Universal Childcare Pty Limited v Warringah Council
[2007] NSWLEC 197
•13 April 2007
Land and Environment Court
of New South Wales
CITATION: Universal Childcare Pty Limited v Warringah Council [2007] NSWLEC 197 PARTIES: APPLICANT:
Universal Childcare Pty Limited
RESPONDENT:
Warringah CouncilFILE NUMBER(S): 10041 of 2007 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Whether the proposal is consistent with the desired future character of the area. LEGISLATION CITED: Warringah Local Environmental Plan 2000, (WLEP2000)
Environmental Planning and Assessment Act 1979, ss79C and 97DATES OF HEARING: 10/04/2007
DATE OF JUDGMENT:
13 April 2007LEGAL REPRESENTATIVES: APPLICANT:
Ms S Duggan, barrister, instructed by
Mr A J Whealy, solicitor
SOLICITORS:
GadensRESPONDENT:
Mr A Hudson, solicitor
SOLICITORS:
Wilshire Webb
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
13 April 2007
10041 of 2007 – Universal Childcare Pty Limited v Warringah Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal of Warringah Council (the council) of a development application to demolish three existing residential dwellings and associated structures and to erect a single-storey, eighty-six (86) place childcare centre and car parking twenty-two (22) vehicles (including basement carparking) at Lots A/B, DP 370238 and Lot 10, DP12072 being Nos 116-120 Oliver Street, Harbord.
2 I visited the land in company with the parties on the morning of the hearing and heard from local residents who were particular concerned for likely adverse traffic and noise impacts.
3 I have concluded that the Oliver Street streetscape, the salient issue remaining between the parties, would not be so adversely impacted upon as to warrant refusal of the application when considered under s 79C of the Environmental Planning and Assessment Act 1979.
The land
4 The land is situated on the western side of Oliver Street, on the north eastern corner of Robert Street and abutting Harbord Park to the west. Opposite the land in Oliver Street is Harbord Primary School.
5 The land is rectangular in plan, with a frontage of about 40.23m to Oliver Street, a depth of about 45.72m and an area of about 1,840m2.
6 Erected on the three separate allotments that constitute the land are single-storey detached dwellings and associated outbuildings.
7 Harbord, is one of the northern beaches of Sydney and is characterized by single-storey and two-storey detached dwellings. Nearby, a variety of other uses include, the primary school; a high school; public open space; places of worship; service stations and a small number of retail shops. The land is located on public transport routes along Oliver Street and is located less than one (1) km from Harbord Village.
Relevant planning controls
Warringah Local Environmental Plan 2000, (WLEP2000)
8 Under the provisions of the WLEP2000 and the proposal is permissible with consent.
9 Clause 12(1) of the WLEP2000 states that before granting consent for development, the consent authority must be satisfied that the development is consistent with:
· any relevant General Principles of Development Control in Part 4, and
· any relevant State Environmental Planning Policy described in Schedule 5 (State policies).
10 Clause 12(2) of the WLEP2000 states that before granting consent for development, the consent authority must be satisfied that the development will comply with the relevant requirements made by Parts 2 and 3 of the WLEP2000, and development standards for the development set out in the ‘Locality Statement’ for the area in which the development will be carried out.
11 Clause 12(3) of the WLEP2000 states that before granting consent for development classified as Category Two or Three the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant ‘Locality Statement’ but nothing in a description of desired future character creates a prohibition on the carrying out of development.
12 The proposed Childcare Centre is described as a Category 2 land use under WLEP2000.
13 Clause 18(1) states that built-form will be controlled in accordance with the general principles of development control and the desired future character statement set out in the ‘Locality Statement’.
14 Clause 20(1) states that, notwithstanding Clause 12(2)(b), consent may be granted to proposed development even if the development does not comply with one or more development standards, providing the resulting development is consistent with the general principles of development control, the desired future character and any relevant state environmental planning policy.
15 The subject land is located within the F5 - Curl Curl Locality under the WLEP2000.
16 The desired future character statement for the F5 Locality is:
- The Curl Curl locality will remain characterised by detached style housing in landscaped settings interspersed by existing apartment style housing and a range of complementary and compatible uses. The land containing the existing Bowling Club at Lot 2682 DP 752038 on Abbott Road and the land containing the existing Harbord Bowling Club at Lot 4 DP 609758 on Stirgess Avenue will continue to be used only for recreation facilities.
