Moran v Ku-ring-gai Council

[2021] NSWLEC 1404

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moran v Ku-ring-gai Council [2021] NSWLEC 1404

Hearing dates:

13-14 April 2021

Date of orders:

14 July 2021

Decision date:

14 July 2021

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development Application 482/19 at 11 Boronia Avenue Turramurra for alterations and additions and conversion of an existing dwelling to a centre-based child care facility is refused.

(3) All exhibits are returned except for exhibits B, C, G and 12.

Catchwords:

DEVELOPMENT APPLICATION – child care centre – streetscape impacts – acoustic impacts

Legislation Cited:

Environmental Planning and Assessment Act 1979

Ku-ring-gai Local Environmental Plan 2015

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 cl 26

Texts Cited:

Association of Australasian Acoustical Consultants, Guideline for Childcare Centre Acoustic Assessment, 2020

Australian Standard AS 1055:2018 Acoustics - Description and measurement of environmental noise

Ku-ring-gai Development Control Plan 2016

Noise Policy for Industry 2017, section 2.6

NSW Department of Planning and Environment, Child Care Planning Guideline, 2017

Category:

Principal judgment

Parties:

Joshua Moran (First Applicant)
Katarzyna Moran (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
S Kondilios (Solicitor) (Applicant)
R O’Gorman Hughes (Respondent)

Solicitors:
Hall & Wilcox Lawyers (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2020/121187

Publication restriction:

No

Judgment

COMMISSIONER:

Introduction

1. This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Ku-ring-gai Council’s deemed refusal of development application 482/19 for alterations and additions, and conversion of an existing dwelling to a centre-based child care facility at 11 Boronia Avenue, Turramurra, Lot 64 in DP3873 (the site).

2. On 8 March 2021 the Applicant was granted leave by the Court to rely on an amended application. Subsequently, the proposed development before the Court is for a new two-level child care centre for 48 children, with accompanying outdoor play, at-grade parking for 12 vehicles and associated landscape works.

3. For the following reasons, I have determined that development consent cannot be granted and the appeal is to be dismissed.

The site

4. The site is located in a residential area of Turramurra, on the south-western side of Boronia Avenue at the junction of Yeramba Street. Development in this locality consists primarily of low-density residential dwellings of varied ages and styles, typically set within an informal, highly landscaped setting.

5. The locality features a strong landscape character consisting of large mature trees, informal, mixed vegetation, sandstone outcrops, and wide, uneven vegetated verges with few formal footpaths.

6. The site itself is a rectangular, corner lot with a width of 23.5m, depth of 50.3m, and an area of 1171.75m². It is moderately sloping, with a level change of approximately 8.4 metres between the north-east and south-west corners, with the high side adjacent to 15 Boronia Avenue.

7. The site features an existing 1-2 storey brick and weatherboard dwelling and garage, with vehicular and primary pedestrian access from Boronia Avenue. Several existing canopy trees are located within the site, and both street frontages are bounded by vegetation rather than fences.

Planning framework

8. The following planning instruments are relevant in the assessment of this development application:

State Environmental Planning Policies (SEPPs)

• State Environmental Planning Policy No. 55 – Remediation of Land;

• State Environmental Planning Policy (Infrastructure) 2007;

• State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017;

• Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005; and

• State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017.

Ku-ring-gai Local Environmental Plan 2015 (KLEP)

9. The site is located within Zone R2 Low Density Residential. Pursuant to the KLEP, development for the purposes of ‘centre-based child care facilities’ is permitted with consent in this zone.

10. The objectives of this zone, to which I must have regard are:

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

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

• To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

11. The Building Height Map within the KLEP prescribes a maximum building height of 9m for the subject site. The proposed development complies with this limit.

12. Applying the formula provided in cl 4.4 of the KLEP, a maximum floor space ratio of 0.35241:1 applies to the site. The proposal, with an FSR of 0.329:1 complies with this maximum.

Child Care Planning Guideline 2017

13. The NSW Department of Planning and Environment, Child Care Planning Guideline 2017 is relevant in its entirety to the development, however Parts 1, 2 and 3 are of particular focus in these proceedings.

Ku-ring-gai Development Control Plan 2016 (DCP)

14. The following chapters of the Ku-ring-gai Development Control Plan 2016 (KDCP) are of particular relevance to these proceedings:

1. Part 2.1 – Site Analysis.

2. Part 10 – Child Care Centres, in particular 10A.2 – Site Planning, 10A.3 – Landscaping, 10B.1 – Vehicle Access and Parking and 10C.2 – Noise.

