Liu v Council of the City of Ryde

[2016] NSWLEC 1521

Land and Environment Court

New South Wales

Medium Neutral Citation:	Liu v Council of the City of Ryde [2016] NSWLEC 1521
Hearing dates:	7 October 2016
Date of orders:	11 October 2016
Decision date:	11 October 2016
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	See Paragraph [72]
Catchwords:	APPEAL – Development consent – childcare centre –loss of existing residential amenity- increased traffic and noise
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ryde Local Environmental Plan 2014 Ryde Development Control Plan 2014
Category:	Principal judgment
Parties:	Tian Yong Liu (Applicant) Council of the City of Ryde (Respondent)
Representation:	Solicitors: Ms R. McCulloch, Pikes & Verekers Lawyers (Applicant) Mr P. Kapetas, Council of the City of Ryde (Respondent)
File Number(s):	2016/00159370
Publication restriction:	No

TABLE OF CONTENTS

ex tempore Judgment

The Proposal

Consent Orders

The objectors

The Site

Statutory controls

The Council’s position

Operational plan of management

Bereavement centre

National Quality Framework (ACECQA)

Acoustic evidence

Traffic

Waste storage

Contamination

Landscaping

Signage

CONCLUSION

Orders

ex tempore Judgment

1. This judgment concerns a development application, DA 2016/0047 (the DA), for the construction of a 48-place childcare centre at 12 Hollis Avenue, Denistone East (the Site).

The Proposal

2. The Proposal includes the demolition of the existing dwelling on the Site and the erection of a new two-storey development. The ground floor is to contain the indoor play spaces, bathrooms, cot rooms and storage areas, and the first floor is to contain the staff room, office, and laundry and kitchen facilities for the centre. The rear setback area is to include the outdoor play area for the children.

3. The development has been set back into the Site to facilitate car parking for 11 cars accessed via a circular driveway from Hollis Avenue.

4. The proposed centre is to have seven staff and accommodate 48 children in the following age groups:

• Nought to two-year-olds – eight children (two staff)

• Two- to three-year-olds – 15 children (two staff)

• Three- to five-year-olds – 25 children (three staff).

5. The proposed operating hours of the centre are 7.00 am to 6.00 pm, Monday to Friday.

Consent Orders

6. The proceedings were commenced by Mr Liu (the Applicant) pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) on a “deemed refusal” basis because the Council had not finally determined the DA.

7. However, since the lodgement of the appeal the application has been amended and supplemented by further information. Following further assessment I am told that the Council is now satisfied that a conditional approval of the development should be granted. To that end, the Council joins with the Applicant in requesting the Court to make consent orders granting development consent, subject to the conditions in Annexure A.

8. Notwithstanding the agreed position of the parties, I am required to be satisfied that it is appropriate to make the orders sought by them. In considering the consent orders, the Court’s Practice Note – Residential Class 1 – Development Appeals (the Practice Note) provides that I must consider any submission made by an objector to the proposed orders and the agreed conditions of consent. In accordance with the Practice Note, by letter dated 16 September 2016, the Council’s solicitor notified those persons who had objected to the original proposal of the proposed consent orders and the agreed conditions of consent. The letter also gave notice of the date of the hearing before the Court and invited them to attend the hearing before the Court to consider the making of the proposed consent orders and invited any interested person to be heard at that time.

The objectors

9. A large number of local residents took up the Council’s invitation to attend the consent orders hearing and address the Court about their concerns. Notes of that oral evidence, as recorded and agreed by the parties’ solicitors, were later tendered into evidence.

10. Not surprisingly, many of the local residents who addressed the consent orders hearing had given oral evidence at the earlier on-site s 34 conciliation conference which I facilitated and, ultimately, terminated to allow the matter to proceed to hearing.

11. Despite the provision of further detail by the Applicant - including a plan of management and amendment of the plans to improve the driveway access, the bin storage area, perimeter fencing and landscaping to address the Council’s concerns - these matters did not overcome the local residents’ fundamental objection to the siting of this traffic-generating, commercial enterprise in their residential street.

