Universal Child Care Pty Ltd v Leichhardt Municipal Council

[2007] NSWLEC 808

Land and Environment Court

of New South Wales

CITATION:

Universal Child Care Pty Ltd v Leichhardt Municipal Council [2007] NSWLEC 808

PARTIES:

APPLICANT
Universal Child Care Pty Ltd

RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):

10127 of 2007

CORAM:

Bly C

KEY ISSUES:

Development Application :- demolition of existing buildings, child-care centre, traffic congestion and car parking, adverse amenity impacts on neighbours, landscaping, building appearance, streetscape and character.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Leichhardt Local Environment Plan 2000
Leichhardt Development Control Plan 2000

DATES OF HEARING:

21/11/2007 and 22/11/2007

 
DATE OF JUDGMENT: 

13 December 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso SC
Instructed by Ms I Ferguson
of Gadens

RESPONDENT
Ms J Reed, solicitor
Instructed by Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

13 December 2007

10127 of 2007 Universal Child Care Pty Limited v Leichhardt Municipal Council

JUDGMENT

Introduction

1 On 19 December 2006 the Leichhardt Council received Development Application No.D/2006/760 seeking development consent for the demolition of two dwelling houses and a factory building and the construction of a new purpose-built two-storey 74 place child-care centre at 153-159 Balmain Road. Leichhardt opened I could "the child-care centre"). The Class 1 appeal was lodged with the Court on the basis of the deemed refusal of the development application although the Council subsequently refused the application on 5 February 2007.

2 The child-care centre building is, at ground floor level, set back about 16 m from Balmain Road, behind the 16 car-space at grade car park. At the first floor level the building projects over the car park so as to be set back about 11 m from the street. A landscape strip of about 0.5 m - 1.5 m along the street alignment is to be provided. Acoustically screened north facing children's play areas are provided at ground level and at the first floor level. The building and the acoustic screens are set back about 1.5 metres from the rear and the southern boundary. At the northern boundary at the ground floor level the acoustic screens are situated on the boundary and at the first floor level are set back about 5 m.

3 The applicant proposes to dedicate a narrow strip of land along part of the site's frontage and to construct a stormwater floodway along the rear of the site to the benefit of the neighbours in Waratah Street.

The site and locality

4 The rectangular shaped site is situated on the eastern side of Balmain Road, between Hills Street and Stanley Street. It has a slightly angled frontage of 30 m to Balmain Road an area of 1,239 m². It backs onto several residential properties in Waratah Street. Vehicular access is available to the site from a rear laneway, in addition to that available off Balmain Road.

5 The locality of the site is predominantly low scale residential (including the adjoining properties to the north, east and south) with the Leichhardt High School's playing fields situated opposite the site in Balmain Road. Other land uses close by and to the south of the site in Balmain Road include a Scout Hall and a large electricity substation and to the north of the site are the relatively large high school buildings. In the locality generally there are other non-residential land uses including two primary schools, a fire station and corner hotel.

Planning controls
Leichhardt Local Environmental Plan 2000

6 The site is situated in the Residential Zone in Part 4 - Housing of the Leichhardt Local Environmental Plan 2000 ("LEP 2000") and in this zone the child-care centre is permissible with development consent. Clause 23 of LEP 2000 sets a maximum floor space ratio for non-residential development of 1: 1 and having a floor space ratio of 0.475:1 the proposal comfortably complies.

7 Clause 7(3) of LEP 2000 requires that consent must not be granted for development proposed within a zone unless consideration has been given to the relevant objectives of the plan and that the development under consideration is consistent with those objectives.

8 The general objectives of LEP 2000 in dealing with the built and natural environment and amenity require the protection and enhancement of the area's character and appearance, adhere to principles of good urban design and maintain amenity. The vision in cl 12 involves the conservation and enhancement of the quality and diversity of Leichhardt and the protection of the amenity of residents.

