Kamrani Holdings Pty Ltd v Willoughby City Council

[2016] NSWLEC 1146

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Kamrani Holdings Pty Ltd & Anor v Willoughby City Council [2016] NSWLEC 1146
Hearing dates:	2, 3, 4, 16 December 2015, 21 January 2016
Date of orders:	01 July 2016
Decision date:	21 April 2016
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	See paragraphs [153]
Catchwords:	DEVELOPMENT APPLICATION: Child care centre – Heritage Conservation Area – Traffic impacts – Parking – Streetscape and character of area – Air quality – Safety – Noise impacts – Impacts on amenity of surrounding area – Intensity of use
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 Education and Care Services National Regulations Willoughby Local Environmental Plan 2012
Cases Cited:	Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107 Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338 Directional Projects Pty Ltd v Pittwater Council (19 March 2002, Roseth SC) Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 42 Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10 Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	Kamrani Holdings Pty Ltd (First Applicant) Darling Trading Pty Ltd (Second Applicant) Willoughby City Council (Respondent)
Representation:	Mr C McEwen SC with Ms A Hemmings (Applicants) Mr M Staunton (Respondent) Solicitors: Corrs Chambers Westgarth (Applicants) HWL Ebsworth Lawyers (Respondent)
File Number(s):	10064 of 2015 - 2016/159064 JusticeLink
Publication restriction:	No

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of Development Application DA567/2014 for alterations and additions to three existing dwelling houses and change of use to a child care centre at 66 and 66A Stafford Road and 290 Mowbray Road Artarmon (the site).

2. The site comprises three separate (two attached and one detached) Federation style dwelling houses, on the southern side of Stafford Road with street frontages to Mowbray Road and Muttama Road. Stafford Road and Muttama Road are both cul de sacs, with no vehicle access to Mowbray Road. The location of the site is shown on the following aerial photograph (ex M, Appendix A):

3. The site is within the Artarmon Heritage Conservation Area (HCA). Surrounding development comprises similar single detached one and two storey dwelling houses.

Proposed development

4. The development application was lodged with the Council on 19 December 2014, and refused on 23 March 2015. The application has been amended following a conciliation conference conducted pursuant to s 34 of the Land and Environment Court Act 1979, and further amended during the course of the hearing.

5. The initial proposal was for 85 children, with 12 in the 0-2 year range, 27 aged 2-3 years, and 45 aged 3 years and above. The proposal is now for 84 children. The applicants agree to the Council’s requirement that the conditions of consent specify a minimum of 12 children in the 0-2 year age range. The proposed hours of operation are Monday-Friday 7.30am-7.00pm, with the centre closed on Saturdays, Sundays and public holidays.

6. The proposal includes a car park across the rear of the site, with one-way vehicle access on a 3.5m wide driveway from Muttama Road, and vehicles exiting along a driveway on the eastern side of the site through a gate at the front of the site on to Stafford Road. The car park originally proposed 21 parking spaces. In order to accommodate retention of a willow on the western side of the site at the vehicle entrance, the proposal now provides 20 spaces, 14 along the northern side of the car park, and 6 parallel spaces along the southern boundary of the site adjoining 51 Muttama Road. There is an existing sewer vent at the rear of the site, which is to be retained in its present position, between two car spaces in the car park.

7. The gate on the Muttama Road entry is to be kept open between 7.30am-9.30am and 4.30pm-7.00pm, with entry at other times provided via buzzer. The gate for vehicles exiting onto Stafford Road automatically opens on vehicle approach. Deliveries, maintenance and repair are to occur between 9.30am-3.30pm on weekdays. The proposed development includes reconfiguration of the existing hammerhead turning area at the dead end of Muttama Road as agreed between the traffic experts.

8. Pedestrian access to the proposed child care centre is from Muttama Road, along a pathway at the rear of the existing dwellings leading to the entry at the rear of No 66A Stafford Road. The Council seeks an additional pedestrian access from Stafford Road; that is opposed by the applicants.

9. The revised Operational Management Plan (OMP) (ex Z) provides that when the centre is operating at full capacity there is a minimum of 14 employees to supervise children, with a maximum of 19, except during the peak periods of 7.30-9.30am and 4.30-7.00pm when a maximum of 15 are permitted on site. That restriction is stated as being to ensure that 12 designated staff car parking spaces are sufficient to meet the likely actual parking requirement and that 8 spaces are retained for use by parents/carers for pick up and drop off during the peak hour periods. The six parallel spaces on the southern boundary are to be designated for staff parking only, and not to be used before 7.00am; staff arriving before 7.00am are to use the two spaces allocated to staff on the northern side of the car park, and if more than two, to use a parent allocated space and move their car between 7.00-7.30am to the staff allocated car spaces. The parties disagree as to whether parent/carer spaces are to be available for staff use other than at drop off and pick up times: the applicants’ proposed condition 90 would permit staff to use up to 5 of those spaces other than between 7.30am-9.00am and 4.30pm-7.00pm.

10. The proposed development provides outdoor play areas at the front of the site facing Stafford Road and Mowbray Road; between the two buildings (with a shade sail over); and along the western side of the site adjoining Muttama Road, adjacent to playrooms 1 and 2. There is a sandpit in the front of the site, and a smaller sandpit in the nature walk area on the western side of the site. The applicants initially proposed use of temporary fencing for the play areas. After the hearing the parties agreed on the terms of draft condition 94A which would prohibit temporary fencing in the outdoor play area forward of the building line of the existing buildings, without the approval of the Council. Proposed condition 94A also prohibits permanent play equipment or structures in that area, and requires that any temporary play equipment be removed from the area at the end of the day. In order to meet acoustic requirements, outdoor play is proposed to be restricted to between 8.00am to 6.00pm, and there is to be a restriction on the number of children in the outdoor play areas at any one time.

11. The proposed development proposes the removal of 15 trees and the planting of 23 replacement trees. The extent of tree removal and appropriate plantings, and in particular whether a willow at the entry to the site from Muttama Road can or should be retained, was initially the subject of dispute between the experts. The application in its amended form retains the willow, and proposes the planting immediately to the north of the willow of a weeping lilly pilly (Waterhousia floribunda) with a height at maturity of 14m, to compensate for any decline of the willow. Three of the established trees in the front area of the existing dwellings are to be retained (Cook Pine, Canary Island Palm, and Weeping Elm). An issue in dispute between the parties, and their landscape and heritage experts, was whether it is feasible to maintain natural turf in the front of the site, and whether it is appropriate that it be replaced by artificial turf.

12. The existing low sandstone block fencing at the frontage of 66A and 66 Stafford Road, and the existing brick fencing at the front of 290 Mowbray Road, are to be retained. There is a dispute between the parties as to whether two bays of the brick fencing on the western side of the site should be retained. In order to meet acoustic requirements, lapped and capped fencing is to be constructed, at a height of 1700mm along Muttama Road to the corner of the existing dwelling at 290 Mowbray Road where it transitions to 1900mm, then 1800mm along the Mowbray Road frontage and along Stafford Road to the front of 66 Stafford Road where it changes to 1200mm high. The proposal includes planting of a hedge between the acoustic fencing and the existing front fencing to screen the acoustic fencing.

13. At the rear of the site along its southern boundary is proposed a new internal lapped and capped acoustic fence set back 200mm from the carpark edge varying in height from 1.8m to 1.5m relative to car park levels, in addition to a 1.8m high lapped and capped boundary fence. Proposed planting on the southern boundary includes two Cupressus canopy trees, and a privacy screening hedge between the fences to be maintained at 2200mm height with a creeper on the carpark side. There is a dispute between the parties’ experts as to the long term viability of the hedge; as an alternative to the hedge, the applicants propose the planting of 7 Crepe Myrtle trees, and a creeper to both sides of the fence.

Issues

14. In its Amended Statement of Facts and Contentions (ex 1) the Council contended that consent should be refused on the following grounds:

1. Overdevelopment: the site has significant constraints at the end of two dead end streets and having a street frontage to a main road, and being in a conservation area and having existing buildings which contribute positively to it; and the intensity of the development in particular the number of children provided for is excessive;

2. Traffic: the proposal will have adverse traffic impacts in relation to the site and the surrounding area; in particular the potential for a vehicle to enter the play space at the front of the site from Mowbray Road, the streets proposed for entry and exist are narrow, the proposed Operational Management Plan (OMP) cannot adequately regulate the behaviour of parents on the local road network, the likely utilisation of the proposed development will have an adverse impact on the local road network during morning and afternoon peak periods, and there is a shortfall of car parking spaces;

3. Heritage: the proposal will adversely impact on the contribution of the existing houses to the conservation area, with the proposed car parking area, driveway access and paved area, the proposed fencing and playground, the loss of established trees, and the sustainability of turf in the outdoor play area;

4. Adverse visual impact – streetscape and character of the area: the proposal will have an adverse impact on the streetscape in the front of the existing dwellings;

5. Playground: the main road location with the playground in the front of the buildings is unacceptable due to the likely impacts on the amenity of children using the outdoor front yard area, in terms of air quality, noise, and safety;

6. Impact on the amenity of surrounding properties: the neighbours will suffer from increased noise, loss of amenity due to intensification of activities on the site in particular the use of the rear yard for car parking, and the perception if not actual visual and aural privacy and overlooking impacts; and

7. Public interest: having regard to the number of submissions and the likely impacts on adjoining and nearby residents the site attributes are not suitable and the proposed development is not in the public interest.

15. A contention that inadequate information has been provided to make a proper assessment of stormwater drainage has been resolved with provision of additional information (ex C). At the conclusion of the evidence the Council’s position was that its contentions relating to the construction of the driveway entrance point in the proximity of the existing hammerhead turning circle at the dead end of Muttama Road; width of visitor car spaces; use of the proposed small car parking space; impact of external noise on children due to the proximity of the playground area to a main traffic artery; and safety concerns about the use of the front yard area for recreational purposes along a busy pedestrian walkway, were no longer pressed.

16. In summary, the Council’s position is that the site is not suitable for a childcare centre of the intensity and design proposed by the application. The site is constrained, being located adjacent to a busy main road and at the end of two narrow dead end streets, where vehicles often park in locations that cause the streets to become single lane operation; the site is in a heritage conservation area; and the orientation of the site is such that its rear boundary faces the side boundary of 51 Muttama Road which is used for the purpose of a residential dwelling. Those site constraints result in unacceptable design and operational constraints on the proposed development and the need for ameliorative measures that in turn have unacceptable impacts.

17. The applicants’ position is that there has been substantial evidence provided during the course of the hearing, addressing the Council’s robust Amended Statement of Facts and Contentions, and the primary issues requiring resolution are relatively limited, being the impact, if any, on the HCA caused by the carpark, in particular its size; the impact, if any, on the HCA caused by the provision of a 1.8m high hedge in front of the acoustic fencing in the front yard; and whether the car park is of a size sufficient for an 84 place child care centre. The amendments to the proposal during the course of the hearing respond to the Council’s concerns, and the heritage and landscaping/arboricultural contentions have been narrowed throughout the hearing and joint conferencing process. The fundamental issue remaining is whether the proposed development for an 84 place childcare centre with up to 19 staff is an overdevelopment of the site, which gives rise to the Council’s contentions primarily in relation to the number of children in the proposed childcare centre, the size of the rear carpark, the use of the front yard of the site for outdoor play area, and whether those aspects of the proposed development give rise to unacceptable impacts.

