Universal Childcare Pty Limited v Waverley Council

[2007] NSWLEC 424

Land and Environment Court

of New South Wales

CITATION:

Universal Childcare Pty Limited v Waverley Council [2007] NSWLEC 424

PARTIES:

APPLICANT
Universal Childcare Pty Limited

RESPONDENT
Waverley Council

FILE NUMBER(S):

11280 of 2006

CORAM:

Tuor C

KEY ISSUES:

Development Application :- child care centre
traffic and parking
increased setback and compatibility with the area
hours of operation
noise and height of acoustic fences
impact on adjoining property
conditions of consent

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Childrens Services Regulation 2004
Waverley Local Environmental Plan 1996

DATES OF HEARING:

30 & 31 May 2007

 
DATE OF JUDGMENT: 

12 July 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan, barrister
SOLICITORS
Gadens Lawyers

RESPONDENT
Mr M Staunton
SOLICITORS
Wiltshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

12 July 2007

11280 of 2006 Universal Childcare Pty Limited v Waverley Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Waverley Council (the council) of a development application (DA 675/2006) under the Environmental Planning and Assessment Act 1979 (the Act) for a child care centre building at 70 – 74 Dover Road, Rose Bay (the site).

2 For the reasons set out in this judgment I have concluded that the appeal should be upheld and development consent granted.

The site and its context

3 The site is located on the northern side of Dover Road, near the intersection of Old South Head Road. It forms part of the land previously occupied by the King David Preparatory School (the former school land extended from 66-74 Dover Road and through to Strickland Street).

4 The site comprises three allotments (lot 27 DP7700 and lots A and B DP306846), which have a combined splayed frontage to Dover Road of about 38m and an area of 1542sqm. The site is occupied by a single storey school building setback from Dover Road and a single storey house that occupies the south east corner of the site. There are a few trees around the perimeter of the site including a large Eucalyptus botryoides (T21) in the north west corner.

5 Adjoining the site to the east is a new dual occupancy development (76A Dover Road). Adjoining the site to the west is part of the former school (66 Dover Road). Council has approved a 40 place child care centre on this land. Further to the west is a Telstra building, which adjoins retail/commercial development that fronts Old South Head Road. To the north the site adjoins part of the former school, which is currently vacant and its future use is unknown.

6 Opposite the site is characterised by two storey houses of varying styles on relatively large allotments.

The proposal and its history

7 The development application was lodged on 9 November 2006 and was notified to adjoining and nearby residents. Council received 20 objections.

8 An appeal against council’s deemed refusal of the application was lodged on 22 December 2006. Council’s Independent Hearing and Advisory Panel and the council officer’s report recommended approval of the application subject to design changes including the further setback of the proposal from the weest boundary. Council refused the application on 22 May 2007.

9 The application proposes the demolition of the existing buildings on site and the construction of a two storey building to accommodate two child care centre with a total of 112 children and basement car parking for 18 cars (4 staff and 14 customer spaces).

Planning Framework

10 The site is zoned 5(a) Special Uses (School) under Waverley Local Environmental Plan 1996 (LEP 1996). The proposal is permissible with consent. The rest of the former school site is also zoned 5(a). Land to the east and south is zoned Residential 2(b).

11 Waverley Development Control Plan 2006 (the DCP) applies to the site. Part E provides controls for child care centres and Part I relates to Land Use and Transport.

The evidence

12 The Court heard acoustic evidence from Mr S Cooper, the court appointed expert and Mr N Koikas, for the applicant. Mr C McLaren, for the council and Mr G Pindar, for the applicant provided traffic evidence. Mr A Darroch, town planner for the applicant provided oral evidence. Council chose not to provide any expert planning evidence.

13 The Court heard evidence on site from a number of residents whose main concern was the cumulative impact of the child care centres on this site and the adjoining site (66 Dover Street), particularly the traffic likely to be generated and its impact on queuing to Old South Head Road. The residents considered the parking provided on site to be inadequate and the basement arrangement to be unacceptable. They were concerned that parents would park in the street to take their children to the centre and utilise either resident parking spaces or double park. In addition the residents were concerned about the size of the centres and combined number of children and the hours of operation, which exceeded those of the former school. They considered the building to be uncharacteristic of the residential area with insufficient setback and landscaping.