Future development will maintain the visual pattern and predominant scale of detached style housing in the locality. The streets are to be characterised by landscaped front gardens and front building setbacks, which are consistent with surrounding development. The exposed natural sandstone rock outcrops throughout the locality will be maintained. Development on prominent hillsides or hilltops must be designed to integrate with the landscape, topography and long distance views of the hill. Unless exemptions are made to the housing density standard in this locality statement, any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality.
The locality will continue to be served by the existing local retail centres in the areas shown on the map. Future development in these centres will be in accordance with the general principles of development control provided in clause 39.
17 The maximum housing density under the F5 - Curl Curl - Built Form Controls is 1 dwelling for 450m2 of site area (which does not include the area of any access corridor, whether such access corridor is to be created or is in existence at the time of application for development consent).
18 To measure housing density:
· the site area is divided by the number of dwellings proposed on the site, including any existing dwellings which are to be retained,
· the site is the allotment which existed on the day this plan came to effect,
· granny flats are not considered to be a dwelling and are limited to one per allotment.
19 In calculating housing density, the area of any access corridor (including any right-of-carriageway, access handle, accessway or other area that provides for vehicle access) is to be excluded, whether that access corridor is to be created or is in existence at the time of application for subdivision. This control does not apply:
(a) where this standard would prevent an existing allotment accommodating one dwelling,
(b) for housing for, older people or people with disabilities, where the site area per dwelling may be reduced provided the buildings are sited and designed and landscaping is used to ensure the development relates favourably to the pattern, scale and landscape character of the street and surrounding development and the development conforms with the minimum standards set out in clause 29,
(c) for housing located within a local retail centre.
20 Buildings are not to exceed 8.5 metres in height, where height is the distance measured vertically between the topmost point of the building (not being a vent or chimney or the like) and the natural ground level below. Buildings are not to exceed 7.2 metres from natural ground level to the underside of the ceiling on the uppermost floor of the building (excluding habitable areas located wholly within a roof space), but this standard may be relaxed on sites with slopes greater than 20 per cent within the building platform (measured at the base of the walls of the building), provided the building does not exceed the 8.5 metre height standard, is designed and located to minimise the bulk of the building and has minimal visual impact when viewed from the downslope sides of the land.
21 Development is to maintain a minimum front building setback. The minimum front building setback is 6.5 metres. The front building setback area is to be landscaped and generally free of any structures, carparking or site facilities other than driveways, letterboxes and fences. Consent may be given for development to be carried out within the minimum front setback area:
· on corner blocks or blocks with double street frontage the front building setback may be reduced to a minimum of 3.5 metres for the secondary frontage, but secondary street setback variations must consider the character of the secondary street and the predominant setbacks existing to that street, or on allotments constrained by the location and use of existing buildings or the topography, if it is for the provision of carparking.
22 The town planning experts agreed that Oliver Street is the secondary street frontage.
23 The minimum rear-building setback is 6 metres. The rear building setback area is to be landscaped and free of any structures. To measure the rear building setback:
· the rear building setback is the distance measured perpendicular to the boundary furthest from a public street up to any structure on the allotment. The rear-building setback does not apply to corner allotments. The rear-building setback may be encroached by exempt development, swimming pools and outbuildings, which, in total, do not exceed 50 per cent of the rear setback area.
24 Buildings must be sited within an envelope determined by projecting planes at 45 degrees from a height of 5 metres above natural ground level at the side boundaries. The minimum setback from a building to a side boundary is 0.9 metres. To measure the side boundary envelope and side setback:
· on corner allotments the side boundaries are taken to be the boundaries that do not have frontage to a public street. Fascias, gutters, downpipes, eaves up to 0.675 metre from the boundary, masonry chimneys, flues, pipes, or other services infrastructure may encroach beyond the side boundary envelope. Screens or sunblinds, light fittings, electricity or gas meters, or other services infrastructure and structures not more than 1 metre above natural ground level such as unroofed terraces, balconies, landings, steps or ramps may encroach beyond the minimum side setback. Consent may be granted for development that, to a minor extent, does not comply with:
· the side boundary envelope, to allow the addition of a second storey to an existing dwelling, or
· the side setback, to allow a single storey outbuilding, carport, pergola or the like.
25 The minimum area of landscaped open space is 40 per cent of the site area. To measure an area of landscaped open space:
· impervious surfaces such as driveways, paved areas, ,roofed areas, tennis courts, car parking and stormwater structures, decks and the like and any areas with a width or length of less than 2 metres are excluded from the landscaped open space area,
· the water surface of swimming pools and impervious surfaces which occur naturally such as rock outcrops are included in the landscaped open space area, landscaped open space must be at ground level, and
· the minimum soil depth of land that can be included as landscaped open space is 1 metre.