9 The objectives in cl 17 mainly deal with housing but by virtue of their inclusion in Pt 4 of LEP 2000, together with the Residential Zone land use table these objectives must have relevance for this site. These objectives are concerned with ensuring that new housing should be complimentary to and compatible with the style, orientation and pattern of surrounding buildings so as to achieve the desired future character identified in Leichhardt Development Control Plan 2000 ("DCP 2000"). They also seek appropriate landscaping including areas suitable for substantial tree planting and the protection of the area's diverse subdivision pattern.

Leichhardt Development Control Plan

2000

10 There are a number of provisions within DCP 2000 that are relevant to this application including those relating to urban form and design, solar access visual and acoustic privacy, conservation of small detached dwellings, car parking and noise and vibration.

11 Pt B Residential Development of DCP 2000 applies to all new housing irrespective of the zoning of the land. Similarly Pt C Non-Residential Development applies to non-residential development irrespective of the zoning of the land. Strictly speaking Pt B is not applicable, because the proposal comprises non-residential development as distinct from new housing. Despite this, the provisions of Pt B should be taken into consideration taking into account that the site is surrounded by, and impacts on the residential development that exists on three sides of the site.

12 The provisions of DCP 2000 relevant to the issues are referred to in more detail later in this judgment.

13 The application has been the subject of a number of considerations by Council officers and a result of these, the proposed development has been modified. It was advertised on two occasions resulting in the objections being received from a number of residents in Balmain Road and Waratah Street (at the rear of the site). These objections mainly raise the following concerns:

• Traffic congestion in Balmain Road and Waratah Street and increased demand for on-street car parking thus reducing available parking for residents.
• Unacceptable noise levels likely to be generated by the child-care centre resulting in reduced residential amenity during the lengthy hours of operation between 7 a.m. and 7 p.m. This is unlikely to be mitigated by the provision of noise barriers. Noise was of particular concern to the occupants of the neighbouring house to the north at 161 Balmain Road.
• The proposed flat roofed modern structure will be out of character with the existing buildings in the locality.
• There are already two family day-care centres operating in Waratah Street and an additional close-by child-care centre is not warranted.
• Overlooking from the child-care centre resulting in loss of privacy.
• Excessive bulk and scale and inappropriate building appearance when viewed from neighbouring properties to the east.

14 In addition, the owner of the property at 151 Balmain Road whilst expressing some concern regarding overshadowing in winter supported the proposal because it will result in the removal of an unsightly and noisy chemical factory and will improve the streetscape. The Applicant has since acquired this property for the purpose of suffering the financial impacts associated with the property's loss of amenity from overshadowing.

15 There are 20 reasons for refusal included in the Council's Notice of Determination refusing the application (some of these have now been resolved). These reasons essentially comprise:

• Adverse impacts on the amenity of neighbouring dwellings including solar access, traffic, landscaping and building bulk contrary to the requirements of the planning controls.
• The proposed building and the car park would be out of character with the streetscape and development in the locality contrary to the requirements of the planning controls.
• The traffic, vehicular access and car parking arrangements are unsatisfactory.
• The existing, relatively sound small detached dwelling at 159 Balmain Road should be retained.
• Site remediation and flooding/stormwater drainage has not been resolved.

The evidence

16 The Court was assisted by the town planning evidence, including a joint report of Mr A Darroch for the Applicant and Ms J. Lillie for the Respondent. (I should comment that the formulation of the issues and the structure of the joint report were such that it was less useful than would otherwise have been the case). Two parties’ single experts also provided evidence: Mr S. Cooper acoustic engineer and Mr C. McLaren traffic engineer.

17 The hearing began on-site when I had the opportunity of inspecting the site and its environs and concurrently heard from the following resident objectors:

• Mr G Borsato of 161 Balmain Road,
• Mr C. Tucker of 171 Balmain Road,
• Mr T. Howard of 167 Balmain Road,
• Mrs R Murano on behalf of Mrs Cirillo of 163 Balmain Road,
• Mr D Riley of 165 Balmain Road,
• Ms J Filitonga of 23 Waratah Street,
• Ms T McInnes of 21 Waratah Street.

