Smart Construction v Baulkham Hills Shire Council

[2007] NSWLEC 581

Land and Environment Court

of New South Wales

CITATION:	Smart Construction v Baulkham Hills Shire Council [2007] NSWLEC 581
PARTIES:	APPLICANT Smart Construction (Australia) Pty Limited RESPONDENT Baulkham Hills Shire Council
FILE NUMBER(S):	10354 of 2007
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of an existing dwelling and the constructions of a childcare centre - streetscape/character - lot width
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Baulkham Hills Local Environmental Plan 2005
DATES OF HEARING:	13/08/07
DATE OF JUDGMENT:	14 August 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr J Maston, barrister SOLICITORS Greenaway and Tohme RESPONDENT Mr M Fraser, barrister SOLICITORS Baulkham Hills Shire Council

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

14 August 2007

10354 of 2007 Smart Construction (Australia) Pty Limited v Baulkham Hills Shire Council

JUDGMENT

1 Development Application No. 339/07/HA seeks approval for the demolition of an existing dwelling and the constructions of a childcare centre at 59 Jenner Street, Baulkham Hills.

2 The proposal provides for forty-four children, comprising 24 children being two to three years old and 20 children being three to five years old, with five staff members proposed and the provision of 12 standard spaces and one disabled car parking space. The childcare centre will operate between 6.30 am and 6.30 pm Monday to Friday.

3 The subject site is described as Lot 23A in DP391030. It has a frontage of 15.24 metres to Jenner Street and a depth of around 97.6 metres. It is generally rectangular in shape and has a total site area of 1,487 square metres. The site slopes from the north-eastern boundary to the south-western boundary and to the southern corner of the site with a maximum fall of approximately 6.5 metres.

4 The site is located in an area that is predominantly residential in nature and includes a mix of single dwellings and medium density residential developments. Adjoining the site to the north-east, south-west and south-east are single dwelling houses. To the north of the site across Jenner Street, is a medium density residential townhouse development.

5 The subject site is within the residential 2(a)(3) zone under Baulkham Hills Local Environmental Plan 2005. The proposed development is permissible with consent within this zone. The proposed development is subject to the requirements of Development Control Plan Number 3 Residential, Development Control Plan Number 12 Parking and Development Control Plan Number 15 Landscaping.

6 Development Control Plan Number 39, Childcare Centres, was adopted by council on 20 March 2007. Relevantly, the subject application was lodged on 17 August 2006 and determined by refusal by the council on 13 March 2007. The weight to be given to DCP 39 is addressed later in the judgment.

7 The council’s Statement of Facts and Contentions raised six individual issues. Operational matters relating to hours and times of operation were not pressed by the council following amendments by the applicant.

8 The other issues can be grouped into the following main areas:

1. Whether the proposal will have an unacceptable impact on the streetscape and character of the area;
2. Whether the proposal provides satisfactory fencing to ameliorate any impacts; and
3. Whether the proposal will have an unacceptable impact on the amenity of the adjoining and nearby residents in relation to noise, traffic and safety.

9 The parties agreed to the appointment of Mr Michael Ball as the Court Appointed town planning expert.

10 Evidence on site was provided by local residents:

• Mr Russell Cox of unit 5/76-78 Jenner Street,
• Mr Neil Turner of unit 3/66 Jenner Street,
• Mr Henry of unit 1/76-78 Jenner Street,
• Mr Patrick Blackhall of unit 10/76-78 Jenner Street,
• Mr Ohoro(?) Quan(?) of 61 Jenner Street,
• Mr Matthew and Mrs Judith Courtepell(?) of 34 Carroll Street and
• Mrs Margaret Price of 1 Joan Place.

11 All opposed the development on the grounds of one or more of the following: noise, additional traffic, safety of pedestrians and people using the centre, out of character with the existing area, pollution from the car park, impact on dual occupants and those who work shift work.

12 Mrs Sharon Eather of 57 Jenner Street, supported the application on the basis that the existing occupants of the dwelling create unacceptable impacts and that the redevelopment of the site would provide a better environment for her and her family.

13 In considering the issue of character and streetscape, the objectives of the 2C3 zone specifically provide for development that is ancillary to residential uses such as childcare centres. The relevant objective is to ensure that any development, “is capable of visual integration with the surrounding environment”. That’s objective F1.

14 Objectives that apply to all development, “seek to ensure building form including alterations and additions is in character with surrounding built environment”, objective B; “incorporates landscaping within building setbacks and open space areas”, objective C6; “and to maintain the amenity and low density environment of areas predominantly characterised by detached dwelling houses”, objective E. Clause 13.2 provides that consent must not be granted if it is contrary to the objectives of the zone.

15 DCP 39 was not in force at the time of the determination by the council of the development application. It was, however, in the public arena at the time the DA was lodged with the council on 17 August 2006. The DCP in draft form was considered by the council on 28 June 2005 and endorsed for exhibition from 28 February 2006. A further exhibition was undertaken on 9 February 2007 and ultimately adopted by the council on 20 March 2007. A background paper dated November 2006 supported DCP 39.

16 Because of the existence of DCP 39, if only in draft form, and the time of the lodgement of the DA and also the time of assessment, I am satisfied that some weight should be given to its provisions. Relevantly, DCP 39 aims to “achieve childcare centre developments that reflect the character of their location in terms of design”. That is in clause 1. Clause 4.1 provides for a minimum site width of 22 metres and a minimum site area of 1,000 square metres. The proposal satisfies the latter but not the former requirement.