26 The applicable general principles of development control are:
· Clause 38 - Glare and Reflection;
· Clause 42 - Construction Sites;
· Clause 43 – Noise;
· Clause 44 – Pollutants;
· Clause 51 - Front-Fences and Walls;
· Clause 53 - Signs;
· Clause 54 - Provision and location of utility services;
· Clause 62 - Access to sunlight;
· Clause 63 - Landscape open space;
· Clause 65 - Privacy;
· Clause 66 - Building Bulk;
· Clause 67 - Roofs;
· Clause 68 - Conservation of Energy and Water;
· Clause 69 - Accessibility - Public and Semi-Public Buildings;
· Clause 70 - Site Facilities;
· Clause 71 - Parking Facilities (Visual Impact);
· Clause 72 - Traffic Access and Safety;
· Clause 74 - Provision of Car parking;
· Clause 75 - Design of car parking areas;
· Clause 76 - Management of Stormwater;
· Clause 77 – Landfill;
· Clause 78 - Erosion and Sedimentation; and
· Clause 82 - Development in the vicinity of heritage items.
Schedules
(i) Schedule 4 - Prohibited Signs
(ii) Schedule 8 - Site Analysis
(iii) Schedule 17 - Carparking Provision
The proposal and its history
27 Development application No 2006/1102 was lodged with the respondent council on 9 November 2006 to demolish existing buildings and to erect a childcare centre on the land.
28 The proposal is described in plans prepared by Raymond Design Drawing Nos RD06190, Pod 2, dated 16 October 2006; Pod 3, dated 16 October 2006; Pod 4, dated 16 October 2006; Pod 5, dated 16 October 2006; Pod 6, dated 16 October 2006; Pod 7, dated 16 October 2006; Pod 8, dated 25 October 2006 and Pod 9, dated 25 October 2006.
29 Vehicular access is proposed to a basement car park via a 1:16 ramp with five temporary car parking spaces access off this ramp.
Notification
30 Council letter dated 31 January 2007 notified the application to nearby owners and occupants and the council received 3 submissions and one (1) petition with twelve (12) signatures. Concerns were related to inconsistency with the desired future character (DFC) of the area, increased traffic volumes and inadequacy of the local roads to cater for these, noise associated with the use.
The council’s decision
31 When the appeal was filed the council had not determined the application.
The hearing
32 The appeal was filed on 9 November 2006 as a deemed refusal.
33 At the hearing the court heard evidence on behalf of the respondent council from Mr R Piggott, Planning Officer, Warringah Council. Mrs I Watt of No 103 Oliver Street, Harbord; Mr C Nash of No 122 Oliver Street, Harbord; Mr J Hogan of No 1 Robert Street, Harbord; Mr K Bourke, No 7 Waratah Street, Harbord; Mr M Taylor of No 54 Brighton Street, Harbord, gave oral evidence.
34 On behalf of the applicant Mr A Darroch, planning consultant, gave oral evidence.
35 Mr R Piggott, prepared the statement of basic facts dated 5 March 2007.
The issues
36 On 22 February 2007 the council filed a statement of issues.
- Setbacks
· Clause 12(2)(b) of Warringah Local Environmental Plan 2000 ("WLEP 2000"); and
· Front building setback requirements of the F5 - Curl Curl Locality Statement.
- Building Bulk
· Clause 12(1)(a) of WLEP 2000;
· General Principle 66 - Building Bulk and General Principle 67 - Roofs of the General Principles of WLEP 2000.
- Landscaping
· Clause 12(2)(b) of WLEP 2000; and
· Landscaped Open Space of the F5 - Curl Curl Locality Statement.
- Desired future character
- Particulars
- The Curl Curl locality will remain characterised by detached style housing in landscaped settings interspersed by existing apartment style housing and a range of complementary and compatible uses.
Future development will maintain the visual pattern and predominant scale of detached style housing in the locality. The streets are to be characterised by landscaped front gardens and front building setbacks, which are consistent with surrounding development.
· Clause 12(2)(b) together with clause 20(1) of WLEP 2000;
· Clause 12(3)(b) of WLEP 2000.
- Noise
- Emissions and odours
· Clause 12(1)(a) of WLEP 2000; and
· General Principle 44 - Pollutants of the General Principles of WLEP 2000.
- Accessibility
- Particulars
· Clause 12(1)(a) of WLEP 2000; and
· General Principle 69 - Accessibility - Public and Semi-public Buildings of the General Principles of WLEP 2000.
- Signs
· Clause 10(b) and Schedule 4 (Prohibited Signs) of WLEP 2000.