14 Ms S Bartley, 76A Dover Road was concerned about the noise, privacy and overshadowing impacts of the proposal on her property. She expressed concern that the design of the acoustic fence would be unacceptable when viewed from her rear outdoor area. During the hearing the acoustic experts proposed an alternate solution that reduced the height and the visual impact of the fence. Mr Darroch prepared an assessment of the impact of the proposal on solar access and privacy.

15 In relation to solar access, the proposal is set back further from the east boundary than the existing house on the site and there is no material increase in height or length. The proposal is therefore likely to reduce the overshadowing impact when compared to the existing house. In relation to privacy, Mr Darroch prepared sight lines and proposed an alternate arrangement for the shade structure over the play area which would mitigate any impacts.

16 The Amended Statement of Issues before the Court contained 9 issues. A number of issues were resolved through expert evidence or conditions. The key issues can be summarised as whether:

i) the traffic and parking arrangements are acceptable, particularly the proposed basement car park.
ii) the proposal should be setback further from its western and northern boundary.
iii) the hours of operation should be reduced.
iv) the noise impacts of the proposal and the acoustic fences are acceptable.

Traffic and Parking

17 Council raised the traffic impacts of the proposal and the adjoining centre in the Statement of Issues. The residents also raised this issue. The traffic experts agreed that the traffic impacts of the proposal were acceptable and council did not press this issue.

18 In summary Mr McLaren and Mr Pindar agreed in their joint statement that:

Overall traffic impact is considered to be acceptable and will not adversely affect the amenity of adjoining residential areas, particularly in light of the significant reduction in traffic along the Dover Road frontage for the 8am to 4pm weekday period.

The previous use of the site as preparatory school generated some 200 vehicles/hour in the AM (8-9) and some 180 vehicles/hour in the PM (3-4). This compares to about 80 vehicles/hour in the AM & PM (5-6) peaks with this development.

The adjoining proposed child care centre will generate some 40 vehicles/hour during both peak periods.

It is agreed that there will be a net increase in traffic between 4pm and 6pm on weekdays. However, these levels, which equates to two vehicle trips per minute associated with both centres (with the majority, ie 70%, of those being to and from the west, via Old South Head Road) will not happen unacceptable impact.

19 Mr McLaren and Mr Pindar held different opinions about the basement car park arrangement. They agreed that the number of spaces provided complied with the DCP and would meet the demands of the development. However, Mr McLaren was concerned that parents may not be aware of the availability of on site parking and therefore may not use the basement, preferring to park in the street. He stated that:

the best practice approach is to provide an on site car park that is readily discernable for use by parents/carers, which includes a drive-through facility with separate entry and exit, which is best achieved by a surface car park, particularly for large-scale child care centres. Basement car parks that are not readily discernible should be for staff use only.

20 Mr Pindar considers that:

Reliance on basement parking represents the optimal arrangement and parents/carers will be regular users and will prefer to park on site.

Use of parking would be maximised by the introduction of appropriate signposting…..

The use of basement parking is appropriate and will remove all traffic activity from the street, while enabling other planning benefits such as maximisation of landscaping and reducing noise. The provision of basement parking only for 4 staff under council’s DCP is not economical.

21 The experts agreed that the basement, as amended, would comply with AS28790.1-2004. However, Mr McLaren considered that a footpath should connect each of the parent/carer car spaces to the entry. Mr Pindar considered the arrangement, which provided a pedestrian footpath along the south side of the car park connecting to the lift lobby to be safe. He considered that a further footpath along the north wall would be unlikely to be used as parents would take the most direct route. Further, he noted that the arrangement of crossing of aisles was no different to what had been approved for the adjoining child care centre, which relied on parking onsite as well as kerbside parking to meet its parking needs. Mr Pindar raised no objection to the staff parking being moved to the north side of the car park to enable a greater number of parent/carers to have access to the footpath provided.

Findings

22 The experts agree that the proposal will not adversely impact on traffic or the amenity of the residential areas. I accept these conclusions. The parking provided on site complies with the requirements of the DCP. The DCP does not provide any guidance as to whether basement car parks are preferred or discouraged, other than Objective 1.2(b) which aims to:

Ensure that the provision of off street parking is subject to considerations of urban design, streetscape and heritage conservation.

