Quinn Homes Pty Ltd v Parramatta City Council
[2007] NSWLEC 732
•9 November 2007
Land and Environment Court
of New South Wales
CITATION: Quinn Homes Pty Ltd v Parramatta City Council [2007] NSWLEC 732 PARTIES: APPLICANT
RESPONDENT
Quinn Homes Pty Ltd
Parramatta City CouncilFILE NUMBER(S): 10671 of 2007 CORAM: Hussey C KEY ISSUES: Development Application :- New child care centre; impact on character of residential area, traffic, acoustic impacts. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001
Parramatta Development Control Plan 2005CASES CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 DATES OF HEARING: 26/09/2007 and 24/10/2007
DATE OF JUDGMENT:
9 November 2007LEGAL REPRESENTATIVES: APPLICANT
Mr A. Pickles, barrister
Instructed by Woolf AssociatesRESPONDENT
Mr P. Marincowitz, solicitor
of DLA Phillips Fox
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
9 November 2007
JUDGMENT10671 of 2007 Quinn Homes Pty Ltd v Parramatta City Council
Background.
1 This appeal was lodged against councils’ refusal of a development application for a 39 place child care centre at 14 Union Street, Eastwood. This site contains an existing dwelling and is within a residential area characterised mainly by dwelling houses.
2 For the appeal a number of issues were identified, which are summarised as follows:
- The proposed development is out of character in the residential locality;
- Traffic impacts in terms of safety risks in Union Street and at its intersection with Milton Avenue;
- Public interest matters raised by objectors, particularly traffic impacts, noise and impact on the character of the neighbourhood.
The Site.
3 This site is described as Lot 60 in DP 7004. It has a total area of 1012 sq m and is located on the southern side of Union Street, to which it has a 20.115 m frontage. There is a single storey brick dwelling located on the site.
4 This proposal involves:
- Demolition of the existing dwelling and rear shed,
- Construction of a single storey child care centre for 39 children with 3 play areas for 0-2 year olds (9 children), 2-3 year olds (14 children) and 3-5 year olds (16 children),
- Proposed hours of operation being Monday to Friday 7.00 am to 6.00 pm and the outdoor activities between 8.00 am to 11.00 am 3.00 pm to 5.00 pm.
- The proposal incorporates 10 on-site car parking spaces, including 1 disabled access space.
Planning Controls.
5 Parramatta Local Environmental Plan 2001; Under which the site is zoned Residential and the development is permissible with consent.
6 Parramatta Development Control Plan 2005 (DCP); The relevant sections of DCP 2005 are:
- Section 4.1.4 -- Water Management;
- Section 4.1.10 -- Landscaping;
- Section 4.2.1 -- Streetscape;
- Section 4.2.6 -- Energy Efficient Design;
- Section 4.3.5 -- Waste Management;
- Section 4.4.1 -- Access for people with Disabilities;
- Section 4.4.2 -- Safety and Security;
- Section 4.5.1 -- Parking and Vehicular Access.
7 Draft Parramatta Development Control Plan 2005 (CCCDCP); This Child Care Centre DCP (CCCDCP) was adopted by Council and came into effect on 6 June 2007. Insofar as the development application was lodged on 3 October 2006, the CCCDCP does not contain a savings provision. Council has resolved that the CCCDCP is to “be applied to all development applications for childcare centres that were lodged on or after the date of commencement of the exhibition period (4 April, 2007)”. The relevant matters are:
- Section 3.1.2 - Design Principles as Development Standards (locational restrictions);
- Section 3.2.2 - Design Principles and Development standard (hours of operation), (minimum indoor and outdoor space);
- Section 3.4 - Access and Car Parking;
- Section 3.5 - Acoustic and Visual Privacy.