3. Part 18 – Biodiversity.

Public submissions

15. The original application was notified to owners/residents of surrounding properties from 28 November 2019 to 30 December 2019. 70 submissions were received in objection to the development and one in support.

16. The amended application was notified from 10 March 2021 to 24 March 2021. 12 submissions were submitted in objection, reiterating previous concerns, and raising further issues regarding additional tree removal.

17. At the commencement of proceedings, verbal submissions were made by six residents, reinforcing issues made in written submissions. Predominantly, these issues pertained to: traffic; noise; tree removal; site suitability; visual impacts and privacy, and; construction impacts. These issues are generally echoed in the Respondent’s contentions, which are dealt with in this judgment.

Issues and evidence

Site suitability

18. The Respondent contends site suitability on several grounds. These include streetscape, landscape character, and acoustics, all of which are discussed in more detail in other sections of this judgment. First, I will address the Respondent’s issues with the suitability of the location and pedestrian connectivity.

19. The planning experts giving evidence in relation to this and other contentions are Nick Juradowitch for the Applicant and Brodee Gregory for the Respondent.

20. Both experts agree that when considering suitability of the location (site suitability), principal regard must be given to the considerations in Section 3.1 of the Child Care Planning Guideline 2017 (the Guideline), which reads:

“Objective: To ensure that sites for child care facilities are appropriately located.

C3

A child care facility should be located:

• near compatible social uses such as schools and other educational establishments, parks and other public open space, community facilities, places of public worship

• near or within employment areas, town centres, business centres, shops

• with access to public transport including rail, buses, ferries

• in areas with pedestrian connectivity to the local community, businesses, shops, services and the like.”

21. The parties principally disagree on whether the site is appropriately located, based on the criteria set out in Consideration C3 of the Guideline (above). For consideration of this issue, it is helpful to note that the site is located approximately 800m walking distance from Turramurra Public School and one block away from Hamilton Park, and that a bus stop is located at the end of Boronia Street on Kissing Point Road, within walking distance of the site.

22. In evidence, the experts disagreed with the definition of ‘near’, as used in the first two points of consideration C3 above. Mr Juradowitch considered the proximity of the school, park and bus stop as ‘near’ to the site as they are within walking distance. He stated that on this basis, as well as the short driving distance to South Turramurra Shops, the first three considerations of C3 of the Guideline are achieved.

23. Ms Gregory disagreed with this premise, stating that the 800m distance to the school was too far for convenient pedestrian proximity, and that this subsequently could not be considered ‘near’ to the site. In Ms Gregory’s opinion, the site is not ‘near’ to employment areas, town centre, business centres or shops as none are within an easy walking distance.

24. Both experts agreed that the bus stop on Kissing Point Road afforded the site ‘access to public transport’ as per the third consideration C3 of the Guideline, however due to the lack of footpath connecting the two, the experts disagreed on whether this contributed to the site being considered appropriately located.

25. The fourth and final consideration under C3 of the Guideline is that a child care facility should be located ‘in areas with pedestrian connectivity to the local community, businesses, shops, services and the like’. Mr Juradowitch states that this is achieved by the walking distance to the bus stop, which provides pedestrian connectivity to all items listed in C3 of the Guideline. He further states that the proposed facility is likely to be car-dependent with 5-10% of children (up to 5 children) and 20% of staff (2 people) arriving on foot. These figures are not contested by the Respondent.

26. In her evidence, Ms Gregory states that pedestrian connectivity is not achieved because the lack of footpath connecting the site and the bus stop. She submits that in addition, the uneven gradients and variable condition of the verges along Boronia Avenue require pedestrians to walk on the road. In her opinion, whilst this bus stop may be of benefit to staff, it is a hindrance to people with small children who may need to walk or push prams on the road, creating a safety issue.

27. While Mr Juradowitch states that all considerations of C3 of the Guideline are met to some extent, Ms Gregory conversely states that none are achieved.

28. Regarding the first two considerations of C3 of the Guideline, I accept the evidence of Mr Juradowitch that the site is near to both a school and park, as well as the shops at South Turramurra. Both the school and park are within walking distance, and the shops a slightly longer but still walkable distance. Furthermore, there is no requirement in the Guideline for proximity to these amenities to be assessed on a purely pedestrian basis and subsequently, proximity assessed on the basis of vehicle transport in this suburban area is a relevant consideration. On this basis I accept that the first two considerations of C3 are met.