12. Put simply, the local residents believe that the development of a childcare centre in Hollis Avenue is not in keeping with the existing character of their residential neighbourhood. Despite the development being permissible on the site under the Ryde Local Environmental Plan 2014 (LEP 2014), the objectors are collectively of the opinion that the introduction of this commercial development will generate unacceptable traffic – which will exacerbate the parking problems they currently experience. They are also very concerned about the safety of pedestrians using Hollis Avenue - particularly the children accessing the centre and other children who live in the street. They told me that Hollis Avenue is generally congested with parked cars and, given its topography, sight lines into and out of the street are already compromised by the parked cars. In short, the street is already unsafe. Residents cannot easily back out of their driveways and, during peak times, traffic is backed up as people try and access Lovell Road, onto Blaxland Road.

13. The immediate neighbours to the north of the site, who reside in the small unit complex, said that they were concerned about noise from children playing in the rear of the site, and the impacts of the proposed fencing on their access to sunlight and the stability of their gardens behind the boundary fence during the construction works.

14. Several of the objectors also raised issue with the fact that the proposed childcare centre does not satisfy all of the prescribed guidelines set out in the Council’s Childcare Development Control Plan 2014 (DCP 2014) in respect of site suitability and location for childcare centres.

15. Apart from the oral objections summarised above, I have also read the written submissions lodged with the Council in respect of the amended proposal and the original application.

16. Before I deal further with the merits of the Proposal and the concerns of the objectors, it is appropriate to record some detail about the development and its environs. In that regard I have relied on the Council’s Statement of Facts and Contentions dated 5 May 2016 (SOFAC) and the oral and written evidence from the parties’ planning experts, Mr Ian Glendenning and Mr Ben Tesoriero (Planning Joint Report - Exhibit E) and my observations at the Court’s view.

The Site

17. The Site is located on the western side of Hollis Avenue and is generally rectangular in shape, with a total area of 1107 square metres. It has a frontage to Hollis Avenue of 20.115 metres and a rear boundary of 20.385 metres, a northern side boundary 56.90 metres and a southern side boundary 53.46 metres in length.

18. The land has an average slope and currently contains a single-storey brick dwelling house with a tiled roof. An in-ground swimming pool is located in the rear yard.

19. A low masonry fence is located along the boundary, with a driveway located adjacent to the northern side boundary. There are two existing entry points from Hollis Avenue into the Site.

20. The Site is approximately 60 metres east of Blaxland Road and to the south of Lovell Road.

21. Existing development in the local area is predominantly characterised by a mix of single- and two-storey dwelling houses, dual occupancies and multi-dwelling house development.

22. Immediately adjoining the site to the south, at 14 Hollis Avenue, is the Bereavement Care Centre (the bereavement centre) where counselling and support services are provided for the terminally ill and their families and for those recently bereaved.

23. To the north, at 10 Hollis Avenue, is a single storey multi-dwelling house development containing three dwellings. Their private open space adjoins the common boundary with the Site.

24. To the east of the Site, on the opposite side of Hollis Avenue, is a series of single-storey dwelling houses. The owners of these properties are some of the objectors to the DA.

25. To the west of the Site, at 557 Blaxland Road, is a single dwelling house and, at 559 Blaxland Road, is multi-development housing operated by a community housing provider, Achieve Australia. At 555 Blaxland Road is a single-storey dwelling house.

Statutory controls

26. The following statutory controls are relevant to the assessment of the DA:

a. Environmental Planning and Assessment Act 1979 (EP&A Act 1979)

b.    Environmental Planning and Assessment Regulations 2000 (Regulations)

c. Education and Care Services National Regulations under the Education and Care Services National Law (National Regulations)

d.    State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55)

e.    Ryde Local Environmental Plan 2014 (LEP 2014)

f.    Ryde Development Control Plan 2014 (DCP 2014)

27. LEP 2014 is a City-wide planning instrument that commenced on 12 September 2014. Under this Plan, the Site is zoned R2 Low Density Residential. The proposed development is a land use that is identified as being permissible with consent within this zoning.

