Min Stanley Group Pty Ltd v Hornsby Shire Council

[2017] NSWLEC 1314

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Min Stanley Group Pty Ltd v Hornsby Shire Council [2017] NSWLEC 1314
Hearing dates:	31 May and 1 June 2017
Date of orders:	21 June 2017
Decision date:	21 June 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is dismissed. 2. Development Application DA/1667/2015 for conversion of a dwelling into a child care facility at 32 Greenvale Grove, Hornsby is refused. 3. The exhibits, except Exhibits 2 and G, are returned.
Catchwords:	DEVELOPMENT APPLICATION: conversion of dwelling house to child care facility; child care facility in cul-de-sac; visual impact; impact on character and streetscape; traffic impact; traffic safety; elevated car park with lift; community opposition
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Hornsby Local Environmental Plan 2013
Category:	Principal judgment
Parties:	Min Stanley Group Pty Ltd (Applicant) Hornsby Shire Council (Respondent)
Representation:	Counsel: Ms S Duggan (Applicant) Solicitors: Mr V Conomos, Conomos Legal (Applicant) Mr A Seton, Marsdens Law Group (Respondent)
File Number(s):	2016/275701

Judgment

1. COMMISSIONER: This is an appeal under section 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Hornsby Shire Council (the Council) of development application DA/1667/2015 (the application).

2. The application proposes the conversion of a dwelling house into a child care facility at 32 Greenvale Grove, Hornsby (the site). The facility is to accommodate 30 children between the ages of 3 to 5 years. An external play area of some 266.5m² is proposed within the front setback given that the existing dwelling is at the rear of the site. A car park, partially elevated on piers, is proposed with a lift from the car park to the facility. The car park will accommodate eight parking spaces including three spaces for staff.

3. Fencing is proposed along the majority of the frontage of the site (of between 1.2 and 1.8m in height) as well as adjoining the car park along the northern side boundary (of between 1.2 and 2m in height). This fencing is required to comply with acoustic requirements. Flood deflection fencing at a height of 1.8m is also proposed along the eastern boundary extending for a portion of the rear and front boundaries. Eight trees would be removed or impacted by the development. The facility is to operate from 7:30am to 6pm Monday to Friday excluding public holidays.

4. The Council contended that the development would not be in the public interest. The grounds for refusal were that: the centre was located in a cul-de-sac which is against the Council’s siting requirements; the site was flood affected which would require a substantial mitigation barrier in the form of a flood deflection wall; and there would be adverse visual impacts on the predominantly open landscape character of the Greenvale Grove streetscape.

5. In particular, the Council was concerned with the adverse visual impacts on the low density residential character of Greenvale Grove due to a then proposed 2.2m high solid boundary fence for acoustic or flood attenuation and the elevated car park and associated lift, considered to be substantial structures erected on the most visually prominent part of the site with insufficient setbacks.

6. Finally, the Council contended that the development would result in potential traffic hazards given the location of the car park entry on an inside curve in Greenvale Grove.

The site and locality

7. The site is identified as Lot 44 in DP 200132 with an area of 1005m². It is irregular in shape, described by the applicant as shaped like a slice of cake, with only three sides. The longest is the curved frontage to the street of 58m.

8. The northern boundary of the site forms a common side boundary with the only immediately adjacent residential property being 31 Greenvale Grove. This boundary has a length of some 43.7m. The remaining boundary is approximately 29.4m in length and adjoins the Greenvale Grove North reserve which contains a natural watercourse, Waitara Creek.

9. The site is flood prone and falls some 3m from the north western corner (front) to the eastern rear portion. It currently contains a single storey brick dwelling and a lower level garage. The dwelling will be modified to accommodate the child care facility with the garage converted for storage and laundry use.

10. The Council describes the site as being located in a quiet cul-de-sac with surrounding development comprising one and two storey low density dwelling houses. Directly across the road from the site, on the opposite side of Greenvale Grove, is a private driveway which provides access to 6 dwellings located north of the site at the top of the cul-de-sac.

Background to the application

11. The application was lodged in December 2016 as integrated development given the adjoining waterway. In March 2016 the NSW Department of Primary Industries Water issued general terms of approval to the development.

