Montessori Academy Proprietary Limited v Strathfield Council

Case •

[2011] NSWLEC 1299

•

10 August 2011

Land and Environment Court


New South Wales

Medium Neutral Citation: Montessori Academy Proprietary Limited v Strathfield Council [2011] NSWLEC 1299
Hearing dates:10 August 2011
Decision date: 10 August 2011
Jurisdiction:Class 1
Before: Hussey C
Decision:

(1)The appeal is upheld.

(2)Development consent is granted to DA2010/183 for alterations, conditions, associated landscaping to the existing dwelling situated at 110 Homebush Road, Strathfield, to permit its use as a childcare centre subject to the conditions in annexure A.

(3)The exhibits may be returned, except - that is to be advised.

Catchwords: Development application; Childcare Centre, use of heritage dwelling, acoustic impacts, traffic/parking, public interest.
Legislation Cited: Strathfield Planning Scheme Ordinance 1969
Strathfield Local Environmental Plan 2008
Category:Principal judgment
Parties:

Montessori Academy Pty Ltd (Applicant)

Strathfield Council (Respondent)
Representation:

Mr D Loether (Applicant)

Mr S Patterson (Respondent)
Bartier Perry (Applicant)

Wilshire Webb Staunton Beattie (Respondent)
File Number(s):10389 of 2011

Judgment

  1. This appeal was lodged against council's refusal of the development application for the change in use of an existing dwelling located at 110 Homebush Road, Strathfield, to a childcare centre for twentyeight children.

  1. The existing dwelling is a listed heritage item and the proposal involves some demolition of external additions and some internal reconfiguration of rooms. Consequently, the contentions identified by council are summarised as follows:

  • Amenity impacts; in terms of potential noise impacts on neighbouring properties and change in character in Woodward Avenue.
  • Heritage impacts; concerning the proposed use, detracting from the heritage significance and significant character of the existing dwelling, whereby the continuation of original residential use is preferred.
  • Traffic and parking; in terms of the provision of adequate on-site parking and the efficiency and safety of access to the parking area.
  • Public interest matters raised by neighbours/objectors.

The Site

  1. The site is located on the south-eastern corner of the intersection of Homebush Road and Woodward Avenue in Strathfield. It is rectangular in shape with a primary street frontage to Woodward Avenue (north) and secondary frontage to Homebush Road (west). The north-western corner of the property splays to the intersection of Woodward Avenue and Homebush Road. The site has the following area and dimensions:

(a)   Site Area (approx): 1,568 sq m

(b)   Dimensions (approx): 35.94 m (north) x 40.69 (east) x 38.36 (south) x 37.94 (west)

  1. The site currently accommodates a single storey detached dwelling house with attic situated generally in the centre of the site. The dwelling is identified as a heritage listed California Bungalow, however exhibits typical Federation Arts and Craft style elements and is more akin to the Federation Bungalow style. It is considered that the dwelling was constructed in or around 1917.

  1. The frontage to Woodward Avenue contains a number of established trees in a high quality landscaped private garden.

  1. An attached double garage with driveway access to Homebush Road has been constructed on the south-western corner of the dwelling generally in keeping with its architectural style. Extending from this attached double garage is an unsympathetic addition constructed in or around 1970.

  1. A Eucalyptus microcorys (Tallowwood) identified on Council's Significant Tree Register is located in the south-western corner of the property. An in-ground swimming pool, associated paving and two (2) detached metal sheds are located in the rear yard.

  1. The surrounding area is characterised mainly by single and two storey dwellings on regular shaped lots and overall, the character of the area is residential in nature.

  1. Adjoining development is primarily characterised by single and two (2) storey dwelling houses on regular shaped lots. Immediately adjoining the eastern boundary of the site is a single storey brick dwelling with attached garage constructed to the boundary. A single storey rendered dwelling is located adjacent to the southern boundary of the site similarly constructed close to the boundary.