28. The Ryde Development Control Plan 2014 (DCP 2014) is the Development Control Plan applicable to the proposed development on the Site. The following Parts of DCP 2014 are of relevance in the assessment of this DA:

●    Part 3.2 – Child Care Centres

●    Part 9.3 – Parking Controls

The Council’s position

29. As earlier stated following the provision of further information the Council has assessed the application as acceptable under s 79C (1) of the EP&A Act.

30. In coming to that assessment, the Council accepts the expert evidence of the parties’ town planners as set out in their Joint Planning Report (Exhibit 1), and the applicant’s acoustic and traffic evidence which is not contradicted by any other expert.

31. Dealing with each of the Council’s contentions, as identified in the SOFAC by heading, I set out below a brief summary of the expert evidence.

Operational plan of management

32. With respect to the management of the centre the town planners are now satisfied that the incorporation of the proposed Operational Plan of Management in Exhibit F (The Plan) as a condition of the development consent will ensure that the operation of the centre will not unreasonable interfere with the existing amenity of the local residents.

33. The Plan records that the centre is designed to cater for no more than 48 children aged between birth to six years of age and is only to operate in accordance with the terms set out in the Plan and the other conditions of consent.

34. The Plan provides that the centre will operate from 7.00 am to 6.00 pm, Monday to Friday, and will be closed on public holidays and for two weeks each year at Christmas.

35. The Plan records that the centre will provide, in total, 11 car spaces on site and that access to the on-site car-parking area will not be permitted prior to 7.00 am. Car-parking spaces will be allocated for staff in a stacked arrangement, and six visitor spaces will be located within the front setback to accommodate drop-off and pick-up of children at the centre. There is one disabled parking space.

36. All of the car spaces meet the standards established by AS2890.

37. Importantly, all vehicles can enter and leave the site in a forward direction, as there is an entry driveway proposed and an exit driveway onto Hollis Avenue.

38. To ensure minimal impact by noise from the use of the premises, the Plan provides that the following shall apply:

1. the use of the outdoor play area shall be between 10.00 am and 11.00 am and 3.00 pm and 4.00 pm daily and shall be under staff supervision at all times;

2. crying children will be taken inside the centre;

3. there will be no amplified sound or music in the outdoor play area;

4. all air-conditioning units will be located within acoustic enclosures and will only operate during daylight hours when children are playing inside;

5. the number of children playing outside at any one time is limited to 8 nought to two years, plus 25 two to five years.

39. The Plan provides that all deliveries to the centre will occur only between the hours of 9.30 am and 3.30 pm, Monday to Friday. This requirement accords with the consent which precludes any delivery to the centre at night or early morning.

40. To address any complaints about the operation of the centre, the Plan provides that the centre manager will, in accordance with the Plan, maintain a complaints register. The register shall note the time and date of the complaint and the source of the complaint. The complaints register shall also include details of the centre Manager’s response. The complaints register shall be available for inspection by attendant council officers.

41. The complaints management system will include:

1. a phone number for complaints by residents and a register of each complaint received at the centre and the action taken to address the complaint;

2. an annual review of complaints and procedures, including meetings with residents to address issues as necessary;

3. the complaints register is to be available to council officers;

42. The Plan provides that the centre will be regularly cleaned and maintenance will be conducted at the end of each day's operation. Outdoor maintenance will be undertaken outside of the play use and timetabled to be completed by 6.00 pm each weekday.

43. The Plan provides that all children will be escorted to the centre by a parent or guardian. The parent or guardian must accompany the child into the centre for signing, noting the time in the car park, and registering names and photographs of people collecting children from the centre.

Bereavement centre

44. The bereavement centre did not raise written objection to the proposed development. However, a number of local objectors expressed concern about the incompatibility of a childcare centre being located adjoining the bereavement centre at 19 Hollis Avenue. In order to find out if there was any basis to the residents’ concern the applicant consulted with the Director of the centre.

