Peter McNamee v Baulkham Hills Shire Council
[2006] NSWLEC 319
•06/07/2006
Land and Environment Court
of New South Wales
CITATION: Peter McNamee v Baulkham Hills Shire Council [2006] NSWLEC 319 PARTIES: APPLICANT:
Peter McNamee
RESPONDENT:
Baulkham Hills Shire CouncilFILE NUMBER(S): 10908 of 2005 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Amenity of abutting premises including the impact of the bulk and scale of the proposal on No 21 Moseley Street and on properties to the south LEGISLATION CITED: Baulkham Hills Local Environmental Plan 2005, (BHLEP)
Environmental Planning and Assessment Act 1979, ss79C and 97DATES OF HEARING: 06/06/2006 and 07/06/2006 EX TEMPORE JUDGMENT DATE: 06/07/2006 LEGAL REPRESENTATIVES: APPLICANT:
Mr H Irish, barrister instructed by
Mr B T Goldsmith of B.T. Goldsmith Planning Services Pty Limited
SOLICITORS:
N/ARESPONDENT:
Mr P N Vergotis, solicitor
SOLICITORS:
Matthews Folbigg Pty Limited, Solicitors
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
7 June 2006
10908 of 2005 - Peter McNamee v Baulkham Hills Shire Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Baulkham Hills Shire Council (the council) of a development application to demolish the existing dwelling and to construct a seventy (70)-place childcare centre with associated underfloor/basement parking for twenty one (21) vehicles Lots 1 & 2, DP 135965 and known as No 764 Pennant Hills Road, Carlingford.
2 I visited the land in company with the parties on the morning of the first day of proceedings. Mr Rosario, the neighbour to the west, at No 21 Moseley Street gave evidence on site.
3 I have concluded that the consent orders proposed by the parties may be endorsed.
The land
4 The land is situated on the southwestern corner of Pennant Hills Road and Moseley Street and has a 54.8m street frontage with a corner splay of 3.505m to Moseley Street, a 16.8m frontage to Pennant Hills Road with a corner splay of 3.505m, a western side boundary of 22.8m, a southern boundary of 56.85m and an area of 1,193m2.
5 The land slopes down from Pennant Hills Road with a fall of 4.5m and 5.7m.
6 The land is in that part of Carlingford, which is predominantly residential with some business-uses occupying existing dwelling houses. There is a church opposite to the north the land in Moseley Street. To the south and west of the land are dwellings occupied by businesses along Pennant Hills Road and residential dwellings to the southwest. To the east of the land, across Pennant Hills Road, is Carlingford Court Shopping Centre within the Hornsby Shore Council boundary.
7 The character of the area is in transition from lower density to higher density residential uses. A development application of an apartment development has been lodged for adjoining site to the southwest.
8 The Land and Environment Court granted consent orders, on 14 October 2005, in Appeal No 10384 of 2005, in respect of a development application for a townhouse development on the subject land.
Relevant planning controls
Baulkham Hills Local Environmental Plan 2005, (BHLEP)
9 Under the provisions of the BHLEP the land is zoned Residential 2(a1) and the proposal is permissible with consent. To make more detailed provisions with respect to development the council has adopted development control plans.
10 Development Control Plan No 3 – Residential; Development Control Plan No 4 – Town Houses; Development Control Plan No 6 – Apartment Buildings; Development Control Plan No 12 - Parking and Development Control Plan No 15 – Landscaping, apply to the land.
11 A draft Development Control Plan No 39 - Child Care Centres, (DDCP39) has been prepared and on 28 June 2005 the council resolved to exhibit the DDCP39 with the draft Local Environment Plan. The draft LEP and DCP39 has been advertised.
12 The parties agreed that:
· DCP3 is relevant to the subject land.
· DDCP39 should be given little weight due to its current draft status.
· The guidelines in DCP4 - Townhouses and DCP6 - Apartments are relevant to assess the likely future character of the surrounding sites.
13 Development application No 2701/2005/HB was lodged with the respondent council on 14 June 2005 to demolish the existing dwelling and to erect a new childcare centre with car parking below.
