Poppets Child Care Centre v Fairfield City Council
[2006] NSWLEC 315
•06/09/2006
Land and Environment Court
of New South Wales
CITATION: Poppets Child Care Centre v Fairfield City Council [2006] NSWLEC 315 PARTIES: APPLICANT
RESPONDENT
Poppets Child Care Centre
Fairfield City CouncilFILE NUMBER(S): 11311 of 2005 CORAM: Hussey C KEY ISSUES: Development Application :- Childcare centre, scale/maximum number of children, visual impacts, streetscape, amenity impacts, noise, drainage, traffic and parking LEGISLATION CITED: Fairfield Local Environmental Plan 1994
Fairfield Development Control Plan No. 39 - Child- Care Centres and other Non-Residential Development
Fairfield Car Parking Development Control Plan No. 19/1996
Fairfield Council’s Stormwater Drainage Policy
Childrens Services Regulation 2004DATES OF HEARING: 06/04/2006 (OSH)
Hearing: 22/05/2006
DATE OF JUDGMENT:
06/09/2006LEGAL REPRESENTATIVES: APPLICANT
Mr S Kondilios, solicitor
SOLICITORS
MaddocksRESPONDENT
Mr J Hewitt, solicitor
SOLICITORS
Home Wilkson Lowry
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
11311 of 2005 Poppets Child Care Centre v9 June 2006
JUDGMENT
Background
1 This appeal was lodged against council’s deemed refusal of a development application for a childcare centre to accommodate 68 children, located at 16 – 18 Edensor Road, Cabramatta West. For the appeal, the following issues were identified:
The site
- adequacy of information provided and compliance with LEP and DCP controls;
- suitability of the site for the scale of the proposed centre, with particular regard to likely visual, streetscape and amenity impacts on the surrounding neighbourhood;
- noise impacts;
- drainage consideration;
- traffic and parking.
2 The subject site is identified as Lot 1 in DP 202034 and Lot 115 in DP 650685 and is known as 18 Edensor Road, Cabramatta West. It is of irregular shape, due to the annexure of the rear portion of the adjoining property (No. 16), so as to create a total area of 1706.73 sq m and a frontage of 20.115 m to Edensor Road.
3 At present there is a 2-storey brick and weatherboard building erected on the site, which is utilised as a childcare centre for approximately 38 children. It is setback some 7 m from the street frontage.
4 The surrounding area is characterised by a mix of single residential development comprising 1 and 2 storeys of various ages and construction. It is situated within a residential area, where there are a number of public open space areas, schools and local shops.
The proposal
5 This proposal involves the demolition of the existing buildings on the site to allow the construction of a single storey brick building with an irregular footprint to conform with the consolidated allotment shape, as shown in Attachment 1.
6 The childcare centre has been designed to accommodate 68 children aged between 2 - 5 years. The hours of operation are 7 a.m. to 6 p.m. Monday to Friday. Seven staff members are to be on duty at any one time.
7 The building is to be generally located towards the sites southeast corner and provided with the setback in the order of 29 m to the street frontage. Minimum building setbacks of 2m are proposed to all boundaries.
8 Three separate indoor play rooms are to be provided, each with storage areas, lockers, craft sink and direct access to bathrooms. Other kitchen, laundry, staffroom, offices and bathrooms are to be provided.
9 Parking for 17 cars (including one disabled space) is to be provided forward of the building, with access via a centrally located driveway with a width of 6.7m. The parking area is to have a setback of 3m from the front boundary to enable landscape screening.
Planning controls
10 Under this LEP the site is zoned Residential 2 (a) where the erection of a building for use as a Child Care Centre is permissible with the consent of council. The objectives of the 2(a) zone are:
Fairfield Development Control Plan No. 39/2006 (DCP 39) - Child- Care Centres and other Non-Residential development
a) to set aside land primarily for the purpose of housing and associated facilities,
b) to provide for the orderly development of detached housing, essentially domestic in scale and character,
c) to achieve attractive high-quality residential development,
d) …
e) to allow a range of non-residential uses that:
(i) are capable of integration within the locality,
(ii) serve the demands of the surrounding population, and
(iii) do not place demands on services beyond the level reasonably required for residential use.
