Little Darlings Child Care Centre Pty Ltd v Sutherland Shire Council
[2007] NSWLEC 828
•30 November 2007
Land and Environment Court
of New South Wales
CITATION: Little Darlings Child Care Centre Pty Ltd v Sutherland Shire Council [2007] NSWLEC 828 PARTIES: APPLICANT
RESPONDENT
Little Darlings Child Care Centre Pty Ltd
Sutherland Shire CouncilFILE NUMBER(S): 10575 of 2007 CORAM: Tuor C KEY ISSUES: Development Application :- to increase the number of children attending the child care centre from 48 to 56
Noise impacts and provision of parkingLEGISLATION CITED: Sutherland Shire Local Environmental Plan 2000
Sutherland Shire Local Environmental Plan 2006
Environmental Planning and Assessment Act 1979CASES CITED: Architects Haywood and Bakker Pty Ltd v North Sydney Council (2000) NSWLEC 138 ;
Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2000) NSWCA 289DATES OF HEARING: 30/11/2007 EX TEMPORE JUDGMENT DATE: 30 November 2007 LEGAL REPRESENTATIVES: APPLICANT
Ms S. Duggan, barrister
Instructed by Mr P. Baltins
of Willis Bowring SolicitorsRESPONDENT
Mr A. Pickles, barrister
Instructed by Ms J. Amy
of Sutherland Shire Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
30 November 2007
JUDGMENT10575 of 2007 Little Darlings Child Care Centre Pty Ltd v Sutherland Shire Council
1 This is an appeal against the refusal by Sutherland Shire Council (the council) of a development application (06/0273) to increase the number of children at an existing child care centre at 482 Port Hacking Road, Caringbah (the site). The proceedings were conducted as an On Site Hearing.
The site and its context
2 The site is almost rectangular in shape and is located on the south-eastern corner of Port Hacking Road and Telopea Avenue. It has frontages of 19.82 m to Port Hacking Road and 63.72 m to Telopea Avenue giving a total site area of 1252 square metres.
3 The site is occupied by two single story brick buildings at the centre and south-eastern corner of the site, both of which are used for the child care centre. Two outdoor play areas are located on the site, one at the western end on the site adjoining Port Hacking Road (2-5 year old play area) and the other situated between the two buildings (0-2 year old play area).
4 Vehicular access to the site is provided from Telopea Avenue at the eastern end of the site. There are separate ingress and egress driveways and on-site parking is provided at grade for six vehicles, plus one short-term parking space.
5 Development in the area is predominantly residential, characterised by a mix of single dwellings, dual occupancy, villas and townhouses. To the north across Telopea Avenue is a two storey brick dwelling and to the south is a dual occupancy development. To the east is a villa development.
The proposal
6 The proposal is to increase the number of children attending the centre from 48 to 56. Internal changes to provide an additional play room and amendments to the entry ramp and acoustic screening are proposed.
Planning framework
7 The site is zoned 2(a2) Residential under Sutherland Shire Local Environmental Plan 2000 (LEP 2000). The proposed development is permissible with consent. Cl 31 of LEP 2000 provides requirements for non-residential use in residential zones.
8 Development Control Plan - Child Care Centres (the DCP) applies to the application. Relevantly, cl 15 of the DCP permits a maximum number of 40 children in residential zones. The existing centre exceeds this number.
9 Clause 14 establishes the car parking requirements for child care centres. Cl 14 provides:
Objectives:
a) Adequate car parking on-site so as to avoid inconvenience to nearby residents or congestion in the roadway.
Standards:
a) Off-street parking must be provided at the rate of one space for every four children in attendance.
b) Consideration could be given to reducing the parking required if convenient and safe on-street parking is available provided that the use of such parking does not adversely affect the amenity of the adjacent area .
10 Under Sutherland Local Environment Plan 2006 (LEP 2006) the site is in Zone 4 - Local Housing. Child care centres are permissible within this zone if the maximum number of children does not exceed 45.
11 The objectives of the Local Housing zone includes:
(e) to allow non-residential buildings that provide necessary services to the local community without adversely affecting the residential amenity of the zone.
12 LEP 2006 was gazetted after the development application was lodged. Under cl 7, LEP 2006 has the status of a draft planning instrument which has been exhibited but not made.
13 Consistent with the decisions in Architects Haywood and Bakker Pty Ltd v North Sydney Council (2000) NSWLEC 138 and Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2000) NSWCA 289, LEP 2006 is imminent and certain as it has been gazetted and should be given considerable weight. The key consideration being whether the proposal meets the planning approach in LEP 2006 being to ensure that residential amenity is not affected by non-residential uses.
Issues and evidence
14 The main issue between the parties is whether the impacts of noise and parking had an acceptable impact on residential amenity.
15 The Court heard evidence on-site from residents and parents with children at the centre as well as parents with children on the waiting list. The key concern of those residents objecting to the proposal is that any increase in numbers would exacerbate the noise and traffic impacts already generated by the centre.
16 The parents of children at the centre supported the increase on the basis that there is a demand for places at the centre as it is well run. They also stated that they were aware and abided by the Noise Management Plan (NMP) for the centre and generally parked in the on-site car park.