29. However, having been directed on site to view the landform, condition of the verges and lack of footpaths along Boronia Avenue and Yeramba Street, I concur with Ms Gregory regarding the third consideration C3 of the Guideline, and accept that although the location technically affords users of the site access to public transport, safe access to the nearest bus stop as well as safe pedestrian connectivity is limited to those with the mobility to walk on the verge. Given the nature of this development is one that requires safe access for people with children, it is notable that a carer pushing a pram would be required to walk on the road, creating a safety issue. I therefore do not accept that pedestrian connectivity is achieved in this context, and subsequently, while the third consideration C3 of the Guideline is met in part, the fourth consideration is not met.

30. Although I accept the Applicant’s submission that C3 of the Guideline sets out considerations, not requirements, in my opinion the combined assessment of these considerations contribute to the overall merits of the proposed development.

Streetscape character

31. The Respondent contends that the proposed building design, carpark and acoustic fence will all have adverse impacts on streetscape and character. I will examine each of these in turn.

32. In the Joint Report of Planning Experts (Exhibit 2), the experts agree that the existing streetscape is characterised by dwelling houses of predominantly traditional form and materials in a garden suburb setting.

33. There is some disagreement between the experts on the detail of this traditional form and garden suburb setting. Ms Gregory submits that the character of the surrounding area is dominated by dwellings of traditional materials and forms, such as face brick, and tiled, pitched roofs. Mr Juradowitch submits that there is a greater variety of materials to that described by the respondent, including rendered and painted masonry and, while roof forms are predominantly pitched, there are examples in the area of dwellings with flat or lower-pitched roofs. Of these examples, I was directed on site to observe 17 Boronia Avenue, a recently built single dwelling with a predominantly mono-pitch roof in a contemporary style.

34. The proposed development makes alterations to the existing weatherboard cottage, retaining and adapting all facades except the south-west one, and the existing pitched, tiled roof. A two storey contemporary addition is proposed to the rear (south-west) with a flat colorbond roof and fibre cement (FC) panel cladding to the exterior. Surface parking for twelve cars is proposed to the Boronia Street frontage, and a timber acoustic fence is proposed around the play area to the Yerambah Street frontage and the south-west boundary of the site.

35. Part 3.2 of the Guideline provides matters for consideration relevant to local character, streetscape and the public domain interface. Consideration C5 is as follows:

“Objective: To ensure that the child care facility is compatible with the local character and surrounding streetscape.

The proposed development should:

• contribute to the local area by being designed in character with the locality and existing streetscape

• reflect the predominant form of surrounding land uses, particularly in low density residential areas

• recognise predominant streetscape qualities, such as building form, scale, materials and colours

• include design and architectural treatments that respond to and integrate with the existing streetscape

• use landscaping to positively contribute to the streetscape and neighbouring amenity

• integrate car parking into the building and site landscaping design in residential areas.”

36. Ku-ring-Gai DCP Part 10 provides detailed guidance on child care centres within the local government area. Part 10A.2 Site Planning has the following objectives:

“1 To integrate the child care centre and ensure it is compatible with the scale and character of surrounding areas.

2 To be sympathetic to the amenity of neighbouring properties.

3 To provide attractive, site responsive and practical designs.

4 To design the centre for the appropriate management of water on the site.

5 To ensure the child care centre is sympathetic and safe, and minimises risk to life and property in the event of a bushfire

6 To ensure that the elevated location does not compromise the safety of the users of the child care centre.

7 To ensure that child care centres in business zones are well designed and meet the needs of children in terms of amenity, health, access and safety”

37. The development controls relating to built form of child care centres in the KDCP Part 10A.2 are:

“Built Form

3 Minimum front, side and rear setbacks are to comply with the setback requirements of the predominant adjoining residential development type of that location.

4 The overall building height is to be consistent with nearby dwellings.

5 Street facade treatment, including windows, doors and other articulation, is to be consistent with the predominant adjoining residential development type.