18. For the reasons which follow, I conclude that the application should not be approved in its present form, however the applicants should be given an opportunity to consider amending the application to reduce the number of children, and consequently the number of staff required, to mitigate the impacts of the intensity of the proposed use.

Planning controls

19. The site is in the R2 Low Density Residential zone under the Willoughby Local Environmental Plan 2012 (the LEP). The relevant aims of the LEP are:

(d) for urban design:

(i) to ensure development embraces the principles of quality urban design, and encourages innovative, high quality architectural design with long-term durability and environmental sustainability, and

(ii) to promote development that is designed and constructed:

(A) to enhance or integrate into the natural landform and the existing character of distinctive locations, neighbourhoods and streetscapes, and

(B) to contribute to the desired future character of the locality concerned, and

(iii) to ensure development design contributes positively to, and wherever possible facilitates improvements to, the public domain, and

(iv) to preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including significant gateways, views and vistas, and

(v) to ensure that development design takes into consideration crime prevention principles,

(e) for amenity:

(i) to maintain and enhance the existing amenity of the local community, and

(ii) to reduce adverse impacts from development on adjoining or nearby residential properties,

…

(i)for heritage—to conserve items of environmental and cultural heritage and to retain the character of heritage conservation areas,

(j) for access:

(i) to provide for local and regional transport needs and promote and increase the use of active transport through walking, cycling and the use of public transport, and

(ii) to provide appropriate levels of car parking in connection with the location of development and managing the demand for ancillary car parking, where there is good access to public transport nodes and services, and

20. The objectives of the R2 zone, to which the consent authority must have regard when determining a development application in respect of land within the zone (cl 2.3(2)), are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To accommodate development that is compatible with the scale and character of the surrounding residential development.

• To retain and enhance residential amenity, including views, solar access, aural and visual privacy, and landscape quality.

• To retain the heritage values of particular localities and places.

• To encourage self sufficiency with respect to energy and food supply.

21. Development for the following purposes is permissible with consent:

Bed and breakfast accommodation; Boarding houses; Child care centres; Community facilities; Dual occupancies; Dwelling houses; Group homes; Home-based child care; Home businesses; Home industries; Recreation areas; Respite day care centres; Roads

22. Clauses 5.9 Preservation of trees and vegetation, and 5.10 Heritage Conservation, apply.

23. Clause 101 of the State Environmental Planning Policy (Infrastructure) 2007 provides:

101 Development with frontage to classified road

(1) The objectives of this clause are:

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a) where practicable, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

24. The Willoughby Development Control Plan (the DCP) applies. Part C4 provides transport requirements for development. The objectives are provided:

The intent of Part C.4 of this Plan is to establish Council’s standards and guidelines to:

1. Minimise the adverse environmental effects of car use within the City;

2. Manage the existing and future on and off road car parking in a manner that sustains and enhances the economic and environmental qualities of Willoughby;

3. Encourage the use of public transport in areas close to transport nodes;

4. Encourage alternative modes of transport;

5. Ensure that appropriate facilities are provided for bicycles;

6. Provide for the safe, convenient, and efficient movement and accommodation of vehicles within the City;

7. Ensure that provision is made for a reasonable number of parking spaces for vehicles generated by a development including visitor, employee, service and commercial vehicles;

8. Ensure that vehicular movements and parking do not impede pedestrian traffic safety and efficiency;

9. Ensure that the design of parking and servicing areas and their access is safe and compatible with the best practice standards;

10. Ensure that car parking facilities contribute positively to the public domain;

11. Minimise hard surfaces in order to enhance areas for on-site infiltration of stormwater, where relevant; and

12. Manage demand for car use by employing the principle of travel demand management. Travel Demand Management is intervention (excluding provision of major infrastructure) to modify travel decisions so that more desirable transport, social, economic and/or environmental objectives can be achieved, and the adverse impacts of travel can be reduced. The purpose of travel demand management is to reduce the total amount of travel, minimise the need to expand road systems, reduce the incidents of vehicle crashes, prevent further congestion, reduce air pollution, conserve scarce resources and increase the share of non-car based transport. Increasing the supply of parking can induce a greater number of vehicular trips which increases congestion, impacting negatively on the city environment.

25. Departures from car parking rates are addressed in section B of C4.1:

B Departures from Car Parking Rates

The parking requirements specified in the table below are neither maximum nor minimum rates, but are the rates to be satisfied in any application. Applicants must demonstrate the justification for any departure from parking rates in a Statement of Environmental Effects or Traffic Study.

Council will have regard to the following when considering any departures from the car parking rates as detailed in the table “Schedule of Car Parking Requirements”:

1. The size and nature of the development, amount of additional floor area relative to the existing floor area and the parking demand generated;

2. Whether a Green Travel Plan has been provided;

3. Encouraging less use of motor vehicles, especially those developments close to railway stations and major public transport routes;

4. Availability and accessibility of other public parking;

5. Accessibility of public transport and the probable transport mode of users;

6. Proximity to bicycle routes;

7. Existing and likely future traffic volumes on the surrounding road network and the nature of this network;

8. The environmental implications of providing parking with particular regard to vegetation and landscape impacts;

9. Results of a parking survey submitted to Council to justify demand for the proposed use; and

10. The impact of not providing the parking.

Council will consider each application on its merits, taking into account the individual circumstances of the development with regard to site attributes, surrounding character and adjoining land uses. More rigorous standards may be required for developments having significant environmental impact.

26. Section E of C4.1 notes:

E.Railway Precincts/Major Public Transport Corridors

For office/business development, attached dwellings, multi dwelling housing and residential flat buildings and restaurants, special rates are applied where the proposed development is located within a railway precinct (approximately 500 metres from a railway station) or on a major public transport corridor (MPTC).

27. Section C4.2 provides the Schedule of Car Parking Requirements. Those applicable to Long day care centres are:

Long day care centres (outside Railway precincts and MPTCs):

1 space/ full time staff member

1 space/ 2 part-time staff

1 space/ deliveries

Long day care centres (within Railway precincts and MPTCs):

1 space/ 2 employees

…

28. Clause C4.2A states that the number of spaces should be rounded down to the nearest whole number.

29. The note to the part of the Table applying to child care centres and education directs attention to setdown/ pickup requirements outlined in Section C.4.3 F:

Long Day Care Centres- areas outside Chatswood CBD

i) Car parking is to be provided on site for staff vehicles and for setting down and picking up of children to reduce the incidence of on-street parking, detrimental impacts on the amenity of the surrounding residential area and maintain child safety.

ii) Vehicles should enter and leave the site in a forward direction. Access driveways widths are to be in accordance with AS 2890.1 (Parking- off street parking).

iii) Vehicle parking must be separate to the outdoor play space of the Centre.

A drive-through for drop-off and pick-up for children with space within the driveway for the stopping of at least 1 car per 10 children to be provided in the care centre. Provision of a drive through will require a minimum frontage to the site of twenty metres or a corner location. The width of the driveway should allow for a vehicle to pass a parked vehicle.

In residential areas a minimum 20 metre frontage is required. (See section G.8)

Where a long day care or occasional day care centre is proposed in a non residential zone site with less than a 20 metre frontage or not a corner location, it will be necessary to provide car parking on the site at the rate of 1 space per 10 children. This car parking should be directly linked to the entrance to the centre allowing pedestrian movement to be separated from the manoeuvring area of the car park.

30. Part G.8 of the DCP provides specific controls for child care centres. The objectives of Part G.8 are to:

1. Encourage the provision of child care services in the City of Willoughby to meet the needs of the community.

2. Ensure quality child care facilities in terms of safety and design standards.

3. Ensure child care facilities are designed and located to avoid adverse noise and air quality impacts on occupants.

4. Provide for child care facilities that are complementary to their location and integrated into the local environment.

5. Minimise potential adverse impacts on the surrounding area in terms of noise, traffic generation and car parking.

31. Relevant provisions for Environmental Health and Safety Risks (p G8-2) include:

Site Suitability

The suitability of a site for a child care centre should be determined based on consideration of any environmental health hazard or risk relevant to the site and/or existing buildings within the site or in the surrounding area, having regard to the following:

…

b. Pollution created by car and other vehicle fumes;

…

j. Proximity to noise sources;

…

m. Any other identified environmental health hazard or risk relevant to the site and/or existing buildings within the site.

Where potential for impact exists in respect to any of the above (for example, where a centre will be located near a busy road, or large commercial car park, rail corridor, industrial area or any other land use/activity that is likely to be of risk) the applicant should address how the impact of any of these environmental health risks will be mitigated in the proposed development. This will require the preparation and submission of relevant reports prepared by a suitably qualified professional.

…

Noise

Child care centres should be located and designed to ensure sufficient separation from busy roads and rail corridors to avoid adverse noise impacts onto the centre. Centres are to be designed to minimise the noise emitted from the centre to ensure no adverse impacts on the amenity of the surrounding residences.

The following standards and criteria are required to be met:

● The use of the premises including indoor/outdoor play areas, traffic on site and mechanical plant shall not exceed the background noise level by more than 5dB at the most affected point on or within any receiving property boundary.

● The internal noise levels within indoor play or sleeping areas of the centre, when it is operating shall not exceed an Leq,1hr 40 dB(A).

● The intrusive noise onto any outdoor play or activity area of the centre, when it is operating shall not exceed an Leq,1hr 55 dB(A).

An acoustic report prepared by a suitably qualified professional is required to be submitted demonstrating that compliance with these requirements can be achieved.

…

Location

Child care centres should not be located in cul-de-sacs or no through roads, except where more than one street access and egress is available to the site and the Centre has adequate parking and pickup/ drop off space.

In residential areas a minimum 20 metre frontage is required.

These requirements are supported by the following objectives:

● To ensure child care centres are compatible with the surrounding residential neighbourhood in terms of siting, landscaping and access arrangements for both vehicles and pedestrians,

● To identify preferred sites for child care centres on regular lots with a wider frontage,

● To reduce additional traffic generated by a child care centre in a cul-de-sac or no through roads as such locations do not allow for good traffic circulation and to minimise potential adverse impacts on the surrounding area in terms of noise, traffic generation and car parking.

● To ensure access for emergency vehicles and evacuation options / routes.

32. Part H provides Controls for Heritage Items and Heritage Conservation Areas. The aims include:

c) to ensure that the heritage significance, special streetscape and landscape character of Heritage Conservation Areas is maintained;

d) to ensure that alterations and extensions to existing buildings respect those buildings and do not compromise the significance and character of the individual heritage items or of the Heritage Conservation Areas;

…

f) to encourage a sustainable high quality of design for any new development in achieving compatibility with the heritage significance of individual Heritage Items and Heritage Conservation Areas;

g) to provide controls for the development of land within the vicinity of Heritage Items and Heritage Conservation Areas.