12. The application was notified with 22 objections received. The objections raised concerns in terms of visual and acoustic impacts (in particular the visual dominance of the fencing, car park and lift on the streetscape), inadequate setbacks to the car park, loss of flora and fauna, flood and bushfire risk, increased traffic congestion and lack of on street parking, vehicle and pedestrian safety, lack of landscaped area, the inadequate size of the existing dwelling to accommodate the facility, inappropriate location within a cul-de-sac, and loss of privacy and solar access for neighbours.

13. In January 2017 the applicant was granted leave to amend the application to rely on amended plans. This included the reduction in the height of the front acoustic fence to a maximum of 1.8m with the top 600mm comprising Perspex panels.

14. The amended application was advertised and 18 objections were received raising similar concerns to those raised with the original application and claiming that the amendments had not addressed residents’ concerns.

15. The hearing commenced with a view of the site and of Greenvale Grove. The Court heard from five objectors all of whom were residents of Greenvale Grove, including the adjoining neighbours and residents opposite. A number of other residents of the street also attended but did not speak.

16. The concerns raised by the objectors reflected those raised in their submissions. The main concerns were the inappropriate location of the facility in a quiet cul-de-sac, the location of the existing house and the topography of the site which forced the play area to the front of the property and the elevated car park and lift adjoining the street. The car park, lift and fencing were all seen to be out of character and scale with the street which had virtually no front fencing or structures in the front setbacks, only extensively landscaped front gardens.

17. Concern was also expressed that the car park was opposite the shared driveway for six dwellings and would create traffic and pedestrian conflict given the poor sightlines arising from the location of the car park access, the additional traffic generated by the facility, and the narrowness of the street.

18. Objectors also queried the amenity of the play area being adjoined by high fencing and the street, and overshadowed by the car park. Particular concern was raised with the height and extent of the required fencing, irrespective of its materials or the landscaping proposed between the fence and the street. The ability to effectively manage, control or limit the number of children using the external play area at any one point was also questioned.

19. Finally, concerns were raised with the flooding of the site and the removal of a number of trees.

20. As a result of expert conferral, a plan of management which limited the number of children playing outside at any one time (to 8), and/or the plan amendments, the acoustic impacts were no longer pressed by the Council. However, concern remained in terms of the adverse visual impacts of compliance with the required acoustic measures, namely the extent and height of the proposed fencing. Similarly, the Council was satisfied that the flooding concerns had been addressed but remained concern with the visual impact of the required flood deflection wall.

21. During the hearing, the application was amended to relocate the stairs adjoining the car park resulting in a break in the front boundary fencing. The Court was also advised that the front boundary fencing would be screened by a hedge comprising lili pili trees planted to a height of 1.5m in a 300mm setback of the fence from the street.

The Relevant Controls

22. The site is located in the R2 (Low Density Residential) Zone under the Hornsby Local Environmental Plan 2013 and the proposed use is permissible with consent in that zone.

23. The objectives of the R2 zone are as follows:

• 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.

24. In February 2017, draft State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 was advertised (the draft SEPP). The draft SEPP references Draft Child Care Planning Guideline - Planning and designing quality child care facilities in NSW (the Guideline).

25. The design of the child care facility is also required to have regard to the provisions of the Hornsby Development Control Plan 2013 (the DCP) and in particular the provisions contained in Part 1: General and Part 7: Community, the latter dealing specifically with community facilities including child care.

The Issues

Site suitability

26. The Council’s primary contention was that the application should be refused given the unacceptable impact on the visual environment, streetscape and the low density residential character of the street being Greenvale Grove.

27. Greenvale Grove is a double headed cul-se-sac running north west to east and traversed by Warandoo Street at its approximate centre, which gives access to both ends. The site is located in the north western portion of the cul-de-sac which provides access to some 20 properties including the subject site. The topography of this portion of the street is such that the site is lower than the cul-de-sac head and properties to the north, as well as to properties opposite.

28. Part 7.1 of the DCP sets out guidelines for the development of land for community uses including child care facilities. The introduction to Part 7 states as follows:

Development is to be sited and designed to be environmentally sustainable, minimise land use conflicts and operate under appropriate environmental management measures to manage waste and minimise any water and noise pollution. Development should be compatible with the existing or desired future character of the area.

29. The DCP sets a limit of 30 children for child care facilities in residential zones where conversion of a dwelling is proposed, as in this application. The DCP also states that child care facilities should not be situated on a street, or a portion of the street, ending in a cul-de-sac or on environmentally constrained sites, such as steeply sloping sites, bushfire prone land, flood prone land, and the like. Clause 7.1.5 of Part 7 of the DCP states that outdoor play space should be designed to be located in the side or rear setback of the site (not the primary front setback area).