14 The proposal would comprise two (2) storeys and would be designed for a total of 70 children within the following age groups:
- 0-2 years old - 10 children
2-3 years old - 24 children
3-6 years old - 36 children
15 Outdoor play areas are provided to the rear (western end) of the land fronting 21 Moseley Street.
16 The building height of the childcare centre varies as the site slopes down from Pennant Hills Road. The eaves and ridge heights of the original proposal are up to 6.7m and 9.3m respectively. The outdoor play area will be up to 4.5m above the natural ground level towards the western end of the land. The proposed building would be setback 10m and 4.5m to the Pennant Hills Road and Moseley Street frontages respectively. The outdoor play area will have a minimum lm setback from Moseley Street boundary. The building setback from the side (southern) boundary is 900mm. These dimensions have been modified in the latest set of drawings in Exhibit A.
17 The proposal is now described in plans prepared by Gelder Architect Group of Pymble, dated as amended 06 June 2006, 13 April 2006 and 13 March 2006. The Court received these plans on 7 June 2006.
Drawing No: Prepared by: Date: DA01 Amend B Gelder Architect Group 06/06/06 DA02 Amend A Gelder Architect Group 13/04/06 DA03 Amend B Gelder Architect Group 06/06/06 DA04 Amend C Gelder Architect Group 06/06/06 DA05 Amend C Gelder Architect Group 06/06/06 DA06 Amend C Gelder Architect Group 06/06/06 DA07 Amend B Gelder Architect Group 06/06/06 DA08 Amend C Gelder Architect Group 06/06/06 DA09 Amend B Gelder Architect Group 06/06/06 L01 Amend B Gelder Architect Group 13/03/06
18 The original development application was amended to provide:
· Basement Floor Plan
- An increased setback of the building at the basement to 1.5m along the southern boundary and to 2m from the southern boundary immediately below outdoor play area C. The 3 car spaces along the southern wall of the basement have been reduced to small car spaces. The aisle in the basement has been reduced from 6.7m to 6.1 m.
· Ground Floor Plan
- Increased setbacks of building at ground floor to 1.5m along southern boundary. Increased setback of outdoor play area C, along southern boundary to 5m and along the western boundary to 5.054m. Substantially increased landscaping along southern and western boundaries.
· First Floor Plan
- Relocation of the outdoor play area for 0-2 to face Moseley Street. Relocation of building towards Pennant Hills Rd at the first floor to allow building to follow the natural slope of the land. Increased setback of the building at first floor to 4m along the southern boundary.
19 The architectural plans prepared by the Gelder Architect Group in Exhibit A further amended the proposal to setback the first floor of the proposal from the southern boundary. This object of this amendment was to reduce the impact of shade on that property to the south, that might, in the future be re-developed for town houses and if amalgamated with other properties might be developed for apartments.
20 The proposal is specified under Schedule 1 of State Environmental Planning Policy No 11 - Traffic Generating Developments, and requires referral to the Roads and Traffic Authority. The application was referred to the Roads and Traffic Authority on 15 July 2005 and comments were received on 2 September 2005.
Notification
21 The original application was notified to nearby owners and occupants for a period of fourteen (14) days commencing 24 June 2005 and the council received one (1) submission.
22 On 1 August 2005, the council received an amended proposal to increase of the number of childcare places from 64 to 70. The adjoining residents were notified regarding this amendment for a period of fourteen (14) days commencing 18 August 2005. No further submissions received during the notification period.
23 The council received further drainage information and an acoustic report on 16 August 2005 and 1 September 2005 respectively. The Court-appointed expert has now assessed these.
24 The further amended plans were notified and no further written submissions were made. Mr Tse telephoned Mr Rosario the owner of No 21 Moseley Street and although he had not made any further written submissions he reiterated his concerns.
