Parkyn v Hornsby Shire Council - [2005] NSWLEC 403

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Parkyn v Hornsby Shire Council [2005] NSWLEC 403

PARTIES:
APPLICANT
Kay Parkyn

RESPONDENT
Hornsby Shire Council

CASE NUMBER: 11627 of 2004

CATCH WORDS: Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Hornsby Community Uses Development Control Plan

CORAM: Hoffman C

DATES OF HEARING: 19/07/2005

EX TEMPORE DATE: 19/07/2005

LEGAL REPRESENTATIVES

APPLICANT
Mr G McKee, solicitor
SOLICITORS
McKees

RESPONDENT
Mr R Woodward, solicitor
SOLICITORS
Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hoffman C
19 July 2005
11627 of 2004 Kay Parkyn v Hornsby Shire Council
JUDGMENT

This is a judgment in a class 1 appeal No. 11627 of 2004 and the refusal of a s 96 application to amend consent No. 71 /02 for a childcare centre at No. 831 Old Northern Road, Dural, being Lot 501 DP 856331.
At the first day of the hearing the application was to change condition one of the consents to raise the limit of 90 children maximum at the centre to be 110 children. During that hearing it became clear the Council Community Uses Development Control Plan puts a limit of 90 children for any one childcare centre in a Rural Zone. The Department of Community Services licences also set a maximum of 90 for any one childcare centre.
The applicant brought evidence from the original Statement of Environmental Effects and the associated acoustic report. Although on each report cover the proposal was identified as a childcare centre, the description of the proposal as on p 1 of the Statement of Environmental Effects said in an abridged quote:
A childcare facility … including a baby care centre for 30 children … Childcare Centre No. 1 for 40 children and … Childcare Centre No. 2 for 40 children.
There were to be separate outdoor play areas for each centre and a shared carpark for 28 cars and a shared Envirocycle on-site disposal sewage system for 110 children plus staff, plus a house and associated toilets, laundries and cleaning facilities. The centres and the house had, on the plans, individual kitchens, toilets and laundries.
At p 6 of the Statement of Environmental Effects the proposal said:
The facility is designed to operate as 3 separate centres able to function independently of each other.
In the course of consideration of the relevant application, the plans submitted to the council were changed to delete the house. The baby care centre and Childcare Centre No. 1 were housed in separate ends of one building.
The original council consent had several s 96 amendments by the council and by the time of this hearing it was up to consent No. 71/02E determined on 14 April 2003.
The facility had been built several years ago, and was operating successfully at the time of this hearing.
On the first day of the hearing the respondent said there was a preliminary question of fact that I should determine: what did the council consent to, was it a childcare centre with 3 components, or was 3 childcare centres.
I was told that during negotiations on the changes to the plan the council had said to the applicant it would only approve up to a maximum of 90 children to bring the development into line with the Community Uses Development Control Plan. The applicant said it reduced the number from 110 children to 90 as a concession to get the consent, as existing premises had to be vacated by a certain date, and time was running out to build and open the new centre.
I concluded on the question of fact that the council at the time of granting original consent had approved a childcare centre with 3 main components in it being a baby care centre and 2 childcare centres all as a Long Day Care operation. In support of this, the conditions of approval are fairly clearly in the singular when referring to the centre.
Since opening, the development has been owned by one entity but each centre has been leased out to different operators, one being the property owner. A parallel made was that it is like a shopping centre approved by council as one development but having 3 different shops each one operated by a tenant. Another parallel made was that it is like a school with 3 class rooms and supposedly 3 subcontracting teachers.
The applicant sought to amend the s 96 application to change the description of the development contained in the consent conditions that referred to a singular childcare centre so that it referred to 3 childcare centres retaining a maximum number of children in total on the site to be 110.
Part of the justification for this is that the Department of Community Services has licensed each centre separately to its operator. And, more than that, before council determined the original approval it had in its hands 3 separate letters from the Department of Community Services. One letter for each centre with a stamped plan for each, saying in effect, if council chose to approve the development, each centre would comply with the regulations as a separate operation.
I allowed the amendment to the s 96 application as in Exhibit D as it enabled the matter to be tested. The respondent needed to renotify the proposal and consider its evidence and any objections.
The Issues as they came before me in the amended application are:
1.Whether the Section 96 Application is substantially the same development as the development for which consent was originally granted.
Precedent
2.Whether the approval of the modification application would set an undesirable precedent by allowing three (3) childcare centres on the one (1) parcel of land.
Traffic/Parking
3.Whether the carparking for the proposed development is adequate having regard to the proposed increase in the numbers of children at the childcare centre.
Particulars
a)Under the "Parking and Access" element of Council's Community Purposes Development Control Plan ("DCP") the number of parking spaces required would be 28. The proposed development only provides 24 spaces.
b)Under the Council's Carparking DCP the number of spaces required would also be 28.
(Suggested conditions concerning this issue are understood to have been accepted by the Applicant)
Matters raised by objectors
4.Whether having regard to the matter raised by objectors the proposed development should be refused.
Appearing for the respondent is:
Mr R Woodward, solicitor of Storey and Gough.
At the first hearing day were:
Mr A P Gaul of 85 Quarry Road, resident and objector
Mr D Burkhardt of 12 Hemers Road, Dural, resident and objector
Mr J Mettam and Ms P Mettam of 53 Quarry Road, residents and objectors
Mr C Norris, of 36 Quarry Road, Dural, resident objector.
Mr L Nagy, traffic engineer of Hornsby Shire Council
Ms S Correia, town planner of Hornsby Shire Council
Appearing on the second day for the respondent are:
Mr R Woodward, solicitor
Mr Fryar, town planner of the council
Mr Gaul of 85 Quarry Road
Ms P Mettam of 53 Quarry Road
Mr C Norris of 36 Quarry Road.
A written objection was tendered from Ms C Mudie of 80 Quarry Road.
Appearing for the applicant is:
Mr McKee, solicitor of McKees
And at the first and second hearing days also appeared:
Ms K Parkyn, licensee of one childcare centre and owner of the subject site and
Ms L Connolly an associate of Ms Parkyn.