30. The Council argued that the site is in a cul-de-sac within a low density residential environment where adjoining and surrounding development comprises dwelling houses in open landscaped settings. The proposed use would therefore directly conflict with the existing character of the area. The site is also flood prone and all of the outdoor play space is in the front setback area.

31. Concern was also raised that the setback of the car park from the street did not meet the requirements under Part 7.1.4 Landscaping of the DCP which states:

In residential areas car parking should be visually recessive and preferably located at basement level to maintain the landscaped setting. Where parking in the front setback is compatible with the streetscape, car parking forward of the building line should provide a 2 metre minimum landscaped setback from all property boundaries.

32. The Council also referenced relevant provisions of the DCP where child care facilities are considered both noise sensitive and noise generating development. At clause 1C.2.5, the DCP states:

High, solid acoustic fences should be avoided forward of the building line other than for noise sensitive landuses along major roads that are exposed to significant noise. In these instances, fences should be a maximum height of 1.8 metres and incorporate articulation. Large unbroken sections of fencing should be avoided.

33. In the DCP, the provisions for child care facilities in the R2 zone are to reflect the provisions for dwelling houses in terms of fencing, setback controls and landscape provision.

34. As well as the DCP provisions, under the draft SEPP, the Guideline must also be taken into consideration when assessing applications for child care facilities.

35. The Guideline states that protrusion of car parks should not exceed 1m above ground level and that design solutions may include stepping car park levels or using split levels on sloping sites. It also suggests that car parking should be integrated with the building and landscaped design to minimise visual impact on the streetscape.

36. Section 3 of the Guideline contains design criteria. The section states that well designed facilities respond to and enhance the qualities and identity of the area including adjacent sites, streetscapes and neighbourhood. In terms of landscape, the Guideline states that contextual fit of well-designed developments is achieved by contributing to the landscape character of the streetscape and neighbourhood. Further, that good integration of facilities with the surrounds benefits neighbours and future residents.

37. The Guideline also states that a detailed understanding of the overall site context is the starting point for creating a well-designed and integrated child care facility. Context in this regard means the character and setting of the area within which the facility will sit.

38. The Council specifically referenced Design Criteria 3D Local Character and Context of the Guideline which states as follows:

The objective of this design criteria is for the built form, articulation and scale to relate to the local character of the area and the context.

1. Provide a design statement that explains how the built form of the development contributes to the character of the local area, including how it:

• respects and responds to its physical context such as adjacent built form, neighbourhood character, streetscape quality and heritage

• retains and reinforces existing built form and vegetation where significant

• considers heritage within the local neighbourhood

• responds to its natural environment including local landscape setting and climate

• contributes to the identity of the place.

39. Design Criteria 3E Public Domain Interface states in part:

The public domain interface is the transition area between the centre-based child care facility, its private or communal space at the street edge and the public domain. The built form at the edges defines the spatial proportions of the street and the street edge.

The interface of the development contributes to the quality and character of the street. Subtle variations through planting and boundary treatments such as walls and fencing can create an attractive and active public domain with a pedestrian scale. Long, high blank walls or fences can detract from the appearance of the public domain and impact on the safety of pedestrians and users of the facility…

The objective of this design criteria is that front fences and retaining walls do not dominate the public domain and instead, respond to and compliment the context and character of the area.

1. Front fences and walls within the front setback are to use visually permeable materials and treatments.

2. The maximum fence height within the front setback is 1.5m, with an average no greater than 1.7m.

3. Where the fence or retaining walls exceed 1.2m in height it is to be setback at least 0.6m from the street boundary and provide planting with a mature height of at least 1m between the fence and the boundary.

4. High solid acoustic fencing is only to be used to shield the centre from the noise from classified roads.

40. The Court was advised that the proposed fencing included a 59m long flood deflection wall 1.8m high of which 29m was along the common boundary with the reserve, 18m across the site frontage and 12m along the northern boundary. The acoustic fence would then run from the flood deflection wall/fence a further 12.5m along the frontage to stairs. This fence would be 1.8m high of which the top 600mm would be Perspex and the lower portion brick. The fence would then continue a further 8m along the frontage at a height of 1.2m until reaching a 21m² garden adjoining the car park.