33. Relevant provisions include H.2.1 Planning and Design Principles, which include in relation to A. Setting:

ii) Except as allowed by “car parking” and “fences” in Clause H.2.2 below, no new structures should be built forward of the established street building line;

iii) An adequate curtilage including landscaping, fencing and any significant trees, are to be retained;

iv) The established landscape character of the locality including height of canopy and density of boundary landscape plantings should be retained in any new development;

v) Development in the vicinity of a Heritage Item should respect the visual curtilage of that Item;

and provisions relating to B. Scale, C. Massing and Form, D. Proportion, and E. Details.

34. Section H.2.2 Design Elements includes provisions for E. Carparking, F. Fences, and G. Garden elements, including Paving and Driveways. Section H.2.3 makes specific provision for Development of Corner Allotments within Heritage Conservation Areas.

35. Section H.3 Heritage Conservation Areas includes detailed provision for identified heritage conservation areas. The site is in the Artarmon Heritage Conservation Area. The Statement of Significance provides:

Statement of Significance

The Heritage Conservation Area is outstanding for its intactness, with few unsympathetic intrusions occurring. The wide range of largely intact California and Interwar bungalows as well as Federation housing in generally good condition, occur in either groupings of consistent styles or subtle blends of successive periods to produce a mix of interesting and varied streetscapes. The area is significant as a harmonious and unified 1910 – 1920’s lower North Shore residential area whose development relates to the development of the railway.

36. Section H3.2 provides for management policies, and controls for future development. The management policies for the Artarmon HCA include:

• New front fences must reconstruct original details or repeat the pattern of low unpainted masonry fences and dense boundary plantings;

• Retain existing side driveways and rear car parking facilities;

• The site cover and siting of new development must not result in the loss of significant landscaping either on-site or in verges. In this regard driveways are to be minimal with wheel strips being the preferred solution;

• Protect mature trees in rear gardens which form a backdrop to the streetscapes;

• Street plantings and reserve vegetation must be maintained and encouraged, particularly in lesser vegetated streets. Where a site is bushfire prone land landscaping should conform with the performance requirements of the NSW Rural Fire Service ‘Planning for Bushfire Protection’;

37. The controls include for Setting/Subdivision:

Landscaping: Generous well landscaped front and rear yards, mature native & exotic plantings, trees to rear gardens.

Carparking: Single garage to side or rear of dwelling, or part of basement.

Front Fencing: Low unpainted face brick.

38. The Artarmon HCA adjoins the South Chatswood Conservation Area, which includes Mowbray Road between Sydney Street and the rail line.

Evidence

39. The hearing commenced on site. Submissions were made by residents of adjoining (51 Muttama Road, 66 Tindale Road) and nearby (15 Muttama Road, 69 Tindale Road, 71 Stafford Road, 49 Muttama Road) properties. The view included a view from the adjoining property at 51 Muttama Road, the side boundary of which adjoins the rear boundaries of the three properties which comprise the site; and a view from 64 Tindale Road, the rear boundary of which adjoins the eastern boundary of the site. That property is owned by the owner of the vacant lot adjoining the site on the eastern side, at 64 Stafford Road.

40. The submissions on site raised concerns as to impacts on the HCA and the residential character of the locality; exacerbation of issues with traffic on narrow streets particularly with vehicles passing, and safety with blind crests on hills; for the owner of 69 Tindale Road, difficulties in reversing from his driveway on the corner of Tindale Road and Stafford Road; commuter parking; noise; the scale of the development in a low density residential area; and the frequency of waste pickups. The view at 51 Muttama Road included a view with a height pole positioned at the proposed fence height and distances from the side boundary.

41. The Council notified the development application and received 135 submissions, and notified the amended application, receiving 68 submissions including a petition. Copies of the written submissions are in evidence (ex 2, tabs 10-22; ex 3, tabs 23-77, 79-119; ex 4). The written submissions raise concerns similar to those expressed on site, and included concerns as to traffic generation, vehicle movements, pedestrian and bicycle safety, parking, bulk and scale, impact on the heritage value of the area and the streetscape, loss of residential amenity, noise, privacy concerns, issues with the proposed plan of management, and the scale of the proposed development.

42. The experts for the applicants were:

1. Ms Yvette Carr – planning;

2. Mr James Phillips – heritage;

3. Mr Steven Cooper – acoustics;

4. Mr Craig McLaren – traffic;

5. Dr Brenda Abbey – childcare;

6. Mr Ross Jackson – arboriculture;

7. Mr David Taylor – landscaping;

8. Mr Gary Graham – air quality; and

9. Mr Leonard Lynch – CPTED.

43. The experts for the Council were:

1. Mr Arthur Tsembis – planning and CPTED;

2. Ms Jennifer Hill – heritage;

3. Mr Nick Koikas – acoustics;

4. Mr Ken Hollyoak – traffic;

5. Mr Knud Heldt – childcare; and

6. Ms Catriona McKenzie – arboriculture and landscaping.

Consideration

44. The fundamental issue for determination in this appeal is whether the proposed development is, as contended by the Council, an overdevelopment of the site. Relevant to consideration of that issue are the number of children proposed, and the consequent generation of demand for car parking, the provision of the car park at the rear of the buildings, and traffic generation; the use of the front area for outdoor play areas, and the consequent need to provide acoustic barriers; and whether those aspects of the development give rise to unacceptable impacts both on the heritage character of the area and on the amenity of surrounding residential properties.

Number of children

45. The proposed development is intended to accommodate 84 children, with at least 12 being children from 0-2 years old. The minimum staff members proposed are 14, with a maximum of 15 staff permitted on site between the hours of 7.30am-9.00am and 4.30-7.00pm, and a maximum of 19 staff members on site between 9.00am and 4.30pm.

46. Mr Tsembis and Ms Carr agreed (ex 14, p 3) that the proposed number of children is not excessive in relation to the size of the existing buildings to accommodate the facilities required, including the amount of unencumbered indoor space required under cl 107 of the Education and Care Services National Regulations under the Education and Care Services National Law; the noise impacts generated by the children; and the required number of car parking spaces provided in accordance with the DCP. They agreed that there are no provisions in the LEP or the DCP (except for car parking) that directly control the number of children at childcare centres. They did not agree as to whether the amount of unencumbered outdoor space met the requirements of cl 108 of the Education and Care Services National Regulations; however, that issue was subsequently resolved, and not pressed by the Council. Dr Abbey and Mr Heldt agreed that the proposed playground design is compliant with the national legislative requirements and quality standards, and that a minimum of 14 staff are required to meet legislative requirements. A draft staff roster for 19 staff was provided by Dr Abbey (ex 11, Annex 2); Mr Heldt agreed that this roster is ideal in providing high quality education and care (ex 11).

47. I accept the agreed expert evidence, and I am satisfied that the proposed development meets relevant standards for indoor and outdoor space and provision of quality child care for the number of children proposed. The impacts of the number of children proposed, and the consequent number of staff required, in terms of traffic generation, parking, and other impacts on the surrounding area, are considered below.

Outdoor play area

48. The proposed development relies on the provision of outdoor play areas in front of the existing dwellings. That has consequences in terms of acoustic impacts, both noise generated by that use and noise from surrounding traffic; health and safety of children in that area; and impacts on the streetscape and the HCA.

49. Mr Cooper and Mr Koikas reached agreement on the potential noise from the play area between the two buildings, on the basis that the space would be used for active play; noise from the front play area; and noise arising from the amendments to the rear carpark to address landscaping issues (ex 17). That agreement resulted in amendments to the fencing for the rear carpark, and restrictions as to the number of children permitted in the northern and southern parts of the play area between the buildings at any one time and the increase in height of the acoustic barrier on the southern side of that play area to 1800mm. Draft condition 95 provides for no more than 49 children in the outdoor play area at any one time between 8.00am to 6.00pm, with a maximum of 31 children in the front play area and the nature walk area, and 18 children in the area between the buildings. Based on the provision of acoustic fencing, including the amendments required as a consequence of the retention of the willow, and restrictions on use of the outdoor areas, the acoustic experts were satisfied that the proposed development meets the relevant acoustic criteria in the DCP, namely that noise not exceed background levels by more than 5dB at the most affected point on or within any receiving property boundary. I accept that evidence.

48. The acoustic experts addressed the issue of noise impacts from road traffic noise on the outdoor play area. Clause 101(2)(c) of the SEPP provides that the consent authority must be satisfied that the development is appropriately located and designed to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road, in this instance, Mowbray Road. Mr Cooper and Mr Koikas agreed (ex 13, item 4) that the proposed acoustic barriers would provide sufficient traffic noise attenuation to achieve the 55dB(A) level specified in the DCP for intrusive noise onto outdoor play or activity areas; and (at item 5) that while the outdoor play area could be used prior to 8.00am and satisfy the background + 5dB(A) limit specified in the DCP for receiving properties, not using the outdoor play area before 8.00am was necessary because of the external road traffic noise criterion. While Mr Heldt’s preference was not to limit outdoor play times, especially in summer, Dr Abbey considered that the restriction of use of the outdoor play area is appropriate in terms of management of the routines of arrival at the centre and for late in the day; before 8.00am and after 6.00pm children are placed in mixed-age groups within one or two rooms in the centre. I accept Dr Abbey’s evidence that appropriate management routines support the limitation on outdoor play consistent with the recommendation of the acoustic experts.

49. The applicant submits that there are no unacceptable impacts on health, either short term or long term, as a result of the location of the proposed play area in front of the buildings, relying on the evidence of Mr Graham. In his statement of evidence (ex M) Mr Graham referred to air quality assessment reports prepared by Pacific Environmental Ltd (PEL) in December 2014 and October 2015, and an air quality monitoring program conducted at a location on the front garden area of the site. Based on that air quality monitoring Mr Graham concluded that there was compliance with the relevant air quality criteria in Approved Methods for the Modelling and Assessment of Air Pollutants in New South Wales (EPA, 2005). Mr Graham noted that the earlier (PEL) assessment indicated higher background concentrations of carbon monoxide (CO), nitrogen oxide (NO2) and PM10 than in his monitoring. However, in his opinion the background air quality assumptions were conservative, and the PEL assessment predicted there to be no exceedences of the relevant air quality standards. Mr Graham concluded that the air quality criteria would not be exceeded at kerbside until the traffic flow along Mowbray Road increases by a further 170% of current traffic flow, and in his opinion even with significantly higher traffic volumes the relevant air quality criteria would not be exceeded. Mr Graham considered that the ambient air quality monitoring was conducted at a location representative of the playground at the front of the building and is therefore representative of the risk of exposure of children to unacceptable air quality.