Ms Connolly was licensee for seven other childcare centres, none of which is on this site. She and Ms Parkyn co-operated as voluntary assistants to each other in management of the centres, standing in for one another to permit holidays, etc. Ms Connolly advised the Court that in her experience the Department of Community Services often licensed separate childcare centres on the same site and quoted a number of instances. This was not disputed by the respondent.
The applicant said there was clearly a misunderstanding between the council and the applicant in considering the original development application. The s 96 amendment was to bring the consent into line with the facts of the way the development operated, and in accordance with the Department of Community Services Childcare Centre Licensing Regulations.
The respondent was concerned that to grant the change would be a fundamental change to the character of the consent that was granted and a s 96 amendment was not an appropriate mechanism to try to make that change. In any case the respondent said it would be contrary to the provisions of the Community Uses Development Control Plan and the objectives of the density control of a maximum of 90 children in any one centre.
I asked the origin of the number 90 in the Development Control Plan. The respondent could only advise that it seemed to come from the Department of Community Services Regulations.
The only objective in the Development Control Plan for Rural Zones Childcare Centres to be limited to 90 children was quoted as: to minimise impacts on adjoining properties.
The concerns that the objectors raised went to those impacts, although none lived directly adjoining the proposal. The major objections were:
(a)smells from the Envirocycle on-site sewage disposal system;
(b)possible pollution of the headwaters of Tunks Creek which occurred just below the site;
(c)traffic on Quarry Road which was the designated entry and exit of the site;
(d)the consequent changes to the rural character of the area;
(e)the potential of 3 childcare centres to expand to 3 times 90 children giving a total of 270 children on-site with the accompanying impacts.
The applicant put that the sewerage system produces very high quality effluent and its only problem in several years of operation occurred when cleaning liquids used at the centre were unsuitable to the system. When they reached the treatment plant it killed the essential bacteria in the treatment process. A change to the correct cleaning liquids had solved that and there had been no problem since. And the plant is serviced regularly by licensed expert contractors.
The high quality effluent produced is spray irrigated over the pasture on the subject property. There is a holding tank to hold sewage if there is an actual breakdown of the treatment plant. The plant was part of the original development application. It is sized for 110 children, related staff, plus the original house that was deleted. As a result it is sized to take the extra 20 children proposed but that is its limit. The size of the spray irrigation area and the size of the allotment and the space needs for the children at the centres does not allow expansion beyond 110.
The objectors were concerned that now the public sewer was available locally, the treatment plant could be eliminated and the area utilised for extra buildings. The applicant pointed out that would need another development application to council.
I formed the opinion that there was no unacceptable danger that Tunks Creek would be polluted as a result of the s 96 amendment and that the treatment plant was suitable for the task envisaged.
On traffic matters there is a traffic report by an expert traffic consultant on the impact of the additional 20 children proposed. It says they will generate only another 10 vehicle trips in the morning peak hour being 5 cars in and 5 cars out; and 9 vehicle trips in the afternoon peak being 4 cars in and 5 cars out. That volume will not affect existing traffic conditions. Council engineers agreed with this assessment.
It appeared the residents’ objections were generated by the approval of a private school of 1,340 students further down Quarry Road which is a dead end road. So the intersection with Old Northern Road is the only access. This causes massive traffic congestion in peak periods week days, and the main sports fields for the district including Cherry Brook are beyond the school at Dural Park. It continues the traffic congestion in Quarry Road at weekends.
Quarry Road is very close to the large roundabout at the junction of New Line Road and Old Northern Road. The system can become gridlocked.
Also council has approved a bulky goods development opposite the subject site in Quarry Road with its only vehicle accesses from Quarry Road. I called for the file on that development and found the approval required considerable upgrading as follows:
The Exit Only of the bulky goods centre is opposite the childcare entry at a point about 85 m from the Old Northern Road intersection. However, it is an Exit Only crossing.
The Entry to the bulky goods centre is east of the childcare centre entry by about another 120 m. Traffic to it would have to pass by the site but would not be turning in, or queuing to turn in directly out side the subject childcare centre entrance.