17 Clause 4.4 requires a five metre setback of which two metres shall be landscaped. Sites boundary setbacks are adopted from DCP 12 at two metres. The proposal provides a northern setback of 1.49 metres and a southern setback of two metres.

18 Mr Ball acknowledges that childcare centres are normally found in residential areas and it can be reasonably expected that they would diverge to some degree in nature and appearance from their predominant residential form of development. He notes three major components of the development that are relevant in the consideration of character. These are:

1. The building setback of 43 metres;
2. The use of the setback area for car parking; and
3. The extent of landscaping along the street frontage.

19 In his opinion the site is too narrow and, as such, stops double flanked parking which would reduce the length, area and visual dominance of the car parking area located in front of the proposed building. The setback of the building and the amount and appearance of the car parking, in his view, are not consistent with the zone objectives or objectives in DCP 39.

20 With the benefit of the site view, I agree with the conclusions of Mr Ball. The character of an area and its streetscape is made up of a number of factors such as dwelling type and construction setback and landscaping. All contribute to the character and streetscape of an area. These factors may have different impacts depending on the degree of departure from the established or consistent approach adopted in an area.

21 In this case, the site is located on the eastern side of Jenner Street within the 2C3 zone. This allows higher density residential development but is limited to villa developments. The opposite side of Jenner Street is zoned residential 2A2. This zone also permits higher density development, residential development, but includes townhouse development. It will ultimately provide a different residential character. Notwithstanding the differences in zoning, development will be characterised by a dwelling setback from the street with landscape setbacks. A minimum frontage of 28 metres is required in both the zones for townhouse and villa development.

22 I agree with Mr Ball that ancillary uses in residential zones cannot be expected to have a character the same as residential development. However, I am not satisfied that the proposal displays enough characteristics of the existing and likely future character of the area to support an approval.

23 The source of the inconsistency lies largely with the width of the lot and the size of the development. The width of the lot is a considerable constraint to the development, even taking into account the area exceeds the minimum requirement by some 479 square metres. The width dictates that the building is set back some 46 metres from the street to allow for the required amount of car parking.

24 While it was agreed that there is no maximum or minimum numerical street setback and that a dwelling could be located on the same location as the building proposed in this application, I am satisfied that a dwelling located in the same location would not have the same impact on the character and streetscape, as the setback would likely be landscaped rather than used for car parking and access driveways.

25 The impact on the character and streetscape is exacerbated by the non-compliance with the five metre setback, although the two metres landscaped area is provided.

26 The non-compliance with the northern setback is not significant in numerical terms and would not be a reason to refuse the application if other matters were acceptable, but the non-compliance highlights the inadequacy of the site width for the form and size of the development.

27 While Mr Ball accepted that the single flanked parking layout would be safer in busier times than double flanked parking, it is not a sufficient benefit to overcome the other more serious deficiencies relating to character and streetscape. In my view, the car parking will be visible from directly opposite the site and, to a lesser but still significant extent, from vehicles travelling along Jenner Street.

28 While there was some conjecture over the basis for the twenty-two metre frontage standard, it would seem that it is reasonably explained in the background paper to DCP 23, in that it is to provide double flanked parking behind a five metre setback and consequently would allow any building on the site to be located at a setback more consistent with a normal setback expected in a residential area.

29 In coming to this conclusion I have given some weight to the provisions of DCP 39, however, I have not needed to place any significant weight on these provisions. The issue of street-scaping character are matters identified in the 23C zone objectives and as a broader consideration by section 79C1b relating to the likely impacts of that development, including environmental impacts on the built environment.

30 Pursuant to clause 13.2 of LEP 2005, I find that the proposal is inconsistent with zone objectives B, F1 and C6 and as such, development consent must not be granted.

31 For completeness, I will briefly deal with the other issues. The issue of fencing centred on the fencing adjoining Mr Quan’s dwelling and the proposed car park. Amended details were provided that set the fence back from the common boundary. Based on the evidence that the fence would address any potential noise issues, I am satisfied that the visual impacts of the fence would not warrant the refusal of the application.

32 The other issues raised by local residents and not addressed earlier in the judgment relate to traffic safety and noise. These matters were addressed in the report by the council officer and were found to be acceptable.

33 On the issue of traffic and safety, the council report addresses this issue in some detail. In the absence of any contradictory evidence, I accept the conclusions that there will be no reasonable grounds to refuse the application for traffic and safety reasons.

34 The issue of noise from the play area was found to be satisfactorily addressed through the provision of a 1.8 metre lapped and capped fence. While the acoustical report was not tendered as this was not an issue raised by the council, I am uncertain as to the acceptability or adequacy of the fencing after the site view and the clear site lines that would be available from parts of the play area to parts of the adjoining residences, many of which are located in close proximity to the play area even with the proposed fencing. While it is not a matter that would need further evidence, having found that the application should be refused on other grounds, I remain unconvinced that the noise from the playground to the adjoining residential property is totally overcome by the erection of a 1.8 metre high lapped and capped fence considering the topography of the site, including the re-contouring of the play areas.

35 The Orders of the Court are:

1. The appeal is dismissed.
2. DA 339/07/HA for the demolition of an existing dwelling and the constructions of a childcare centre at 59 Jenner Street, Baulkham Hills, is refused.
3. The exhibits are returned.

___________________

G T Brown
Commissioner of the Court
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