50. In oral evidence Mr Graham outlined the monitoring process, and explained why he had concluded, based on the site specific data which demonstrated no exceedances of the relevant air quality controls, that the mitigation measures recommended in the Department of Planning Development Near Rail Corridors and Busy Roads – Interim Guideline (ex 32) were not indicated. Mr Graham did not consider that the possibility of pollutants settling in the two sandpits was of concern, on the basis that the rate of settling of particulates is over a significant distance. Mr Graham agreed that younger children would be more sensitive to pollutants from motor vehicles, however the pattern varies from site to site and changes over time, with factors such as weather.

51. Based on the uncontradicted evidence of Mr Graham, I accept the applicants’ submission that based on the site specific monitoring there is sufficient certainty that relevant air quality criteria would not be exceeded, so that there would not be unacceptable impacts on health as a result of the location of the outdoor play area in front of the buildings.

52. I accept the agreed evidence of Mr Tsembis and Ms Carr that while having the play area in a residential front yard is not typical of the surrounding residential area, the design of the proposed play area within a landscaped setting would not have a significant adverse impact on the streetscape (ex 14, p 18). The planners differed as to the visual impact of the fencing and hedging. Mr Tsembis considered that to be not in keeping with the desired future character of the locality, predominantly in respect of the heritage values of the HCA; Ms Carr considered that in terms of visual impact the proposal is acceptable, and deferred to the evidence of the heritage experts. The impacts of the front play area and fencing and hedging on heritage values are considered below.

Traffic

55. The Council contended that the proposed development will have adverse traffic impacts in relation to the site and the surrounding area, including:

1. the potential for a vehicle to enter the front play area from Mowbray Road;

2. likely congestion in peak hours arising from two way vehicle passing being precluded by cars parked on the narrow, dead end, streets proposed for entry and exit;

3. the inability of the OMP to adequately regulate the behaviour of parents on the local road network leading to increased traffic and on street parking with parents parking on surrounding streets to drop off children, raising safety and efficiency concerns;

4. potential vehicle conflict with construction of the driveway entrance point in the immediate proximity of the hammerhead turning circle at the end of Muttama Road;

5. adverse impact of increased vehicle traffic on the local road network during peak times;

6. lack of pedestrian footpath from Stafford Road with parents likely to use the exit driveway;

7. shortfall of parking spaces in the car park; and

8. failure to meet staff parking requirements and provide parking facilities to allow for flexibility for staffing mix changes.

56. Mr McLaren and Mr Hollyoak agreed on work to the hammerhead turning circle at the driveway entrance on Muttama Road, and a driveway form, that would be workable for a B99 vehicle in accordance with AS 2890.1-2004, and for a Small Rigid Vehicle (SRV) in accordance with AS2890.2-2002, respectively (ex 22). The experts proposed a condition providing for an appropriate width of the two driveways with splay to allow the swept path needs of the design waste collection vehicle to enter and leave the site in a forward direction (ex 22), provided as draft condition 14. The Council’s further contentions relating to the width of visitor spaces and design of the small car parking space were met with the amended plans.

Traffic generation

57. In their first joint report (ex 12) Mr McLaren and Mr Hollyoak agreed that, based on the RMS Guide to Traffic Generating Developments, the traffic generation from the site will be 68 movements (34 arriving and 34 departing) in the morning peak hour (between 7.00am-9.00am) and 60 movements (30 arriving and 30 departing) in the afternoon peak hour (between 4.00pm-6.00pm), and 26 trips (13 arriving and 13 departing) between 2.30pm-4.00pm. They estimated that the weekly traffic generation would be 300 vehicles per day with no activity other than maintenance and owner traffic on weekends, which is less than the “environmental” and maximum levels for a residential street and collector street. They agreed that the prevailing road widths within nearby local streets are consistent with local road standards for residential subdivisions.

58. Mr Hollyoak accepted that the proposed one way system provides a better solution than serving the development from either Muttama Road or Stafford Road, and that waste collection can be conditioned to occur outside pick up and drop off hours. He retained a concern as to the localised operational traffic impacts of the development in specific locations such as Muttama Road. Both Muttama Road and Stafford Road have parking on both sides of the road towards the end of the cul de sac, and while the proposed one way system would mitigate this effect to some extent it would still result in conflicts with vehicles using the turning head to turn around and travel south. That would be exacerbated if any parents decided to park on street when dropping off their children. He considered that based on parking occupancy data and the anticipated trip generation/distribution the section of Muttama Road between Elizabeth Street and Coree Road is likely to experience some conflict between southbound and northbound traffic due to on street parking reducing the carriageway to one lane over significant lengths, with limited passing places. The single driveway width of 4-4.5m along Muttama Road is not sufficient to allow a car to fully pull in to allow opposing vehicles to pass. While the probability of opposing vehicles meeting is an existing problem, in his opinion it would become a more regular occurrence should the proposed development be approved.

59. Mr McLaren did not consider that external traffic impacts on Muttama Road and Tindale Road would be a sound justification for refusal of the application. He noted that the prevailing road widths in nearby local streets are representative of current local road standards for residential subdivisions in order to physically reduce traffic speed while permitting kerbside parking; the Council’s Local Traffic Committee (LTC) has recommended installation of driveway lines 1m back from the wings of each driveway in Muttama Road, yet to be implemented; the LTC had noted in October 2013 that there have been no reported crashes in the most recent five years; there is adequate passing opportunity and clear sight lines provided by driveway locations and a bus stop in Tindale Street; and no issue arises in Stafford Road. Mr McLaren considered the 150m segment of Muttama Road (south) in more detail, and in Table 3 and 4 (ex 12, p 8) provided results from a survey of traffic activity from 6am to 10am and from 3pm to 7pm over 5 weekdays. Of 158 opposing “events” between 7.30-9.30am only one was recorded with a vehicle using a driveway to pull in and reverse back out; of 142 opposing “events” between 5.00-7.00pm only two vehicles were recorded using a driveway to pull in and reverse back out: those figures are extremely low and even applying a 33% increase would not change the outcome, being less than 1% in the morning and 2% in the afternoon peaks with the proposed development operational.

60. Both experts agreed that while there may be an issue with enforceability, line painting would improve opportunity for vehicles to pass.

61. I accept the agreed expert evidence that even with the increased vehicle traffic as a consequence of movements to and from the child care centre, that would be less than the environmental and maximum levels for a residential street and collector street. There was agreement between the experts that there would not be an issue with opposing vehicles passing on Stafford Road. In relation to Muttama Road, based on the survey work, I accept the evidence of Mr McLaren that while there will be a change in passing probabilities as a consequence of the increase in traffic, the numbers are low, and would remain low with the operation of the child care centre. The traffic experts agreed on modifications to the hammerhead turning facility at the northern end of Muttama Road so as to improve its use and minimise conflict with vehicles accessing the driveway on Muttama Road (ex 22).

62. In oral evidence Mr McLaren and Mr Holyoak addressed the issue of safety for cyclists, a matter raised by the objectors who had referred to the numbers of cyclists using the Council’s designated cycleway to the CBD on Stafford Road and Tindale Road. Mr McLaren did not consider that mixing of vehicles and cyclists is an issue. Based on RMS guidelines which apply to all local roads regardless of whether they are flat or with crests, and which use a criterion of below 3000 vehicles per day, Tindale Road is 600 per day, and even with extra traffic from the childcare centre they can mix, as speeds and volumes are low. Mr Hollyoak considered that while the increase in traffic will increase risk to cyclists, that is not so significant as to warrant a change in treatment because that would not be possible without removing parking on the street. I accept that evidence.

63. Both experts agreed that the driveway location at 69 Tindale Road is not ideal; however it exists, and it is possible to reverse in, and there is a good sightline.

64. Having regard to the agreed expert evidence, which included agreement as to modifications to the hammerhead turning facility and the configuration of the driveways, and the evidence as to vehicles passing on the surrounding streets with the additional vehicle traffic, I am satisfied that while there would be an increase in vehicle movements, that would be well within the appropriate levels for the surrounding streets. While there is, on the objector evidence and as considered by the experts, an issue with vehicles passing when vehicles are parked on the street, on the agreed expert evidence the streets are not inconsistent with local road standards; and even on Mr Hollyoak’s more conservative numbers (ex 6, p 12; ex 12, p 9), the potential for conflict is low. I am satisfied that on their own likely congestion in peak hours or potential vehicle conflict would not be such as to be a basis for refusal of the application. The issue of the contribution to any increased impacts through on-street parking for users of the proposed development is considered below.

Vehicle leaving Mowbray Road

65. The experts differed as to whether a crash barrier on the Mowbray Road frontage is required. They agreed that the risks associated with an errant vehicle leaving the road and impacting with the property boundary is very low, and that the roadside tree and telegraph pole would be likely to be impacted first by any errant vehicle. Mr Hollyoak considered that while the risk is low, with the children’s play area in the front yard the outcome could be serious, and so while he did not consider a protective roadside barrier was required it would be prudent to provide the boundary wall in a form stronger than a simple brick wall. Mr McLaren’s opinion was that the road alignment is not adverse, the posted speed is 50km/h, and the centre is set back beyond the required clear zone of 3m, at 3.7m; and there is no history of accidents at the site frontage to Mowbray Road. In oral evidence Mr McLaren accepted that if a vehicle accelerated to 80kph for example with a suddenly incapacitated driver the seriousness of the consequences would mean a “high” risk level on the risk analysis table at Annexure F to his Statement of Evidence (ex F). In submissions the applicants agreed to provide a barrier if required.

66. I accept the agreed expert evidence that the risk is low, however, given the seriousness of the consequences for children in the outdoor play areas at the front of the site were a vehicle to leave Mowbray Road at speed, approval of a child care centre at the site should be subject to a condition requiring installation of a barrier in the form of exhibit R.

Stafford Road

67. The Council submits that a pedestrian path from Stafford Road is required, relying on Mr Holloak’s evidence that it is necessary to avoid pedestrians conflicting with vehicles on the exit driveway. Mr McLaren did not consider it necessary, on the basis that the Stafford Road driveway would not be used for pedestrian entry because the distance to the pedestrian entry on Muttama Street is not far and there is safe footpath access. Even if people did try to use it, the exit speed is 10kph, and the driveway is wide enough with landscaping for people to get to the side. Mr Hollyoak agreed it is a low speed environment, and he accepted it would be inconvenient rather than dangerous. In oral evidence Mr Hollyoak accepted that with a pedestrian entry off Stafford Road, some may park in Stafford Road. Based on the agreed evidence as to the driveway exit speed and the limited dwell times in which the gate is to be open for an exiting vehicle, Mr Hollyoak’s acceptance that the number of people accessing the centre on foot from Stafford Road is likely to be low, and considering the possibility that a pedestrian entry may encourage parking on Stafford Road contrary to the OMP, I am not persuaded that a pedestrian entry on Stafford Road is necessary.