6 The main entry to the child care centre is to face a public street.

7 Landscaping requirements are to be consistent with the predominant adjoining residential development type.”

38. In the opinion of Ms Gregory, although the building height is acceptable, the proposed colorbond flat roof and FC clad walls to the extension are clearly inconsistent and incompatible with that of the existing dwelling and streetscape character, and will be highly visible from Yeramba street. She considers that the proposed built form does not meet the considerations C5 of the Guideline in that it:

• is not designed in character with the locality and existing streetscape,

• does not reflect the predominant form of surrounding land uses,

• does not recognise predominant streetscape qualities such as building form and materials, and,

• does not include design and architectural treatments that respond to and integrate with the existing streetscape.

39. Ms Gregory further contends that contrary to KDCP Part 10A.2, Objectives 1 and 3, and control 5, the design of the child care centre does not integrate with the character of surrounding areas, nor is it attractive or site responsive, and the street façade of the addition is inconsistent with the predominant adjoining residential development type in both form and materials.

40. In response, the Applicant highlights that Principle 2 – Built Form of the Guideline states that ”good design…uses a variety of materials, colours and textures”, and that ”contemporary facility design can be distinctive and unique to support innovative approaches to teaching and learning, while still achieving a visual appearance that is aesthetically pleasing, complements the surrounding areas, and contributes positively to the public realm.”

41. In the opinion of Mr Juradowitch, while acknowledging that the proposed addition will not retain the existing streetscape, this is not an appropriate measure of streetscape character impact. He states that the appropriate test is one of compatibility with the local character and surrounding streetscape, as per the objective of Guideline consideration C5. He contends that the proposed addition provides for an acceptable level of compatibility with the existing streetscape character, and to require new additions to adopt a form and material that is similar to the existing dwelling is contrary to good town planning practice in residential areas with no heritage conservation status.

42. While both experts agree in their joint report that a development can be different from surrounding development and still be compatible with it, I accept the evidence of Ms Gregory in stating that both the Guideline and the KDCP provide greater detail on what this objective entails, as described above. I also accept Ms Gregory’s opinion that, because the proposed building addition contrasts so distinctly with the surrounding architectural vernacular in both form and material, it does not recognise predominant streetscape qualities, does not include design and architectural treatments that respond to and integrate with the existing streetscape, and does not demonstrate site-responsive design. While variation in form is exhibited in the nearby dwelling at 17 Boronia Avenue, the proposed development demonstrates contrast in both form and materials, and will be highly visible from Yeramba Street due to the elevation of the site, sloping landform, and its location on a corner lot. The result is a building addition that is not compatible with the prevailing streetscape character.

43. The second aspect of the design to which the Respondent contends has adverse impacts on the streetscape is the surface car park. The principal issue is that, due to the site sloping away from the vehicle entrance point at Boronia Avenue, the car park is predominantly constructed on an elevated concrete slab. This slab is on grade at the driveway entrance to the site and then, as the land falls away towards Yeramba Street, reaches up to 1.31m above natural ground (as demonstrated on the marked-up landscape plan, Exhibit 12). At this point the car park will also require a vehicle barrier which will extend up to 1.3m above the finished slab level.

39. In the Joint Report Mr Juradowitch submits that, as with the built form, the appropriate test is whether the parking area is compatible with the local character and surrounding streetscape. He provides several examples of both basement and surface car parking to child care centres within the LGA to demonstrate the possible high visual impact of a basement parking facility.

40. In response to these examples, Mr Gregory notes that each example development is subject to its own unique circumstances and context, none of which align with that of the subject site.

41. Mr Juradowitch also provides a rendered view from the corner of Boronia Avenue and Yeramba Street to demonstrate that the visual impact of the proposed car park on the streetscape will be modest and acceptable, noting the vegetation that screens this structure. He concludes that:

• A basement car park is unnecessary and may have a greater impact on streetscape than the proposed surface car park.

• To provide the required quantity of parking, some visual impact is necessary. This must be assessed in terms of achieving an adequate degree of harmony with the streetscape character, which the proposed car park does.

• A vegetated screen will be provided in the 2m landscape setback that will mitigate the visual impact of the elevated deck.

47. To clarify the visual impact of the car park, Ms Gregory submits that, on the advice of the Council’s engineer, the vehicle barrier surrounding the elevated deck must be 1.3m high. This will result in an overall structure that is, at its highest, 2.6m above ground level. The highest point of the structure is at the westernmost corner of the car park, approximately mid-way along the Yeramba Street frontage. Although a vegetated setback is proposed between this structure and the site boundary, Ms Gregory submits that this will be insufficient to adequately mitigate the visual impact of a raised parking structure when viewed from Yeramba Street. Furthermore, she submits that the structure and elevated vehicle crash barrier in the front landscape setback of this corner site is not compatible with the local character and surrounding streetscape. She submits that this is contrary to both consideration C5 of the Guideline and KDCP clause 10A.2 objectives 1 and 3, and control 7.