The council’s decision
25 When the appeal was filed the council had not determined the application and it is deemed to have been refused.
The hearing
26 The appeal was filed on 5 August 2005.
27 At the on-site hearing the court heard evidence on behalf of the respondent council from:
· Mr R Tse, Senior Town Planner, Baulkham Hills Shire Council; and
· Mr H M Rosario, resident of No 21 Moseley Street, Carlingford.
28 Mr B T Goldsmith was the applicant’s town planning expert and gave evidence on the site inspection.
29 Mr L M Fletcher was the Court-appointed town planner and gave evidence on-site and in court. Mr J Hewitt was the Court-appointed traffic engineer.
30 Mr R Tse, prepared the statement of basic facts dated 22 September 2005.
The issues
31 On 27 September 2005, the council filed a statement of issues.
- Intensification of the development
1.0 Whether the proposed child care centre (the `proposed development') is contrary to ss 79C(1)(a)(i)(iii) & (b) of the Environmental Planning and Assessment Act 1979 (NSW) with respect to:
Particulars
- 1.1 The proposed development does not meet the objectives of cl 2 of the Baulkham Hills Local Environmental Plan 2005 (BHLEP) with respect to the natural and built environment and the use of resources within the Shire in that it fails to:
2(a)(v) to respect, improve and integrate with the local character of the locality in which it is carried out,
2(c)(i) protect localities from inappropriate development and ensure that local amenity is maintained and enhanced,
1.2 The proposed development will adversely impact on the amenity of the occupants of adjoining premises due to its failure to meet the relevant objectives of land zoned Residential 2 (al) which are:
- 1.3 The proposal does not comply with the relevant development standards in the draft Baulkham Hills Development Control Plan No.39 - Child Care Centres ('DCP 39') which are:
1.3.1 cl 4.1 (a) - development with frontage along classified road not supported;
1.3.2 cl 4.3 (b) - side setback requirements - 3m in urban areas;
1.3.3 cl 4.6 (c) - basement car parking not permitted for childcare centres located in residential zones;
1.3.4 c14.11 - solar access; and
1.3.5 c14.19 - visual and acoustic privacy.
1.4 The intensity of the proposed development, being a childcare centre for 70 children, is excessive, as it will have adverse impacts on traffic and road safety on Moseley Street, amenity of the adjoining residents and streetscape of Moseley Street.
1.5 The proposal will generate additional car movements a day and this will increase the total traffic movements on Moseley Street.
1.6 The proposal will have adverse impacts on the adjoining residents in terms of noise, privacy and overshadowing. The proposed development will generate excessive noise due to the high number of children using the facility, the proximity of the outdoor play area above the car park to the adjoining residential property and the noise generated from the proposed use.
1.7 The proposed outdoor playing area on the western side of the development has a small setback (1.5m) from the property boundary to the west and a likely apartment development to the south-west of the subject site. The privacy of the adjoining residents will be adversely affected as the proposed outdoor play area is up to 4.5m above the natural ground level overlooking the adjoining residents' properties to the west and southwest of the subject site.
1.8 The proposed development will have an adverse impact on the amenity of the adjoining residents due to excessive overshadowing as a result of the proposed elevated outdoor play area on the western side of the development above the underfloor parking area.
1.9 The proposed development is not consistent with the desirable streetscape of the Moseley Street. In particular the western half of the proposed development is excessive in bulk and inappropriate built form, which detracts from the desirable streetscape of Moseley Street.
1.10 It is considered that the current proposal for a 70 places childcare centre is too intensive and excessive to achieve a reasonable development outcome. The proposed development cannot be supported in its current form.
Traffic impacts
2.0 Whether the proposed development is contrary to ss 79C (1) (a) (i) (iii) & (b) of the Environmental Planning and Assessment Act 1979 (NSW) in that the proposed development does not meet the objectives set out in cll 2 (2) (a) (v) & 2 (2) (c) (i) of the BHLEP and the requirements of cl 4.1 (a) of DCP 39.
Particulars
- 2.1 The proposal will have adverse traffic impact on Moseley Street. The proposed development will generate additional traffic movements during the day and movements during the peak hours. It is likely that the proposed development will result in increased amounts of traffic being generated, which will adversely impact, on the traffic conditions on Moseley Street.