18 When the hearing continued in Court it was explained on behalf of the respondent that there are three essential issues in this case:

• Whether the proposed development would have an inappropriate character for the locality and an inappropriate presentation in the streetscape taking into account the requirements of the planning controls.
• Whether the amenity of the neighbouring and nearby residential properties would be adversely affected in terms of the design and bulk of the building, reduced solar access and loss of on street parking.
• Whether the site is suitable for a child-care centre taking into account the noise generated by overflying aircraft associated with the Sydney airport.

19 Whilst traffic and car parking was of concern to a number of residents, I have decided that this should not be a determinative issue taking into account the expert evidence of Mr McLaren. He was satisfied with the on-site parking and manoeuvring arrangements for the centre and that there was little likelihood of any vehicle queuing to enter the site that might otherwise cause traffic congestion in Balmain Road. Also, the loss of on-street parking spaces in Balmain Road is not considered to be significant.

20 In relation to the issue of the character of the proposal and its presentation in the streetscape, the objectives of LEP 2000 in clauses 13 and 20 relevantly provide for:

• The design of buildings that are compatible with the character, form and scale of the area; and
• The appropriate location and design of non-residential (employment) buildings so as to minimise adverse impacts and maintain amenity of surrounding land uses.

Planning controls - DCP 2000

21 As already noted, Pt C - Non-Residential Development, of DCP 2000 applies to non-residential development irrespective of the zoning of the land. Relevant to the issue of character and streetscape, Pt C1.1 contains a number of provisions that assist in dealing with applications for non-residential development. The relevant principle and guidelines therein respectively require that:

• Design new development to integrate well with the locality and respect the streetscape, general built form and character of the area.
• On large sites where redevelopment for non-residential purposes is proposed, the development should respect the existing street pattern and provide buildings which front streets integrating with the surrounding existing development rather than creating isolated enclaves.
• New buildings should respect the height and building envelope of neighbouring existing buildings and should be graded and articulated in such a manner as to harmonise with the new and existing surroundings.

22 Section C 1.2 deals with car parking and the associated principles require that:

• Where on-site car parking or service areas are required, ensure that the layout and design does not detract from the amenity of adjoining areas.
• Ensure that design of parking and servicing areas is efficient, safe, convenient, discreet and suitably landscaped.

23 The associated car parking controls require that development proposals should:

• Integrate the design of car parking into the overall site and building design.
• Where non-residential development is within … a residential zone, locate and design parking areas to … respect the character of the existing residential areas and streetscape character by means of siting, design and landscaping.
• Surface parking should be visually articulated by the use of soft and hard landscaping and the use of different surface treatments.

24 Section C 1.3 deals with landscaping and the relevant principles require:

• Ensure that new non-residential development provides landscaped areas that:

(a) improve the quality of the development and,

(b) reduce the impact of the development on adjacent residential areas.

25 The associated controls require that:

• Where an "interface" situation occurs, use landscape screening, (such as lattice work) or plant a "landscape buffer" of trees and shrubs, to reduce visual impact of the development and maintain visual and acoustic privacy of residential areas.

26 Section C 1.4 deals with building elevations and materials and the relevant principle requires that:

• Design to respect the elevational character and appearance of the streetscape and locality.

27 The stated rationale and guidelines for this principle relevantly include:

• New development should provide interesting, articulated and proportioned facades where elevations to the street and public places do not comprise "dead frontage" but provide openings where activity behind can be perceived.
• Larger commercial development sites offer an opportunity to create their own character. However the edges of the sites should respect the existing adjacent elevational details.
• In order to achieve compatibility of elevational details, proportions and scale of new or altered buildings, and maintain the existing characteristics of 19th and 20th century development it is necessary to respond to the vertical and horizontal rhythms established by existing buildings and streets. Rhythms are recurrent design lines that establish a design pattern and reinforce the character of a particular street or section of street. Elevational relief and modelling details also contribute to fitting in with the streetscape.
• Design the vertical elements of facades of new buildings to relate to the scale of the building proposed and that of adjoining development.
• Relate the horizontal elements of the facade of new buildings to the horizontal control lines of adjoining development.