48. Ms Gregory maintains that basement parking would be preferable to the Council, and that the elevated car park within the primary setback is uncharacteristic of the area and is incompatible with the streetscape. In evidence, she further submits that, pursuant to considerations C18 and C19 of the Guideline, the proposed car park is not adequately integrated into the building or landscape design.

49. It is noted that, although evidence was submitted by Mr Juradowitch consisting of photographs of other child care centres in the LGA with basement parking, no site-specific evidence was provided by either party to demonstrate, or counter, the feasibility or likely visual impact of basement parking for this proposed development.

50. On the issue of the visual impact of the elevated parking structure, I do not accept that a 2.6m high structure in the front setback of this corner site is compatible with the landscape or streetscape character in this locality, regardless of the inclusion of a planted buffer. To that end I accept the evidence of Ms Gregory that the proposed elevated parking will be highly visible from Yeramba Street, and is contrary to considerations C5, C18 and C19 of the Guideline, and KDCP Clause 10A.2 objectives 1 and 3, and control 7.

51. Of additional relevance to the Respondent’s contention on incompatibility with landscape character and streetscape, evidence is provided by acoustic experts in relation to the acoustic fencing along the north-west and south-west boundaries. This evidence is discussed further below, however the Respondent raises issues with the visual impact of the required acoustic fence, submitting that due to the necessity for tall acoustic fences to mitigate noise issues, the proposed development will have uncharacteristically tall fences along Yeramba Street in an area where open, un-fenced landscape setbacks dominate. Ms Gregory states in the Joint Report that the streetscape character shows front setbacks as generally dominated by turf, shrubs and canopy trees, and although some low fences or low masonry walls occur, boundaries in the vicinity of the subject site are generally open. This was confirmed by observations I was directed by the parties to make at the site view, along both Boronia Avenue and Yeramba Street.

52. In response, Mr Juradowitch submits that although atypical, the inclusion of a fence is not incompatible with the surrounding area and that adequate screening will be achieved in the landscape setback. He states that, in his opinion this is consistent with sites viewed along Waratah Road nearby, where tall, dense hedges counter the open nature of frontages to Boronia Ave and Yeramba Street.

53. I note that, as established at the site view, the annotated height of the acoustic fence along the south-west boundary does not account for the approximately 900mm step in landform that occurs part way along the boundary between the subject site and 4 Yeramba Street, in line with an existing retaining wall that is to remain. In cross examination, both experts agreed there are inaccuracies in the documentation and the final height and form (detailed stepping) of the boundary fences required further development.

Existing trees

54. The proposed development results in the retention of eight existing trees and removal of ten trees. Of those to be removed, two have been assessed as category A trees, i.e. suitable for retention for more than 10 years and worthy of being a material constraint. It is noted that the contentions pertaining to ecology and remnant canopy have been resolved by the ecology experts in their joint report.

55. Of the trees to be retained, the elevated parking structure encroaches significantly on the Tree Protection Zones (TPZ) of trees T10 and T11, both of which are Eucalyptus haemastoma. T10 was assessed as having a Safe Useful Life Expectancy (SULE) of ‘medium’ or 15-40 years, and T11 of ‘long’, or over 40 years. The structure encroaches on 43% of the TPZ of T10 and 34% of the TPZ of T11.

56. Both experts agree that the arboricultural assessment of the existing trees is accurate, including the quantity of encroachment.

57. Mr Castor, the Arboricultural expert for the Applicant, submits that although the proposed elevated parking structure results in changed growing conditions for the tree, it incorporates appropriate tree-sensitive construction methods. He states that adequate air and gaseous exchange can occur beneath the deck, and rainfall variations are managed by a level spreader (to redistribute excess water) and an irrigation system (for low rainfall events). Furthermore, he submits that the existing turf competes with root growth within the TPZ of trees 10 & 11, and the inclusion of mulch will improve this condition. Finally, he states that if the growing conditions do decline because of the slab, the trees could compensate with new roots in the verge or adjoining garden.

