Nada v Georges River Council (formerly Hurstville City Council)

[2016] NSWLEC 1302

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Nada v Georges River Council (formerly Hurstville City Council) [2016] NSWLEC 1302
Hearing dates:	4-5 June and 6 July, 2015, 11 and 26 April 2016
Date of orders:	21 July 2016
Decision date:	21 July 2016
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld. 2. Development Application No. 2014/0928 for the demolition of existing structures and the construction of a childcare centre for 37 children at 45 Ogilvy Street, Peakhurst is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 2, 6, 11, 10, A, D, K, N, W, X and Y, are returned.
Catchwords:	DEVELOPMENT APPLICATION: childcare centre for 37 children; appearance and colour scheme; acoustic impacts; number of car parking spaces provided on-site; adequacy of landscaping and outdoor play areas; stormwater disposal.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Emad and Eva Nada (Applicant) Hurstville City Council (Respondent)
Representation:	Counsel: Mr S. Kondilios solicitor (Applicant) Dr S. Berveling barrister (Respondent)   Solicitors: Hall & Wilcox Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/167898 (formerly 11040 of 2014)

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2014/0928 for the demolition of existing structures and the construction of a childcare centre for 37 children and 7 staff, with 8 car parking spaces (the proposal), at 45 Ogilvy Street, Peakhurst (the site), by Hurstville City Council (the Council).

2. The appeal was subject to mandatory conciliation on 19 February, 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 24 March, 2015, pursuant to s 34(4) of the LEC Act.

Issues

3. Following the amendment of the proposal, the contentions that the Council pressed in the matter can be summarised as:

• The proposal will have an adverse impact on the existing streetscape due to the form and appearance of the building;

• The proposal should provide 13 places for children 0-2 years, instead of the 12 places proposed;

• The proposal does not provide 1 car space per staff person, which is encouraged by the relevant planning control;

• The stormwater disposal proposed is unacceptable because it does not drain by gravity.

4. Council’s contentions regarding landscaping and waste management are resolved by the inclusion of two conditions of consent, not opposed by the applicant, requiring a landscape plan and a waste management plan to be provided prior to the issue of a construction certificate (conditions 27 and 30 of exhibit 11). A number of other contentions raised by the Council’s Statement of Facts and Contentions (exhibit 2) were addressed, to Council’s satisfaction, by the amended plans (exhibit N).

The site and its context

5. The site has an area of 919.7sqm, with a street frontage of 20.115m to Ogilvy Street. The site falls gently away from the street to the western boundary. The site contains a single storey dwelling and out buildings.

6. Peakhurst West Public School is located on the opposite side of Ogilvy Street.

7. Henry Lawson Drive is to the north of the site and there are a group of small to medium scaled neighbourhood shops at the corner of Ogilvy Street and Henry Lawson Drive.

8. Adjoining the site, to the north, is a two storey duplex.

9. Adjoining the site, to the rear on a battle-axe block, is 44A Ogilvy Street, with an access handle on the southern side of the site and containing a single storey dwelling with a private open space area directly adjacent to the rear of the site.

Background and the proposal

10. Leave was granted by the Court for the applicant to rely on an amended proposal (exhibit J), at the commencement of the hearing, on the basis agreed by the parties pursuant to s 97B of the EPA Act. Further minor amendments were made to the proposal during the hearing in response to the evidence of the acoustic and planning experts and a further amended proposal was then tendered (exhibit N). The amendments made to the proposal, described by the architect in evidence and shown on the exhibit N drawings, are as follows:

• The proposal is reduced from 40 children to 37 children;

• A 150mm kerb is added to the parking bays in the front setback of the proposal and child safety gate is added at the entry;

• A 4m high and 10.8m long acoustic screen constructed from 10mm polycarbonate sheets is added 900mm from the northern, side boundary, within the outdoor play area. The top 1m of the screen is angled 45 degrees inward (section CC, exhibit N);

• The boundary fence enclosing the outdoor play area is raised to 2.4m high and the side boundary fence in the front setback is reduced to 900mm high; and

• Internal minor amendments including changes to the layout and addition of storage areas and internal windows and minor external amendments.

11. The proposal is for a single storey, contemporary style, child care centre consisting of three internal play areas and associated facilities, staff area and facilities, a kitchen and outdoor play area. The proposal includes 8 car parking spaces within the front setback. The proposal includes the following numbers of children in each age group:

• 12 children aged 0 to 2;

• 14 children aged 2 to 3; and

• 11 children aged 3 to 6.

Planning framework

12. The site is zoned R2 Low Density Residential and the proposal is permissible with consent. The relevant objectives of the R2 zone are as follows:

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

• To ensure that a high level of residential amenity is achieved and maintained.

• To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment.

The definition of child care centre in LEP 2012 is as follows:

Child care centre means a building or place used for the supervision and care of children that:

(a) provides long day care, pre-school care, occasional child care or out-of-school-hours care, and

(b) does not provide overnight accommodation for children other than those related to the owner or operator of the centre, but does not include:

(c) a building or place used for home-based child care, or

(d) an out-of-home care service provided by an agency or organisation accredited by the Children’s Guardian, or

(e) a baby-sitting, playgroup or child-minding service that is organised informally by the parents of the children concerned, or

(f) a service provided for fewer than 5 children (disregarding any children who are related to the person providing the service) at the premises at which at least one of the children resides, being a service that is not advertised, or

(g) a regular child-minding service that is provided in connection with a recreational or commercial facility (such as a gymnasium), by or on behalf of the person conducting the facility, to care for children while the children’s parents are using the facility, or

(h) a service that is concerned primarily with the provision of:

(i) lessons or coaching in, or providing for participation in, a cultural, recreational, religious or sporting activity, or

(ii) private tutoring, or

(iii) a school, or

(i) a service provided at exempt premises (within the meaning of Chapter 12 of the Children and Young Persons (Care and Protection) Act 1998), such as hospitals, but only if the service is established, registered or licensed as part of the institution operating on those premises.