45. As a result of that consultation the Plan was amended to provide for certain timetables for outdoor play - in order to minimise the potential for any conflict between the operation of the bereavement centre and the childcare centre. In all other respects the Director of the bereavement centre confirmed that it has no issue with an approval of the development as proposed.

National Quality Framework (ACECQA)

46. In January 2012, the National Quality Framework (ACECQA) for childcare centres came into effect.

47. The amended plans have reduced the amount of encumbered outdoor play space such that the area of outdoor play now achieves compliance with the national regulations.

48. Similarly, the contention about educator-to-child ratios is now addressed by the amended plans.

49. The evidence is that the Proposal meets the requirements of the framework and that this contention raised by the Council has now been satisfied.

Acoustic evidence

50. The application was accompanied by an acoustic report prepared by DK Acoustics dated 26 March 2015 which relates to an earlier application for a 51-place childcare centre on the Site. However, the reduction of three child places (as reflected in the amended application) is said not to alter the recommendations of the report.

51. Shortly stated to the control the noise of children playing at the centre the report recommends:

1. restricting the number of children playing outside at any one time;

2. restricting the number of hours the children are allowed outside in the outdoor play area; and

3. the construction of a 2.4m high acoustic fence adjoining the neighbouring residential premises.

52. Provided these recommendations are incorporated into the design and operation of the centre the acoustic evidence is that there will be no unacceptable noise generated by the development.

53. At the hearing the applicant confirmed its acceptance of the acoustic recommendations within the report and, to that end, tendered an Acoustic Design Statement produced by DK Acoustics, dated 19 July 2016 certifying the same.

54. The Acoustic Design Statement certifies that noise emission from the development will comply with the Council's DCP 2010 - Part 3.2 Childcare Centres, and the Technical Guideline – Child Care Centre Noise Assessment published by the Association of Australian Acoustical Consultants (AAC). In particular the statement certifies that:

1. The proposed sound barrier wall around the outdoor play area at 2.1 metres high, as shown on the architectural drawings (sheets 12 and 13) by Actron Design Pty Ltd received on 19 July 2016 complies with Option 1 in s 5.1 of the acoustic report;

2. The proposed sound barrier wall along the northern and southern boundaries of the car park is 1.8 metres high and tapers down to 1.4 metres, as shown on the architectural drawings (sheets 12 and 13) by Actron Design Pty Ltd received on 19 July 2016 will operate as a sound barrier wall to reduce the noise emission from the development to comply with the noise criterion in s 3 of the acoustic report;

3. The number of children at the centre is up to 48 children aged nought to five years, as shown on the architectural drawings (sheets 1 and 2) by Actron Design Pty Ltd received on 19 July 2016 – which, as earlier stated, is less than the number of children assumed in the acoustic report.

55. Despite the fears expressed by some of the objectors about unacceptable noise I am satisfied on the expert acoustic evidence that noise from the centre is not a basis on which to refuse the DA.

Traffic

56. The Council’s Senior Engineer has critically assessed the Applicant’s traffic evidence and the peer review undertaken by Bitzios Consulting in order to assess the environmental capacity and potential traffic impacts generated by the Proposal for the Hollis Avenue-Lovell Road intersection.

57. After assessment he concludes that the traffic generation and impacts of the Proposal are acceptable. Having regard to traffic generation volumes based on the RMS document, “Guide to Traffic Generating Development”, his report states:

…assuming the worst case scenario in terms of vehicle trip distribution at peak operating periods, the maximum level of traffic in Hollis Avenue introduced by the proposal would be some 26 vehicles per hour. This is typically within range of weekday peak hour traffic fluctuations which can be up to 80 vehicles per hour in some instances. Accordingly, it is unlikely to result in congestion or to impact surrounding intersections …

In discussing the matter with planning staff, it was noted that Hollis Avenue is a local road and, due to the orientation of the road network, would see very little through traffic. As such, it was considered very unlikely that the proposal would have a discernible impact on either adjoining intersections, or result in traffic volumes exceeding the RMS estimated limit for environmental capacity of 300 vehicles per day.