58. Mr Bird for the Respondent states that although tree sensitive construction methods have been applied to the design of the elevated parking deck, the percentage of encroachment to of the TPZ remains excessive. He further submits that despite the change from turf to mulch, the lack of sunlight changes the growing conditions substantially, and that the high percentage of change within the TPZ will affect the root plates to such an extent that it will reduce the viability of trees 10 & 11 to approximately 5-10 years. Mr Bird states that although the proposed measures may provide some initial benefits to the subject trees, it is better horticultural practice to minimise disturbance to the established growing environment from the outset.

59. Both experts acknowledge that the retention of these trees to any extent is reliant on adequate maintenance.

60. In relation to existing trees T10 and T11, I accept that the implementation of tree sensitive construction methods and judicious maintenance may result in their successful retention. However, I note that the substantial encroachment into the TPZ of these two high-value trees is caused by the raised parking deck which, for the reasons above, I have determined is unacceptable. Subsequently, the risk identified by Mr Bird that the SULE of trees 10 and 11 may be reduced from 15-40 years and 40+ years respectively to 5-10 years, solely because of the encroachment of the elevated parking structure, is unacceptable.

Acoustic impacts

61. The Respondent’s contentions on acoustic impacts provide much detail on the suggested inadequacies of the submitted noise assessment report. The Joint Expert Report of Acoustic Experts (Acoustic Joint Report) (Exhibit 3) and the document ‘11 Boronia Avenue Proposed Childcare Centre – Noise Assessment Addendum’ (Noise Assessment Addendum) (Exhibit G) resolve much of this detail.

62. Further to these documents, two principle acoustic issues remain in these proceedings:

• The potential noise impacts of the child care centre on neighbouring residences at 1, 3 and 4 Yeramba Street, Turramurra, and,

• The potential noise impacts of vehicle movement to and from the car park.

63. In understanding the potential for noise impacts to the upper level of 3 Yeramba Street in particular, it is important to understand the landform of the site. The building is positioned on the high point (FFL 119.44) of a slope which falls towards 1 and 3 Yeramba Street to the north west, and 4 Yeramba Street to the south west. The playground is located on the lower levels of the sloping garden to the side and rear of the site (RL 15.80-14.25).

64. Residents of both 1 Yeramba Street and 4 Yeramba Street made oral submissions at the commencement of proceedings, and the resident of 3 Yeramba Street made a written submission which was included in Exhibit 7. All three residents raised concerns about acoustic impacts.

65. Steven Cooper, the acoustic expert for the Respondent, contends that the acoustic assessment ignores nearby residential properties, in particular the first floor of 3 Yeramba Street as demonstrated in Figure 2, page 13 of the acoustic assessment. KDCP clause 10C.2 requires the noise limit (agreed by the experts as ‘background + 5 dB(A)) to be achieved at any point on the adjoining residential property. Further details were provided in the Acoustic Joint Report, with reference to the Noise Policy for Industry section 2.6 and Australian Standard AS1055:2018 clause 6.22 that clarify ‘at any point on the adjoining residential property’ refers to any affected point.

66. Ken Scannell, for the Applicant, submits that as there are no balconies on the first floor level of 3 Yeramba Street, these points are not affected as no person can be there to receive the noise. He further submits that points inside the windows at this location will meet the noise criteria due to the attenuation provided by the window, even if open.

67. Mr Cooper refers to the Association of Australasian Acoustical Consultants (AAAC) Guideline as quoted in Section 3.4A of the Acoustic Report, which states that an affected point may be outside a window on the ground or higher floors. I accept Mr Cooper’s position that, given this guideline makes no specific reference to balconies, or windows adjacent to a balcony, that the AAAC Guideline refers to noise that may affect people on the inside of a window, as measured at a point on the outside of it.

68. I further accept, based on the submissions of both Mr Cooper and the relevant residents, that there is the potential for residents to be present on the first floor of these buildings when the centre is operating, and therefore potentially impacted by noise emitting from it.

69. Because Mr Scannell takes the position that there are no affected points on upper levels of neighbouring properties, the Acoustic Report does not confirm whether the potential noise impacts on them are acceptable. On this point I accept the position of Mr Cooper that the Noise Assessment does not satisfy the requirements of the DCP and is insufficient. No further evidence has been provided by the Applicant to clarify the potential noise impacts to these locations, particularly 3 Yeramba Street.