13. The Hurstville LGA Wide Development Control Plan No. 1 (DCP No. 1) applies to the site at 1.3 of DCP No. 1. The aims of DCP No. 1 are as follows:

The aim of this DCP is to encourage and co-ordinate the orderly and economic use and development of land to cater for a variety of residential, retail, commercial and service needs of the Hurstville

Community while protecting and enhancing amenity, cultural heritage and ecological sustainability within the Hurstville LGA.

This DCP was created to support and supplement the Hurstville LEP 2012 by providing objectives and guidelines for development which encourage design that responds positively to the environment and the context of the locality and generates high quality urban design outcomes.

Specific aims are contained within each Section of the DCP relevant to each development type, application process, site and locality.

14. DCP No. 1 includes, at 3.7 ‘Drainage and On-Site Detention (OSD) Requirements’, a referral to the Council’s Drainage and OSD policy in Appendix 2. Appendix 2 includes drainage requirements, OSD requirements and design criteria. The relevant drainage requirements include the following:

All drainage to be designed for a 1:20 storm frequency;

Minimum grade to all pipes: 1%;

The last grated pit before entering a Council pipeline or kerb and gutter must have 150mm sump and galvanised mesh permanently fixed over the outlet pipes;

Two or three x 100mm PVC pipes from the last grated pit where connecting kerb and gutter;

Minimum cover over pipes: 150mm.

15. When OSD is required, 5.4.11.3 of DCP No. 1 requires exposed drains to be suitably covered to ensure that children cannot gain access to the drain.

16. DCP No. 1 includes, at 5.4, requirements for child care centres, including at 5.4.8 that a maximum of 40 children are to be accommodated in a child care centre located within the R2 Low Density zone. The minimum number of places for children in the under 2 year old age group is to be the same as the percentage of under 2 year olds in the 0-5 year old population as measured at the most recent census (35% at the 2011 census).

17. DCP No. 1 includes at 5.4.9, ‘Building Form and Appearance’, the objective of ‘ensure no bright colours on building finishes’. Further, at 5.4.9.6, DCP No. 1 includes the following:

No bright colours are permitted on building finishes. A schedule of colours and materials is to be submitted with the development application for a child care centre and if acceptable this will form part of the development consent.

18. DCP No. 1 includes, at 5.4.9.3 ‘Relationships to Adjoining Properties’, that particular consideration must be given to the location of active outdoor play areas; classrooms and indoor plan areas; windows and doors, particularly those associated with indoor play areas; verandahs; points of entry; pick-up and drop-off points; and any plant equipment which may be required within the context of the centre.

19. DCP No. 1 includes, at 5.4.10.1, that 1 parking space for every 2 staff members on site be provided and for proposals without a drive-through, 1 space per 10 children to be used for a maximum of 15 minutes. Parking at a rate of 1 space for every staff member is encouraged and where the objectives for ‘Access and Parking’ are not compromised.

20. DCP No. 1 includes the following relevant objectives for landscaping:

Attractive landscaped areas providing visual links to nearby open space areas.

Landscaped areas which provides innovative play opportunities, is harmless to children and attracts native animals and birds.

Well defined play areas and functions within the playground.

Planting which provides natural shade and a high level of interest in terms of branch and trunk formation.

Landscaped areas which enhances the visual quality of the site, the street presentation of the property and visual attractiveness of the playground area and screening to adjoining properties.

21. DCP No. 1 includes, at 5.4.12.1, the following regarding indoor spatial requirements:

(b) DOCS require Indoor Space (unencumbered indoor floor space) to be provided at a minimum rate of 3.25m2 for every child licensed to be at the centre. In addition, Council has set the following rates:

15 or more children = 3.5m2 per child

12-14 children = 4m2 per child

6-11 children = 4.5m2 per child

(c) For the purpose of calculating unencumbered indoor floor space, items such as any passage-way or thoroughfare, door swing areas, kitchen, cot rooms, toilet or shower areas located in the building or any other facility such as cupboards, are to be excluded.

22. DCP No. 1 includes at 5.4.13.2(c) that an outdoor staff facility should be provided and may include a small sitting area or deck separate from the playground area.

23. DCP No. 1 includes at 5.4.13.3(a)(i) a requirement for one cot for every two children under 2 years of age and at (b), a maximum of 5 cots per cot room must be provided.

Public submissions

24. A number of resident objectors provided evidence on site at the commencement of the conciliation conference on 19 February, 2015 and the Court, in the company of the parties and their experts, viewed the site from the private open space of the battle-axe property to the rear of the site at 44A Ogilvy Street. There were 71 submissions and a petition objecting to the proposal submitted to Council. The objections to the proposal can be summarised as follows:

• The proposal will further exacerbate the traffic in Ogilvy Street associated with the primary school;

• The proposal will further exacerbate the lack of on-street parking in Ogilvy Street, particularly at school drop off and pick up times;

• Cars will be required to reverse out of the site and this is dangerous;

• The proposal will have an unacceptable acoustic impact on the adjoining neighbours;

• The proposed style and colour scheme does not blend appropriately with the residential character of the streetscape; and

• Concern regarding egress of the building in the event of a fire.

Re-notification of the amended proposal

25. At 2.2.3.3(c) of DCP No. 1, amendments to an undetermined application which are of a lesser impact to adjoining properties that what was initially proposed, need not be publicly notified.