41. The total length of fencing along the street frontage would therefore be some 38.5m broken only by stairs with the majority, or 30.5m, at a height of 1.8m. The fence would be setback from the street 300mm in which a lili pili hedge up to 1.5m high is to be planted as screening vegetation.

42. Finally, a 2m high acoustic fence would run some 15.6m along the northern boundary of the car park on the common boundary with 31 Greenvale Grove.

43. Expert planning advice was given by Mr Adam Byrnes for the applicant and Mr Neil Kennan for the Council. The expert planners’ agreed that the DCP and the draft SEPP and Guideline were relevant documents for consideration.

44. The applicant argued that the facility was relatively modest and the impacts could be managed. Mr Byrnes argued that the development retained the existing dwelling and its landscaped setting. He cited structures forward of the front building line in this section of Greenvale Grove as including a car port in close proximity and the driveway, retaining wall and steps of the private driveway serving six dwellings to the north.

45. Mr Byrnes argued that, whilst part of the car park would be able to be seen, it would be small, only used for short periods on weekdays and fenced and landscaped. He argued that the lift was well setback from the street and would not be visible from much of Greenvale Grove.

46. Mr Byrnes also argued that the character of the street was varied and the DCP allowed fences up to 1.8m on side and rear boundaries and 1.2m along the street frontage. The proposed front acoustic fencing, although up to 1.8m high would be Perspex above 1.2m. This and the 300mm landscaped setback would reduce the visual impact.

47. Mr Byrnes stated that the Council required acoustic fencing to be 1.8m high and that the external play area had been located away from the nearest residence and adjoined the street and reserve to minimise adverse impacts to neighbours.

48. In terms of the cul-de-sac location, the applicant argued that there could not be a blanket prohibition in such locations as child care facilities were permissible in the R2 zone. If a child care facility could be in a cul-de-sac and met the objectives to minimise conflicts and have regard to scale and context, then a cul-de-sac location may well be appropriate. Mr Byrnes noted that the DCP also says that such facilities should adjoin non-residential uses and parks. This proposal achieves that having a reserve on one boundary. He also noted that the draft SEPP appears to move away from locational criteria and stated that, whilst a 120 place child care facility may not be appropriate in Greenvale Grove, this one was limited to 30 children.

40. Mr Kennan agreed that there was not a prohibition of child care centres in culs-de-sac but it was necessary to look at the capability and suitability of the location and determine applications on merit. The R2 zone is a low density zone where a range of uses are permissible however, this did not mean that all such uses would be suitable in any particular location. He advised that the Council had undertaken a lot of studies on where child care facilities were suitable which concluded that a cul-de-sac in an R2 zone was unsuitable.

41. Mr Kennan noted adverse aspects of the application which arose from the location proposed. There were traffic management and sight distance issues with the development significantly increasing the amount of traffic in the cul-de-sac which is what the Council’s locational requirements were trying to prevent. Furthermore, retaining the existing dwelling meant the external play area and car park had to be forward of the front building line whereas the car park should be visually recessive.

42. Mr Kennan argued that Greenvale Grove was a small residential street where the elevated car park, lift and extensive high fencing would be intrusive. Such infrastructure should be compatible with the streetscape and the car park setback at least 2m from all property boundaries. He argued the car park structure was of a commercial scale and there was nothing like it in the street.

43. Mr Kennan further argued that, whilst the acoustic consultants had been satisfied that noise levels could be achieved, the consequences of this were a fence over 30m in length adjoining the street up to 1.8m high for most of its length. This was totally out of character with fencing in Greenvale Grove and would not be 50% permeable as required by the DCP. He considered the Perspex layer proposed more akin to what would be seen on a main road. In addition, the flood deflection wall would have no screening and, whilst the site might be adjacent to a public reserve, it received no benefit from that use as it would have a 1.8m high solid fence to it. All of the fencing components were foreign elements in a streetscape where front areas were predominantly landscaped and had no front fencing.

44. In Mr Kennan’s opinion, many of the design constraints associated with the development were as a result of the nature of the topography requiring an elevated car park with a lift and substantial fencing which would not be required for a flat site. In terms of visual impact, he argued that the car park lift would be higher than the ridge line of the dwelling and seen from a number of points in the street including from elevated residences on the opposite side and at the cul-de-sac head. Such elements were incompatible with the streetscape.

45. Mr Byrnes accepted that there was only one other property with a front fence in this section of the cul-de-sac and the only other examples were around the corner in other streets more than 100 m away. He argued however, that there were examples of structures in the front setback including sandstone walls, stairs, pipes and the private driveway.