70. Because of the lack of consideration to the upper level of 3 Yeramba Street, the necessary height of acoustic fencing or requirement for other acoustic attenuation cannot be fully assessed. As noted in my discussion on streetscape, the 1.8m high acoustic fence as proposed is already inconsistent with the streetscape character in this locality and relies on vegetated screening to mitigate its visual impact. Should further acoustic impacts on neighbouring properties be identified, the potential streetscape impacts would require further consideration.

71. In addition, as the step in landform along the boundary between the subject site and 4 Yeramba Street has not been accounted for in the design of the acoustic fence, the experts agreed in evidence that the fence is likely to increase above the proposed 1.8m height at certain locations on this boundary. This again raises questions of visual impact, highlighting that the drawings do not provide certainty on the height and design of the acoustic fencing.

72. The acoustic experts also disagree on the assessment of the noise impacts of the car park. An assessment of car park noise emissions is provided in the Acoustic Assessment Addendum (Exhibit G) at Table 3 and was further supported by evidence from Mr Scannell in cross examination. On the basis of Exhibit 3 and Mr Scannell’s oral evidence, I accept Mr Scannell’s position that vehicle movement in the car park should not breach the acceptable noise limit.

Findings

73. The development application is principally contended on issues of site suitability, streetscape and acoustics.

74. Four considerations pertaining to site suitability are set out under C3 of the Guideline, which provides the principal criteria for assessing this item. For the reasons given and with reference to the considerations in C3 of the Guideline, in my opinion the site may be considered near to both compatible social uses and shops. It may also be considered as having access to public transport, but only for those with good mobility and not for those with prams or small children. I also consider that the site is not in an area with good pedestrian connectivity, given the lack of footpaths or trafficable verges and subsequent safety issues. These considerations, when combined, demonstrate that aspects of the site location are suitable, and others unsuitable for a child care centre under these criteria.

75. Three streetscape issues were contended: the visual impact of the building, the visual impact of the elevated parking structure, and the visual impact of acoustic fencing. In my assessment of the proposed development, I accept Ms Gregory’s opinion that because the proposed building addition contrasts with the surrounding streetscape in both form and material, and is highly visible from Yeramba Street, it is not compatible with the local character and surrounding streetscape. The proposed built form subsequently does not meet the requirements of the Guideline as set out in Principles 1 – Context and 2 – Built form, nor the Matters for Consideration C5 under part 3.2 Local character, streetscape and the public domain interface of the Guideline. Furthermore, the proposal does not meet objectives 1 and 3 or control 5 of Part 10A.2 Site Planning of the KDCP.

76. The elevated parking structure has two impacts: the first is visual and the second is on the viability of two existing mature trees. For the reasons given I have determined that a parking structure in the front setback that is elevated up to 2.6m (including vehicle stop barrier) above the adjacent verge is not compatible with the existing streetscape, and will have unacceptable visual impacts. Furthermore, although I accept that tree-sensitive construction, irrigation and maintenance may ameliorate the adverse impacts of this parking structure on the two existing trees, the potentially reduced life expectancy (SULE) of these trees from medium-long term to short term as a result of this visually prominent structure is not acceptable. To that end, the proposed elevated parking is contrary to considerations C5 of the Guideline and KDCP Clause 10A.2 objectives 1 and 3, and control 7.

77. The acoustic impact of the proposed development on neighbouring properties, particularly the upper level of 3 Yeramba Street, has not been considered, contrary to the requirements of the KDCP. Subsequently, the acoustic assessment is insufficient, and the suitability of the proposed acoustic attenuation is not certain. As a result the potential visual impact of acoustic fencing (or other attenuation) on the streetscape is also uncertain, and I am unable to conclude whether the proposed development will meet principles 1 and 5 and consideration C5 of the Guideline, or controls 10A.2 or 10C.2 in the KDCP.

78. For these reasons, the appeal is dismissed and Development Application for alterations and additions and conversion of an existing dwelling to a centre-based childcare facility must be determined by way of refusal.

Orders

79. The Court Orders:

1. The appeal is dismissed.

2. Development Application 482/19 at 11 Boronia Avenue Turramurra for alterations and additions and conversion of an existing dwelling to a centre-based child care facility is refused.

3. All exhibits are returned except for exhibits B, C, G and 12.

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Emma Washington

Acting Commissioner of the Court

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Decision last updated: 14 July 2021