Ibrahim v Rockdale City Council

[2007] NSWLEC 739

Land and Environment Court

of New South Wales

CITATION:

Ibrahim v Rockdale City Council [2007] NSWLEC 739

PARTIES:

APPLICANT
Alex Ibrahim

RESPONDENT
Rockdale City Council

FILE NUMBER(S):

10371 of 2007

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- Demolish an existing house and erect a child day-care centre for 56 children and basement carpark, noise nuisance, basement carpark layout, character of zone and locality, bulk, residential amenity, carparking.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Rockdale Local Environmental Plan 2000
Development Control Plan No. 31 - Child Care Centres Parking and Loading Code
Stormwater Design Code I Draft DCP 66 - Management of Flood Risk

DATES OF HEARING:

20/09/2007 and 21/09/2007

 
DATE OF JUDGMENT: 

9 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. Gough, solicitor
of Storey & Gough

RESPONDENT
Mr J. Cole, solicitor
of Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

9 November 2007

10371 of 2007 Alex Ibrahim v Rockdale City Council

JUDGMENT

1 This is Class 1 Appeal No. 10371 of 2007 between Alex Ibrahim and Rockdale City Council in regard to the refusal to demolish an existing house and erect a child day-care centre for 56 children and basement carpark at No.111 Mimosa Street, Bexley.

2 The proposed age breakdown of children is:

10 children - 0-2 years
19 children - 2-3 years
27 children - 3-6 years

3 Vehicular access to the basement is provided via a double driveway hard against the eastern boundary adjoining No. 109 Mimosa. Pedestrian access to the centre is via a pathway located parallel to the driveway through the front lawn.

4 The basement has capacity for ten (10) carparking spaces, including four staff stacked spaces and a disabled car space. A lift provides access to the ground and first floor levels above.

5 The ground floor level consists of two indoor play areas having capacity for 46 children. The kitchen, an office, a disabled toilet and children's bathroom are also located at ground level. Two elevated terraces are located at the rear off the indoor play area at two different levels stepping down the hill slope.

6 The indoor play area at first floor level has a capacity for 10 children and also contains a staff room, cot room, nappy change room and laundry. An outdoor terrace/balcony area is located at the rear to provide outdoor play space for the children.

The Site.

7 Street Address: 111 Mimosa Street, Bexley.

8 Location: The site is located on the south-western side of Mimosa Street, approximately 75 metres from the intersection with Stoney Creek Road, Bexley.

9 Lot/DP: Lot 23 in DP 3579.

10 Dimensions: The site is a rectangular shape having 15.24 metres frontage to Mimosa Street and a depth of 56.39 metres.

11 Site Area: The total area of the site is 859.4 sq.m.

12 Topography: Irregular. The site slopes to the rear. There is a slope along the northern side boundary of approximately four (4) metres to the rear.

13 Vegetation: Three major trees are located within the site. A Eucalypt tree situated at the rear of the property is in average condition. A Jacaranda located at the rear and a Frangipani situated adjacent to the side boundary at the front are in excellent condition.

The Locality

14 Mimosa Street is characterised by low and medium density residential development of diverse styles.

15 The street extends approximately 930 metres from Forest Road on the south-eastern side to Stoney Creek Road on the south-western side. Whilst most of Mimosa Street is zoned for medium and low-­density residential development, the properties in proximity to Forest Road are zoned Light Industrial and Neighbourhood Business under Rockdale Local Environmental Plan 2000.

16 A childcare centre with capacity for 58 children has been recently approved by Council at 8 Mimosa Street, Bexley and is currently under construction.

17 Adjoining the subject site is a two storey single dwelling to the south and a villa development containing seven (7) dwellings to the north. Adjoining the site at the rear is a dual occupancy development. Opposite the site on Mimosa Street are single dwellings.