68. The traffic engineers agreed (ex 22) on the form of the proposed driveways from Muttama Road and Stafford Road. While they agreed that the driveway form and hammerhead modification on Muttama Road are workable, they identified that an SRV would not be able to exit the site on to Stafford Road if a vehicle is parked across the driveway of the adjoining vacant lot. Vehicles currently park there (ex 22, Annexure C). The experts recommended that if that lot is developed with a driveway in an alternate location so that a vehicle could park there, some form of parking restriction or other appropriate mechanism such as a localised kerb blister would be necessary along the kerb length required for an SRV to exit the child care centre driveway. While they considered that this could be addressed as part of a future consent for that site, I agree with the Council that it is preferable to resolve this on the site, as part of this application, rather than reducing on street parking. The design of the driveway should be addressed to enable its use by an SRV.

Parking

69. The proposed development now provides 20 car spaces, a reduction from the 21 initially proposed, in order to accommodate the retention of the willow at the driveway entrance. The reconfiguration of the parking spaces as a consequence of the retention of the willow, and the retention of the sewer vent with landscaping, has removed the small space initially proposed adjacent to the Muttama Road entrance. The plans now provide for landscaping around a 300mm clearance for the willow.

70. There are three issues relevant to the parking provision on site: the location of the car park; whether the number of spaces provided is adequate; and whether a carpark of the size proposed is acceptable in this location.

Location of the car park

71. The heritage experts agreed that the location of the carpark at the rear of the site is the best location in terms of minimising the impact on the buildings and the HCA (ex 16, p 7). I accept that evidence.

72. In the first joint report of the planners (ex 14) Ms Carr considered that placing the carpark at the rear enables provision of sufficient spaces, and is acceptable on the basis that it enables separate vehicular access and egress to be provided, complying with Part G.8 of the DCP, and minimises potential for adverse visual impacts on the streetscape and HCA, and is not likely to have adverse amenity impacts on surrounding neighbours (ex 14, p 6). Mr Tsembis’ opinion was that the size and location of the carpark in the rear yard is likely to have an adverse impact on the residential amenity of the neighbours as a result of the number of vehicles and visitors coming and going to the site.

73. I am satisfied that the location of the car park at the rear of the proposed development is appropriate. In addition to its being appropriate on heritage grounds, the location of the carpark, with access from Muttama Street and egress to Stafford Street, is consistent with the requirements of section C.4.3.F of the DCP which provides that vehicles should enter and leave the site in a forward direction, and that vehicle parking should be separate from the outdoor play space. The location of the carpark at the rear also enables provision of soft landscaping at the front, estimated by Ms Carr to be 67.4% of the area forward of the building line (ex 14, p 8), consistent with section H2.2G(i) of the DCP which provides that 70% of the area forward of the building line should be soft landscaped.

71. The impacts of the car park in that location are considered below.

Number of parking spaces

75. The issue with the proposed number of car parking spaces relates to determination of the demand generated by staff, there being agreement as to the formula for calculation of demand generated by the number of children at the rate of one space per 10 children. While the DCP would require a separate space for delivery and maintenance purposes, based on the agreed traffic evidence that demand can be accommodated at restricted hours specified in the OMP and conditions, and does not require separate provision.

76. Dr Abbey prepared a staff roster taking into account the National Regulations and the National Quality Standard 2011 (NQS), based on the staff:child ratios required by the National Regulations applying from 1 January 2016 (the Draft Roster). The Draft Roster (ex J, Annex 2) incorporated Mr Cooper’s recommendation that the children access the outdoor play areas only between 8.00am and 6.00pm, which Dr Abbey considered appropriate. The Draft Roster provides for a Director working 38 hours per week between 8.00am- 4.30pm. Other staff are shown working in rooms 1 and 2 (Building 1) and rooms 3, 4, 5 and 6 (Building 2) with two floats for each building. In Building 2, two Lead Educator positions (one of which is a Float) appear to be shared positions: one is shown as 2 x 25 hours per week, from 8.00-1.00pm and 1.00pm – 6.00pm, and the other as 21 approx and 22 approx hours per week, with total working days at 9.00am-2.00pm, 8.30am-4.30pm, 7.30am-3.30pm, and 10.30am-7.30pm. Starting and finishing times, and lunch times, are staggered. Thirteen staff are shown working 37.5 hours per week, and the remaining five staff (including the shared positions) work 15, 21 or 22, 25, 32.5, and 35 hours per week.

77. Section C4.2 of the DCP provides that for long day care centres outside railway precincts and major public transport corridors, the requirement is one space per full time staff member and one space per two part-time staff.

78. In their joint report (ex 11) Dr Abbey and Mr Heldt agreed that the award defines part-time staff as working less than 38 hours per week.

79. In their joint report (ex 12) Mr Hollyoak and Mr McLaren calculated the number of car parking spaces required, having regard to the proposed staffing and the number of children. The traffic experts accepted Dr Abbey’s projected staff levels as 19 staff comprising 18 part time staff and one full time director (ex 12, p 11), and applied the requirement in section C4.2 of the DCP to determine that a total of 19 spaces are required, being 10 spaces for staff (ex 12, p 12), and applying the 2016 staffing requirements for the age range of children proposed (1 per 4 children in the 0-2 age group, 1 per 5 children in the 2-3 age group, and 1 per 10 children in the 3+ age group), 8 spaces for parent drop off. The traffic experts did not consider that a separate delivery space is required, as deliveries can be made between 9.30am-3.30pm allowing a delivery space to be used as an additional parent drop off/pick up space. Accordingly, at peak times 12 to 13 spaces could be used by staff (the upper end applies if 8 spaces only are assigned for parent use) and 8 to 9 spaces could be used by parents.

80. The traffic experts also referred to the RMS rate of 1 space per 4 children, which they considered is another appropriate and “unrestrained” car parking rate for long day care centres, so that 84 children would equate to 21 spaces. They noted that there is recent research that tends to support a lowering of peak parking demand, however that research and its findings have yet to be formally accepted by RMS. They agreed that a separate loading bay is unnecessary as waste collection and deliveries can be managed to avoid peak usage times of the car park.

81. The traffic experts gave further consideration to the number of car spaces in their oral evidence, noting that Mr McLaren had deferred to Dr Abbey in characterising staff as full-time or part-time, and that Mr Hollyoak had accepted Mr McLaren’s position. Neither could comment on what the DCP had in mind in setting the parking requirements.

82. Mr Hollyoak assumed that the relaxation for part-time staff was because they would not be using spaces at the same time, and when he looked at the roster he realised that the majority would all be there, and so he calculated 13 people there at or before 9.00am. For pick up times it is more spread out. Mr McLaren agreed that there would be 14 staff on a Monday, however he thought 1:1 is excessive in context of where the site is, and he would have regard to the child care centres surveyed for RMS research, and the overlap between parents and staff, given that public transport is nearby. Typically some staff will not drive, and there may be young people dropped off or who use public transport, from Artarmon Station (950m) and Chatswood Station (1.1km). Mr Hollyoak was of the opinion that people usually walk a distance of 800m, and the staff are effectively full-time so there is a need to provide parking to avoid overspill. The likely peak is 8.00-9.00am, and if those who start at 9.00am are excluded there are 9 staff there before 9am. The afternoon peak is 4.30-5.30pm, or 4.00-5.00pm, and he agrees there is ample parking for the afternoon peak. Mr Hollyoak considered that the DCP is assuming that all staff drive, and it could be reasonable to allow a discount of say 5% from that assumption. He agreed that current RMS research says if a centre has more than 66 children, the number of spaces reduces. The site is on 2 cul de sacs, and so if there is not sufficient parking on site there will be overspill which will create problems in the cul de sac.

83. The applicants submit that the evidence justifies the provision of the proposed 20 spaces to provide sufficient parking for the 84 place childcare centre. Absent cl 4.1B (circumstances which may justify departures from the parking rates) and the flexibility mandated by s 79C(3A) of the Act, the DCP standard would require 27 spaces, at 19 for 19 staff (if all full time) and 8 for 84 children (at 1/10 and rounded down). If the staffing level is 14 to meet minimum requirements of the legislation, then 22 spaces are required, at 14 for 14 staff and 8 for 84 children. However, considering the Draft Roster, and using Monday as a typical day, during the AM and PM peak (7.30-9.00am and 4.30-7.00pm) only 9 staff are on duty at or before 9.00am and from 4.00pm, so that during the peaks the car-parking demand is actually 17 spaces (9 for staff and 8 for 84 children). Further, when regard is had to the factors to be considered under cl C4.1B and s 79C(3A) as justification for reduced parking, it is apparent that the provision of 20 spaces is ample supply in the circumstances of this case.

84. The applicants submit that not all staff will arrive by car or in separate vehicles, and some will arrive by foot, use public transport, bicycle, or be dropped off by others; the site is close to public transport, as evidenced by the objectors who state that commuters habitually park in local streets and walk to Artarmon and Chatswood Stations; there is room within the centre for queuing of at least 6 vehicles for drop off and pick-up purposes, and cl C4.3F(ii) requires only a drive-through facility and not dedicated parent/carer spaces; street parking is available in the vicinity of the site so that at worst commuters who have less of a claim to the public street may be displaced; and the site is in proximity to bicycle routes. The RMS requirements of 1 space per 4 children (including staff) would require provision of 21 spaces, and new data yet to be adopted which would require 1 space per 6 children (14 spaces); and most other councils in nearby local government areas adopt the RMS requirement of 1 space per 4 children with no separate requirement for staff. No actual shortfall is likely to occur in practice and there is no evidence that there will be any unacceptable impact of not providing parking strictly in accordance with the numeric table. The objective of the car parking controls is to limit the use of street parking by parents and staff and that objective is achieved with the provision of 20 spaces, and so flexibility in the application of the DCP provisions should occur having regard to s 79C(3A) of the Act.

85. The Council does not accept that sufficient parking has been provided on the site. The Council submits that the controls in the DCP should be construed in a practical and commonsense way having regard to the context in which the words are found and the purpose of the provision, relying on Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 42. The objective is to ensure a reasonable number of parking spaces are provided for visitors and employees, and “part-time” should be construed in a way where a reasonable number of spaces are provided for part-time employees who will generate a demand for separate, as opposed to shared, carparking. Where employees can share a space it is reasonable to allocate one between them, and where part-time employees are going to be on the site at the same time they cannot share a space unless there is a stacker or a tandem, neither of which is proposed or would be appropriate. The DCP already provides a discount for a centre near a station or major public transport corridor. The DCP contemplates departures, and the applicants have not provided evidence to justify departure other than to seek to substitute a different requirement for the requirement in the DCP by Mr McLaren’s reliance on RMS and other council rates. The applicants do not provide bicycle parking or end of journey facilities or motor cycle parking, and there is no green travel parking, and nothing in the OMP to promote or mandate use of public transport. The DCP states that more rigorous standards may be required for developments having significant environmental impact, and that applies to the site because of its constraints. The proposed conditions are of no comfort, as there is agreement that 100% compliance with the OMP will not be achieved, and they impact on the flexibility of the centre to operate by limiting the number of staff on site at various time. On the applicants’ theory there is a requirement for 23 spaces in the AM peak and 22 in the PM peak, of which only 20 are provided.