46. The experts agreed that the area of the proposed car park was 200-220m². The Council argued there was no structure of this significance in the street. However, Mr Byrnes considered the private driveway was comparable. It was some 320m² in area and also elevated. The Council argued this driveway traversed six individual properties and would be less than 200m² on any individual property. Whilst being at grade at the street front, the Council contended that the car park would then be up to 3m above natural ground level on piers and its fencing and the lift would be higher again.

47. The applicant disputed the car park would be up to 3m high saying only a small portion in the south east corner would be greater than 2m. Furthermore, landscaping beyond 3m could screen the car park from the street.

48. However, Mr Kennan argued the limited amount of adjacent landscaping proposed, being some 40m² in area, would do little to screen the car park structure and would not screen the lift.

49. The Council’s position was that the desired future character for the street under the DCP did not envisage structures of this magnitude in the front setback area. Mr Byrnes agreed that the DCP states that the 6m front setback should not have structures in it.

50. In terms of the DCP provision that suggests play area should also not be in the front setback, Mr Byrnes reiterated that the play area was located to be away from adjoining sensitive residential uses.

51. The applicant contended that the development met the objectives of the zone which permits non-residential uses including child care facilities which must therefore be part of the desired future character of the area.

Traffic and parking

61. The draft SEPP Guideline, at 3F Pedestrian and Vehicle Access, states the following:

Providing safe vehicle and pedestrian access and providing for the safe movement of children on the site is paramount … Planning and design …should aim to deliver a safe environment for pedestrians, particularly children, motorists and cyclists on the site. Vehicular access and parking should not detrimentally affect the traffic safety of surrounding areas... Designing car parking arrangements to enhance the streetscape character and have minimal visual impact will benefit the neighbourhood.

62. To provide a safe environment, the Guideline suggests designers consider a range of mechanisms to separate cars and pedestrians. The Council noted that this includes driveways being located at the lowest point on the site to reduce visual prominence and that the context may mean it is appropriate to limit car parking in the front setback in areas with predominantly landscaped setbacks. In the application, the driveway was on the highest part of the site and the car park was in the front setback where it was inappropriate given the landscaped context of the street.

63. In addition to concerns with the visual impact of the car park, the Council had concerns with the adequacy of sightlines for cars exiting the car park as well as with the design of the car park from a pedestrian safety perspective. The specific concerns were with safe vehicles stopping distances given the sightlines. In particular, the location of the car park access meant that vehicles coming from the north will not have adequate sight lines to vehicles turning out of the car park.

64. Local residents had also raised concern that Greenvale Grove is a narrow cul-de-sac which would not sufficiently accommodate additional offstreet car parking and increased two way traffic movement.

65. Figures 3.7 and 3.8 of the Guideline deal with pedestrian and vehicle safety and show examples of ‘poor’ and ‘good’ car park designs for child care facilities. The poor car park design is where children need to walk through car parking to reach the facility. The good design provides a pathway separate from the car park to allow safe movement of children. The Council argued that in this facility the children would be required to walk through the car park.

66. Expert advice on traffic matters was provided by Mr Dean Brodie for the applicant and Mr Ken Hollyoak for the Council.

67. The experts agreed that Greenvale Grove was not wide enough to accommodate two parking lanes and two passing lanes and that the proposed car park access was on the inside of a bend which raised sightline issues. There was estimated to be 24 trips into and out of the car park in peak hour.

68. In considering safety distances for vehicles associated with the use of the car park, the experts also agreed that there were different requirements between the Australian Standard (AS2890.1) and Austroads 2009 design guidelines. The DCP requires compliance with the Australian Standard.

69. AS2890.1 makes reference to a safe Stopping Sight Distance (SSD). The SSD is used to calculate the necessary stopping distance for a normally alert driver, travelling at the design speed on wet pavement, to perceive, react and break to a stop to avoid hitting a hazard (including another car) on the road ahead.

70. The calculation of the SSD is a formula considering a range of factors including reaction time, operating speed, road gradient, and deceleration coefficients.

71. Both experts were required to provide their opinion on what a safe SSD would be based on average speed for the street, the 85th percentile and the posted maximum speed for Greenvale Grove of 50km/hr. The average speed of southbound traffic in the street was given as 28.9km/hr.