26. The amended proposal (exhibit N) includes measures to ameliorate the acoustic impact of the proposal on adjoining properties, including a 4m high and 10.8m long screen positioned 900mm from the northern boundary and 2.4m high boundary fencing around the outdoor play area. These elements of the amended proposal were not part of the original application and were included following the joint conferencing of the acoustic engineers and their agreement that raising the perimeter fence and including an acoustic screen would satisfactorily ameliorate the acoustic impact of the proposal on adjoining properties. While the introduction of these elements deals with the acoustic impact of the proposal, the physical presence of these elements cannot be described as being of a lesser visual impact when viewed from adjoining properties, when compared to what was initially proposed. For this reason, I accepted the Council’s submission that the proposal should be re-notified to provide the resident objectors with an opportunity to consider the amended proposal (exhibit N). The hearing was adjourned until 6 July, 2015 to allow for the re-notification period.

27. On 6 July, 2015, the Council tendered a bundle containing objections (exhibit 12) submitted following the re-notification of the proposal. The objections raised in relation to the amendments made to the proposal can be summarised as follows:

• The amended proposal will still result in an unacceptable acoustic impact on adjoining neighbours;

• The size of the acoustic screen will result in a loss of southerly breeze to the northern neighbour at 43A Ogilvy Street and will create a ‘boxed in feeling’;

• The height of the boundary fences is not consistent with fences in the neighbourhood;

• The location of the garbage bins in the front setback will smell and attract vermin.

Expert evidence

28. Mr Ian Glendinning (planning), Mr Terry Winning (traffic), Mr Soliman Hanna (stormwater) and Mr William Wang (acoustic) provided expert evidence on behalf of the applicant. 

29. Mr Warwick Gosling (planning), Mr Craig McLaren (traffic), Mr Mick Ward (stormwater) and Mr Thomas Taylor (acoustic) provided expert evidence on behalf of the Council.

Consideration

Whether the proposal will have an adverse impact on the existing streetscape due to the form and appearance of the building

30. The planning experts disagreed on whether the proposal will have an adverse impact on the existing streetscape due to the form and appearance of the building (exhibit 3, p 2).

31. The childcare centre has been designed in a contemporary, playful architectural style, with metal clad skillion roofs separated by a row of clearstory windows facing north, positioned along the centre of the building and concealed behind a parapet wall to the street elevation. The street elevation consists of an irregular quadrilateral clad in compressed fibre cement painted a dark crimson red and a cement rendered wall painted in white and projecting forward, decorated with coloured triangles. The design includes aluminium framed windows and glass blocks. The side and rear elevations are predominately rendered masonry painted white. The form of the proposal is single storey, with a L shaped layout around a rear northern courtyard, 900mm side setbacks and a front setback similar to the surrounding residential development.

32. According to Mr Glendinning, the proposal ‘is of a domestic scale’, ‘observes traditional setbacks’ and ‘has been designed to reflect its use as childcare centre’ and is therefore ‘not out of keeping with the streetscape’.

33. According to Mr Gosling, the façade of the proposal is out of character with the surrounding residential properties, as it ‘has a very low percentage of glazing compared to masonry finishes’, ‘the character of Ogilvy Street is one of predominately single storey dwelling houses with pitched roofs with roof tiles’, ‘new development in the form of new dwellings and dual occupancy development are constructed with pitched roof forms’ and ‘the cement rendered finish with decorative cement pattern work is not consistent with the local shopping centre located to the north’.

34. I prefer and accept Mr Glendinning’s evidence regarding the design and appearance of the proposal. It is, in my view, unnecessary and undesirable for a childcare centre to be camouflaged as a bland dwelling simply because it is within a residential area. As a permissible use within the R2 Low Density Residential zone, a childcare centre is anticipated as a building typology within the residential zone and it should be distinguished as such and easily identifiable. As a single storey, domestic scaled building, I am satisfied that the proposal is suitably decorous and appropriate in its context.

35. According to Mr Gosling the proposed colour scheme (exhibits L and O) is inconsistent with DCP No. 1 control 5.4.9.6 which does not permit bright colours to building finishes. The planning experts agreed that if the proposed colour scheme is unacceptable, the colour scheme can be amended and Mr Glendinning suggested livery or blonde colours and neutral tones (exhibit P).

36. DCP No. 1 does not define the ‘bright colours’ it seeks to avoid. The on-line Macquarie Dictionary’s definition of ‘bright’ is, ‘adjective 1. radiating or reflecting light; luminous; shining 3. vivid or brilliant, as colour’.

37. The proposed colour scheme, as shown in the coloured street elevations (exhibit L) and the Dulux colour cards (exhibit O), consists of a deep crimson red (Dulux Red Box) for the predominant portion of the front façade, with the remainder of the street façade to the north in white (Dulux Natural White). I am satisfied that Dulux Red Box is not a ‘bright colour’, as it will absorb rather than reflect light and it is not luminous, vivid or brilliant. The applicant submits that the colours will be applied in a matte or low sheen (non-reflective) finish, which is consistent with condition 11 of exhibit 11, requiring low reflectivity materials and finishes to be used.

30. There are four different sized decorative triangles with bands of orange, yellow and green, overlayed on the white portion of the front elevation and around the low window in the front facade. The colours of the decorative triangles, particularly the lime green and oranges (Dulux Melissa, Sunshine Surprise and Encounter) could be described as bright or vivid colours, however they are applied to a relatively small banded area as a feature and not to a large expanse of wall. The decorative triangles are clearly a playful appliqué, included to denote the building as a child’s place and as such, these highlight colours are appropriate in the circumstances.