- Inadequate Information
· General Principle 76 - Management of Stormwater,
· General Principle 51 - Front Fences and Walls and
· General Principle 53 - Signs of the General Principles of WLEP2000.
- Issues Raised by Objectors
10) The following additional issues have been raised by objectors:
a) unreasonable increases in traffic generation causing traffic safety concerns, especially in Robert Street;
b) hours of operation may be increased; and
c) waste management arrangements.
37 Ms M Sutherland, the council’s Disability Development Officer stated:
- The following are comments related to general disability access issues only. An Access Consultant report would outline in detail what is required to meet the legislative requirements of the Disability Discrimination Act.
· As a public building housing a child care service catering for 86 children, provision for equal access for children with disabilities to be able to attend the centre would be recommended: This would be in accordance with Australian Standard AS 1428.3 ‘Design for Access and Mobility’, Part 3: Requirements for Children and adolescents with physical disabilities. In the standard details are given for different childrens’ age groups and types of disability and mobility difficulties. In the case of the childcare centre the Standards for children aged from 3 years to 61/2 years would apply.
· The accessible parking space provided meets the recommended standard for width being 3.5 m, however falls short in length being 5.4m and the standard 5.5m. The accessible parking space appears to be located close to the access ramp at the front of the building as this is the preferred location for accessible parking. One accessible space for 22 parking spaces meets the standard.
· The Disabled Access ramp at the front of the building has a width of 1200mm -which is adequate. The length of the ramp is not identified, however is stated to have a gradient of 1:14 max. If this is the case a landing would be required for every six metres of ramp for general public use. However according to the Standard- the length between landings for all disability groups in the 3 - 6112 age group is from 2.2m to 4.2m depending on the gradient of the ramp.
· The presence of handrails on the ramp is not identified on the plans, however would be required to be continuous and available on both sides of the ramp -and also the stairs. Handrails for children with disabilities in this age group on the ramp are required to be 860mm from the walking surface to the top of the handrail, 825mm for the landings and 860mm for the stairs. For adults the distance would be from 865 to 1000mm. This would indicate that a double handrail would need to be installed to meet the needs of both children and adults.
· Tactile indicator tiles would need to be positioned on the ground at the start and finish of both ramp and stairs and would need to be 300 - 400mm in width.
· All doorways need to have a clear opening space of 850mm with adequate circulation space.
· There is provision for an accessible toilet, which is located in between the kitchen and laundry. This would not be appropriate for use by any of the children using the centre due to its location and that toilet facilities accessible to adults are required. The children in the two 3-5 groups appear to have access to five toilets -at least one of these would need to meet the requirements for children with disabilities in relation to height of the seat pan (325mm for ambulant children and 470mm for wheelchair users in the 3-61/2 age group). In addition the height of the washbasin would need to be of sufficient height to meet the needs of a child with a disability in that age group (650mm for ambulant and 715mm for wheelchair based child) and to have taps of the lever type.
· There were insufficient details to determine whether the Accessible toilet in the plans meets the standard. The door appears to be sliding which is good, however width would need to be 850mm. Sufficient circulation space of 2300mm by 1900mm would be required. Handrails at a height of 800mm would need to be fitted beside the toilet. Height of the seat pan, washbasin and switches, soap and towel dispensers would all need to be heights to meet the standards. Taps ideally would be lever type.
· Another observation is that there appears to be no staff toilet/bathroom facilities.
· The outside play area for the children would need to have an accessible path of travel for children to access all the play equipment and make use of the shade available.
38 Before the hearing commenced many of the issues were resolved and conditions were added and the salient issue was whether the proposal, and in particular the Oliver Street frontage, would be consistent with the desired future character of the area both at a broad and local scale.
The evidence and findings
Desired future character of the area
39 Under the provisions of the WLEP2000 the consent authority, in this case the Court, must be satisfied that Category 2 development, such as a childcare centre, is consistent with the desired future character, (DFC) described in the relevant Locality Statement, [Note: Exhibit 4, cl 12(3)(b), p 11].
40 The DFC for the F5 locality is set out above. The proposal is for a single-storey building, cut into the ground around 1m at the southern end of the Oliver Street frontage, setback 3.5m with a veranda roof set forward of the main elevation. Also, in the Oliver Street setback there would be shade structures. At the northern and southern ends of the Oliver Street frontage it is proposed to provide deep soil planting for trees and bushes and to augment the street tree planting in the Oliver Street verge. To the Oliver Street frontage the applicant has proposed a 1.5m open picket-style fence.