28 The associated controls include:

• Design elevational features such as fenestration and doors to be in proportion with the scale and size of the new building and any adjoining buildings and the streetscape
DCP 2000 - the Piperston Distinctive Neighbourhood

29 The guidelines in Part C of DCP 2000 also refer to the Suburb Profile in Pt A including the specific characteristics of an area and opportunities for development. Relevantly the site is included in the Piperston Distinctive Neighbourhood.

30 The existing character of the Piperston Neighbourhood is described as mainly comprising a variety of low scale and density residential properties comprising a profusion of bungalow and cottage style developments, terraced houses, three-storey flat buildings as well as random groupings of workers cottages. Roof forms are mainly hipped or gabled and front setbacks for single dwellings are mostly between 1 m and 3 m. The desired future character envisages the maintenance of the character of the area by keeping development complimentary in architectural style, form and materials. Although the predominant scale and character of the mostly single storey Victorian and Federation style dwellings in the precinct is to be maintained and enhanced, contemporary development can be allowed provided that it is complimentary to the existing streetscape and the consistency of the subdivision pattern is preserved. Also, the prevalence of street trees is to be maintained in addition to the mature and visually significant trees on private land.

31 The associated neighbourhood controls apply across the whole of the neighbourhood and provide for a maximum building wall height of 3.6 m. Also, permitted are buildings originally designed for non-residential use a maximum building wall height of 7.2 m to incorporate a parapet wall.

32 Unfortunately there is no explanation as to what the phrase: buildings originally designed for non-residential use actually means but I expect that it deals with the conversion of non-residential buildings in the Residential Zone for residential purposes. Notwithstanding that there is some doubt that this provision is of relevance to this development application I accept that the principle contained therein allows some flexibility in relation to building height for non residential buildings and can thus be applied in this case.

The expert evidence

33 In the joint report and in her oral evidence Miss Lillie raises a number of concerns with the proposed development in relation to its impacts on the character of the area and the Balmain Road streetscape. In essence these are:

· The car parking area at the front of the site combined with the building's setbacks creates a large inappropriate void in the streetscape. The proposed building does not respect the prevailing streetscape and townscape in terms of its alignment to the street edge and building envelope of neighbouring existing buildings.

· The proposed building fails, in terms of modulation and articulation, to respond to the vertical and horizontal rhythms established by the existing subdivision pattern and the single storey dwellings on either side of the site. Uniformity and rhythm are important aspects of the streetscape that derive in part from the regularity of the subdivision pattern to the north and south of the site.

· Being interface development the scale of the proposed building is excessive taking into account the scale of buildings surrounding the site.

· Whilst acknowledging the other nearby non-residential buildings she says that greater weight should be given to the eastern side of Balmain Road where single storey dwellings predominate. The proposed building is not responsive to these. The non-residential buildings should be considered to be exceptions to the rule in the streetscape.

34 Mr Darroch's contradictory evidence is essentially that:

• The architectural form of the building comprises an appropriate response to the existing character of the area and the Balmain Road streetscape. An institutional architectural style is what is expected in this context.
• Relevant design cues include the larger scale nearby school buildings, the Scout Hall, the electrical substation, the fire station and the corner hotel a short distance to the south. Conversely the relatively homogenous dwellings to the north do not (by themselves) comprise the character of the area.
• The proposed building adopts an appropriate urban form, looking like a child-care centre rather than looking like a dwelling house especially as it is located on the edge of a dense residential area. It does not need to the same as the surrounding dwelling houses, rather it should be and is compatible with them.

• The proposal satisfies the DCP 2000 requirement that new development should provide interesting articulated and proportioned facades.
• The consolidation of the three existing lots does not impact on the (non-existent) regular subdivision pattern.

Court's Conclusions - Streetscape and Character

35 I agree with Mr Darroch and Ms Lillie that a child-care centre need not and probably should not try to appear as anything but a child-care centre and the proposal seems to have achieved this. Similarly, as Miss Lillie says, urban design allows the function of new development to be clearly expressed in its form whilst fitting in with its environment/locale, but such development must also be responsive to the applicable planning controls. In this regard I have been persuaded by the evidence of Ms Lillie that the proposed building does not meet the planning controls especially in terms of its unsatisfactory response to the predominant characteristics of the Balmain Road streetscape.