58. Furthermore, the assessing officer concludes that the proposed parking area for the development does not present significant traffic concerns, given that the parking area is designed in accordance with AS2890. Whilst there is no definitive standard which presents a limit of traffic movements - differentiating safe and unsafe - in his assessment the proposed development offers adequate sight distances along the footpath areas.

59. Whilst the assessing officer acknowledges that there will be an appreciable difference in traffic movements to and from the Site (in comparison to the current use), he raises no objection to the proposed development with respect to the engineering components subject to the proposed conditions being applied.

58. As stated, the officer’s assessment is based on the Applicant’s traffic assessment report prepared by Auswide dated December 2014 and the peer review undertaken by Council’s independent consultant, Bitzios Consulting which assessed the Auswide report as generally satisfactory.

59. At the hearing the Council’s planner also told the Court that he believed that the traffic generated by the Proposal was acceptable. In coming to that view, Mr Tesoriero said that he had considered the local residents’ evidence and the expert traffic evidence. Having had occasion to travel to the Site numerous times during the assessment process he confirmed that he had always been able to find a parking space within Hollis Avenue. While he accepted that there would be times of more intense traffic on the street, in his assessment the parking spaces within the Site - with forward entry and exit - would provide adequate off-street drop-off and pick-up facilities to the centre.

60. Despite heated resident objection to the Proposal on traffic/parking grounds the expert evidence before the Court does not support a refusal of this application on that basis.

Waste storage

63. Following the amendment of the plans, the proposed waste storage area is now a fully enclosed structure and the planners agree that this modified design satisfies the objectives of Council's DCP 2014.

Contamination

64. The Site contains some soil contamination. However, it is accepted that this will be satisfactorily addressed by the remedial action required by the conditions of consent.

Landscaping

65. The parties’ town planners are of the opinion that the landscaping proposed within the front setback is now appropriate. The vegetation nominated will ensure that the streetscape has greenery, but not such as to impede driveway access and sightlines from vehicles entering and exiting the Site.

66. The revised landscape plan and the statement from the Applicant's landscape architect satisfy the Council's DCP 2014 requirements.

67. Insect screens have now been conditioned to the satisfaction of the Council’s planner.

Signage

68. There is no application before the Court for illuminated signage at the premises or, in fact, any signage approved. The standard condition 110 (referring to illuminated signage) apparently was inadvertently included in the draft conditions. It has now deleted.

CONCLUSION

69. In weighing up the merits of the Proposal under s 79C of the EP&A Act, the Court must consider the expert and lay evidence and give appropriate weight to the permissibility to carry out the use on the land: BGP Properties Pty Ltd v Macquarie City Council 138 LGERA 237; [2004] NSWLEC 399 per McClellan CJ at [117]. In this case the expert evidence supports a conclusion that this smaller scale childcare centre will not generate unacceptable noise or traffic in vicinity of the site. Moreover, the planners agree that the development is appropriately sited - despite the site not meeting the considerations identified in the Preferred Locations Childcare Centre in the Council’s DCP – which are considerations only and are not mandatory requirements.

70. In considering the local objectors’ responses, an evaluation must be made of the reasonableness of the claimed adverse effects on their residential amenity. An evaluation of reasonableness involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on their amenity. Needless to say, a fear or concern without rational or justified foundation is not a matter which by itself can be considered as an amenity or social impact: Telstra v Hornsby shire Council (2006) 146 LGERA 10 at [192- 195].

71. While I appreciate that the resident objectors do not want a childcare centre in their residential street, after appropriate assessment it is my considered opinion that their concerns should not be given determinative weight as they are not supported by the expert evidence. Accordingly, for the reasons outlined I am satisfied that it is appropriate to make the consent orders proposed by the parties.

Orders

72. The orders of the Court are:

1. The appeal is upheld;

2. Development Application No DA 2016/0047 for the construction of a childcare centre at 12 Hollis Avenue, Denistone East is approved subject to the conditions in Annexure A; and

3. The exhibits are returned after publication of this judgment.

Susan Dixon

Commissioner

159370.16 - Annexure A (151 KB, pdf)

**********

Decision last updated: 08 November 2016