41 Before the hearing commenced the town planners had agreed that Oliver Street could be considered the ‘secondary street frontage’ under the WLEP2000. Up to that time, the council had considered Oliver Street to be the ‘primary street frontage’. This was reflected in Issue 1 and the council had required the building to be setback 6.5m to conform to the requirements for the primary street frontage under WLEP2000, [Note: Exhibit 4, p 450 front building setback]. Despite the concession that Oliver Street may be considered the secondary street frontage and would only be required to be setback a minimum of 3.5m, Mr Piggott maintained that the building should be setback a greater distance and for the front boundary to be landscaped. His main reason for this setback had been to emulate the setback of other dwellings in the street and to increase the landscaped area.
42 The applicant maintained the setback to be satisfactory and not unlike the setback permitted by the council for a childcare centre within a different locality on the corner of Lawrence and Cavill Streets, Queenscliff that the Court in company with the parties visited on the site inspection.
43 The parties agreed that the setback to the primary street frontage in Robert Street complied with the DFC statement. Thus, the only issue for the Court to decide was whether the Oliver Street frontage, would be consistent with the DFC statement for the F5 Locality.
44 Messrs Darroch and Piggott further explained their positions in the witness box. Mr Darroch considered because of the low height of the Oliver Street elevation, the fact that the proposal would be set low on the land, and partially landscaped, the proposal would be consistent with the DFC for the F5 Locality. Mr Piggott sought a greater setback from Oliver Street to permit the provision of increased landscaping and to better fit in with the streetscape.
45 This streetscape issue is discretionary and I prefer the evidence of Mr Darroch to that of Mr Piggott. I accept that the proposal would be low in height on the Oliver Street frontage and the model in Exhibit J clearly shows this. Also the proposal would be set low on the land, when viewed from Oliver Street and the northern and southern ends of that frontage would be landscaped. The remainder of the frontage open picket fenced as shown in the plans. I am satisfied the proposal would be consistent with the DFC for the F5 Locality, and would maintain the visual pattern and predominant scale of detached style housing in the locality and Oliver Street would remain characterised by landscaped front gardens and front building setbacks, consistent with surrounding development. I would not refuse the application for this reason.
Other matters
Noise
46 The residents were concerned that if the proposal were granted consent that noise due to increased traffic flows in Robert Street and the activities of children would be unreasonable.
47 I accept the submissions of Ms Duggan that Mr Marston had adequately dealt with noise within and outside the proposal, [Note: Exhibit F]. He had provided information for assessing future noise impacts and had formed the opinion that the proposal would not undermine the amenity of the neighbourhood. I accept that evidence and I consider it appropriate to impose the Conditions 8, 54, 81 and 96 that relate to control of noise impacts.
Traffic and parking
48 Ms Duggan also referred to the traffic evidence of neighbours and suggested that most were concerned for the existing traffic congestion. She submitted that if no parking were permitted on the southern side of Robert Street between 8.00am to 5.00pm as required by Condition 91 existing traffic congestion would be improved. I accept that some of the present effects would be addressed and that Mr Pindar had adequately addressed the traffic concerns of neighbours and saw no difficulty with the level of service in nearby streets or intersections.
49 Ms Duggan also submitted that the applicant proposed that twenty-two car parking space be provided for staff and visitors and that these will be separately identified. She submitted that if Conditions 27, 94 and 98 were applied to any consent, on-site parking would be provided to ensure that any residual concerns of the residents for on-street parking would be largely resolved. There was no expert evidence or submissions to the contrary and I am satisfied that traffic and car parking issues would not be a reason to refuse the application.
50 For the above reasons, the appeal is upheld.
Conditions
51 The conditions are those in Exhibit 6 as amended during the hearing.
52 During the course of the hearing the applicant agreed to be bound to a condition that would require the pitch of the roof to be increased to 20-degrees and for the roof to be clad in ‘Marseilles’ pattern unglazed terra cotta tiles. This has been included in Condition 35.
53 Despite Mr Piggott’s reservations concerning this change, I accept the evidence of Mr Darroch that the appearance of the proposal and its relationship in the streetscape would be improved if the condition were imposed.
Orders
54 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 2006/1102 lodged with the respondent council on 9 November 2006 to demolish three existing residential dwellings and associated structures and to erect a single-storey, eighty-six (86) place childcare centre and car parking twenty-two (22) vehicles (including basement carparking) at Lots A/B, DP 370238 and Lot 10, DP12072 being Nos 116-120 Oliver Street, Harbord, is approved subject to Conditions 1 to 107 in Annexure A.
3. The exhibits except for Exhibits A, B, C, D, 1 and 6 are returned.
S J Watts
Commissioner of the Court
sw
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
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