The proposal

  1. The proposed development seeks to change the use of the existing single dwelling at 110 Homebush Road, Strathfield into a childcare centre involving the following alterations and additions:

(a)   Demolition of:

    • The single storey extension to the south of the garage;
    • Two (2) existing metal sheds in the rear of the property;
    • Two (2) existing retaining walls in the rear yard;
    • Partial demolition of the existing brick fence adjacent to the proposed driveway for improved sight lines for pedestrians and motorists; and the
    • Removal of the existing swimming pool

(b)   Internal alterations:

    • to the existing dwelling to facilitate the change in use to a child care centre;
    • to the attached garage for use as an office/reception area with a new laundry and disabled toilet.

(c)   Construction of:

    • a new driveway and parking area accommodating seven (7) car spaces and one (1) disabled space at the rear of the existing dwelling accessible from Homebush Road;
    • a detention tank in the existing in-ground swimming pool and fill in the remainder;
    • a new disabled ramp entry to the office/reception area and disabled car parking space;
    • a new main entry from the southern elevation of the existing dwelling to the car parking spaces;
    • two (2) outdoor play areas located on the eastern and western sides of the existing dwelling with associated 1.8 m high fencing and shade structures;
    • new storage shed in the south-eastern corner of the property;
    • additional acoustic fencing along the eastern boundary;
    • retaining wall to the southern boundary; and
    • acoustic sound barrier screen adjacent to the southern boundary
    • associated landscaping, drainage and site works.

(d)   Details of proposed operation:

    • Hours of operation 7.30 am to 6.00 pm Monday to Friday.
    • Maximum of twenty-eight (28) children between the ages of two (2) and five (5).
    • Nominally four (4) primary contact staff (including the manager) and a part time cook.

Planning controls

  1. The planning control is the Strathfield Planning Scheme Ordinance 1969; under which:

The site is zoned Residential 2(a) and development for the purpose of a childcare centre is permissible with Council consent pursuant to cl 22. The site is identified as a local heritage item under Schedule 9 of the PSO.

  1. Other relevant provisions: Clauses 41B, 41C, 61GA ,59D and particularly 59A, which states:

Heritage items

59A (1) A person shall not, in respect of a building, work, relic, place or tree that is a heritage item:
(a) demolish or alter the building work;
(b) damage or move the relic;
(c) excavate for the purpose of exposing the relic;
(d) damage or despoil the place or tree;
(e) erect a building on, or subdivide, land on which the building, work or relic is situated or that comprises the place; or
(f) damage any tree included in the Council's Tree Preservation Order on land on which the building, work or relic is situated or on the land which comprises the place, except with the consent of the council.
(2) The Council shall not grant a consent referred to in subclause (1) unless it has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the item and any stylistic or horticultural features of its setting.

  1. Other relevant controls include:

(ii) Draft Environmental Planning Instruments:
Draft Strathfield Local Environmental Plan, 2008
The site is zoned Residential 2A under the draft Strathfield Local Environmental Plan, 2008 wherein development for the purpose of a childcare facility is identified as being permissible with Council consent.
Draft Local Environmental Plan No 105
The subject property is not identified as an item of heritage significance and is not located within a heritage conservation area under Council's draft LEP No 105.
(iii) Development Control Plans:
Part E of the Strathfield Consolidated DCP 2005 - Child Care Centres
Part H of the Strathfield Consolidated DCP 2005 - Waste Management

The evidence

  1. Detailed evidence was presented by:

  • Mr M Allan; council's acoustic consultant
  • Mr G Wei; applicant's acoustic consultant
  • Mr S Harding; council's planning consultant
  • Mr K Nash; applicant's planning consultant
  • Mr G Kennedy; council's traffic consultant
  • Mr R Varga; applicant's traffic consultant
  • Mr R Moore; council's heritage consultant
  • Mr S Davies; applicant's heritage consultant

  1. A considerable number of objections were lodged against the proposal and these are contained within the council bundle and have been considered along with the objections expressed at the view.