8 This development application was notified and it attracted a number of written objections from neighbours, who were given the opportunity of expressing their concerns at the view. These objections have been considered along with the written objection in conjunction with the following expert evidence presented by:
- Mr H Sanders; applicants’ town planner,
- Mr O. Sannikov; applicants’ traffic consultant,
- Mr R Marston; applicants’ acoustic consultant,
- Mr A. Middlemiss; councils’ town planner.
9 A detailed s 79C assessment of the proposal was undertaken by the council planners, resulting in a recommendation for conditional approval of the proposal. However, the development application was refused predominantly on grounds of traffic impacts and amenity impacts on the neighbours.
10 One of the primary objections raised by the neighbours concerns the impact of the proposal on the character of the area. However, reference to Clause 16 of the LEP confirms that child-care centres are permitted by consent in the residential zone. It therefore seems to me that the planning controls envisage that the development of appropriate child-care centres can be consistent with the character of a residential area.
11 In this regard, the development site is relatively large with an area of 1012 sq m and the proposed building is of a single storey height, which I consider is compatible with the neighbouring residential buildings. Although the building is setback to incorporate car parking in the front setback area, it is possible that a wide front driveway area could be incorporated into a large 2-storey dwelling on this site, with likely greater impacts on neighbouring properties.
12 However, the proposal incorporates extensive side and front boundary planting, to reduce the streetscape impact of the proposal, which the planners agree creates acceptable streetscape impacts.
13 In the Statement of Environmental Effects, Mr Sanders says that the proposed development is consistent with the relevantly applicable aims of the Parramatta Development Control Plan 2005 as set out in section 1.6:
- "in that it would contribute to the quality of the built environment and the public domain; it would have consideration to the needs of members of the community; and it would respond to the qualities of the site, its context and the character of the surrounding area."
14 Accordingly, I do not consider that the proposal should be rejected on the grounds of incompatibility with the residential area. In this regard, I note that there will be no adverse impact on any of the neighbouring properties in terms of privacy, both visual and acoustic, overshadowing or view intrusions.
15 Notwithstanding this, I note that the more recent CCCDCP contains site restrictions in the Residential zones, except where:
- adjacent to schools,
- adjacent to a shopping centre or neighbourhood centre,
- within 300m radius of railway station.
16 Whilst the proposal does not comply with these criteria, I consider these restrictions should be given diminished weight because;
- They came into effect after the lodgement of the application.
- It was submitted that the specific site restriction criteria was not exhibited and subject to public comment. Accordingly, the following principle relevant to consideration of development control plans, as stated by McClellan CJ in Stockland Development PtyLtd v Manly Council [2004] NSWLEC 472 applies:
- A development plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.
17 Consequently, I have considered these controls in the context of the diminished weight given to a draft DCP. Nevertheless, I now consider the other merits of this particular application, relative to the DCP provisions.
18 The traffic impact objections concern the suitability of the subject site, within the Union Street context, to safely accommodate the additional traffic generated by the development, together with the capacity of the Union Street/ Milton Avenue intersection. Other objections were made about the impact on street parking, noise and headlight glare.
19 The parking issue was addressed by Gennaoui Consulting Pty Ltd, who confirmed that the proposed 10 car parking spaces and its configuration, are adequate for this type of development. An assessment of the environmental capacity of the approach roads to the site, including Union Street and Milton Avenue was undertaken on the basis of existing traffic counts for both the morning and evening peak hour.
20 As the child-care centre is expected to generate some 31, 12 and 27 vehicles during the morning, afternoon school and afternoon peak hours respectively, the traffic expert concluded that the volume of traffic generated by the child-care centre would have little effect on the current very good levels of service of all approach routes. The current ‘ Level of Service’ (LOS) “B” or better along all roads would continue to prevail. Also, that Union Street can accommodate any occasional on-street parking arising from the child care centre operation.
21 Similarly, the increased traffic generated from the development was assessed at the nearby intersections of Union Street/Milton Avenue; Union Street/Valley Road and Milton Avenue/Terry Road, with the traffic consultant concluding that the proposed long peak child-care centre would not affect their operations and the three intersections would continue to operate at a very good level of service “A”.