17 The Court heard expert evidence from the following experts;
18 For the council
- Mr Sannikov, traffic
- Mr G Atkins, acoustics
- Mr K Nash, town planner
19 For the applicant
- Mr C McLaren traffic,
- Ms T Gowan, acoustics
- Mr L Fletcher, town planner
Noise
20 Mr Atkins and Ms Gowan agreed that the increase in number could comply with the noise criteria specific in the DCP of 5 dBA above background. They noted that the proposal did not increase the number of children playing outside at any one time, which is limited to 22 under the exiting approval. However, the proposal would increase the duration of outdoor play.
21 The existing situation results in an exceedence of 2 dBA above the criteria measured at 484 Port Hacking Road, which Ms Gowan did not consider to be significant. However, the experts agreed that an increase in the height of the existing Colorbond fence would alleviate any noise issues as well as provide screening for Ms Greenwood, the occupant of 484 Port Hacking Road. Mr Romeo, the owner, considered the increase in height would add bulk to the fence and would not provide any noise benefits.
22 Ms Greenwood’s main concern was the noise of people using the access ramp and overlooking her property. To alleviate this concern the applicant proposed to relocate the ramp and to provide an acoustic screen and gate.
23 I accept the evidence of the acoustic experts. The proposal will not result in an increase in the number of children playing outside but will increase the duration of play periods. The measures proposed, to increase the height of the fence and relocate the ramp, will alleviate the noise levels already generated by the child care centre to ensure compliance with the criteria of background plus 5 dBA. The additional fence height is proposed to be a lattice screen with Perspex. The maximum height of the fence will be between 2m to 2.3 m which is not uncharacteristic of a residential zone and will not be of excessive bulk. The relocation of the ramp will assist in alleviating the noise impacts and overlooking impacts perceived by Ms Greenwood.
24 There is no evidence that the centre does not operate in accordance with its Noise Management Plan. The purpose of the plan is not that there will be no noise audible from the child care centre but that it will meet the specific criteria. In this regard condition 19 requires that acoustic testing be carried out once the numbers are increased. The condition specifies that the monitoring be carried out by a suitably qualified practising acoustic engineer chosen from a list of acoustic engineers nominated by council.
25 Ms Duggan, for the applicant, submitted that the list would not include Renzo Tonin and Associates and that the conditions should be amended to do so based on the firm’s previous work with the centre. Mr Pickles, for the council, submitted that the testing does not require prior knowledge of the site and should be carried out by a consultant independent of the applicant. I accept Mr Pickles’ submission.
- Parking
26 The other issue in dispute between the parties related to the provision of on-site parking. The DCP requires one space per four children, the increase in eight children would therefore generate a demand for two additional spaces. Mr Sannikov considered that the overall demand for parking by the centre should be considered, not just the increase. On this basis, under the DCP, the centre would generate a demand for fourteen spaces of which only seven were provided on-site thereby generating an estimated demand for seven spaces on-street.
27 The surveys carried out by the experts indicate that the existing car park is not used to full capacity. Mr McLaren stated that the current peak parking demand is below the rate of one space per four children. The experts agreed that the use of kerbside parking along the southern side of Telopea Avenue was safe and convenient, although they disagreed as to whether seven spaces could be provided outside the Telopea Street frontage of the site based on their interpretations of the Australian Standard.
28 Mr McLaren concluded seven spaces could be provided whereas Mr Sannikov concluded that there would be six spaces provided. Two spaces are also available along the Port Hacking frontage, although Mr Sannikov did not consider these to be safe and convenient. The DCP objective of cl 14 is that adequate car parking on-site be provided so as to avoid inconvenience to nearby residents or congestion on the roadway. It specifies a rate of one space per four children but states that consideration could be given to reducing on-site parking if convenient and safe on-street parking is available which does not adversely affect the amenity of the adjacent area.
29 Telopea Street is a relatively quiet residential street with adequate parking spaces available on the street, most houses having their own off-street parking spaces. It is not disputed that at least six spaces can be provided on the Telopea Avenue frontage which are safe and convenient and will not impact on adjoining neighbours. I accept Mr McLaren’s evidence that seven spaces can be provided along Telopea Avenue, but even if this were not the case, I do not consider it unreasonable for the occasional use of spaces along the Port Hacking Road frontage or outside other properties in Telopea Avenue.
30 The proposal will require staff parking for up to five staff to be on-site which will remove long term parking by staff in Telopea Avenue. Parking by parents is for short periods and likely to occur only in the morning and afternoon peak periods of ten minutes. I accept that while the proposal does not comply with the numerical requirement this can be reduced as convenient and safe parking is available and its use will not adversely impact on the amenity of the adjacent area.
The Orders of the Court are:
1. The appeal is upheld.
3. The exhibits, except Exhibits B, C, 4 and 8 may be returned.2. The development application (06/0273) to increase the number of children from 48 to 56 and alterations at an existing childcare centre at 482 Port Hacking Road, Caringbah is approved subject to the conditions in Annexure A.
___________________
- Annelise Tuor
Commissioner of the Court
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