Statutory Controls

18 Rockdale Local Environmental Plan 2000 (RLEP 2000)

Clause 12- Zone objectives and controls
The site is zoned 2(b) - Villa / Townhouse Residential Zone under RLEP 2000.
Child Care Centres are permissible with development consent. The objectives of Zone 2(b) - Villa / Townhouse Residential are:
(a) to encourage a variety of housing types, including low and medium density housing, and
(b) to facilitate diversity in the forms of residential housing by allowing in certain areas either mixed medium density housing (comprising both single storey and two storey housing) or two storey medium density housing, and
(c) to allow certain non-residential development which is compatible with the density of the zone and does not detrimentally affect the character and amenity of the area.
Clause 31 - Height
The Council is not to consent to the erection of a building if the height exceeds two (2) storey above ground level on land Zoned 2(b).
The relevant definition is:
"Storey" means the space within a building between one floor level and the floor level next above or, if there is no floor level above, the ceiling of roof above, but does not include:
(a) space used for the car parking, laundries or storerooms, if the ceiling above the space is not more than 1 metre above natural ground level, or
(b) attic space which is part of the dwelling immediately below and is incapable of being used as a separate dwelling, or
(c) plant rooms.
Clause 34- Floor space ratio for certain buildings
The Council is not to consent to the erection of a building (other than residential development) in the 2(b) Zone if the floor space ratio exceeds 0.6:1.
Development Control Plan No. 31 - Child Care Centres Parking and Loading Code
Stormwater Design Code I Draft DCP 66 - Management of Flood Risk