2.2 Similar comments were received from the Roads and Traffic Authority (RTA) raising concerns regarding adverse impacts of the proposal on the environmental capacity of Moseley Street.
2.3 The combination of existing high traffic volume on Moseley Street and the additional traffic generation from the proposed childcare centre, particularly during the peak hours, will have an adverse impact on the safety for the users of the childcare centre and other road users.
Amenity on adjoining premises
3.0 Whether the proposed development is contrary to s 79C(1)(a)(i), (iii) & (b) of the Environmental Planning and Assessment Act 1979 (NSW) having regard to cl2(2)(c)(i) of the BHLEP & cll 4.10(b) & 4.19 of DCP No 39.
Particulars
- 3.1 The proposed development will have adverse impacts on the residents of adjoining properties with respect to privacy and overlooking, overshadowing and noise.
3.1.1 Privacy/Overlooking
The proposal involves the construction of an outdoor play area over the underfloor parking area towards the western end of the subject site. The outdoor play area will be up to 4.5m above the ground level with a setback of 1.5m from the western boundary. The outdoor play area will overlook the adjoining property at 21 Moseley Street and the privacy of the adjoining residents will be adversely affected.
The adjoining resident has submitted an objection to the proposed development and particular concerns were raised regarding the impacts on privacy.
3.1.2 Overshadowing
The proposed development comprises two storeys with an outdoor play area above the underfloor parking area. The outdoor play area will be up to 4.5m above the ground level on the western elevation. The applicant provided shadow diagrams for the childcare centre building, however, the shadow diagrams do not show the extent of shadowing for the elevated outdoor play area. It is considered that the adjoining properties to the south and west of the subject site will be overshadowed by the proposal particularly from the shadow of the proposed outdoor play area.
3.1.3 Noise
The proposed childcare centre will provide outdoor play areas around the building including a large outdoor play area located to the west of the building facing the adjoining residential property and in close proximity to a proposed apartment development to the southwest of the subject site. The applicant provided an acoustic report and recommended the provision of 1.5m high fencing around the play areas. The report has been reviewed by Council Officers and more information will be required to clarify the design and effectiveness of the proposed noise reduction measures.
The adjoining resident has submitted an objection to the proposed development and particular concerns were raised regarding noise impacts.
Streetscape & built form
4.0 Whether the proposed development is contrary to ss 79C (1)(a)(i) (iii) & (b) of the Environmental Planning and Assessment Act 1979 (NSW) in that it fails to meet the objectives set in cli 2 (2) (a)(v) & 2 (2) (c) (i) of the BHLEP and cll 4.6 (c) & 4.7 (a), (b), (c) & (d) of DCP 39.
Particulars
- 4.1 The proposed development presents as a two storey dwelling on the Pennant Hills road frontage. The presentation on Moseley Street varies due to the sloping nature of the subject site. While the eastern end of the structure reads as a single storey building, the bulk of the proposed development increases on the western end as a result of the proposed outdoor play area structure above the underfloor parking area.
4.2 The bulk and built form of the proposed building and the outdoor play area relates poorly with the adjoining residential dwelling at 21 Moseley Street. The excessive bulk and inappropriate built form of the proposal also detracts from the desirable streetscape of Moseley Street.
4.3 The provision of underfloor parking is considered inappropriate as this increase the bulk of the proposed development and is inconsistent with the streetscape.
Suitability of the proposed development in its location
5.0 Whether the proposed development is contrary to ss 79C (1) (b) & (c) of the Environmental Planning and Assessment Act 1979 (NSW) having regard to the location and topography of the site.
Particulars
- 5.1 The subject site is not a suitable location for the proposed childcare centre for 70 children.
5.2 In addition, comments received from the Roads and Traffic Authority (RTA) indicated that the proposed development is not desirable due to significant volume of turning traffic at the intersection of Moseley Street and Pennant Hills Road, as well as the significant volume of traffic and high vehicle speeds along this section of Pennant Hills Road.