72. A count was undertaken over 5 days of actual speeds which confirmed Greenvale Grove was a low speed environment. However, it also recorded cars travelling faster than 28.9km/hr and up to 41.95km/hr. This highest recorded speed was at 7.25am on a Friday morning which could be considered peak time for cars dropping off at the proposed facility. At this speed a higher SSD is required.

73. AS2890.1 requires a minimum 45m SSD for a 50km/hr street, with no reduction even if the 85th percentile of actual speeds used by Austroads suggests less could be safe based on safe operating speeds.

74. The experts agreed that SSD of 45m was unable to be provided for vehicles travelling south from the top of the cul-de-sac in terms of cars exiting the car park. Mr Hollyoak estimated only 22m SSD would be available to these vehicles. Mr Brodie thought in the order of 24-26m but as little as 17.9m would be required for the average speed in the street of 28.9km/hr. The experts agreed the available maximum SSD would therefore be in the order of 22-26m.

75. Mr Brodie argued that there would be a low volume of traffic coming from the north given it was a cul-de-sac head serving few properties, and that the narrow streets with cars parked on it would result in traffic having to slow down below the posted speed.

76. However, Mr Hollyoak argued that the cars which could not get into the car park would continue past the access and turn around at the top of the cul-de-sac and would then contribute to the volume of traffic travelling south where the SSD could not be achieved, increasing the potential for an unsafe environment. Furthermore, the survey showed that 36% of cars exceeded the average 28.9km/hr in the street. He originally considered the 85th percentile speed to be 34.4km/hr requiring a 39m SSD but this could be lowered to a minimum of 26.6m based on the surveyed speeds which still couldn’t be met. In Mr Hollyoak’s view, the sight distance provided was not adequate, should be at least 30m SSD, and is therefore a significant road safety concern.

77. Mr Brodie accepted that a 30m SSD would be reasonable but argued it could be achieved if one onstreet car parking bay was removed immediately north of the car park access. Mr Hollyoak believed moving the access to the south in the vicinity of the existing crossover would be better although Mr Brodie considered this location would have similar SSD outcomes.

78. The experts did agree that there was not a safety concern in terms of the private access to the six dwellings to the north of the site assuming residents used the southern access point rather than the northern point, which residents indicated was the case given the steepness of the northern access location.

79. In terms of the design of the car park and the provisions of the Guideline to separate children from traffic in the car park through a dedicated pathway adjoining the car park, Mr Hollyoak advised that he had concerns with parking cars manoeuvring over the marked pedestrian pathway in the car park.

80. Mr Brodie advised that he had made a submission on the draft SEPP querying the need for separate pathways in small car parks, such as that proposed in this application and claiming the the SEPP failed to adequately detail the necessary pedestrian access requirements or parent behaviour within small open air car parks. Also there were no such requirements in the Australian Standard or the DCP for separate pedestrian accessways.

81. Mr Brodie also argued that the shared areas would be safe as there were adequate sightlines within the car park, a separate pathway from the car park to the street and only a 16m walk to the nearest pedestrian access from the furthest public parking space.

Findings

82. The development of the proposed child care facility raises a number of issues which directly result from the location, topography and configuration of the site in which it is proposed, and the conversion of an existing dwelling house located at the rear of a site which has a substantial frontage to an otherwise relatively quiet cul-de-sac, being Greenvale Grove.

83. As a consequence of conversion and retention of the existing dwelling and its location, both the external play area and the required car park have to be located adjoining the extensive frontage of the site, that is, in close proximity to the street. The acoustic and flooding amelioration measures that the proposed use necessitate, results in extensive high fencing around much of the perimeter of the site including for a length of over 30m adjoining the street given the extensive frontage of the site.

84. In addition, the topography of the site and the proposed location of the car park results in a partially elevated car park, and a lift required to give access from this car park to the facility, being proposed in the front setback area.

85. It is therefore not surprising that the proposed child care facility does not meet a number of provisions of the Council’s DCP which are aimed to ensure such facilities are sited and developed appropriately having regard to context, streetscape and impacts. The failure to meet a number of these provisions is a direct consequence of the site conditions and the resultant required works which I have outlined.

86. Similarly the proposal does not meet a number of the controls of the draft SEPP and associated Guideline for such facilities which, whilst not determinative given their draft nature, provide an indication of controls intended to guide the appropriate siting and development outcomes of child care facilities both for the benefit of the users of the facilities and for their neighbours.