36 Because the site is included in the Piperston Distinctive Neighbourhood (Part A of DCP 2000) any development of it is required to be complimentary in architectural style, form and materials to those existing in the precinct. These requirements cannot be disregarded just because Balmain Road comprises the precinct's western boundary. They can however be given less weight because the character of development in the precinct in Balmain Road is somewhat different to that of the remainder of the precinct and thus attracting weight in its own right. What it also means, is because Balmain Road comprises (part of) the precinct boundary this is an indicator that development to the west and outside the precinct can be given less weight in terms of design cues when considering the child-care centre and its response to character and streetscape considerations.

37 In this context, I accept that that the various non-residential buildings (inside and outside the precinct), such as the Scout Hall, contribute to the character of the area and should be considered as part of the streetscape. I nevertheless agree with Ms Lillie that the important determinative elements (or design cues) of the streetscape comprise the existing subdivision pattern and the generally close by small dwellings constructed thereon. In my opinion the built form of the child-care centre is more responsive to the non-residential buildings rather than what I have concluded are the more important determinative streetscape elements.

38 I see no reason why, in response to the objectives of LEP 2000, the built form cannot reflect (what I accept as) the fine-grain subdivision pattern of the area and within the site itself. In this regard the presentation of the proposed building to the street disregards this important consideration. For example, having an articulated built form that reflects the three lots that comprise the site (that is essentially consistent with the prevailing subdivision pattern in Balmain Road) would be an appropriate response to the requirement in DCP 2000 that development sure respect of the existing street pattern. As a result of its single flat plane (including the acoustic screen) facade, I agree with Ms Lillie that the child-care centre is not appropriately responsive.

39 As for building height, as indicated above, I accept that a 7.2 m high non-residential building would not necessarily be unsatisfactory on this site taking into account that this height effectively equates to two storeys, a not unreasonable height (subject to amenity considerations) notwithstanding that many close-by existing buildings are single storey. Whilst the proposed building is not appropriately responsive to the character and streetscape provisions of DCP 2000, I do not accept that it is, in the main, too high.

40 The off-street parking arrangement as proposed is, I accept, likely to be efficient, safe and convenient and not fundamentally unacceptable. Also whilst the manner in which the off-street parking is provided in this instance is uncharacteristic of this part of Balmain Road this does not make it unacceptable, taking into account the traffic generation characteristics of a child-care centre.

41 However I agree with Ms Lillie the proposed car park arrangement does not sufficiently integrate into the design of the development overall and does not provide the necessary visual articulation in its landscaping design, and different surface treatments as required by DCP 2000. The landscape design seems to have been produced on the basis of providing plantings within small, by comparison with the size of the car park, residual areas of land.

42 Relative to its neighbours this building together with its acoustic screens is a large building and as required by DCP 2000 landscaping is required to reduce impacts on adjacent residential properties. In this regard and notwithstanding the provision of the stormwater floodway, I agree with Ms Lillie that, absent a reduction of the size of the building at the rear, the absence of some softening landscaping is problematical.

43 The external walls of the child-care centre are to be finished in cement render unlike many of the dwelling houses in Balmain Road that are of brick and tile construction. In my opinion the use of cement render is not a reason to reject the application because this is used in on other non-residential buildings in the locality. Instead it is the form of the building itself that is unsatisfactory, despite its inherent quality.

44 Finally, in relation to streetscape and character, I have no difficulty in accepting that it is possible to design a building for this site that can be recognised as a child-care centre that is also sensitive to the surrounding built environment but what is now proposed does not achieve this.

Planning controls

45 As referred to above the vision of LEP 2000 includes the need to protect and maintain residential amenity by minimising adverse impacts. In this context Pt B 3.0 of DCP 2000 - Residential Amenity contains provisions relevant to this proposal.