31. For these reasons, I am satisfied that the colour scheme proposed is appropriate and consistent with the requirements of DCP No. 1.

Whether the proposal should provide 13 places instead of 12 for children 0-2 years

40. DCP No. 1 provides that the minimum number of places for children in the under 2 year old age group is to be the same as the percentage of under 2 year olds in the 0-5 year old population as measured at the most recent census. The Council submits that the 2011 census is the most recent and there were 35% under 2 year olds in the 0-5 year old population at that time. 35% of 37 is 12.95.

41. The proposal provides 12 of the total of 37 places for children 0-2 years, which represents 32.4% of the total number of places. If the number of 0-2 year olds is increased to 13, the proposal would not comply with the required staff ratios and the internal space requirements and would require an additional cot, pursuant to control 5.4.13.3(1)(a) of DCP No. 1. The cot room in the 0-2 year old area has 6 cots for the 12 places. The cot room is already one cot in excess of the maximum 5 cots per room and another cot would necessitate an additional cot room.

42. On balance, considering the difficulties of the flow on spatial and layout implications of an additional place for a 0-2 year old, in lieu of a place for an older child; and considering that the 35% of 0-2 year olds in the 0-5 year old population in 2011 are now 4-6 year olds and the proportion of 0-2 year olds in the 0-5 year old age group in the Hurstville area may no longer be 35%; I am satisfied that the 12 places for 0-2 year olds proposed represents an adequate proportion of the total places offered and that it broadly reflects the proportion of each age group in the area, as required by DCP No. 1.

Whether the proposal should provide a car parking space for each staff person

43. Following the amendments made to the proposal in exhibit N; including the reduction in the number of children, the raised kerb around the parking bays, the provision of a child safety gate at the entry to the childcare centre and the reduction in height of the side boundary fences in the front setback; the traffic experts agreed that the proposal is acceptable and compliant with the relevant Australian Standards.

44. The traffic experts agreed that the parking spaces on the northern side of the front setback are to be used exclusively by staff. The traffic experts agreed that the parking spaces on the southern side of the front setback are to be sign posted with maximum 15 minutes duration of stay.

45. The planning experts agreed that by amending the total number of children to 37, the car parking provision complies with DCP No. 1 (exhibit 3, p 3).

46. I accept the agreement of the experts that the on-site provision of parking complies with the relevant provisions of DCP No. 1 and that the parking area is acceptable and compliant in terms of its layout and design.

47. The objectors were concerned that the proposal would further contribute to traffic congestion associated with the nearby primary school. According to Mr Winning (exhibit 4, p 3), the traffic flow impact of the proposal will be outside of peak traffic flow associated with the primary school, as the proposal’s peak traffic flows are before 8.30am and after 4pm. In his opinion, the proposal will have minimal impact on the traffic in the street. Mr McLaren agreed with Mr Winning’s assessment of the volume of traffic generated by the proposal. I accept the agreement of the traffic experts that the traffic generated by the proposal is acceptable and will not adversely impact on the local area.

Whether the stormwater disposal proposed is unacceptable because it does not drain by gravity

48. Mr Hanna’s concept stormwater drainage proposal for the site proposes a charged stormwater system for roof runoff to Ogilvy Street (exhibit D). According to Mr Hanna, the impervious surface of the carpark in the front setback will be raised so as to fall to the street and water will be shed to the gutter in Ogilvy Street. The outdoor play area to the rear of the building, which is to be finished in a ‘softfall rubber surface’ will, according to Mr Hanna, absorb water and disperse that water to the soil under. Mr Hanna says that a pit can be incorporated in the rear garden for drainage as an alternative.

49. Mr Ward and Mr Hanna fundamentally disagreed on whether a charged stormwater system to Ogilvy Street is acceptable. According to Mr Ward, as the site falls to the rear boundary, the only option acceptable to the Council is for the site is to be gravity drained to Johnstone Street via easements burdening 44A Ogilvy Street to the rear of the site and 44 Johnstone Street to the rear of 44A Ogilvy Street, because draining the site to Ogilvy Street diverts the stormwater into an alternative, adjoining sub-catchment. According to Mr Hanna, both Ogilvy Street and Johnstone Street sub-catchments discharge to the same destination which is Salt Pan Creek-Georges River, however, Mr Ward disagrees that the two sub-catchments drain to the same destination.

50. The Council proposes a deferred commencement condition (Schedule 1 of exhibit 11) requiring the registration of a stormwater easement 1m wide for a gravity fed stormwater drainage system to Council’s infrastructure in Johnstone Street, within 24 months of the granting of consent. The applicant opposes the deferred condition of consent requiring evidence of the registration of a drainage easement and submits that if I am minded to grant the consent and accept Council’s position regarding the necessity of a drainage easement, that I hand down findings accordingly so that the applicant may make an application to the Court for an order imposing an easement over land pursuant to s 40 of the LEC Act.

51. The applicant opposes the Council’s version of condition 23 (exhibit 11), regarding the stormwater system and proposes an alternative condition 23 (exhibit T). The alternative versions are as follows:

Council’s version (exhibit 11):

23. CC3001 – Development Engineering – Stormwater System

Ref no	Date	Description	Revision	Prepared by
14-056	8 May 14	Concept Stormwater and Water Management Layout and Details	A	Soliman Hanna and Associates

The above submitted stormwater plan has been assessed as a concept plan only and no detailed assessment of the design has been undertaken.

All stormwater shall drain by gravity to the easement to drain water in accordance with the Australian/New Zealand Standard AS/NZS 3500.3: 2003 (as amended).