Breach of height control
A Section has not been provided to verify the height of the ceiling at basement level to ascertain that the building is not more than two storey high at any point.
Failure to satisfy zone objective
The proposed development is not considered to satisfy the relevant objective of the 2(b) - Villa/townhouse Residential Zone, as required by clause 12 of Rockdale Local Environmental Plan 2000 , as the application will affect the amenity of the area by reason of noise, visual and privacy impacts. An amended traffic assessment report has not been submitted to allow consideration of parking and traffic issues by the Rockdale Traffic Development Advisory Committee (RTDAC).
Failure to comply with Childcare Centres DCP 31
The proposal fails to comply with objectives 4 (ensure sites are appropriate for the child care centre purpose), 5 (identification of appropriate locations for child care facilities), 6 (minimising impacts from child care centres on surrounding residential areas) and 8 (ensuring that centres are not located or designed so as to pose a safety risk to children) as contained at clause 1.8 of Development Control Plan 31 - Childcare Centres.
The proposal fails to comply with the following clauses of DCP 31:
Clause 2.1 Height, bulk and scale
The proposal does not comply with objectives 2 (ensure a high standard of environmental design, by providing child care centres that integrate with the existing character of the streetscape), 3 (ensure child care centre minimise impact on adjoining communities), 5 (ensure a high visual standard is achieved) and 6 (provide facilities with an appropriate size, scale and bulk so as to be sympathetic to surrounding development) of clause 2.1 of the DCP, and requirements a (design sympathetic with existing streetscape), b (orientation of building should preserve amenity), e (adequate screening required for privacy to adjoining properties), f (two storey height limit), g (parking and vehicle access to ensure safe movement of children), and h (children under 2 years located on ground floor for access and safety) of clause 2.1 of the DCP.
Particulars
The scale and bulk of the proposal is antipathetic to adjoining development. The lack of side setbacks increases the perception of bulk, and the lack of space within the front building line for suitable landscaping further contributes to an overdeveloped sense of built form, which in uncharacteristic in that location.
The proposal also produces unacceptable overshadowing, noise and privacy impacts to 109 Mimosa Street.
The proposal produces unacceptable privacy and noise impacts to development at 113-117 Mimosa Street.
The cot room and nappy room are located on the first floor.
The majority of visitor parking is located at the western end of the basement, whereas the access lift is near the eastern end of the basement, thus producing increasing risk of vehicular conflict with pedestrians, including small children.
Clause 2.2 Parking and Vehicular Access/Requirements
The proposal does not comply with objectives 1 (provide adequate parking on site to avoid inconvenience to the occupants of nearby buildings) and 2 (provide safe parking and manoeuvring which ensures safe set down and pick up of children) of clause 2.2 of the DCP and requirements b (separate pedestrian access from motor vehicles by safety fencing and gates) c (provide a one way drive through arrangement with separate ingress and egress) e (line mark and sign post all parking and manoeuvring areas) g (design to allow safe drop off and collection of children) and I (number of stacked car spaces not to exceed 2) of clause 2.2 of the DCP.
Particulars
No amended traffic study has been provided to show compliance with objectives and requirements.
The location of the basement visitor parking requires traversing most of the basement to access the lift. The pedestrian access is not separated by safety fencing and gates
The staff parking is a stacked arrangement involving four car spaces.
Clause 2.3 Siting and Location
A child care centre with capacity for 57 children is under construction at 8 Mimosa Street, Bexley in proximity to the subject site. This suggests a concentration of such uses within the street, contributing to a decline in residential uses, and thereby occasioning an impact upon the character of the area. The proposal therefore does not match the description at clause 2.3 of the DCP
The site is surrounded by residential properties and has a significant slope to the rear. The location of outdoor play areas at the rear, at first floor level and raised approximately 1.5 metres from the natural ground level creates amenity impacts to the surrounding residential properties. Requirement r (minimise impacts of overshadowing upon adjoining properties) is breached.
Particulars
The shadow diagrams provided indicate excessive shadow upon 109 Mimosa Street.
Clause 2.4 Physical Suitability of the Building
The layout of the building, which includes extensive outdoor areas at the rear at first floor level and at approximately 1.5 metres from natural ground level, creates amenity impacts to surrounding properties, and is therefore in breach of objective 2 (design must be sensitive to its environment and be of high quality) of clause 2.4.
Clause 2.7 Landscaping and Open Space
A Landscape Plan has not been submitted. Landscaping, and its relationship to the proposal, remains an issue, particularly in relation to within the front setback, and to soften the perimeter of the building. The proposal is in breach of objectives 3 (provide visual quality) and 4 (screen activities to protect neighbour amenity) of clause 2.7 of the DCP.
Clause 2.9 Engineer Requirements
There is insufficient information provided to demonstrate compliance with this clause as indicated in items 4 and 5 below.
Clause 2.12 Noise
The recommendations of the submitted Acoustic Report are not supported for the following reasons:
The land contains a slope to the rear and the proposed outdoor play areas are located in the lower part at the rear, raised from the natural ground level. This creates opportunities for noise impacts as a result of the outdoor activities being amplified rather than effectively contained.
The proposed 1.8 metre high fence to be erected may not be sufficient in containing noise and minimising impacts to adjoining townhouse development.
Management and movement of 56 children within the indoor and outdoor areas will create noise impacts. The Plan of Management recognises that there will be a large number of children playing outdoors at several times during the day. The acoustic report fails to consider the proposed Plan of Management.
The noise emissions from external play areas rely on "noise management strategies", which may be difficult to implement in practice as the recommendations are based on staff directing children to quieter activities or rotating smaller groups of children for indoor and outdoor activities.
Noise measurements were taken from the property's street front boundary where influences from traffic noise along Forest Road may affect background noise levels. The main source of noise likely to affect neighbourhood amenity will be emitted from the outdoor play areas at the rear of the property.
Noise levels were conducted on only one day, which is not an indicative representation of the operation of the Child Care Centre.
Failure to comply with the Parking and Loading Code
The following information is outstanding to allow an assessment of the amended proposal against Council's Parking and Loading Code. Without the information below, Council is of the view that the proposal cannot be supported. Even in the absence of such documents, the basement carparking arrangements, with visitor parking generally at the western end of the basement, and the lift near the eastern end, is likely to create pedestrian conflict:.
An amended Traffic Impact Statement (Traffic Study).
Referral to the RTDAC.
An amended profile of the driveway and basement ramp. The profile shall start in the centre of the road and be along the critical edge (worst case) of the driveway. Gradients and transitions shall be in accordance with Council's Code. The profile shall be drawn to a scale of 1 to 25 and shall include all relevant levels, grades (%) and lengths.
Stormwater Management
Failure to meet the stormwater requirements of the S tormwater Design Code and Draft DCP 66 - Management of Flood Risk
The following information has not been submitted to allow an assessment of the proposed development against Council's requirements:
Amended stormwater drainage design plans for the discharge of all roof and surface runoff. The discharge location for all stormwater shall be interallotment drainage pipe at the rear, via an on-site detention system.
Amended stormwater drainage design calculations, to show that the drainage design has been undertaken in accordance with Council's Stormwater Design Code.
A stormwater drainage design certificate and completed checklist from Appendix G of the Stormwater Design Code.
Management of Flood Risk
An amended assessment of protection for the low level driveway. The assessment is required to be undertaken in accordance with Section 8 of the Council's Stormwater Design Code.
An amended flood study, for the assessment of overland flows through and adjacent to the property, undertaken in accordance with the Flood Advice Letter issued by Council on 4 April 2006.
Landscaping
An amended landscape plan consistent with the stormwater drainage design and the flood assessment model has not been submitted.
Suitability of the site
Under these circumstances, the site is considered unsuitable for the proposed development.
Matters raised by objectors
Matters raised by resident objectors include:
A. Increased traffic
B. Lack of parking
C. Increased noise
D. The existence of another child care centre already in the same street
E. Adjoining and nearby properties may create safety issues (bee hives, contamination, telecommunications facility)
F. Impact upon existing vegetation
G. Loss of privacy
H. Poor location of outdoor play areas for children
I. No rainwater tanks and bicycle racks
J. Oversized design