46 Cl B3.1 deals with solar access and residential amenity. The relevant principle is:

• Minimise overshadowing of the habitable rooms and private open space of existing housing

47 The relevant applicable controls comprise:

• Maintain solar access to existing housing
• Where an existing adjacent building has an east-west orientation:
Maintain solar access to the habitable side rooms for a minimum period of two hours between 9 a.m. and 3 p.m. at the winter solstice.
• Where solar access already exists to the private open space of adjacent dwellings ensure it is maintained over a minimum of 50% of the private open space for a minimum period of three hours.

48 The acoustic privacy principle in cl B3.5 provides that:

• Protect internal living and sleeping areas from high levels of off-site noise

49 Cl B1.1 of DCP 2000 in dealing with residential development contains the following principle:

• Design new housing to integrate well with the neighbourhood and be consistent with and enhance existing street subdivision patterns, street character and maintain amenity to adjacent residents.

50 Cl B1.2 contains building location zone guidelines. The effect of these guidelines, by constructing a rear building line based on the rear alignment of the adjoining dwellings to the north and south is to create an area at the rear of the site where development should not take place. If it is proposed to build outside this zone it is necessary to relevantly justify the non-compliance in terms of:

• Visual aspect of the bulk and scale as viewed from adjoining properties,
• Amenity to adjacent properties (ie sunlight, privacy, views),
• Location and retention of existing significant vegetation,
• The existing streetscape and character and scale of surrounding development.

51 Notwithstanding that this principle and the building location zone guidelines apply to new housing I see no reason why it should not also be considered in relation to non-residential development where the site is surrounded by residential development

52 Ms Lillie raises a number of concerns with the proposed development in relation to its impacts on the amenity of the residential properties adjoining the site

• The proposed two-storey building vastly overshadows the rear open space of 151 Balmain Road, contrary to the requirements of DCP 2000. This overshadowing is a result of the height of the building and its position close to the site's rear boundary.
• The requirements of DCP 2000 should be applied irrespective of who owns the affected property.
• The neighbours to the rear of the site at 19 (to some extent), 21 and 23 Waratah Street will be unreasonably enclosed as a result of the proposed building's bulk and scale.
• The proposal exceeds the 3.6 m maximum wall height and the building's height contributes to the loss of amenity for neighbours. The limited articulation of the building will not be read from the adjoining rear properties and from 151 Balmain Road.
• No landscaping is provided to soften the appearance of the building.
• Non-residential land uses should not be permitted at the expense of neighbour amenity especially when they do not comply with the planning controls.

53 Mr Darroch's contradictory evidence includes:

• The location of the building towards the rear of the site is what currently occurs on the nearby school and college sites. Also the existing warehouse that dominates the site is developed to within 1.3 m of the rear boundary.
• Landscaping has not been provided along the rear boundary because of the provision of stormwater drainage facilities (to the benefit of the neighbours at the rear).
• The positioning of the proposed building at the rear of the site whilst eliminating solar access to the rear yards at the winter solstice enables the habitable windows to maintain their solar access. The absence of solar access to rear yards is relatively common in narrow east-west facing residential properties.
• The applicant acquired the dwelling at 151 Balmain Road at market value so that the current owner would suffer no loss of amenity and no loss of value.

Court's conclusions-residential amenity

54 As indicated above DCP 2000 requires the minimisation of overshadowing of habitable rooms and private open spaces of existing housing. Clearly, the proposal maintains good solar access to the north facing windows of 151 Balmain Road and meets the applicable controls. However the proposal completely overshadows the rear yard (private open space) of that property by comparison with the good solar access presently available. Plainly the applicable controls will not be met and the amenity of this property will be adversely affected.

55 As indicated by Mr Darroch the applicant acquired 151 Balmain Road so that the current owner would financially suffer the resulting amenity impacts on this property.

56 As a matter of principle it cannot be the case that simply by acquiring an adjacent property the amenity impacts resulting from a development carried out by the same owner should be disregarded. It may have been different if the two sites were to be amalgamated and incorporated into the subject development but this is not the case here. Hence, 151 Balmain Road can (unless some approval for another land use is granted) be expected to continue to comprise a dwelling house and, contrary to what would happen if the child-care centre were to proceed, with an appropriate level of amenity.