Design details and certification shall be submitted for approval with the Construction Certificate application.

Applicant’s version (exhibit T):

23. CC3001 – Development Engineering – Stormwater System

Ref no	Date	Description	Revision	Prepared by
14-056	8 May 14	Concept Stormwater and Water Management Layout and Details	A	Soliman Hanna and Associates

The above submitted stormwater plan has been assessed as a concept plan only and no detailed assessment of the design has been undertaken.

An on-site detention (OSD) facility designed by a professional hydrological/hydraulic engineer shall be installed. The design must include the computations of the inlet and outlet hydrographs and stage/storage relationships for the proposed OSD using the following deign parameters.

(a) Peak flow rates from the site are to be restricted to a permissible site discharge (PSD) equivalent to the discharge when assuming the site contained a single dwelling, garage, lawn and garden, at Annual Recurrence Intervals of 2 years and 100 years. Refer to Flow Controls in Council’s Draft/Adopted Stormwater Drainage Policy.

(b) The OSD facility shall be designed to meet all legislated safety requirements and childproof safety fencing around the facility must be provided where the OSD facility is open or above ground when the design peak storage depth is greater than 300mm. A durable metal plate or similar sigh is to be placed at the OSD facility and must bear the words: ‘This is an on-site detention basin/tank and is subject to possible surface overflow during heavy storms’. Full details shall accompany the application for the Construction Certificate.

Design details and certification shall be submitted for approval with the Construction Certificate application.

52. The Council also proposes condition 25 in regard to the stormwater proposal and this is not opposed by the applicant:

25. CC3004 – Development Engineering – Stormwater Drainage Plans

Ref no	Date	Description	Revision	Prepared by
14-056	8 May 14	Concept Stormwater and Water Management Layout and Details	A	Soliman Hanna and Associates

The above submitted stormwater plan has been assessed as a concept plan only and no detailed assessment of the design has been undertaken.

Stormwater drainage plans including pipe sizes, type, grade, length, invert levels, dimensions and types of drainage pits prepared by a qualified practising hydraulics engineer (with details of qualifications being provided) in accordance with the Australian Institute of Engineers Australian Rainfall and Runoff (1987) and Council’s Stormwater Drainage Guidelines, shall accompany the application for the Construction Certificate.

53. The Council responded to the applicant’s version of condition 23 with an alternative deferred commencement condition and a new condition 26, filed by eCourt on 8 July 2015, at the request of the Court. The Council’s alternative deferred commencement condition requires the person with the benefit of the consent to extend Council’s drainage system from the gully pit located in front of 63 Ogilvy Street for approximately 180m, to terminate with a gully pit fully contained within the street frontage of 45 Ogilvy Street and to obtain approval for this extension. Accordingly, condition 23 is reworded as follows:

CC3001 - Development Engineering - Stormwater System

Reference No.	Date	Description	Revision	Prepared by
14-056	8 May 14	Concept Stormwater Soil and Water Management Layout and Details	A	Soliman Hanna and Associates

The above submitted stormwater plan has been assessed as a concept plan only and no detailed assessment of the design has been undertaken.

All stormwater shall drain by gravity to the upper level of Council’s kerb inlet pit which is to be constructed directly in front of the development site. Council’s drainage system is to be extended to this point with a 375mm (min,) diameter pipeline with all costs borne by the developer. The internal drainage system is to be designed in accordance with the Australian/New Zealand Standard AS/NZS 3500.3: 2003 (as amended).

The design of this proposed drainage system must be prepared by a qualified practising hydraulics engineer (with details of qualifications being provided) and be submitted for approval with the Construction Certificate application.

54. The Council’s proposed new condition 26 is as follows:

26. CC3005   Development Engineering -On Site Detention

Reference No.	Date	Description	Revision	Prepared by
14-056	8/5/’14	Concept Stormwater Soil & Water Management Layout and Details	A	Soliman Hanna & Associates

The above submitted stormwater plan has been assessed as a concept plan only and no detailed assessment of the design has been undertaken.

An on-site detention (OSD) facility designed by a professional hydrological/hydraulic engineer, shall be installed. The design must include the computations of the inlet and outlet hydrographs and stage/storage relationships of the proposed OSD using the following design parameters:

(a) Peak flow rates from the site are to be restricted to a permissible site discharge (PSD) equivalent to the discharge when assuming the site contained a single dwelling, garage, lawn and garden, at Annual Recurrence Intervals of 2 years and 100 years.

Refer to Flow Controls in Council's Draft/Adopted Stormwater Drainage Policy.

(b) The OSD facility shall be designed to meet all legislated safety requirements and childproof safety fencing around the facility must be provided where the OSD facility is open or above ground when the design peak storage depth is greater than 300mm. A durable metal plate or similar sign is to be placed at the OSD facility and must bear the words:

"This is an on-site detention basin/tank and is subject to possible surface overflow during heavy storms."

Full details shall accompany the application for the Construction Certificate.

55. Following the Council’s response, the matter was listed in court and further evidence was provided by the stormwater experts regarding Council’s alternative deferred commencement condition.

56. According to Mr Ward, the purpose of the Council’s alternative deferred consent condition is to require the stormwater collected on the site to be drained southward along Ogilvy Street, instead of northward, as proposed by the application. The experts agreed during concurrent evidence that it is preferable for the stormwater from the site to be shed southward along Ogilvy Street, as proposed by Council’s alternative deferred consent condition, instead of northward, as proposed by the applicant.

57. The experts agreed that 39 and 43 Ogilvy Street discharge to Ogilvy Street presumably via a charged system and 51, 53 and 57 Ogilvy Street discharge to Ogilvy Street via gravity, due to the local topography.