Planning controls

  1. As noted previously, the site is within the Residential 2A zone and the proposal for a childcare centre is permissible with consent. Clause 41C requires consideration of whether the proposed building and any goods/plant to be located on the land are compatible with the character of the existing buildings in the neighbourhood. Relevantly, cl 59A contains the heritage control considerations.

  1. The court's attention was directed on a number of occasions to the detailed s 79C assessment undertaken by the council planners (as contained in tab 35 of the bundle of documents), which concluded with a recommendation for conditional consent.

  1. Having read this assessment, I am satisfied it has considered the critical aspects of the proposal, including a detailed assessment of the DCP 2005 - Child Care Centre provisions. I accept its conclusion that there is comfortable compliance with the DCP controls.

  1. Also, the council assessment report addressed the provisions of the Draft Strathfield LEP 2008 and I rely on the conclusion that the provisions of this control are satisfied.

  1. Apart from this assessment, further details responding to the contentions were provided by the applicant for the appeal, which I deal with on the following basis:

Acoustic

  1. The applicant responded to this issue by amending the proposal to erect an acoustic shield adjacent to the southern boundary, adjacent to No 114 Homebush Road. The specification for the acoustic screen is shown in exhibit O and it is to be setback from the boundary fence by approximately 2.5 m and it is to have an overall height in the order of 3.2 m from lower side ground level. It includes an inclined return at the top to minimise noise impacts into No 114.

  1. The experts are satisfied that the erection of this screen should meet the criteria of background plus five dB(A) for children activities, car park and mechanical plant. This noise criteria is defined in section 4.2 of the acoustic report by ALC, which was agreed by the acoustic expert as appropriate in the circumstances of this case.

  1. Consequently they agree that the development should not result in any undue noise impacts on the residents of No 114 Homebush Road.

  1. The neighbours adjoining to the east also expressed concerns about potential noise impacts due to the provisions of classrooms and outdoor play areas adjacent to their property. However, it was confirmed by the applicant that the house windows along this building would be fixed and that a solid acoustic wall approximately 2 m high would be erected adjacent to the boundary. Accordingly the acoustic experts did not inform the court of any potential unreasonable noise issues along this boundary.

  1. In regard to the noise impact concerns, I also note that there is a specific performance condition that requires compliance testing within sixty days after any occupation certificate to ensure that the acoustic fence achieves the performance outcomes.

Traffic and parking

  1. This issue was assessed by Mr Andrews and Mr Varga. As a result of joint conferencing a number of the parking traffic contentions were resolved, including amendment to the rear car parking area. The amendment allows for eight spaces, thereby allowing the relocation of the disabled access ramp to the building enabling more convenient access.

  1. Another amendment is the movement of the 6 m wide entry driveway at Homebush Road approximately 2 m to the north to improve accessibility and sight distances. The traffic experts agree that this is satisfactory with the exception that Mr Kennedy has some concerns that it will necessitate the relocation of a small traffic island on the road shoulder by approximately 2 m.

  1. Whilst there was some discussion about the authority to undertake this relocation, nevertheless, this proposition was considered in the original council assessment on the following basis:

The internal site design of the parking area and location of the driveway is satisfactory and acceptable despite the need to relocate the existing traffic chevron island and associated signage in Homebush Road. This relocation is supported subject to the applicant covering the full cost of the work, accordingly, a condition of consent has been included in the recommendation below.

  1. I agree that this would be a satisfactory outcome and can be covered by an appropriate condition.

  1. Notwithstanding this, I acknowledge Mr Kennedy's reservations and the objectors' concerns that the entry/exit movements into the car park and may be compromised in peak periods due to heavy traffic flows along Homebush Road and also is due to the location of the bus stop.