23 It would not be feasible to provide surface parking to meet the needs of the development proposed. Nor would it be a desirable outcome for the streetscape if the setback area were to be utilised for parking rather than landscaping. The adjoining site provides parking within the front setback and also relies on off street parking. In contrast, the proposal meets the likely demand for its parking on site. In addition, spaces in the street which previously had parking restrictions during the morning and afternoon drop off and pick up periods for the former school will be unrestricted and available for use by residents.

24 While parents/carers may utilise car parking spaces on the street if these are conveniently located, I accept they will also use the basement car park. As regular users of the site they will be familiar with the basement and its layout. The experts agree that the basement can meet the likely demand for spaces and the turnover time required for drop offs and pick up. I accept Mr Pindar’s evidence that the basement will be utilised and will be safe.

25 In relation to Mr McLaren’s concern about the footpath. The proposed basement design complies with the Australian Standard. Eight of the 14 spaces for parents/cares have access to the lift lobby via a footpath. I accept that the arrangement for the other spaces achieves an acceptable level of safety given the users of the site and the size of the car park.

26 The applicant objected to condition 1A(l) and 5C. Condition 1A(l) requires the four staff spaces to be allocated opposite the driveway which provides greater access to the footpath for parents and carers. I have therefore retained this condition.

27 Conditions 5C requires that there be no manoeuvring of staff vehicles in the morning and afternoon peak periods. Staff will be arriving and leaving during these periods and will access the parking spaces. I have therefore deleted this condition as it is unreasonably restrictive.

Increased setback

28 Council proposed the following condition 1A:

(a) The western elevation is to be setback a minimum of 2m from the western side boundary. This is to allow for adequate separation, relief within the streetscape, and to allow for additional planting within the side setback to provide for a landscaped buffer between sites;

(b) The rear cantilevered balcony at the upper level shall be deleted. That is, the rear first floor terrace is not to extend beyond the rear building line of the ground level. This is to provide for adequate separation and minimise any potential amenity impacts between the first floor play area and to any future residential development to the rear, fronting Strickland Street.

29 The applicant objected to the proposed amendments and council did not provide any evidence in support other than the council report which states:

The rear setback ranges from 3.5-17m, which is considered to be generally acceptable. However, it is considered that the cantilevered section of the upper level to the rear should be deleted which would ensure a minimum rear setback of approximately 5m for the development and minimise amenity impacts to any future residential development to the rear, fronting Strickland Street. It is considered the awnings could be provided to the rear instead if shade/weather protection were required to the rear doors/windows of the ground floor level. It should be noted that the area of outdoor playscape for the child care centre on the upper level would still comply with numeric requirements (7m per child) with this cantilevered section deleted…..

The proposed side setback to the western boundary of 937mm is not considered to be adequate. Although this side boundary abuts a site that is also zoned for school use which has a development application currently under assessment for a child care centre, it is recommended that the side setback be increased to a minimum of 2m to allow for adequate separation between buildings, provide relief within the streetscape and allow for additional planting within the side setback.

30 Mr Darroch considered the side setback to be acceptable given the context of the approval of a two storey child care centre built to its east boundary on the adjoining site (66 Dover Road) and the three storey Telstra building on the corner. He noted that 66 Dover Road and the proposal are setback a similar distance from the street frontage at their common boundary. While the frontage would appear as a continuous façade, Mr Darroch considered this to be acceptable as the buildings were different in design, articulated with different materials and setbacks along the length of their front façade and softened by landscaping. He stated that 900mm was the typical side setback for two storey houses in the street. In his opinion the proposal formed an appropriate transition between the commercial buildings on Old South Head Road and the residential development in the street with a minimum setback of 6m to 76A Dover Road.

31 Mr Darroch also considered that the rear setback should be considered in the context of the approval for 66 Dover Road. The child care centre on 66 Dover Road is single storey built to its north boundary (with a second storey setback one metre) and two storeys built to its east boundary. In contrast the upper level of the proposal has a minimum setback of 3.5m which increases to about 17m. The adjoining site to the north is likely to be redeveloped in the future but to date its future use is not know.