58. Following a request by the Court for evidence of any negotiations with the owners of properties to be burdened by a stormwater easement from the site, the applicant tendered an email from the owner of 44 Johnstone Street, dated 15 June 2015, stating that he would not willingly negotiate with the applicant to provide a stormwater easement across his property (exhibit R).

59. I prefer and accept Mr Ward’s evidence regarding the necessity for a drainage easement for the proposal, to allow the roof and surface runoff to drain via gravity Johnstone Street, as the site falls away from Ogilvy Street and the existing overland flow drains to the Johnstone Street sub-catchment.

60. I found Mr Hanna’s proposal and his evidence did not provide me with the confidence necessary to be certain that his stormwater drainage concept proposal is feasible. Efficient surface drainage is imperative for a childcare centre as the safety of young children at the centre is paramount. The proposal substantially decreases the areas of deep soil when compared to the existing conditions on the site, which will result in an increase of surface water runoff, yet the charged system proposal dealt with only the roof runoff. I do not accept that it is satisfactory in all the circumstances to allow rainwater to pool and be absorbed by the softfall rubber surface in the outdoor play area. In the joint report of the experts (exhibit 9), they agreed at 4(ii) and (iii) that the soil is not suitable for an absorption/transpiration system (such as an OSD) due to the clay/rock strata, which suggests the rate of water absorption through the softfall rubber surface may not be rapid. The softfall rubber surface is not shown on Mr Hanna’s stormwater plan (exhibit D) and instead it indicates the entire outdoor play area is lawn, suggesting that Mr Hanna did not turn his mind to any constraints associated with the softfall rubber surface at the time he prepared the stormwater drainage concept plan. I accept that the proposal may have been capable of being modified to add a pit to the outdoor play area for drainage, however I am not satisfied that the proposal for the drainage of the front setback is satisfactorily resolved either.

61. Mr Hanna’s evidence that the rainwater falling on the proposed impervious surface of the carpark, which occupies the entire front setback except for a narrow strip of boundary planting, would be drained by raising the levels of the impervious surface adjacent to the new building so that the water is shed towards the Ogilvy Street gutter, is not possible with the levels shown on his own drawing (exhibit D). The FFL of the childcare centre is RL 34.20 and the footpath level at the proposed driveway is RL 34.22. The architectural drawing shows the ground level outside the entry as RL 34.10 (exhibit N, DA-386-A2 rev F). Given the constraints of these levels, it is impossible to provide a fall to the Ogilvy Street gutter, without raising the FFL of the childcare centre.

62. There are other minor inconsistencies in the concept stormwater drainage proposal (exhibit D) including note number 5, ‘all balconies to have floor waste connected to downpipe’, yet there are no balconies in the proposal.

63. The proposed charged system draining southward along Ogilvy Street, with a requirement to extend Council’s drainage system from the gully pit located in front of 63 Ogilvy Street for approximately 180m, to terminate with a gully pit fully contained within the street frontage of 45 Ogilvy Street and to obtain approval for this extension, is not a preferable option to the Council’s required drainage easement, because it has a number of significant constraints, including the local topography and the difficulty of obtaining sufficient falls for pipes under driveways of adjoining properties, which remain unresolved.

64. The onus is on the applicant to demonstrate to the Court that their concept drainage proposal complies with Council’s stormwater drainage requirements or meets Council’s objectives for stormwater drainage and is a feasible solution, even as a concept proposal. The applicant has not, in my view, adequately demonstrated that either the proposal in exhibit D or the option to drain stormwater collected on the site southward along Ogilvy Street are sufficiently workable solutions. Consequently, I accept Council’s preferred option for a requirement that the applicant to obtain a stormwater easement 1m wide for a gravity fed stormwater drainage system to Council’s infrastructure in Johnstone Street.

65. I accept the applicant’s submission that in the circumstance that I find for the Council regarding the necessity of a drainage easement, they wish to make an application to the Court for an order imposing an easement over land, pursuant to s 40 of the LEC Act.

66. It is satisfactory for the stormwater drainage proposal to be designed and documented to Council’s satisfaction prior to the issue of a Construction Certificate.

Findings

67. As a childcare centre is a permissible use within the R2 Low Density Residential zone, it is an anticipated building typology and it should be identifiable as a childcare centre. I am satisfied that the proposal, as a single storey building, of a domestic scale and a contemporary style, painted in crimson red and white with decorative triangular motifs on the street elevation, is suitably decorous and appropriate in its context.

68. I am satisfied that the 12 places proposed for 0-2 year olds represents an adequate proportion of the total places offered and that it broadly reflects the proportion of each age group in the area.

69. I accept the agreement of the experts that the provision of 8 parking spaces complies with the requirements of the planning controls. I accept the agreement of the traffic experts that the proposal is acceptable both in terms of the design of the parking within the front setback and the generation of traffic in the area.

67. A Plan of Management for the operation of the childcare centre was tendered by the applicant (exhibit S). The development must be carried out in accordance with the Plan of Management (condition 70, Annexure A) and the on-going conditions of consent at conditions 62-82 (Annexure A).

68. I accept the agreement of the acoustic experts, that following the amendments made to the proposal in exhibit N, coupled with appropriate management strategies to ensure that the noise level emitted from the outdoor play area shall not exceed the background noise level by more than 5 dB for more than 2 hours each day (to comply with the Association of Australian Acoustical Consultants ‘Technical Guideline Child Care Centre Noise Assessment’, condition 71 of Annexure A), that the proposal is acceptable in terms of its acoustic impact on neighbouring properties.