  1. However, I accept that the plan of management (POM) is to include some instructions to parents and carers who are to use the car park as to the best approach entry arrangements so as to avoid unsafe manoeuvres. Accordingly, the traffic arrangement supported by Mr Varga and the original council assessment which states:

The proposed development has been supported by a traffic impact assessment from the applicant's traffic consultant. The assessment reveals that there is no change to the existing levels of service at Homebush Road, Woodward Avenue and Earlwood Street based on the projected traffic demand from the proposed development. Furthermore, the likely increase in average vehicle delay, time vehicles wait at intersections before crossing or turning is negligible, that is the average vehicle delay at point two seconds per vehicle across the local road network.
Council has obtained its own independent traffic advice from an external consultant which generally concurs with the finding of the applicant's traffic impact assessment however states that the likely projected increase in a total average vehicle delay is closer to point three seconds per vehicle. Council's external consultant confirms this impact is unlikely to result in any unacceptable increase in traffic on the local network.
Overall, the proposed development provides sufficient off-street parking and access and is unlikely to result in an adverse increase in existing traffic levels as a result of the projected traffic demand of the operational proposal. According to the proposed development it is unlikely to detrimentally affect the local street network by way of access, transport and traffic.

  1. I am satisfied this is a reasonable outcome in response to the traffic contention.

Planning matters

  1. The various issues including public interest aspects were considered in the joint planning conference with Mr Nash initially expressing some dissatisfaction with the adequacy of the proposed proposal due to uncertainty about the number of children and result staffing. Following the clarification of proposals for twentyeight children and three/four staff, together with minor internal reconfigurations and external adjustments to the playgrounds, I am satisfied that Mr Nash's concerns are adequately addressed.

  1. Whilst there are important operational requirements that are to be covered in the conditions, there is also the Montessori POM that includes detailed operational aspects. I am satisfied that compliance with these conditions should result in a "good neighbour" outcome.

Heritage matters

  1. According to the council's submissions, the heritage impacts are the main concern. Mr Moore does not support the proposal because he considers that:

(i)   the proposed use will diminish the heritage interest and significance of the house and its setting.

(ii)   there would be increased difficulty in returning the house to its intended and most compatible use as a house.

(iii)   the intention of the use will impact on the fabric especially the design quality of the interior of the house and the alterations to the wet areas and which are to provide toilets and wash facilities for the children.

(iv)   the front garden area will be unduly compromised by the proposed landscape screening and acoustic fence along the western side garden, which will limit viewing opportunities of the garden area of this particular corner lot.

  1. Against this, Mr Davies supports the application because he considers it is successful adaptation for this permissible use. He considers the proposed changes to be minimal and reversible and in accordance with good conduct, conservation practice and therefore the identified significance will be retained. Furthermore, he says that:

Although the dwelling may remain a childcare centre for some time the proposed changes are sympathetic and do not preclude the residential use in the future with minimal refurbishment. The proposal will encourage the visitation and enjoyment of the place by a larger number of people...:
The proposal removes the unsympathetic later addition. It maintains the principal elevations and form of the building. The changes to the interior retain the spatial qualities of the principal rooms and make openings that are appropriate and reversible. The changes to the wet areas are not unusual even for a dwellin ghouse use and these interiors have changed over time. The additions to the rear have been designed to have minimal impact on the fabric and these are the only changes to the elevations of the main dwelling. These are more sympathetic than are often experienced at the rear of dwelling houses of this quality. The proposed changes to the garden are considered discrete and will retain the important corner appearance of the dwelling with its large front garden to Woodward Avenue. The plan area will be suitably and appropriately screened.

  1. With regard to the proposed change in use from the residential purpose to the childcare use, Mr Davies says:

The child care centre which is a permissible use and provides a service to the residential community. The opportunity for "adaptation", which forms part of the conservation process, is not reliant on the building retaining its residential use. The term "highest and best" use is not used, to use for heritage items as the application must be considered on its impact merits. It is considered that the subject application has a sympathetic applicant who has applied the heritage principles for adapting places for new uses and has respected the heritage values of the place. The subject dwelling has generous rooms and the light and can accommodate comfortably the proposed use for a sensitive, modernisation.

  1. From my consideration of these disparate opinions, I note that there were several responsive amendments during the course of the appeal. These include the retention of the main entry door arrangements from the car park and retention of the front foyer space. Accordingly, I am satisfied that the internal alterations are minimal and the external presentation will be retained and probably enhanced by the removal of the previous additions at the rear.

