, as specified in the Development Control Plan.

36 It is noted the setback of the proposal to Mintaro Avenue does not comply with the DCP for childcare centres which are more onerous than for dwelling houses, under the DCP 21. At the same time it does not comply with the setback requirements for dwelling houses, in particularly the front porch at the first floor level, or balcony is some 5 m from the street boundary, and there is an incursion in this regard, even though the setback of the walls is generally consistent with the existing setbacks within the street.

37 The other points that Mr Brown made in his report are that the proposed development is one that creates an atmosphere of a commercial type built form bulk and scale, that is inconsistent with the existing residential environment. And he considers that it is a poor fit within the streetscape. The proposed building has an unbroken wall length of 39 m along the eastern boundary and 22 m on the northern boundary and there are no other buildings in the immediate area that have such a massing of building along boundaries as this development. I recognise that there are some sites, in particular corner sites, that have been developed for dual occupancy development, but nonetheless they read as consistent with the residential character of the area.

38 Requirements for fencing is contained within DCP 21 that is to provide for consistency with fencing in this residential area and the proposal does not comply. As I said I have not assessed the application under DCP 21.

39 For the issue of State Environmental Planning Policy No. 55, that is remediation of land, there has been a preliminary assessment/report, on contamination. However, in terms of s 7 of SEPP 55:

          (a) a consent authority must not consent to the carrying out of developments unless it is considered whether the land is contaminated,
          (b) if it is contaminated it is satisfied that the land is suitable in its contaminated site for the purpose for which the development is proposed to be carried out.
          (c) if the land requires remediation to be made, suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

40 In my interpretation of SEPP 55 that in terms of cl 7, I must be satisfied that the land is capable of being remediated for the purpose and it is not something that can be left to another day. This has not become determinative in my assessment because the application fails on other grounds, but in terms of SEPP 55 and having regard to the use of the site as a Child Care Centre, I am of the opinion that the proposed site would require further works to be carried out. As I said the decontamination of sites is not a matter that a consent authority can leave to another day.

41 Childcare centres must be assessed against council’s planning regime of its Local Environmental Plan and Development Control Plan, and in the circumstances of this case I am not satisfied that the site of the proposed development to provide a childcare centre of 76 places, and the intensity associated with same, is appropriate for the development.

42 Therefore the formal orders of the Court are:

          1. The appeal in respect of the property known as 35-37 Mintaro Avenue, Strathfield, is dismissed.
          2. The development application submitted to Strathfield Municipal Council and as amended is determined by the refusal of consent.
          3. The exhibits are returned.

___________________

      J S Murrell
          Commissioner of the Court

      rjs

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