Cars exiting both properties would have clear view of each other for safety.
There is no medium strip proposed in Quarry Road to separate travelling lanes as thought by one of the objectors.
The existing traffic lights at the intersection of Quarry Road and Old Northern Road are to be upgraded with a new centre island in Old Northern Road to enable semi-trailers to right turn from Old Northern Road to Quarry Road and include a second right hand turn lane for cars.
The existing No Stopping signs in Quarry Road on both sides will be extended to the eastern boundary of the bulky goods site approximately 200 m from Old Northern Road.
Quarry Road is to be widened to four lanes for the full 200 m from Old Northern Road.
The applicant for its part had agreed to conditions to upgrade its own facilities as follows:
98.A 1 m wide concrete island to separate opposing traffic and allow unobstructed access is to be constructed in the existing driveway.
99.The existing driveway is to be extended to be 4.0 metres wide in each lane. The internal driveway is to be designed and constructed in accordance with Australian Standard 2890.1.
100.A minimum of 28 car spaces shall be constructed, as shown on the Stormwater Drainage plan, dated 30 September 2004, Document No. D00056372. The parking areas are to be designed and constructed in accordance with Australian Standard 2890.1.
101.No site works shall commence prior to a construction certificate being issued and sediment and erosion controls being installed in accordance with Condition No. 22.
102.No increase in children enrolments are permitted until the driveway and parking works are completed, and a compliance certificate has been issued.
103.All wastewater generated within the proposed development must be directed to the existing on-site sewage management system servicing the site.
I formed the opinion that the evidence showed the proposal for an extra 20 children would have no discernible affect on traffic in the locality. The changes to be carried out on the subject site and eventually with the bulky goods development traffic conditions could possibly improve local traffic conditions.
With regard to the changes to the rural character of the area, it seems to me Hornsby Shire Council has designated that the area adjoining this site would become a service centre for the district. That decision and the other developments approved nearby by the council are the reasons for changing the character of the area.
This proposal is permissible in the Rural Zone and is relatively a minor player in the changes occurring in the locality. Its effects extend only about 100 m from the intersection of Quarry Road and Old Northern Road. It contributes to community services needed in the district. An increase of 20 children and associated traffic will not cause such impacts that it should be refused. Any proposal for the children numbers rising to 270 or some figure higher than 110 would require a fresh development application to council.
With regard to the potential precedent affect of allowing the s 96 application and the evidence of consistency of council’s dealings under the Community Uses Development Control Plan, it seems to me that the Development Control Plan itself does not prohibit in specific terms more than one childcare centre on a single site.
The origin of the maximum 90 children comes from the Department of Community Services Regulations. That in itself is a density control due to the numerical requirements for outdoor playing areas, internal room sizes etc which are all set on a per child basis. So allowing more than one childcare centre on a single site does not permit more children than a single site can hold. It would only allow, as in this case already approved by council, several separate centres, with separate operators having between them a calculated maximum number of children allowed by the Department of Community Services Regulations.
The subject s 96 amendment does not permit 90 children per centre it only allows 110 total between 3 centres on the subject site. In that regard the amendment is consistent with both the Department of Community Services Regulations and the Community Uses Development Control Plan.
The fundamental character of the consent given by council was for childcare use. That remains the same. I do not accept the council’s argument that the fundamental character of the consent would change. The house in the original application being deleted and there being only 2 buildings on-site the description of the proposal also needs to be corrected.
Therefore the orders of the Court are:
1.The appeal is upheld.
2.The s 96 application to amend Development Consent 71/02E determined by Hornsby Shire Council originally on 19 June 2002 with amendment E determined on 14 April 2003 is hereby further amended as set out in items 2 to 4 in Exhibit D filed on 8 April 2005 in this appeal plus additional conditions 98 to 103 inclusive as in Exhibit 5 of this appeal, all as set out in Annexure A hereto.
3.The exhibits are returned to the parties except Exhibits 4, 5, 7 and D.
4. Costs are reserved.
___________________
K G Hoffman
Commissioner of the Court
rjs