Matters of public interest
6.0 Whether the proposed development is contrary to s 79C(1)(e) of the Environmental Planning and Assessment Act 1979 (NSW) having regard to the likely detrimental impact it will cause to the amenity of the adjoining neighbours/residents as the proposal will detract from the environmental quality currently enjoyed by these residents.
Particulars
The proposed development is likely to cause the following impacts:
- 6.1 Adverse impacts on traffic safety due to increased traffic on a busy road.
6.2 Lack of privacy due to overlooking from the outdoor play area.
6.3 Adverse noise impacts from the outdoor play area.
6.4 An inadequate retaining wall along the property boundary.
7.0 Inaccuracies and discrepancies with the details submitted with the development application.
Particulars
- 7.1 Waste management plan not submitted.
7.2 Insufficient drainage details to demonstrate the adequacy of the proposed onsite detention system.
7.3 Long sections of driveways not submitted.
7.4 Further details relating to the acoustic report and noise reduction measures including:
7.4.1 a site plan showing noise sources, measurement locations and noise receivers;
7.4.2 plans, elevations and details of proposed noise mitigation measures recommended i.e. 1.8 metre high fence;
7.4.3 provide clarification on the construction type for enclosure and window types; and
7.4.4 draft Noise Management Plan.
32 The salient issue was the amenity of abutting premises including the impact of the bulk and scale of the proposal on No 21 Moseley Street and on properties to the south.
The evidence and findings
Amenity of abutting premises including the impact of the bulk and scale of the proposal on No 21 Moseley Street and on properties to the south
Bulk and Scale
33 During the hearing the plans were further amended and as a result the issues were reduced. The bulk and scale of the proposal and its impact on No 21 Moseley Street and on a property to the south were the principal contested issues in this appeal.
34 Mr Goldsmith was of the opinion that the locality is likely to change considerably in the short and medium term due to the permissibility of town houses and apartments in the Residential 2(a1) zone. Messrs Fletcher, Tse and Goldsmith agreed that DCP4-Town Houses is a good guide to the likely future character of the area. The applicant provided a photomontage that depicted the amended proposal in its context, [Note: Exhibit L].
35 Mr Fletcher was concerned that the visual bulk of the original proposal would be significant. However, he considered in consequence of the amendments to the proposal, the visual bulk when viewed from the adjoining property had been reduced.
36 Mr Fletcher indicated that he was now content with visual impact of the proposal after he had assessed amended proposal and compared it with the approved town house development for the subject land and the likely potential for redevelopment on adjoining sites.
37 The amended proposal would be setback around 4.00m to the basement car park and 5.00m to the elevated outdoor play area, and 15.00m to the enclosing wall of the 2-3 year play room from the eastern boundary of No 21 Moseley Street and this setback would be comprehensively landscaped. The proposed setbacks would be greater than for the approved townhouse development. Thus I am satisfied that the applicant has provided a reasonable setback to the land at No 21 Moseley Street and has stepped the bulk of the proposal appropriately.
38 Mr Rosario the owner of No 21 Moseley Street that abuts the subject land to the west did not raise any concern with regard to the bulk and scale.
39 Mr Fletcher also confirmed that the proposal would meet the objectives of the Residential 2(a1) zone and there would be “…no undue [adverse] impact on the natural and built environment” and it would be “…consistent with the likely future character of the locality”.
Overshadowing
40 Mr Fletcher considered the original proposal would increase unreasonably the shade on the abutting property to the south of the subject land. He suggested that performance criteria should be applied to determine the acceptable level of shadowing on the adjoining property. He considered the shadowing impact similar to that of the approved townhouse development would be more acceptable than that of the original proposal.
41 The applicant during the hearing further amended the plans to redesign of the upper level to set back further from the southern boundary and to reduce the shadowing impact. Four sections across the southern boundary are provided and clearly indicate the noon midwinter sun angles and setbacks from the land to the south, [Note: Exhibit A, Drawing No DA09B].