86. The starting point for the Court’s consideration of the number of car parking spaces required is the DCP, there being no relevant provision in the LEP. The provisions of the DCP are, by virtue of s 79C(1)(a)(ii) of the Act, a fundamental element in, or a focal point to, the decision-making process, but are not determinative: Zhang v Canterbury City Council [2001] NSWCA 167. Section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP that set standards with respect to an aspect of a proposed development where a development application does not comply with those standards, and the consent authority is to “allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development”.

87. Section C4.2D of the DCP provides for one space per “full time staff”, and one space per “2 part time staff”. The DCP does not define “full time” or “part time”. It was common ground that the interpretation of the provision in section C4.2D should be guided by the intent of the DCP. The stated purposes of Part C.4 of the DCP include (7) “ensure that provision is made for a reasonable number of parking spaces for vehicles generated by a development including visitor, employee, service and commercial vehicles”. I agree with the Council that the DCP should be construed in a practical and commonsense way, and the term “part time” should be construed in such a way that a reasonable number of spaces are provided for employees who generate a demand for separate, as opposed to shared, carparking; and that is on the basis that where employees are going to be on site at the same time they cannot share a space unless there is a stacker or tandem parking.

88. It was common ground that the relevant award regards any staff member working less than 38 hours per week as part-time. However, Ms Carr’s evidence was that logically someone working 37.5 hours per week is not “part-time”; in her opinion the objective of the control is to achieve adequate parking. Mr Tsembis adopted what he described as a layperson interpretation of “part-time”, for example where someone works 4 hours in the morning or afternoon, or job shares or is on call: in his opinion there is a need for a practical approach, and anything over 35 hours per week could not be regarded as part-time.

89. I accept that the provisions of the award are clearly relevant, however having regard to the objective of the controls, I would not regard those provisions as determinative of whether staff are to be regarded as full time or part-time for the purposes of the parking requirements of the DCP. If Mr Tsembis’ practical approach is the standard adopted, based on the draft Roster, 14 of the staff other than the Director work 35 hours per week or more, and could be regarded as not being part time. That would require 17 car spaces for staff (15 plus 2 shared between 4 staff), or a total of 25 including 8 based on the number of children. On that basis, there is a shortfall of 5 spaces.

90. The applicants submit that if the intent of the standard is to minimise (not eliminate) on street parking, it must relate relevantly to peak periods of demand for parking by staff and parents or carers, being 7.30-9.00am, and 4.30-7.00pm. The evidence of Mr McLaren was that peak on-site staff levels will occur in the middle of the day with some staff arriving after 9.30am and leaving before 4.00pm, thus avoiding the peak parking times of parents delivering/ collecting children (ex 12, p 12). As noted above, there was some divergence between the traffic experts in oral evidence as to what are the peak hours.

91. If it is appropriate to consider staffing at peak periods in the calculation of spaces required, I agree with the Council that that exercise should have regard to the requirement in cl 2.5(b) of the OMP that staff generally arrive 15 minutes before their shift. It would also be appropriate to include in any calculation staff whose shift finishes at 4.00pm, as it is unlikely they would depart the site precisely at that time. However, the variation across the days of the week, and the two shared positions, make it difficult to determine the number of car spaces required on the basis of staffing at peak periods. The applicant submits that there are only 9 staff on duty at or before 9.00am and at 4.00pm, and so the actual demand is 17 spaces, 9 for full time staff, and 8 for children. However, that calculation does not take into account the two shared shifts, which on Monday cover the period 8.00am-6.00pm and 9.00am-6.00pm. If the relevant question is the number of staff on duty at the peak periods, rather than whether they are considered under the award to eb full time or part time, on the Monday roster there are 14 staff present at or before 9.00am, and 16 present at 4.00pm. That would require 22 spaces in the AM peak, and 24 in the PM peak.

92. On either approach, there is a shortfall in the number of spaces specified in the DCP.

93. Adoption of the RMS rate of 1:4 referred to in the expert traffic evidence, or that used by other councils (ex 12, Annexure H), is problematic. While the Court is entitled in the particular circumstances of the subject site to depart from standards set in the DCP, it is not appropriate to take a different view than that embodied in the DCP as to the applicable general policy, and in doing so, substitute an approach for the standard set in the DCP: Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338. In any event, even if the RMS approach is adopted, there is still a shortfall of one space.

94. Section C4.1.B provides the matters for consideration in determining whether a departure from the parking rates is appropriate. Having regard to those factors, there is no dispute that the site is accessible by public transport, and on a bicycle route to the CBD. However, proximity to railway stations is already factored in to the calculation of required parking spaces for a child care centre, and there are no end of journey facilities such as showers provided for staff who might otherwise cycle to work (it being accepted that it is staff rather than children who are more likely to arrive by bicycle). There is on-street parking available in the northern section of Muttama Road and on Stafford Road, as confirmed by Mr Hollyoak (ex 6, p 10). In considering the probable transport mode of users, Mr Hollyoak suggested 5% as a discount for the number of staff who may not drive to work. If that figure is adopted it would at most warrant a reduction of less than 1 space, resulting in a requirement for 24 spaces on the hours per week worked, or 21 (am) or 23 (pm) on the basis of the number of staff on duty at peak periods. The applicant submits that there is room within the centre for at least 6 vehicles to queue for drop off and pick up purposes; however it is not clear how conflict with people entering or leaving designated spaces would be avoided given the layout of the carpark, and Mr McLaren’s oral evidence was that it would not be best practice for vehicles to stop in the aisle. The impact of not providing on-site parking would be use of the surrounding streets. The objectors’ evidence was that local streets are already used by commuters using Artarmon or Chatswood stations; and there is also use by residents.

95. Having regard to the matters identified at section C4.1.B of the DCP I am not persuaded that there is a basis in the circumstances of this site to depart from the numerical requirements of the DCP. Section 79C(3A)(b) would not in my view require a different conclusion, as the flexibility mandated by that provision requires consideration of reasonable alternative solutions that achieve the objects of the standards set by the DCP. The objectives of section C4, for development generally, include ensuring provision of a “reasonable” number of car parking spaces for the demand generated by a development. The provisions specific to child care centres include the objectives specified in Part G, which include “minimise potential adverse impacts on the surrounding area in terms of… car parking”; section C.4.3.F which requires provision of car parking on site for staff and for drop off and pick up of children “to reduce the incidence of on-street parking, detrimental impacts on the amenity of surrounding residential area and maintain child safety”; and section G.8, that child care centres “should not be located in cul-de-sacs or no through roads, except where more than one street access and egress is available …” and “the Centre has adequate parking and pickup/drop off space”. The objectives for the latter provision include:

To reduce additional traffic generated by a child care centre in a cul-de-sac or no through roads as such locations do not allow for good traffic circulation and to minimise potential adverse impacts on the surrounding area in terms of noise, traffic generation and car parking.

96. It was common ground between the traffic experts that given the two dead end streets, and narrow carriageways, there is a potential increase in conflicts on those streets if users park on the street, further limiting passing oportunities. Mr McLaren’s opinion that this is not an issue was based on his assessment that the carpark provides adequate on-site car parking and achieves a safe set-down/pick-up visitor/parent parking arrangement (ex 12, p 3). Mr Hollyoak considered that potential conflicts would be exacerbated if parents decided to park on the street when dropping off children. In her statement of evidence (ex J) Dr Abbey noted (at p 4) that it would be exceptional for a parent not to use the Centre’s car park which abuts the Centre and is designed to prioritise the safety and wellbeing of children. The issue is whether there is sufficient parking provided for that to be so in this instance. Whichever way the numbers are calculated there is a shortfall in the number of parking spaces provided. Having regard to the objectives provided in the DCP for child care centres, which are concerned with both safety and with potential impacts on the amenity of the surrounding area, I am not satisfied that the circumstances of the site and the application warrant a departure from the numerical standards in the DCP.

106. The proposed OMP includes in section 6 provisions for lawn maintenance, including at (e) the requirement that only passive play is to occur in the grass area beneath the trees to the north of the building on 290 Mowbray Road. The applicants propose a condition that would require the approval of the Council for replacement of the grass with artificial turf. The uncontradicted evidence of Mr Jackson was that the artificial turf suggested (ex BB) enables water penetration and does not compact the soil because there is a 50mm layer of sand on the existing soil.

107. Based on the expert evidence I am satisfied that with the replacement of the existing grass with a more appropriate species, management of the use of that part of the outdoor play area through restriction on numbers and activities as proposed in the OMP, and maintenance of the lawn in accordance with the proposed management plan agreed between Ms McKenzie and Mr Jackson (ex 24), natural turf can be maintained in the front outdoor play area and there should be no need for its replacement with artificial turf. Were that to be required, I accept the evidence of Mr Phillips that provided the artificial turf is visually not distinguishable from natural turf it would maintain the leafy outlook by trees that is the focus of the control; Ms Hill accepted that the proposed artificial turf (ex BB) would not be visually discernible. The requirement for Council approval as proposed in the draft conditions would ensure that replacement would occur only to the extent actually necessary after implementation of the management and maintenance regime.

108. The heritage experts disagreed as to the acceptability of the proposed acoustic fencing and hedges. Mr Phillips considered that the HCA is characterised by low fences, and that it is the buildings that contribute to the HCA. He was of the opinion that the proposed 1800mm and 1900mm lapped and capped fencing is acceptable on the side boundaries, however it would not be acceptable at the front. The proposed 1200mm high fencing is neutral in the HCA if it is painted. Ms Hill was of the opinion that the fencing should be no higher than 1200mm because that ensures the visibility of the houses and front lawn, which is a significant element of the character; the DCP is clear that fences and hedges should be no higher than 1200mm.

109. Ms Hill had no issue with the 1800mm high fence on the side boundary in Muttama Road. She accepted that the DCP would permit higher acoustic fencing to 1600mm (H2.2.F(ii)), in circumstances which apply here on the Mowbray Road frontage, however the objectives are important in determining what is appropriate. Ms Hill’s concern was with the 20m section on the Stafford Road frontage where the proposed fence height is 1800mm. Within the HCA the predominant characteristic is low not high fences, with the front fence predominantly low; she accepted that there are some fences on Mowbray Road at 1800mm, however that is not characteristic. Ms Hill accepted that in Muttama Road and Stafford Road there are a number of examples of the types of hedging proposed here; her focus was on hedges at 1800mm or higher because in her opinion that is not characteristic of the HCA: based on Ms Carr’s survey (discussed below), approximately 15% of hedges are high, and a number of those are side or rear rather than at the front of properties. Ms Hill noted that even on the survey provided by Ms Carr there was still visibility into the site through gaps, such as for driveways. In Mr Phillips’ opinion it is logical that a house on Mowbray Road, if used as a dwelling, would have a higher fence round the corner for acoustic reasons. In his opinion a slightly higher fence at 200-300mm as extra hedge would not be atypical of a conservation area. Mr Phillips considered that despite the height, there would still be visibility of features of the houses such as gables from the street, and it is not critical to see the whole front of the house. There would still be an oblique view across the 1200mm high fence.