19 The respondents evidence came from:

• Mr E. Sabbah, resident objector of No.107 Mimosa.
• Mr T Stojanovski, resident objector of No.109 Mimosa the east-side neighbour.
• Mr R Grasso resident objector of No.103 Mimosa.
• Ms D Tomar, resident objector of No.86 Mimosa.
• Mr N Margeitis resident objector of No.84 Mimosa directly across the street from the site.
• Mr P Kostartakis resident objector of no.103A Mimosa.
• Mr M Ibrahim resident objector of #3-113-117 Mimosa in a townhouse western neighbour.
• Mr Z Mikhail, the resident objector of No.116A St Georges Rd had written in objection but could not attend the hearing. The respondent had obtained permission to view the proposal from No.116A.
• A considerable number of written objections had been received by the council from residents of Mimosa, St Georges, Unwins and Stoney Creek Roads.
• Mr G Atkins, consultant acoustic engineer.
• Mr J Milner, development engineer for the council.

20 The applicant’s evidence came from:

• Mr R Rahme, consultant civil engineer
• Mr B Marston, consultant acoustic engineer
• Mr C Hazell, consultant traffic engineer.
• A Statement of Environmental Effects by Ms N Nolan was tendered but she was not called for cross-examination.
• A peer review of the acoustic evidence was tendered from Mr N Koikas but he was not called for cross-examination.
• Ms I Ibrahim, senior university student in early childhood care and the Montessori School technique.

21 The site slopes down from Mimosa to a gully with a fall of about 4m. The gully has a large capacity underground pipe to carry stormwater towards the west. The southern side of the gully slopes up again to St Georges Rd. On the slope facing the subject site are a number of town houses, villa homes, dual occupancies and detached houses. No. 116A a battle-axe lot directly adjoins the rear boundary of the site with a rear deck about 4.5m from the boundary and the house about 6.5m from the boundary and a metre or so above the boundary level.

22 On the west side of the site is a medium density development of townhouses stepping down the slope. The walkway to the front doors of the townhouses adjoins the subject site, and each townhouse has a “front terrace” outside the front door. The development has a semi-basement carpark beneath these terraces and the townhouses. The private court of each townhouse is on the west side of that building. On the common boundary the fence-line has part of the basement wall above ground and then a fence above that.

23 On the east side of the proposal at No.109 Mimosa owned by Mr & Mrs Stojanovski is a large 2-storey house that overlooks the site. Its driveway adjoins the site boundary and comes downhill to a car courtyard and garages behind the main house. Adjoining the courtyard on the downhill side is a guesthouse, and below that lawn and just above and in the gully are vegetable gardens and a garden shed. There is a well in the garden for springwater irrigation. Along the common boundary with the site between the vegetable gardens and the carcourt are stone-fruit trees. A paling fence runs along the boundary.