57 It was also submitted by the applicant that the overshadowing impact on the rear yard of 151 Balmain Road is counterbalanced by the good solar access to the house itself. Whilst I understand and have some sympathy for this argument this must be considered in the light of the solar access controls in DCP 2000 that require the maintenance of solar access to both the dwelling and the open space. Having examined an aerial photograph of this locality I do not accept the proposition that the absence of solar access to rear yards is relatively common in narrow east-west facing residential properties.

58 Whilst Ms Filitonga and Ms McInnes accepted that the properties would not be subject to overlooking from the child-care centre they were most concerned as to the bulky appearance of the proposed building so close to their backyard areas that constitute their private open space, notwithstanding that the size and location of the existing factory building.

59 Adding these matters to the concerns of Mr Borsato (whose property adjoins the site to the north) regarding the appearance of the more than 3 m high acoustic fence on his boundary, I have decided that the child-care centre is not sufficiently respectful of surrounding residential development, taking into account the cumulative adverse impacts on its neighbours to the north, east and south.

Aircraft noise

60 In his report Mr Cooper notes that whilst he previously concluded that the proposed development was unacceptable, the provision of supplementary material has resolved most of acoustic issues involving impacts on neighbouring residences. This has mainly been achieved by the provision of noise barriers around of the children's' play areas.

61 In relation to noise generated by aircraft overflights he was of the opinion that whilst not necessarily interfering with children undertaking free play this has the potential to interfere with the comprehension by children of instructions from staff and may thus be a safety issue. In this regard he suggests that if the Court considers the development necessary by reference to Australian Standard AS 2021 – 2000 – Acoustics - Aircraft noise intrusion-Buildings siting and construction (" AS 2021"), then the noise control measures would be satisfactory.

62 In the preface to AS 2021 it is stated that the standard is to provide guidance on the siting and construction of buildings in the vicinity of airports to minimise aircraft noise intrusion into those buildings. In section 1.1 it specifically excludes the acceptability of outdoor spaces that might be affected by aircraft noise. It nevertheless recommends in section 2.3 .3 that for residences, schools, etc, the effect of aircraft noise on outdoor areas associated with the buildings should be considered.

63 In this regard the applicant emphasises that AS 2021, is a set of guidelines that can be taken into consideration. Even taking the standard into account the limited and irregular overflights of this site are such that this issue should not be determinative of the application.

64 Whilst it is clear that communication with children in the outdoor play areas when aircraft are passing over the site will be difficult I have not been persuaded that this would occur to such an extent as to be so problematical that this site should not be used as a childcare centre. I also recognize that there are several other similarly affected existing/approved child-care centres in the locality.

Conclusions

65 Whilst I am satisfied that the child-care centre, including its car parking arrangement would function well, I have been persuaded by the evidence marshalled on behalf of the council that its impacts on the neighbouring properties to the east and south and on the streetscape and character of the area are such that it should not be approved.

66 The planning controls, particularly those in DCP 2000 contain many (perhaps too many) detailed requirements for the design of buildings that are applicable to this proposal and I am satisfied that a number of these are not met.

67 I acknowledge Miss Lillie's evidence that she could support a childcare centre in this particular location and accept that there is most likely a demand for additional child-care places in Leichhardt. I also accept that the child-care centre would provide a community benefit for this locality, particularly in the context of there being a high school and two primary schools nearby. The removal of the existing unattractive factory building and its replacement with a building having architectural merit is also of benefit.

68 However these matters do not attract the kind of weight sufficient to overcome the proposal's failure to meet the applicable provisions of the planning controls. Instead, as suggested by Ms Lillie, what is needed for this site is a development comprising landscaping, parking and built form that is responsive to the applicable planning controls.

69 In the circumstances I have not been persuaded that the proposal is relevantly consistent with the objectives of LEP 2000 especially in relation to the protection and enhancement of the area's character and appearance and neighbour's amenity. Hence, despite its comfortable compliance with the maximum floor space ratio development standard, because the proposal fails to satisfy cl 7(3) of LEP 2000 and is not appropriately responsive to the provisions of DCP 2000, the application must be refused.

___________________

T A Bly
Commissioner of the Court
Cc/ljr