110. The objective of the fencing controls for heritage conservation areas in the DCP (section H2.2 F: Fences) is to provide fencing “that reinstates the original form of fencing, that is consistent with and does not detract from the established patterns of the street”. The requirements include for front fencing (including side fencing forward of the building line) hedging to 1200mm maximum, and lapped and capped timber fencing on a side boundary to 1200mm maximum. For properties fronting Mowbray Road, “a solid wall to 1600mm high set 1m behind a low front fence is acceptable” provided screen hedge planting is installed and maintained. For corner allotments within a heritage conservation area (section H2.3), fencing to the side frontage must not exceed 1800mm in height. The management policies for the Artarmon HCA (p H3-4) include that new fences “must reconstruct original details or repeat the pattern of low unpainted masonry fences and dense boundary plantings”.

111. The two areas of disagreement between the heritage experts relate to the acceptability of the 20m section of 1800mm high acoustic fencing and hedging on Stafford Road before it transitions to 1200mm, and whether the two bays of original masonry fencing on Muttama Road should be retained.

112. In relation to the first issue, I accept that with the proposed hedging in front of all the lapped and capped acoustic fencing the proposed development could be said to maintain the “dense boundary plantings” referred to in the DCP. The issue is whether the 20m section of 1800mm high fence and hedge is consistent with, and does not detract from, the established patterns of the street. Ms Carr’s survey of fencing (ex L, Annexure B), including photographs taken between 1 – 30 July 2015, covered the area of Muttama Road and Tindale Road south to Artarmon Road; and Stafford Road and Mowbray Road east to Sydney Street. Ms Carr noted that there are more front fences comprising pickets than there are low unpainted face brick fences, as sought in the DCP; hedges form part of 29% of front fences, either as the fence itself (10%) or above/behind the front fence (19%); and of the 61 fences comprising hedging, 41 were 1.6m or taller, comprising 20% of all front fences (ex L, p 25). In oral evidence Ms Carr agreed that lapped and capped fencing is not characteristic as a front fence. Ms Hill prepared a photomontage of fencing on odd and even sides of Stafford Road, Mowbray Road, Tindale Road and Muttama Road (ex 31), noting the height of the fences and the visibility of the house. Ms Hill noted the high percentage of properties which retain visibility of the house from the front boundary, and that fence heights are only one aspect of visibility and that often the crossing provides visibility.

113. Ms Carr’s survey, Ms Hill’s photomontages, and the view, confirm that the streetscape includes a number of picket fences with high hedges behind, and high hedges (including some higher than the 1200mm required in the DCP). The survey and photomontages, and the view, confirm that hedges of varying heights could not be said to be uncharacteristic of the streetscape of the HCA. The survey and photomontages support Ms Hill’s evidence that visibility of the dwelling is also in some instances available from driveway and other crossings. While the proposed fencing and hedging would present a solid appearance, I accept the evidence of Mr Phillips that features of the houses would remain visible from the street and apparent as part of the Federation streetscape; and more of the houses would, as accepted by Ms Hill in oral evidence, be visible to an observer on that part of Stafford Road where the fence height drops to 1200mm. While I accept Ms Hill’s evidence that the proposal represents a change from lawn with low transparent hedges to lawn with surrounding 1800mm high lapped and capped fencing and hedge, I also agree with Mr Phillips that the garden setting at the front of the site is retained. On that basis, and given the expert agreement that the contribution of buildings to the HCA is not affected, I am satisfied that while the proposed fencing and hedging is higher than that provided for in the DCP, and that the gap between the fence and hedging is less than the 1m specified for fencing on Mowbray Road, the objective of the fencing controls for a heritage conservation area is achieved, and the height of the proposed fencing would not be a reason for refusal of consent.

114. On the second issue, retention of the brick fencing at 290 Mowbray Road would be consistent with the objective in cl H 2.2 F of the DCP that it “reinstates the original form of fencing”. Removal of that section and its replacement by lapped and capped acoustic fencing to the boundary provides space for the nature walk area (including edible gardens) on the western side of 290 Mowbray Road. However, based on the amended plans the retention of the brick fencing for the full length along the Muttama Road boundary would still provide for an area on the western side of 290 Mowbray Road 1.5m wide at its narrowest, to 2m at the emergency evacuation gate on the Muttama Road frontage. The reduction in the number of children foreshadowed above would leave open the possibility of reconfiguration of that space. I agree with the Council that the brick fence should be maintained for its full length on Muttama Road.

115. The Council’s contentions included safety concerns arising from the use of the front area for recreational purposes on a busy pedestrian walkway. That contention was not pressed given the agreement of the childcare experts that the pedestrian walkway does not pose a risk and that it is preferable that children are connected to their local community (ex 11). I accept that evidence, and the agreed position that the 1200mm high fencing along Stafford Road is appropriate.

Impacts on amenity

130. The Council contends that the proposed development will have impacts on amenity from increased noise, the significant intensification of activities on the site, and the perception, if not actual, of visual and aural privacy and overlooking impacts, contrary to the aims of the LEP and the objectives of the R2 zone.

131. The Council contends that the use of the rear yard for car parking will impact on the amenity of surrounding neighbours, in particular 51 Muttama Road. Although the proposed development would comply with the noise criteria, the neighbours would still hear noise, in particular for 51 Muttama Road, the carpark; that noise would include car engines, car doors, people talking and the noise of children and mechanical plant. The proposed carpark and driveways are large hard stand areas which adjoin the rear yards of all neighbours, and the design outcome is poor and imposing: the carpark should be reduced in size, moved away from the southern boundary by at least 3m and broken up by proper landscaping, with a landscaping buffer with good sized canopy trees. The proposed development does not retain or enhance the residential amenity of 51 Muttama Road, placing a large commercial carpark adjacent to the porch and rear yard.

132. The applicants submit that noise impacts on the adjoining properties from the carpark are appropriately mitigated by a 1.8m high acoustic barrier inside the boundary and a new lapped and capped fence on the boundary. The applicants further submit that an acceptable separation between the proposed car park and the adjoining property at 51 Muttama Road is achieved, through the two fences which the acoustic experts agree will achieve noise attenuation; a landscaped garden of no less than 1145mm at its narrowest up to 5m on the south-eastern boundary; and use of the parking spaces parallel to the southern boundary by staff so that vehicle movements on the boundary will be minimised, achieving a de facto 3m minimum setback or separation. The applicants submit that the landscaping concerns raised by Ms Hill have been addressed; that the willow tree can be retained, and that even if it were to decline a replacement tree could be planted, and the height at maturity of the proposed Waterhousia floribunda immediately to the north of the willow would compensate for any possible decline of the willow.

133. The planners disagreed as to impacts on the amenity of surrounding properties. Mr Tsembis considered that the six parallel parking spaces on the southern boundary limits the area for screen planting and adequate separation between the neighbours and the car parking area, and that in the absence of adequate separation the level of activity in respect of the coming and going of vehicles and people would create an unacceptable level of disturbance and intrusion on residential amenity (ex 14, p 19). Ms Carr relied on the compliance with the acoustic criteria (ex 14, p 20). Mr Tsembis considered that the level of activity and associated noise impacts in the car park area could be disturbing as a result of loud conversations, children playing and car doors closing. Ms Carr disagreed. In her opinion the proposed car park will be a transient space only occupied by people for short periods of time, in contrast to residential backyards more likely to be occupied for extended periods and in use at all times of the day and week including evenings and weekends. The experts agreed that there are not likely to be actual visual privacy impacts on adjoining residential properties; in Ms Carr’s opinion perceived visual privacy impacts are ameliorated by the proposed landscaping, and the distance of 20m from the south facing windows on the development and the private open space of the neighbouring property.

134. The acoustic experts agreed that the use of the car park would comply with the DCP criterion of no higher than background plus 5 dB(A) (ex 13, item 7). Mr Cooper assessed the intermittent noise sources associated with car doors, engines, arriving and leaving; he considered based on his experience in other child care centres that children and parents talking in the car park would be insignificant, as the majority of talking occurs in the childcare centre (ex K). On his assessment, modelled on peak usage of 9 vehicles per 15 minutes, the contribution from vehicles would realise a contribution of 33 dB(A); and the addition of 6 people talking in a normal voice at three parking bays would realise a contribution of 32 dB(A); together with the simultaneous use of the play area and mechanical plant, there would be a cumulative 15 minute Leq of 45.03 dB(A), which is compliant with the design target of 5dB above background of 40 dB(A) for the period between 7.00am-8.00am (ex K, paragraph [89]). The LAeq,15 minute contribution of a staff member using a bay adjacent to the southern boundary was determined to be 22 dB(A) when arriving and 28 dB(A) when leaving (ex K, paragraph [87]). Mr Cooper noted that the ambient Leq noise level as a result of traffic on Mowbray Road is the dominant source of the acoustic environment of the area, such noise being generally more than the background + 5dB(A) (ex K, paragraph [97]). The agreed acoustic evidence was that in operating once or twice a week for 10 minutes, the noise from garbage collection would meet the DCP criteria.

135. I accept, based on the view, that with the construction of the acoustic fencing, the car park would not be visible from 51 Muttama Road. I accept the agreed expert evidence that there are no likely to be actual visual privacy impacts on adjoining residential properties, and I accept Ms Carr’s evidence that the proposed landscaping along the southern boundary and the distance of 20m from the south facing windows on the development and the private open space of the neighbouring property would mitigate any perceived visual privacy impacts.

136. The aims of the LEP include in cl 1.2(2)(e) to maintain and enhance the existing amenity of the local community, and to reduce adverse impacts from development on adjoining or nearby residential properties. The objectives of the R2 zone include accommodating development that is compatible with the scale and character of the surrounding residential development, and to retain and enhance residential amenity, including views, solar access, aural and visual privacy, and landscape quality.

137. The concept of “amenity” is wide and flexible. In Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10, Preston CJ considered the authorities and commented:

190 …Some aspects of amenity are practical and tangible. Examples are traffic generation, noise, nuisance, appearance and way of life in the neighbourhood. Other aspects of amenity are intangible and subjective. They include the standard or class of the neighbourhood and the reasonable expectations of a neighbourhood: Broad v Brisbane City Council [1986] 2 Qd R 317; (1986) 59 LGRA 296 at 299. Amenity may embrace the effect of a place on the senses and the residents’ perception of the locality. Knowing the use to which a particular site is, or may be, put may affect a person’s perception of amenity: Broad v Brisbane City Council at 305. See also Venus Enterprises Pty Ltd v Parramatta City Council (1981) 43 LGRA 67 at 69; Novak v Woodville City Corp (1990) 70 LGRA 233 at 236-237; and Optus v City Council of Kensington and Norwood at 6.

191 The very wide concept of amenity expounded in cases like Broad v Brisbane City Council applies with even greater force in a statutory scheme like the EPA Act which in s 79C(1) gives effect to the widest conceivable scope of “likely impacts” of a proposed development, including environmental, economic and social impact, without employing the term amenity: Perry Properties Pty Ltd v Ashfield Council (No 2) (2001) 113 LGERA 301 at [64].