24 On-site I was shown the well and the ground-water level only about 1 metre below the surface. Mr Stojanovski said in storms the gully still floods with water covering the whole of the vegetable gardens and reaching some distance up the lawn area.

25 This confirmed the respondents engineering evidence that the overland flows are classified as “a floodway” through the properties along the gully line. The original subdivision had not retained the gully as public land. Further evidence was the fence to the townhouses. It had been built to conditions of consent requiring the lower panels within the floodway to be open to 400mm above ground to allow floodwater to pass through, and there to be no change to the natural ground levels within the floodway.

26 This is important due to the proposed use of the lower parts of the site for outdoor recreation. As described above the indoor component of the day-care centre is on 2 levels with the basement carpark being a third.

27 On the downhill side of the main level is an elevated paved terrace, and below that another elevated paved terrace and below that again the back yard at natural ground level. All are proposed as part of the outdoor recreation area, and total about 275 sq m. The proposal has exterior stair and wheelchair lift access between each level.

28 The acoustic evidence centred around this use, and the fact that the many dwellings nearby up the slope of the gully on both sides and overlooking the terraces and back yard had direct line of sight to them. The acoustic problem for this juxtaposition is there are no acceptable options for acoustic barriers to prevent noise nuisance from 53 children playing in the outdoor areas. The hard surfaces of the terraces and the natural amphitheatre landform would reflect childrens’ calls, shrieks and play activity up to the residents.

29 The end result of the technical evidence on noise is to limit the children to six (6) only at a time in the outdoor areas, in order to keep noise nuisance for the residents to acceptable limits. Also any play equipment to be no higher than 400mm so they are less elevated.

30 Some of the concerns raised by the residents:

1. There is no right turn allowed from Stoney Creek Road (SCR) into Mimosa, and no right turn out of Mimosa, but a lot of drivers do it. The traffic to the play school will do that too, and cause safety risks. Drivers do the illegal turn at high speed to avoid oncoming traffic, and to avoid being seen and because the intersection is a splay not a right angle so more speed can be used.
2. To go east from the site the quickest route is back onto SCR, and many parents will be going on from drop-off to work in the east. If the basement carpark is full, or they do not want to use it, they will have to do a U-turn in Mimosa and the site is so close to SCR, the fast cars could collide.
3. Parking in the street is difficult, some commuters park from the site down to SCR and catch a bus on SCR, some houses have no garage or drive entry, most houses have more than one car. Several garages in the basement carpark of the town houses next door were seen to be full of stored furniture, so their cars park on the street too.
4. The proposal has 6 carspaces only for drop-off/pick/up, the residents think that will not be enough causing parents to use the already parked-out street resulting in more maneuvering, double parking, children crossing street etc with more safety risk.
5. Mr Stojanovski is concerned about:
• noise from children playing,
• overshadowing of his vegetable garden and fruit trees,
• the floodway danger to children,
• the large tree on the site said to be kept in the play yard is old with a lot of deadwood, it would be a danger to the children.
• He is a licensed bee keeper, and he is concerned of danger to kids who might be allergic to bee stings. His bee keeping should not be prejudiced due to any approval of the playschool, but it is almost inevitable.
• The basement carpark drive entry is beside his own driveway, there will be traffic movement constantly, maybe drivers using his driveway for extra room when 2 cars of the proposal are passing, maybe double parking across his driveway if the basement is full. It will effect both safety and residential amenity.
• The raised external decks of the playschool will overlook his backyard and guest house from close quarters, normal suburban privacy between neighbouring houses will be destroyed.
• He and his wife have worked hard for many years to build a nice home and lifestyle and it will be devastated.
• The basement will mean excavation right up to his boundary and will almost certainly crack his driveway and perhaps his house.
• The building is huge running 40m long over a 56m boundary length, it will be visually obtrusive as seen from his house and yard.