22 After an overall assessment of the traffic impacts of the proposal, the traffic consultant concluded that the proposal is not likely to unduly affect traffic conditions in the surrounding area and therefore there is no traffic reason why it should not be approved. Whilst I accept that there will be some additional traffic, nevertheless Union Street has a relatively wide road reserve and carriageway, which I am satisfied can reasonably accommodate this traffic and parking, without undue impact on the neighbouring properties.
23 The other substantive issue concerns the noise impacts. In particular, Ms Gissing from 61 Terry Road expressed concerns about likely unacceptable noise impacts from children playing outdoors or in the existing shed adjacent to the rear boundary and studio. After consideration of this objection, the applicant amended the proposal by way of the demolition of the shed, thereby eliminating possible noise disamenity arising from activities within the metal shed.
24 Whilst outdoor play areas, including the covered sandpit are to be included in the rear yard, the acoustic impacts have been re-assessed by Mr Marston from RSA Acoustics. This has been undertaken on the basis that the children are taken outside in small, supervised groups (each group consisting typically of about 10 children) and the external educational play activities are supervised in accordance with the Department of Community Services guidelines.
25 Accordingly, Mr Marston says:
A 1.8 metre high fence will reduce the sound levels between the standing children and a standing adult by 10 to 12 dB(A)…"For a group of about 10 children, the Laeq, 15 min noise level is 44 to 47 dB(A) at 5 metres, without an intervening fence. For a group of about 20 children, the Laeq, 15 min noise level is 45 to 48 dB(A), without an intervening fence. Even for a group of about 40 children, the Laeq, 15 min noise level is 48 to 50 dB(A) without an intervening fence.
The predicted LAeq, 15 min noise level from children in the rear activity area would be well below the LAeq, 15 min noise level in the rear yard areas of the adjoining premises.”
26 It is apparent from this acoustic assessment that providing the external playing activities are well-managed, then the noise emitted from the playing children should achieve comfortable compliance with accepted noise criteria. Although, I note that occasional sounds may be audible over the LAeq, 15min noise criteria, but this is not of sufficient magnitude to warrant rejection of the proposal.
Conclusions.
27 As I noted initially, the prevailing planning controls allow child-care centres within the residential precincts, albeit now subject to some locational restrictions. As this application is subject to the DCP 2005 provisions and the CCCDCP may be given diminished weight, I am satisfied that this proposal demonstrates reasonable compliance with the prevailing controls to merit consent.
28 The proposed new building is single story and in my opinion, presents a domestic scale to the street. Whilst the on-site car parking area is incorporated in the front setback area, nevertheless it is landscaped and I rely on both Mr Sanders and the council planning officers’ assessment that the proposal is suitable in this location.
29 I also rely on Mr Marstons assessment, that this site provides sufficient on-site car parking and that Union Street and other connected streets are of such width and configuration, that the relatively minor increase in traffic from the child care centre will not detract from the environmental capacity of these roads or increase safety risks.
30 I am also satisfied that the amended proposal, which provides for the removal of the relatively large shed in the backyard and provision of appropriate boundary fencing, should result in acceptable acoustic amenity according to the RSA Acoustic assessment, on which I rely. Appropriate conditions of consent can be imposed in this regard and this includes the requirement for the child-care centre to operate in accordance with an approved management plan.
31 For these reasons then, I am satisfied that this proposal meets the requirements of the prevailing planning controls to merit conditional consent.
Court Orders
1. The appeal is upheld.
2. Development consent is granted to DA/911/2006 for the demolition of an existing dwelling and construction of a 39 place child-care centre at 14 Union Street, Eastwood subject to the conditions in Annexure A.
3. The exhibits may be returned except for A, C, D and E.
___________________
- R Hussey
Commissioner of the Court
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