  1. The other significant amendments concern the boundaries of the outdoor play areas. The limitation of twentyeight children has enabled the eastern side play area to be reduced and contained within the existing walled courtyard, adjacent to the dwelling. This alignment together with the appropriate landscaping will retain a satisfactory streetscape presentation.

  1. The specification for the western outdoor play area has also been clarified whereby the palisade fencing and clear, soundproof barrier has been moved approximately 1.5 m away from Woodward Avenue.

  1. Importantly, the proposed shade screen has been relocated to the rear southwest corner of the garden, so that it will be below, the existing solid landscape boundary wall alongside Homebush Road and I therefore consider that its visibility will be minimised.

  1. As noted earlier, a number of reports were considered in the assessment of this proposal and this includes the heritage report by Mr G Stanley, which is exhibit E. Insofar as both Mr Moore and Mr Davies accept the reliability of this detailed assessment, it classifies the various heritage elements on the basis of high, medium and low significance.

  1. Relevantly, the front garden area, fronting Woodward Avenue is of high significance and the proposal is to retain and enhance this landscape area. The western garden is of medium significance and I am satisfied that the proposed alterations as amended in the appeal are of an extent that should at least maintain, if not enhance this medium rating.

  1. In summary, the heritage report concludes that:

  • The change of use is compatible to the current residential use, as it is a similar family activity and will not involve any major changes to the fabric of the dwelling.
  • The demolition will be confined primarily to the recent addition, assessed as having minimal heritage significance, A3, and have a positive impact by opening up south west views to the heritage item from Homebush Road.

The external alterations, changing entry, and new windows will be confined to the garage addition, assessed as having medium heritage significance, not part of the original fabric of the building and is considered to have minimal heritage impact.

Alterations to the interior, the original fabric will be minimal, with the main, highly significant spaces left intact. Alterations will include opening up some rooms to each other. Significant architectural elements of fireplaces, windows and doors will be retained.

The significant external spaces assessed as having high significance, L1 will not be affected by the proposed works. The view from Woodward Avenue will be maintained. The major work of the carpark will be confined to the space as having minimal heritage value, L3, to the rear of the property.

  1. When the heritage aspects were originally considered in the council officers' assessment, it concluded that:

  • The major public domain view and Woodward Avenue/Homebush Road setting of the heritage item is to be retained and strengthened by additional plantings within existing garden beds in the front northern corner of the site;
  • The main form and stylistic features of the heritage item are to be retained;
  • The overall setting of the item is to be improved by the removal of the intrusive single storey 1970s cabana addition on the southern side of the property;
  • External alterations to the property are generally restricted to the less visible southern side of the property and the modern garage - this includes the proposed additional off-street parking; and
  • The required internal alterations will occur to only a relatively small part of the main dwelling.

  1. In summary, council's consultant heritage advisor stated that "... the proposed child care centre for the site would not have an adverse impact on the significant historical characteristics or setting of the existing heritage listed dwelling on the property ..."

Conclusions

  1. Having considered the evidence, the submissions and undertaken a view, I consider this application merits conditional consent. In this regard, I note that it is a permissible development in the 2A residential zone and that the proposal complies with the childcare DCP controls.

  1. Notwithstanding this, there was however, a significant number of objections lodged against the proposal and having considered these, I am satisfied that the direct impact such as traffic and noise impacts is to be dealt with on the aforementioned basis.

  1. I have also considered the summary of the objections contained within the council's assessment report, which apply to the subject application. It seems to me that this represents a fair and reasonable summary of the overall public interest considerations that are "relevant" and I rely on the following aspects of that assessment:

Commercial Development in Residential Areas

That in respect of commercial development in residential area, the design will ensure that the proposed development achieves a harmonious integration is with the existing residential character of the locality. The low impact nature of the place, childcare centre is confirmed in the council's environmental planning instruments wherein childcare centres are permissible in the residential zones of Strathfield. Accordingly, the proposal is not considered to be conducive to the commercialisation of a residential area but rather it seeks to establish permissible development in the area.