42 Mr Fletcher agreed with Ms Irish that now there would be likely to be “…negligible net overshadowing”. He had compared the amended proposal for a childcare centre with the original town house proposal and considered that although the extent of shading would be slightly increased in parts, largely caused by the eaves, the shading benefit of the eaves would outweigh the minimal change to the extent of overshadowing.
43 Mr Vergotis indicated that on the basis of the further amendments of the plans the council would be prepared to enter into consent orders.
44 I am satisfied that the bulk and scale of the proposal would be appropriate and that the shading of the property to the south would not be unreasonable. I accept the evidence of Mr Fletcher and others I would not refuse the application for these amenity impacts.
Other matters
Acoustic impact in the future
45 Mr Goldsmith was of the opinion that there is nothing to suggest that the elevated play area at the western end of the site would create unacceptable noise impacts in the future and in order to ensure this does not occur, further acoustic shielding along the southern boundary and considerably more setback than originally proposed has been implemented in the amended design.
46 On the first floor level of the proposal, there would be an outdoor play area for 0-2 year olds (babies), these children do not engage in extensive play, and therefore this play area is unlikely to be an acoustic concern.
47 Mr Rosario the neighbour to the west was content that acoustic screens are proposed around the play areas the noise impact would be lessened.
48 Mr Goldsmith was of the opinion that expert acoustic evidence suggests that commonly adopted noise criteria can be met, not only in terms of the Child Care Centre being a receptor of noise from Pennant Hills Road, but also noise to adjoining properties. He was of the opinion that there is no technical reason to suggest this project would create or be the subject of noise impacts sufficient to warrant its refusal.
49 I would not refuse the application on the grounds of likely adverse noise impacts.
Draft development control plan
50 Mr Goldsmith indicated that the council has been unable to provide any rationale for prohibiting basement car parking. He considered that in these circumstances, it is difficult to determine why this to be a matter for further consideration.
51 It is not necessary for me to pass comment on this matter however, Condition 17 was amended to require the applicant to erect three (3) no stopping signs along the southern side of the Moseley Street road reserve. This is to ensure that there is no on-street car parking in front of the proposal in Moseley Street given the difficulties of entering Moseley Street in the afternoon peak. In this situation it is imperative that car parking be provided on-site. In the present case the applicant has chosen to provide that car parking in a basement.
Draft local environmental plan
52 In the DLEP the council is proposing to prohibit childcare centres along classified roads. The DLEP does not specify any objectives for this prohibition. At this stage, we can only assume this is for the purposes of traffic control. Mr Goldsmith was of the opinion that the subject development application does not pose any adverse traffic issues, as access will be via a non-classified road, i.e., Moseley Street.
53 Again it is not necessary to comment on this matter as the council has agreed to the proposed child care centre on Pennant Hills Road with vehicular access off Moseley Street.
Conclusion
54 I accept the evidence Mr Fletcher and recognise the agreement reached by the parties and I am satisfied that when considered under the relevant heads of consideration of s 79C of the Environmental Planning and Assessment Act 1979 that the proposal is worthy of consent. For the above reasons, the appeal is upheld by consent.
Conditions
55 The conditions are those in Exhibit 4 as amended during the hearing. Condition 17 dealing with vehicular access and parking was amended to address some of the concerns of Mr Rosario of the difficulty of entering onto Moseley Street in the afternoon peak:
- The applicant shall at its expense erect three (3) no stopping signs along the southern side of the Moseley Street road reserve. The location of such signs shall be the subject of Council approval.
Consent orders
56 The consent orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 2701/2005/HB lodged with the respondent council on 14 June 2005 to demolish the existing dwelling and to construct a seventy (70)-place childcare centre with associated underfloor/basement parking for twenty one (21) vehicles, Lots 1 & 2, DP 135965 and known as No 764 Pennant Hills Road, Carlingford, is approved subject to Conditions 1 to 79 in Annexure A.
3. The exhibits except for Exhibits A, B, C, D, F, G, H, J, M, 4, 10 and 11are returned.
S J Watts
Commissioner of the Court
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