138. I accept that the matters considered by Mr Cooper, including the movement of vehicles in and out of the car park, opening and closing of car doors, and the sounds of people talking, while within DCP limits would be audible, and, as accepted by Ms Carr, the adjoining neighbour would experience impacts not characteristic of residential development. Those impacts would be impacts on amenity in its wide and flexible sense, and, as accepted by Ms Carr in oral evidence, could be described as a diminution of residential amenity for 51 Muttama Road. However, those impacts would arise for limited periods of time, on weekdays, and would be absent entirely in the evenings and on weekends. Whether those amenity impacts would warrant refusal of the application is addressed below in the context of the consideration of the aims of the LEP and the objectives of the R2 zone.

Intensity of the development

139. The Council contends that the intensity of the development, in particular the number of children provided for, is excessive in the circumstances, and the development does not achieve the aims of the LEP or the objectives of the R2 zone. The impact on the streets and local road network during peak periods will be adverse; and the size of the development results in the design with the large rear carpark in close proximity to neighbouring properties, and a poor landscape buffer to the rear neighbour. The Council submits that the majority of the site is hard paving, and less than 32% is landscaping, which is inconsistent with the landscaped green leafy character of the area. While there is no landscaping control that applies to childcare centres, as individual sites the dwelling house control would require around 42-43% of the site as landscaping, or if consolidated, 50%. The rear carpark will be viewed by persons using it and pedestrians in the street and in the pocket park on Muttama Road, and that experience is not lost once the gate shuts. That is a result of intensity, and the Council submits that the applicants could break up the carpark by providing significant landscaping between car spaces and by providing a good setback to the southern boundary with transparent fencing so that plants could get light and the landscaping could be appreciated.

139. The applicants submit that a 3m setback on the southern boundary is not reasonable or necessary in the circumstances. There is no control in the LEP or DCP requiring such a setback; the proposal complies with the requirements for 70% soft landscaping forward of the building line and for car parking to be in the rear of the site in a HCA; and there is no landscaped area control in the DCP for a child care centre. Further, there is no evidence on which the Court could find that an increased setback would achieve any additional acoustic benefit, and on the acoustic evidence no additional acoustic measures are necessary to protect the acoustic privacy of the adjoining neighbours. There is no evidence on which the Court could find that an increased setback would achieve any additional visual privacy benefit; and the proposed development already achieves a de facto 3m setback on the southern boundary from the combination of the proposed landscaping, fencing and the location of the staff parking parallel to the southern boundary.

140. Mr Tsembis’ evidence was that the proposed child care centre needs sufficient separation which is not achieved with the large car parking area, and it could have a greater setback as a buffer between the carpark and the adjoining residence. There should be a 3m landscaped buffer, which would reduce the size of the carpark, and reduce the impacts of car doors opening and closing. He agreed that once cars are parked along the southern boundary there would be no issue, and there would be a separation, however in his opinion that is not necessarily a better outcome, and not as good as 3m of landscaping. Ms Carr relied on the expert evidence that the proposal meets the relevant acoustic limits of the DCP, and she did not consider that an additional 3m buffer would assist. Ms Carr agreed that a carpark for 20 vehicles is not characteristic of the R2 zone, and that the character would change because of the carpark area. Mr Tsembis accepted that even if the parking was reduced from 20 to 10 spaces it would still be a large carpark in a residential zone, however that would allow more landscaping. Ms Carr considered that reducing the size of the carpark would not greatly assist, as there would still need to be an area for circulation; and the proposal is replacing two garages, keeping the willow, and the entry gate will be closed most of the time.

141. I accept that the carpark will be visible to pedestrians on Muttama Road and from the pocket park when the gate is open, and that the view would be of a large, hardstand parking area. Those places are accessible to the public, and assessment of the aesthetic appearance is relevant: Directional Projects Pty Ltd v Pittwater Council (19 March 2002, Roseth SC). While vehicular activity and thus visibility would be limited given the location at the end of a cul-de-sac, the car park would be visible from 292 Muttama Road on the western side of the street. However, the car park would only be visible from the street for the five hours each weekday that the gate is to be open, together with additional openings as required during the day.

142. I accept, based on the agreed expert planning evidence, that the physical extent of the carpark area and the proposed parking for 20 vehicles is not characteristic of the area. There is no control in either the LEP or the DCP which would require the 3m setback to the southern boundary advocated by Mr Tsembis, and no landscaped area control in the DCP applicable to a child care centre. The issue is whether a 3m landscaped buffer along the southern boundary, or additional landscaping between the parking spaces, as sought by Mr Tsembis, would ameliorate the visual impact of the acoustic fencing and carpark to the extent that it would warrant reduction in the number of parking spaces provided.

143. The canopy trees in the south eastern corner of the site are retained, and the proposed plantings include two Cypressus trees in the middle section of the southern boundary, and, as discussed above, the Crepe Myrtle along the southern boundary. The arboricultural experts agreed on protection measures for the tree protection zones of the trees to be retained in the south eastern corner of the site (ex 15, p 4). Based on the plans, I accept the applicants’ submission that the combination of the proposed fencing, landscaping and the location of the parallel staff parking, once the cars are parked, would result in a de facto 3m setback on the southern boundary.

144. Having regard to the proposed plantings, the retention of canopy trees in the southeastern corner of the site and the retention of the willow on the western side of the site, I am of the view that while the provision of additional landscaping on the southern boundary would enhance the appearance of the carpark, in the context of the earlier findings as to the importance of providing sufficient parking on site to avoid parents or staff parking on the surrounding streets, I am not persuaded that an additional 3m buffer along the southern boundary is warranted. The location of the OSD on the south western part of the site would in any event appear to limit any additional substantial plantings to the central part of the southern boundary. That area is the location of the proposed Cypressus planting, which is, based on the survey (ex B, tab 19), adjacent to the patio of 51 Muttama Road. Additional planting in that location would mean the loss of at least one staff car parking space.

Overdevelopment

146. The Council’s position is that the proposed development is an overdevelopment of the site, given its significant constraints, and the intensity of the development is excessive, so that the aims of the LEP are not achieved and the objectives of the R2 zone are not met. In Mr Tsembis’ opinion the inadequate carparking, the large carpark, and the high fencing mean that the proposed development is an unacceptable development in the location. The benefits of provision of child care must be reconciled with impacts on amenity, and this is an overdevelopment of the site, and there is a need to reduce number of children, the carparking, and the intensity of use.

147. The aims of the LEP include “to maintain and enhance” the existing amenity of the local community and “to reduce adverse impacts from development” on adjoining or nearby residential properties. I accept, as did Ms Carr, that in some respects the proposed development could not be said to “enhance” existing amenity. However, I agree with the applicants that it is difficult to envisage how a childcare centre could enhance the residential amenity of every neighbour, however carefully managed.

148. Clause 2.3(2) of the LEP requires consideration of the objectives of the R2 zone. As noted in Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107, the objectives set the framework within which the LEP operates, and are not provisions that control development; and they are not necessarily consistent. The planners agreed that the proposed development complies with the applicable height and floor space ratio controls and the scale of the development is acceptable in relation to the height and bulk of the existing building and the proposed rear extension, which is compatible with surrounding residential development (ex 14, p 10). I accept that evidence, and on that basis the proposed development is consistent with the third objective of the R2 zone. The planners agreed that there is a shortage of long day care places in Artarmon, as acknowledged in the Council’s application for a child care centre at Abbott Road Artarmon (ex 14, p 22). The proposed development accordingly provides a facility that meets the day to day needs of residents, consistent with the second objective of the R2 zone. Based on the agreed evidence and the findings on heritage issues above, the proposed development retains the heritage values of the locality, consistent with the fifth objective of the R2 zone.

149. The primary issue is with the intensity of the use proposed, in the context of the fourth objective of the R2 zone “to retain and enhance residential amenity”. Non-residential uses including child care centres are permissible in the R2 zone, and already present in residential areas including the five child care centres discussed by Ms Carr in her statement of evidence (ex L, pp 9-13). I agree with the applicants that some non-residential impacts of having a child care centre adjacent to residential properties must be contemplated; and the issue is whether the impacts of the particular permissible non-residential use are acceptable. The particular impacts of the proposed development, and the ameliorative measures in terms of management of the operations of the centre, visual and acoustic privacy, and retention of heritage values, are discussed above. Of those, the consequences of the failure to provide adequate on-site parking to meet the demand generated by the development would be the primary reason why the proposed development would not retain and enhance residential amenity as sought in the fourth objective of the R2 zone.

Public Interest

150. The matters of concern raised by the objectors in their written submissions and on site, and as particularised in the Council’s contentions, have been addressed in the expert evidence and in the findings above, and there are no matters otherwise raised that would warrant refusal in the public interest.

Conclusion

151. The central issue in terms of the design of the proposed development and the intensity of the proposed use, and whether the proposed development is, as contended by the Council, an overdevelopment of the site, is the need for the site to provide adequate parking for the demand generated by parents/carers and staff of the proposed child care centre. If that could be achieved, and subject to the findings in paragraphs [66], [68], [105], [116] and [128] above, I am satisfied that it would be appropriate to approve the proposed development.

152. Directions will be made in consultation with the parties to provide an opportunity for the applicants to consider whether they wish to amend the application as foreshadowed in their submissions, and as submitted by the Council to reduce the intensity of the use, to reduce the number of children so that 12 staff are required. That would require revision of the draft Roster, and the OMP, to ensure that quality child care is maintained. The Council should also be given the opportunity to consider its position.

Addendum made on 1 July 2016

153. In accordance with the terms of paragraphs 151 and 152 of my judgment of 21 April 2016, on 30 June 2016 the parties provided me with amended plans and agreed conditions of consent, and an amended Operational Management Plan, which provide for a reduction in the number of children to 72 and consequent reduction in the number of staff. I am satisfied that the amended plans, amended Operational Plan of Management, and conditions of consent accord with my findings and accordingly I make orders in chambers as follows:

1. The applicants are granted leave to amend the application to rely on the plans listed in Condition 1 of Annexure A and the Operational Management Plan dated June 2016 annexed to the conditions;
2. Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 the applicants are to pay those costs of the consent authority that are thrown away as a result of the amendment of the application for which leave was granted on 16 December 2015, as agreed or assessed;
3. The appeal is upheld;
4. Development Application DA567/2014 for alterations and additions to three existing dwelling houses and change of use to a child care centre at 66 and 66A Stafford Road and 290 Mowbray Road Artarmon is approved subject to the conditions in Annexure A; and
5. The exhibits are returned except for exhibits 1, 21, 30, 33, A, B, Y, DD and EE.

159064.16 Pearson (C) (543 KB, pdf)

Linda Pearson

Commissioner of the Court

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Amendments

06 July 2016 - Addendum made on 1 July 2016 by Commissioner Pearson

Conditions attached

Decision last updated: 06 July 2016