(e) Public Interest:

Although Council has received a large number of submissions objecting to the proposed development, this assessment has found that the proposed child care centre generally satisfies the relevant environmental planning instruments and development control plans. Furthermore, the proposal has been supported by appropriate professional studies which have similarly concluded that the proposal will not result in an unacceptable impact on the exiting amenity afforded to adjoining and nearby residents. As the public interest is best served through the application of Council's environmental planning instruments and development control plans with which the proposed development has complied, approval of the proposal is not contrary to the public interest.

  1. With regard to the heritage issue, my finding is that the original heritage assessment together with the evidence of Mr Davies satisfies the requirements of cl 59A and the PSO. It is apparent from the evidence that there are no controls that preclude the proposed childcare use in this locally listed heritage item. Therefore, Mr Moore's preference for the dwelling to be used exclusively as a family dwelling is discounted.

  1. Instead, it seems that the important elements of the house will be retained and restored where necessary within the landscaped setting. The dwelling house is relatively large and despite certainty about its past occupant usage, it is likely that a number of children had the opportunity of living and using this relatively large property.

  1. Consequently, the childcare use will now open up and enable some more limited public entry to the dwelling to appreciate the internal features and the upgrading will be maintained along the highly significant Woodward Avenue frontage.

  1. I do however accept that there is a need for careful management of conservation works to ensure that heritage features are retained and specific condition should cover these.

  1. I am satisfied to rely on substantive agreement by the traffic consultants that the traffic issues can be satisfactorily managed. These depends on the relocation of the traffic island adjacent to the driveway and considering the role of other bodies such as the local traffic committee, I consider this should be best covered by a deferred commencement condition to achieve the outcome that was stated in the original assessment report.

  1. Insofar as there is likely to be some inconvenience on entry exit to the car park when buses occasionally park outside the designated bus stop area, I accept that this area is in a low speed environment and in peak periods and the regular users should be able to safely manage the manoeuvres albeit with the occasional delay due to the bus stopping outside this area and causing some restriction in the sight distances.

  1. The potential noise complaints are of particular concern for the neighbours. However, I am satisfied to rely on the agreement of the acoustic experts that the proposed acoustic walls along the southern and eastern boundaries will satisfactorily control noise amenity to acceptable levels and in this regard, I again note that the draft condition 5 required compliance testing within sixty days to ensure satisfactory outcomes.

  1. The evidence however indicates that there should be careful attention to the conditions of consent so that the use operates on the basis of a "good neighbour" with adjoining properties. Such conditions would include:

.1) Deferred commencement conditions requiring satisfactory arrangements to be made for the relocation of the traffic island on the eastern road shoulder, prior to any occupation of the building (condition 18)
.2) Plan of management; to be upgraded to incorporate the children capacity/staffing limitations. It should also include an access/party item that advises users of the preferred access/egress route
3) The landscaping plan needs updating to include a control to ensure the maintenance of the approved landscaping
4) Heritage Documentation; Notwithstanding the disagreement from the applicant, I consider it reasonable that a form of Conservation Management Strategy, be prepared to council's satisfaction i.e. local heritage item appropriate to a Local level. This would include:
Photographic/archival recording of the dwelling and gardens
Maintenance schedule to ensure the important heritage features are well maintained

  1. In summary then, subject to the satisfactory completion of the conditions of consent, the Court intends to make the following orders:

Court Orders

(1)   The appeal is upheld.

(2)   Development consent is granted to DA2010/183 for alterations, additions and associated landscaping to the existing dwelling situated at 110 Homebush Road, Strathfield, to permit its use as a childcare centre, subject to the conditions in annexure A.

(3)   The exhibits may be returned, except 7, 10, A, C, K, N, O and P.

R Hussey

Commissioner of the Court

Decision last updated: 21 October 2011

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