69. I accept the evidence of Mr Glendinning that the form and size of the acoustic screen in the outdoor play area is equivalent to the built form of a single storey structure positioned 900mm from the boundary and for this reason, the addition of the acoustic screen is acceptable in terms of its visual impact when viewed from the adjoining dwelling and backyard to the north. I am satisfied that the benefit of the acoustic screen in ameliorating the acoustic impact of the outdoor play area on the adjoining dwelling outweighs its detrimental visual impact when viewed from the adjoining property.

70. I accept Council’s preferred option that the applicant be required to obtain a stormwater easement 1m wide for a gravity fed stormwater drainage system to Council’s infrastructure in Johnstone Street.

Directions

74. A written judgment in this matter was handed down on 28 July 2015, making findings with respect to the proceedings but not a final determination and directing the applicant to make an application to the Court for an order imposing an easement over land, pursuant to s 40 of the LEC Act, no later than 25 August 2015. The applicant made the application as directed. The respondent was directed to file the conditions of consent in exhibit 11, amended to delete the deferred condition of consent in schedule 1 and to delete conditions 23 and 25 and replace condition 23 with the following:

23. CC3001 – Development Engineering – Stormwater System

The design of the proposed drainage system must be prepared by a qualified practising hydraulics engineer (with details of qualifications being provided) and be submitted to Hurstville Council for their approval and evidence of their approval is to be provided to the certifier prior to the issue of the Construction Certificate.

All stormwater shall drain by gravity to the easement to drain water in accordance with the Australian/New Zealand Standard AS/NZS 3500.3: 2003 (as amended).

Hearing re-opened

75. A Notice of motion was filed on 26 February 2016 seeking an order that the applicant be granted leave to re-open the proceedings and rely on further material relating to an amended stormwater proposal for the site. On 3 March 2016 the parties appeared before the Court for the return of the applicant’s motion to re-open and by consent, orders were made as set out in the Notice of Motion filed 26 February 2016.

76. The hearing took place on 11 and 26 April 2016 and hydraulic engineering experts Mr Bruce Kenny (on behalf of the applicant) and Mr Mick Ward (on behalf of the Council) prepared a joint report (dated 8 April 2016 exhibit X, dated 10 April 2016 exhibit Y). An addendum to the joint report was prepared on the day of the hearing by the experts, dated 11 April 2016 (exhibit W). Draft conditions of consent were handed up by the Council on 26 April 2016.

77. The stormwater experts agreed on the following (exhibit W):

• The stormwater system depicted on plans G0150584/C1-C8 Rev F (option 1) provides an acceptable outcome in concept, subject to appropriate conditions of consent.

• The shade sail system over the rubberised play area will collect stormwater and contain and convey this stormwater to the OSD system, negating the need for on-site disposal. Any stormwater blown onto the rubberised play area can be managed by the perimeter landscaped area being close as practicable to ground level and no higher and the provision of flood flaps or louvres close to the boundary.

• As a safeguard, the proposed absorption trench is to remain.

• A condition of consent is to be imposed to deal with overland flow from driveway of 47A and other upstream properties.

• The proposed stormwater outlet is to direct water north along Ogilvy Street.

• A deferred condition of consent requiring the applicant to provide Council with a DRAINS model, based on existing stormwater infrastructure in Ogilvy Street. The DRAINS model must determine a no net increase in peak flow rates in the drainage system including gutter flow between Ogilvy Street and Belmore Road and heading west along Henry Lawson Drive.

• The applicant is to provide an independent peer review by an appropriately experienced consultant nominated by the Council to assess the validity of the DRAINS model.

78. Following the agreement of the stormwater experts, directions were given for the parties to file an agreed deferred commencement condition in relation to stormwater disposal on the site by 13 May 2016. The applicant was given until 20 May 2016 to submit via eCourt short written submissions objecting to specific conditions of consent proposed by the Council and the Council was given until 26 May 2016 to respond via eCourt.

79. The parties agreed on a deferred commencement condition in relation to stormwater disposal, as follows:

Schedule 1

A.   The person with the benefit of the consent must:

(a)   provide Council with a DRAINS model which:

i.   will be based on a detailed survey of the existing stormwater infrastructure in Ogilvy Street and Henry Lawson Drive, and

ii.   will include features of the drainage system within the property and the Council drainage system at the intersection of Ogilvy Street and Henry Lawson Drive, sufficient to allow an assessment of the flow behaviour, and

iii.   will demonstrate that the peak 1% AEP (annual exceedance probability) flowrate under post-developed conditions will not exceed those under pre-developed conditions at the intersection of Ogilvy Street and Henry Lawson Drive, this includes:

•   immediately west of Ogilvy Street in Henry Lawson Drive,

•   east of Ogilvy Street towards Belmore Road in Henry Lawson Drive, and

(b)   pay for an independent peer review by an external consultant specialising in this field nominated by Council to assess the validity of the DRAINS model.

In the event that the report from the external consultant referred to in paragraph A(b) above determines any net increase in peak flow rate in the Council piped drainage system between Ogilvy Street and Belmore Road and along Henry Lawson Drive to the west of its intersection with Ogilvy Street, then the person with the benefit of the consent must satisfy conditions B and C below.

B.   DEF1001 - Deferred Commencement Condition – Registration of Stormwater Easement - The person with the benefit of the consent must acquire an Easement to Drain Water of 1 metre (minimum) width. The easement must allow for a piped, gravity fed system of drainage of stormwater from the land the subject of this consent with direct, underground connection to Council's kerb and gutter in Johnstone Street.

The consent is not to operate until evidence of registration of the easement to drain water benefitting the land the subject of this consent and burdening the title of each such other property/ies is provided to Council.