11 This DCP 39 came into effect after lodgement of the development application with a commencement date of 22 February 2006. The DCP contains in Part B general objectives and controls for non-residential development in the residential zones. Part C then contains more specific objectives and development controls for childcare centres. The general objectives relevantly include to:
- (a) assist Council to control and guide the nature, scale and quality of non-residential development in residential zones,
(e) ensure that non-residential development in residential zones is carried out in a manner that preserves the amenity of these settings, and …
12 The specific objectives for child-care centres are:
- (a) To provide a clear planning framework for the development of Child-Care Centres in the Fairfield City LGA;
(b) To ensure Child-Care Centres are located and designed to minimise the impact on the amenity of surrounding residents and other land users;
(c) To ensure Child-Care Centres are located and designed provide children with a safe, healthy and active environment, conducive to positive development;
(c) To ensure that staff and other users of Child-Care Centres are provided with high-quality work environment.
13 To achieve these objectives, the DCP adopts the following classifications:
| Number of children under care | Classification |
| Seven (7) children or less | Home-Based Child Care |
| Eight (8) to thirty (30) children | Type A |
| Thirty-one (31) to forty (40) children | Type B |
Council does not support the development of childcare centres catering for more than 40 children in any zone, as these are unlikely to satisfy the objectives of this Part.
14 Insofar as council does not support child-care centres catering for more than 40 children in any zone, the associated locational requirements in cl 11.1 state the following objectives:
011.1.1 To ensure child-care centres are provided as equitably as possible across the LGA, subject to the areas of greatest need being adequately serviced;
011.1.2 To minimise the impact of child-care centres on residential amenity in terms of traffic generation and movement, traffic noise and noise from children by encouraging an even distribution of small centres in residential areas;
011.1.3 To encourage the clustering of child-care centres with community facilities and other complementary land-uses;
011.1.5 To ensure that principal character and purpose of the various zones is maintained and that Child-care centres are an ancillary facility, servicing the local community within which they located.011.1.4 To ensure that selected sites are not subjected to environmental hazards that may be detrimental to the health or safety of the users of the facility;
15 The controls to achieve these objectives include:
C11.1.1 A location analysis shall be submitted with each application. This shall indicate in map form all existing child-care centres as well as all parks, schools and other community facilities within a two kilometre (2 km) radius of the proposed centre. The map shall identify the capacity of surrounding centres, as well as any potential health and safety risks (as listed in C11.1.4 and C11.1.5 below). An analysis of the need for a centre in the proposed location must also support the application.
F airfield Car Parking Development Control Plan No. 19/1996
Fairfield Council’s Stormwater Drainage Policy
- The evidence
16 Detailed planning evidence on behalf of council was presented by Mr N Mu, Councils senior development planner and his report is Exhibit 1. The primary planning evidence for the applicant was presented by Ms N Nolan (consultant town planner), in Exhibit C.
17 Conferencing between the parties in the lead up to the appeal and the provision of additional information by the applicant resulted in some of the issues being satisfied. This includes the drainage issue whereby the applicant amended the plans to accommodate the overland flows. The respective engineers Ms Jayasekara (Council) and Mr Howes (Consultant) then agreed the other associated drainage matters could be covered by conditions of consent.
18 Likewise the parties agree that the landscaping and traffic issues can be covered by conditions of consent.
19 The principal contested issue concerns the size, scale and amenity impacts of the development in its residential context, relative to the provisions of DCP 39. I note from the evidence presented to the Court that the timing of DCP 39 has resulted in its commencement date of 22 February 2006, being after lodgement of the development application and the applicant has not provided any detailed assessment relative to this DCP. The Statement of Environmental Effect makes no reference to this (or any draft) DCP. Likewise Ms Nolan has not undertaken a comprehensive assessment relative to this DCP.
20 Notwithstanding this, I am satisfied that DCP 39 contains the relevant controls to be addressed for child-care centres. In doing so, I acknowledge that some discretion may be exercised in the application of these controls, depending on the merits of the particular proposal.
21 Therefore in my assessment, the primary hurdle for the applicant in this case is to establish that such discretion should be exercised to allow the 68 place childcare centre, over the controls maximum 40 places.
22 Mr Mu expressed his dissatisfaction with the proposal because it significantly exceeds the DCPs maximum allowance for 40 children. Consequently, he says this results in an excessively large building of non-residential character, necessitating additional car parking in the front setback area, which then results in detrimental impact on the amenity of surrounding residential properties and unacceptable streetscape impacts.
23 In support of this position, Mr Mu says that after detailed consideration and evaluation by council, DCP 39 was adopted to ensure that child-care centres are capable of integrating with surrounding residential properties without having an adverse impact on their amenity. On the basis that the greater the scale of the child-care centre, the greater the impact on surrounding properties, Council accordingly adopted a model for dispersing childcare centres throughout the area, with a maximum number of 40 children. Part of this evaluation included consultation with other councils that revealed a consistency with the maximum desirable number of 40 children as representing current practice.