6 Mr Sabbah had experience with another child activity centre at the other end of Mimosa. It happens whenever the centre is open that there are cars double parked, children being dropped-off/picked-up, disputes between drivers, disputes with home-owners when cars park across their driveways. And at the other end of the street there is usually more parking available than at the subject site. The driveway to this proposal’s basement is commercial size double width, it covers half the width of the allotment and reduces landscaping. It will look and be commercial and will change the residential character of this end of Mimosa. One of his family is a shift worker and sleeps during the day, the activity will stop that. This is a lifestyle issue, homeowners are entitled to expect reasonable residential amenity.

7 Mr Grasso has lived 40 years in Mimosa. He had seen the increase in on-street parking, and the speed of traffic. The proposal is too big and will generate too much extra traffic and parking and congestion and possibly fatalities. There is a new play school being built at the other end of Mimosa, another exists in St Georges Rd, there are 7 playschools within a one (1) kilometre radius of the site. If another playschool is needed it should have a better site that can handle what it generates.

8 Ms Tomar agreed with the safety concerns about no right turn into or out of Mimosa. She agrees with the comments on existing parking congestion and the unacceptable impact of more parking caused by the proposal. She already has trouble parking outside her house due to other cars being there. Danger to children will result.

9 Mr Margeitis agreed with the comments by others.

10 Mr Kostartakis thought the basement parking design would be inconvenient to use and drivers would try to park on the street or driveways for drop-off/pick-up. His own young children come and go in the street and they will be endangered by the extra traffic. He agreed with comments about current driver illegal turns into and out of Mimosa from/to SCR. He noted even if drivers do the legal thing of approaching from uphill along Mimosa, they still have to do a U-turn to go back uphill after drop-off/pick-up and have the safety problem of speeding drivers.

11 On another aspect he is unhappy that there is a large telecommunications tower less than 100m from the site, and he held concerns for child health.

12. In regard to the other playschool on Mimosa, it is still under construction, so its impact on the traffic conditions is not yet tested.

13 On noise nuisance, he said the natural amphitheatre landform funnels noise to all houses nearby. The location of the proposal’s play areas guarantees noise nuisance to neighbours as he believes any efforts to keep children quiet while playing will not last long, and it is not good for the children to ask them to be quiet. He agreed with the safety concerns about the bee hives, and the existing old tree on the site.
14 Mr Ibrahim apologised for his poor English but indicated noise nuisance was his concern and that 56 children is too many.

31 Mr Milner and Mr Hazell gave evidence. They agreed the ten (10) basement carspaces exceeded council requirements, but they also agreed the maximum number of cars at peak drop-off/pick-up could reach 14. Only one on-street carspace would exist outside the site, so others would have to park in front of neighbours houses.

32 This did not allow for other activities of the playschool such as parents nights, seasonal functions (pantomimes, Christmas etc), interviews, parent interactive sessions with a child etc, when more cars would arrive and need on-street parking.

33 They agreed some parents may not use the carpark if it is inconvenient. Mr Hazel said the carpark works OK, Mr Milner disagreed. The evidence showed carspace No. 6 at the bottom of the ramp and carspace No. 5 at the side of the ramp would involve multiple turns to use, and entering or exiting drivers would have to wait while that occurred.

34 Mr Hazell thought drivers would have clear vision and be able to cope. Mr Milner said a side wall of the ramp would obscure some cars from an incoming driver until close to the bottom of the ramp. Also Mr Milner said an exiting driver needed to sweep across the wrong side of the ramp to make the turn to exit, and this could conflict with an entering car at the bottom of the ramp. Some manoeuvring would ensue, one or other would have to reverse possibly with other cars entering/leaving.

35 Parents are usually in a rush, that is why the RTA average for drop-off/pick-up is 6.8 minutes. Mr Milner though car park maneuvering would mean longer would be taken for drop-off/pick-up at this proposal, and slower turnover of parking spaces at peak periods would increase parking demand.

36 Mr Milner also noted that if all carspaces in the basement are occupied and one of the staff that is stack-parked wants to leave, the manoeuvre cannot be done with an 85%-ile sized car in the aisle. The second car would have to go part-way up the ramp so the staff car can manoeuvre.