87. Collectively, the non-compliances with a number of existing and proposed controls are, in my view, indicative of a development which is inappropriate in the location and configuration proposed. Accordingly the application is refused.

88. The DCP does not support child care facilities in a cul-de-sac. This of itself does not prohibit granting consent to the application on its merits if such merits exist. However, there was no conclusive evidence before the Court of the merits of the use in the location proposed or of the built form outcomes that would result were the development to proceed.

89. The height and length of the front fence is extensive as a direct result of the significant frontage of the site and the need for acoustic compliance and to meet flood planning requirements. Such fencing is not common in the street and would be out of character with development in the cul-de-sac and with the desired future character of the street. I do not accept that a hedge of lili pil trees planted in only a 300mm setback would in any way significantly reduce the visual or dominant impact of this fencing proposed even if the upper portion of the acoustic fencing is Perspex. Reliance on landscaping to be maintained and successfully shield this length of fencing is in my opinion an inappropriate mechanism to offset the visual impact created by the fencing.

90. Added to this is a an elevated car park with a lift not setback an appropriate distance from the street and not well integrated with the existing dwelling which would create a significant uncharacteristic and adverse physical presence in the street.

91. Furthermore, the experts agreed that adequate sight stopping distances would not be achieved for cars travelling south from the top of the cul-de-sac past the car park access. If such cars were travelling at the permitted speed of 50km/hr, in the order of 20m of additional stopping distance would be required for the access to be safe and potential collisions avoided. For a child care facility, of all aspects of its operation, safety is paramount.

92. Even accepting the low speed environment, with added congestion further slowing cars but adding different amenity impacts for residents of the street, it is questionable that approval should be given for any child care facility where cars using the street will not have the safe stopping distances recommended to avoid collision with cars exiting the facility’s car park. I see no basis for departure from compliance with such requirements particularly given the nature of the use proposed and the location in which it is proposed.

93. Similarly, I was not persuaded that a separated pedestrian pathway should not be provided for users of the car park however, this was not a determinative issue in the appeal.

94. In summary, I believe the site is not an appropriate location for the use proposed and the non-compliances with the various controls which provide design and site guidance for such facilities support this finding.

95. I do not accept that the Council is simply seeking to impose prescriptive controls. It is the outcomes of the non-compliances with the controls that is of concern in terms of visual impact, amenity and safety for neighbours, and the character of the street. On all of these grounds I find the proposal fails.

96. Rather than accepting the applicant’s proposition that the unique configuration of the site should allow dispensation in terms of compliance with some controls, it in fact demonstrates to me that such a site is simply not appropriate for the development proposed. It provides no justification for varying such controls.

97. The applicant argued this was a modest facility yet it seeks the maximum number of children permissible for a dwelling converted for such a use in the zone.

98. The development does not respond to or have regard for the streetscape in which it is proposed or the character of development in that street. The proposed uses and structures within the front setback are incompatible with the character and use of front setback areas in the street where there are no substantial fences or significant structures and instead predominantly open landscaped settings. None of the required front setbacks for new structures are achieved, not even a minimum of 2m for the car park. The proposed play area is also in the front setback contrary to the controls. The draft SEPP Guideline suggests car parks should not exceed 1m above ground level. The proposed car park is, at various locations, 2-3m above ground level with the lift structure higher in the most visually prominent part of the site.

99. I do accept that there is only one immediately adjacent residence and therefore direct amenity impacts on neighbours in terms of noise or overshadowing may be limited. However, there appears little doubt that this development will impact on the whole of the street from an amenity perspective and be out of character with that street. Those impacts are in terms of visual impacts from significant structures adjacent to the street and safety impacts from the use of the car park rather than the use of child care per se.

100. I therefore agree with the Council that the development would be a complete anomaly and will not fit in or integrate with the streetscape in which it is proposed even though it involves conversion of an existing dwelling and no material changes to that dwelling. It is therefore not the facility building itself which is incompatible, it is the associated parking and fencing structures required to support the proposed use.

Orders

101. The orders of the Court are:

1. The appeal is dismissed.

2. Development application DA/1667/2015 for conversion of a dwelling into a child care centre at 32 Greenvale Grove, Hornsby is refused.

3. The exhibits, other than Exhibits 2 and G, are returned.

__________________

Jenny Smithson

Commissioner

Amendments

21 June 2017 - Amendment to name of legal rep.

Decision last updated: 21 June 2017