C.   DEF1002 - Deferred Commencement Condition - The person with the benefit of the consent must obtain separate Development Consent for all drainage works to be carried out within the Easement to Drain Water. The written consent of each of the owners of the property/ies burdened by the Easement will be required for each development application to carry out the drainage works on the burdened lot/s.

The consent is not to operate until development consent is obtained for the whole of the drainage works within the Easement(s) to drain water.

Documentary evidence as requested or the above information must be submitted within twenty four (24) months of the granting of this deferred commencement consent. Commencement of the approval cannot commence until written approval of the submitted information has been given by Council.

Subject to A or B and C above being satisfied, a development consent be issued subject to the following conditions:

80. On 25 May 2016, the applicant submitted via eCourt short written submissions objecting to specific conditions within the Council’s Draft Conditions of Consent, as follows:

Condition 8: Delete, as such a condition relates more to subdivisions and sewer which does not apply to the application.

Condition 14: Delete, as access is not an issue in the proceedings and the plans therefore reflect this report by the accessibility consultant addressing the adequacy and functionality of the shared space.

Condition 36 & 37: Plan of Management and Landscape Plan should be provided to the Principal Certifying Authority (whoever it may be) prior to Construction Certificate, and not only Council.

Condition 56: This is an unnecessary requirement. The conditions of the consent require these parameters.

81. The Council provided the following response:

Regarding the specific conditions the applicant objects to, the Council makes the following submissions in reply:

• Condition 8: GOV1008- Sydney Water - Section 73 Certificate

Condition 8 requires the applicant obtain a Compliance Certificate pursuant to section 73 of the Sydney Water Act 1994. The applicant has provided that the requirement to obtain a section 73 certificate relates more to subdivisions and sewer works than the proposed development. However, pursuant to section 78 of the Sydney Water Act 1994, where applications that increase the demand for water supplied by the Corporation are to be approved the consent authority must either notify the Corporation and take into account the submissions on the relevant application or approve the application with a condition of consent requiring the developer obtain a compliance certificate from the Corporation. Provided the application is approved by the Court the Council has included a condition of consent requiring a compliance certificate in accordance with this section. The change of use from residential to child care will relevantly involve an increase in demand for water supplied by the Corporation.

•   Condition 14

Condition 14 arises from the amendments made to the application since its re-opening. The applicant has amended the design of the entrance to the childcare building as shown on the current architectural plans (DA-386-A1, Revision H & DA-386-A2, Revision H). The accessibility consultant's report referred to by the applicant is not up to date. Changes to the stormwater management plan for the site necessitated changes to the design of the car park and entranceway to the building, notably, instead of the finished floor levels stepping up slightly from the car park to the entry to the foyer, the plans on which the applicant now relies show the finished floor levels stepping down from the car park to the entrance and a new step ramp design has been provided. Council's planner is of the view that an accessibility expert should properly assess the new entrance and foyer design, along with the shared space which is in close proximity to the revised entrance. This is to ensure that the new design provides adequate access to the site for children, staff, carers and members of the public using the service.

•   Conditions 36 and 37

The opportunity for the parties to provide submissions on conditions was intended to allow the parties to address conditions which have arisen subsequent to the re-opening of the proceedings. Council notes that no change has been made to these relevant conditions since the re-opening of the matter. The applicant raised no objection to these conditions in these proceedings other than in its recent submissions on 25 May 2016.

During the hearing of these proceedings this application has been subject to many amendments to ensure that amenity concerns of residents, expressed by resident objectors and experts in the proceedings, were addressed. Council has a familiarity with what is required in the Plan of Management (condition 36) and Landscape Plan (condition 37) to be submitted and therefore should be the body required to approve this documentation prior to the issue of any Construction Certificate and this is not unusual.

•   Condition 56 - Development Engineering - Restriction on the use of land for overland flow

Condition 56 is a condition agreed between the stormwater engineers and provided in the document entitled 'Agreed Conditions of Stormwater Engineers' submitted to the Court on 24 May 2016.

Provision for the overland flow path on and off the site has been a matter considered by the stormwater experts and the hinged, louvered or equivalent panel fencing referred to in condition 56 has been designed for that purpose.

The 88E instrument will require that this fencing shall remain unobstructed to ensure the overland flow path remains unimpeded. No other condition of consent provides the applicant/owner/occupier and future owners with an ongoing obligation to ensure that the overland flow path in this area is unobstructed. Consistent with the view of the stormwater experts, Council is of the opinion that this condition is necessary.

82. I accept the Council’s reasons for the imposition of conditions 8, 14, 36, 37 and 56.

Conclusion

83. For the reasons set out in the judgment, I am satisfied that approval can be granted to the proposed childcare centre for 37 children at 45 Ogilvy Street, Peakhurst, subject to the conditions of consent at Annexure A.

Orders

84. The orders of the Court are:

1.   The appeal is upheld.

2.   Development Application No. 2014/0928 for the demolition of existing structures and the construction of a childcare centre for 37 children at 45 Ogilvy Street, Peakhurst is approved, subject to the conditions of consent at Annexure A.

3.   The exhibits, other than exhibits 2, 6, 11, 10, A, D, K, N, W, X and Y, are returned is approved, subject to the conditions of consent at Annexure ‘A’.

_____________________

Susan O’Neill

Commissioner of the Court

167898.16 O'Neill (C) (336 KB, pdf)

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Amendments

25 July 2016 - Amendment made to reflect that Mr Craig McLaren provided expert evidence on behalf of the Council and Mr Terry Winning provide expert evidence on behalf of the applicant in paragraph 28 and 29.

Decision last updated: 25 July 2016