37 Also he held the opinion that the “safe” pedestrian route marked on the plans to keep children away from manoeuvring cars is so circuitous no-one would use it. As a result kids/parents going to/from cars would mix with reversing/manoeuvring cars. The alleged “safe” route also went across the back of all of the 10 carspaces, meaning that cars had to reverse across the pedestrian route, that is not considered ”safe”. He said the Regional & Local Traffic Committee had made the same observations.

38 Mr Hazell agreed that carspaces 5, 7 and 10 did not comply with the size required in the applicable Australian Standard, they need to be enlarged.

39 I noted that the plans showed the basement retaining walls as 190mm thick and placed right on the boundary. There was no space shown for piling if needed and sub-soil drainage behind the wall, the latter being normal construction. Providing the extra space inside the boundaries would reduce the size of the whole basement and not allow enlargement of any carspaces, in fact they would all reduce.

40 Mr Hazell said that under council’s controls the development only needed 7 carspaces, so the basement could be reduced from 10 spaces to 7, and the carspaces could be enlarged to comply with the standard.

41 Mr Milner had checked records of traffic on Mimosa and a survey in 2006 found that although the speed limit is 50kph, the speed of 85% of cars is 67kph. There was no survey of illegal turns from/to Stoney Creek Rd (SCR).

42 On the floodway through the rear ground level play area of the proposal, Mr Milner said the accepted engineering standard of depth/velocity show it is “high hazard” in peak flood. The council playschool DCP says not to put playschools on high hazard land. He said in peak flood most of the rear ground level yard below the two terraces would be covered. He agreed it is where the deep water and fast flow occurs that danger occurs, and that would be near the back fence. He was concerned however that he had not seen cross-sections to go with Mr Rahme’s calculations to be sure of the accuracy.

43 Ms Ibrahim gave evidence on the intended management plan for the school to be run on the Montessori Technique. Dr Montessori was an Italian doctor, who about 100 years ago looked into children with special needs. Much of todays early childhood care arises from her research and practices.

44 For example, child size furniture, a wide choice of activities to stimulate the child and provide many ways to learn, development of concentration on tasks, games that expand vocabulary and sensory learning.

45 Ms Ibrahim said her management plan would follow these concepts and get children to focus on activities without running around chaotically whilst yelling and screaming at play. They are taught to be quiet and calm so as not to disturb other children concentrating on their tasks.

46 On the outside terraces there would be painting and clay activities, building blocks, small groups for reading or listening to teacher etc. There would be an “unwind” area for individual relaxation on the terrace above the rear yard, and only at that lower level would there be play activity.

Conclusion

47 I was taken up to the other end of Mimosa. The childrens activity centre referred to by Mr Sabbah is one of those climbing-maze fun centres for children up to say 10 years old. No details were available but it was closed at the time of inspection. Possibly it opens after school hours and on weekends and school holidays.

48 The new play school under construction has an industrial building at the rear and commercial zoning next door. There are few neighbours to effect with noise nuisance. In appearance it is more a commercial building, and there is a house in the commercial zone beside it that makes it look out of scale. One must presume the house will eventually be redeveloped as part of the commercial area. This playschool is not set low in an amphitheatre land form.

49 The proposal at No. 111 Mimosa, in the elevation drawing from the street appears more residential in scale and in proportion to No. 109. The differences arise from the double width driveway and ramp into the basement. The ramp takes up 6m of the 15m frontage with no space for landscaping down the side boundary. At the building the basement goes boundary to boundary but the playschool above it is setback 1.5m from each side boundary. There is planter vegetation provided in continuous boxes on the carpark roof as it steps down the site.

50 The building, as seen from the street is not such as would be unacceptable. It is the side elevation as seen from the neighbours that is large and continuous, as Mr Stojanovski says for 40m of the 56m side boundary. The rear ground level play yard is shown for “soft-fall” treatment, and the respondent submits that is rubber composite on top of concrete. So, virtually the whole site except for the small area of grass left at the front is hard surface, in a residential zone that requires landscaping. The landscaping control requires not more than 20% of landscaped area to be hard surface. The proposal is much more than that.

51 The tree, said to be retained, is obviously over mature and probably would not survive having “soft-fall” built around it.