24 Mr Mu then says:
Fairfield Local Environmental Plan 1994 permits child-care centres in all zones. As such, the intention of this DCP is to "guide" the location of childcare centres with the overriding intention in minimising the impact of childcare centres on the amenity of surrounding properties and minimising car travel distances for the purposes of satisfying the principal of ESD. As such, council aims to control the scale of childcare centres in residential areas and encourage the even distribution of childcare centres across the city. Accordingly, the DCP places a limit of 40 children in any childcare centre.
25 Against this Ms Nolan notes that the DCP does not contain any savings or transitional provisions, and as the subject development application was lodged before the DCP adoption, then it would be unreasonable to require strict compliance with its controls. Instead she appears to place more reliance on the provisions of the Childrens Services Regulation 2004.
26 Notwithstanding this, Ms Nolan referred to the child-care centre objectives and said there will not be any unacceptable impact on residential amenity in terms of noise, based on the RSA Acoustics report, subject to the recommended fences being constructed. As the Children's Services Regulation 2004 allows a maximum of 90 children in a child-care centre, the proposal for 68 children will not have an unacceptable impact on the existing amenity of the surrounding residential area.
27 In addition to this, she says that notwithstanding the substantial setback provided to the street frontage, the proposal has been designed to present as a residential building and is of a bulk and scale compatible with surrounding dwellings. As such it:
- will not overshadow any adjoining properties,
- visual privacy of adjoining properties has been maintained through the single storey design and construction of window locations and glazing specifications,
- the built form of the proposed development will not constrain the development potential of adjoining of surrounding sites.
- is in harmony with the surrounding buildings and character of the street.
28 Having considered these disparate positions, I am satisfied that DCP 39 is the relevant control, against which this proposal for a child-care centre should be assessed in its local context. Accordingly its planning philosophy is to achieve dispersed child-care centres, which accommodate a maximum of 40 children. However the controls (C11.1.1) require the submission of a locational analysis to support any child-care centre application. Whilst I acknowledge the existing centre has consent to operate, nevertheless the proposal represents a significant increase, which still needs to be considered in the context of the DCP 39 provisions.
29 No such submission has been made to support the subject application, with particular reference to the circumstances that would justify the 68 place child-care centre, which represents an increase of 70% over the prescribed 40 place child-care centre. Instead, the development application is substantially focused on the subject site and impacts on the immediate neighbourhood. In my assessment, the failure of the application to adequately respond to these provisions of DCP 39 does not enable me to conclude that the objectives of the locational requirements and other general objectives are reasonably satisfied.
30 Insofar as other detailing issues concerning the relative amenity of the outdoor play areas, utility of the verandas, visual impacts of the car park and building design were argued, it seems to me that these are secondary matters that can be resolved after the primary issue of whether a child-care centre of this scale should be permitted on the subject site. However, by reference to the details of the proposal, it does seem that the proposal (See Attachment 1) requires an excessive building footprint and car parking area, which leaves minimal area for perimeter landscaping to achieve a reasonable degree of compatibility with the neighbouring low-density residential dwellings. In my opinion, the proposal does not comfortably integrate with the immediate locality.
Conclusions
31 Having considered the evidence, the submissions and undertaken a view, I am satisfied that this development proposal does not merit consent. The primary development controls are contained in DCP 39, which was recently adopted and operates from 22 February 2006. It provides for various classifications of child-care centres, on the basis of a dispersed model, with the centres to integrate into the residential neighbourhoods. Furthermore, it requires a locational analysis to support any child-care centre proposal.
32 In the absence of the submission of any such locational analysis to enable assessment of the proposal relative to the appropriate objectives, I do not consider it reasonable to set aside the DCP provisions, or make transitional arrangements and allow this substantially larger 68 place child-care centre, considering the maximum allowed under DCP is 40 places. Insofar as the applicant has predominantly limited its assessment to impact on adjoining properties, I do not consider this adequately satisfies the requirements of DCP 39, because a wider area assessment is required.
Court orders
1 The appeal is dismissed.
3 The exhibits may returned except for 1, A, B, C, E and F.2 Development application (1300/2005) for the construction and operation of a 68 place childcare centre at 18 Edensor Road, Cabramatta West, is refused.
- _________________
- R Hussey
Commissioner of the Court
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