52 The applicant put that the townhouse development on the west side is bigger and less attractive, and the Zone 2(b) permits residential flats, so that is the expected future character. The townhouse development is not particularly attractive so I would not expect it to represent the future character.

53 To me the zone allows a number of uses including 1- or 2-storey villas and townhouses, dual occupancies, places of public worship, hospitals and other uses mentioned in the statute. The objective of the zone requires that any non-residential use must be compatible with the density and not detrimentally affect the character and amenity of the area. The bulk of the building as seen from the Stojanovski property would give it an overbearing presence even though the design and articulation of the proposal is not unattractive. Less bulk is desirable.

54 In this proposal the evidence shows that:

• The carpark does not work in accordance with DCP No.31 from a car manoeuvring and pedestrian safety point of view. Due to construction requirements for the basement wall and sub-soil drainage it will probably have to be reduced in size and therefore provide 7 carspaces instead of 10. Even if 7 carspaces can be made to provide acceptable manoeuvring and pedestrian safety, and I don’t have that design before me, it means more drivers will have to park on the street.
• Neither party did a survey of on-street parking availability, so I have only the residents evidence for that. It would seem the proposal would make on-street parking amenity even less convenient than now.
• Given the evidence on speed of traffic in Mimosa, and the proximity to the corner with Stoney Creek Rd, and the evidence about illegal turns to/from SCR, and the evidence that for most parents assuming they wish to return the way they came a U-turn in the street is needed, I accept Mr Milner’s concern for road safety with 53-plus cars coming and going in morning and afternoon peak hours.
• In regard to noise nuisance, I note that the premises has to be air-conditioned and the carpark will need exhaust ventilation, but no evidence came on them. Whilst I could not make that sufficient for refusal it is a gap in knowing the likely impacts on residential amenity.
• The acoustic evidence on the external play areas is that although the area set aside for the children is required to be sufficient for 53, only 6 at a time can be allowed out, otherwise the noise nuisance to the neighbours would be unacceptable.
• The amphitheatre landform at the rear is obvious on a visit to the site. The slope is not gradual, the dwellings are close together and appear very close to the proposal, and there would be direct line of sight to the elevated play terraces and play yard of the proposal. I accept Mr Atkins noise levels for children at play taken from surveys of other playschools. Also I accept his evidence on the background noise levels, and the likelihood of noise nuisance to the neighbours. Acoustic barriers are not possible given the amphitheatre landform and the design of the proposal.
• If the Zone 2(b) allows higher density and that is the character of the whole zone in the future, it means in acoustic terms more dwellings would be affected by the noise nuisance if existing houses are redeveloped.
• The evidence on the Montessori Technique is interesting, but if an approval is granted there is nothing that could reasonably stop a new owner of the playschool, or even the applicant from changing to a more conventional curriculum. I find it hard to accept that the children in the external play areas, being young and at play, can be kept quiet and calm at all times.
• In regard to the floodway, I can accept the applicant’s submission that the prohibition of playschools on floodway land is probably intended for situations where the whole site is a floodway, not on such a property as this where it is confined to a small area. The children are unlikely to be outside in a storm that generates a flood at the bottom of the site, and management could isolate the ground level yard easily.
• The objectives of the Zone 2(b) whilst allowing other uses remain primarily for residential not commercial uses. And, it includes low and medium density residential so detached houses are expected to remain part of the character. The precinct of the proposal is predominantly low density in this part of Mimosa, with medium density behind in the adjoining part of St Georges Rd. I have the opinion objective (c) comes into play such that non-residential development like this proposal should not be allowed due to the detrimental effect on the character and amenity of the residents.

55 Contentions 2, 3 cl2.2, cl2.3, cl2.4, cl2.12, 4, 6 and 7 reveal the development to be unsuitable for the site and its location.

56 Therefore the Orders of the Court are:

1. The appeal is dismissed.
2. The exhibits are returned to the parties except Exhibits 3, 5, 6, 7 , 8, 9 and B, D, F.
__________________________
K G Hoffman
Commissioner of the Court
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