32 In Mr Darroch’s opinion it is unnecessary to set back the proposal further from the north boundary. The current setback provides sufficient space for landscaping, the bulk and scale of the proposal is acceptable and the height of the balustrade to the play area will mitigate any privacy impacts. Mr Darroch agreed that the glazed infill sections of the balustrade should be obscure glass and a condition to this effect has been included (1A(d)). The acoustic experts agree that the play area on the second storey will not result in an exceedence of the noise criteria. On this basis Mr Darroch considered that the setback was greater than the adjoining building at 66 Dover Road and would not result in any adverse amenity impacts for future development of the adjoining site to the north.

33 I accept Mr Darroch’s evidence and have deleted conditions 1A(a) and (b). A greater setback to the west would be desirable to provide landscaping and further separation between the childcare centres on the adjoining sites. However, the proposed setback is consistent with the setbacks in the area. The proposal is within a Special Uses (school) zone and is consistent with the objectives and character envisaged for that zone and development along Old South Head Road. Clause 32 of LEP 1996 requires that regard be given to the objectives for the adjoining 2(b) Residential zone. The two storey height of the proposal, its considerable side setback from 76A Dover Road and the landscaped setback from the street frontage result in a development that, while different to a dwelling, will be compatible with the residential zone and its objectives.

34 The setback of the proposal to the north boundary varies along its length. The minimum setback in the north west corner is adequate as it will not result in adverse amenity impacts on future development of the adjoining site to the north and is consistent with the approval for 66 Dover Road.

Hours of operation

35 The applicant seeks to operate the child care centres between 7am and 7pm Monday to Friday. The council proposes that this be reduced to 7.30am to 6.30pm Monday to Friday (condition 2). A number of the residents were also concerned about the hours of operation. Council did not provide expert evidence other then the council report which states:

The proposed will hours of operation are considered excessive in regards to the length of time that the children and staff will be present each day and potential amenity impacts on surrounding residents. Furthermore, the previous school hours of operation were generally 9am to 3pm with some students and staff present before and after those core hours. Therefore, it is recommended proposed hours of operation be restricted to 7pm to 6:30pm, which should result in the centre's closing time generally coinciding with the arrival of residents home from work and other daily activities.

36 The evidence of the traffic and acoustic experts is that the proposal will not result in an adverse impact on the amenity of the residents. The hours of operation exceed those of the former school however, the drop off and pick up will be staggered through the morning and evening period. Only a small number of people are likely to arrive between 7am and 7.30am and 6.30pm and 7pm, which will have minimal impact while providing a service for parents whose work commitments require longer hours.

Noise

37 The acoustic experts agreed that the appropriate noise criteria of background plus 5dB(A) would be achieved with acoustic fences along the east and north boundaries (ex O).

38 Council raised issue about the appearance of the acoustic fence from adjoining properties.

Findings

39 An acoustic fence along the east boundary is proposed which will be 3.3m above the level of the outdoor play area, the top 800mm will be poly-carbonate sheeting angled back over the site. The ground level of 76A Dover Road is higher than the proposed play area and the existing lapped and capped fence on that property is to be retained. Only the poly-carbonate section of the new acoustic fence will extend above the height of the existing boundary fence. The angle of the poly-carbonate will reduce its visual impact to an acceptable level. In addition the landscaping along the boundary in 76A Dover Road will screen the fence.

40 The level of the rear play area is proposed to be increased to provide at grade access with the indoor play areas. This has implications for the tree (T21), which is to be retained as well as increases the height of the fence from the adjoining property to the north. In the north west corner of the site the acoustic fence would be about 3.3m above the ground level of the adjoining site. A condition has been included which will requires the level of the play area to be reduced by approximately 0.5m (RL 20.05). This will reduce the change in level near the tree and the level of the acoustic fence from the adjoining property to the north.

41 The applicant objected to the conditions 5B and 5H. I accept the applicant’s proposed wording for condition 5B, which requires certification within 6 months of opening that the noise level of the centre does not exceed the noise criteria of background plus 5dB(A). The requirement sought by council that noise levels be tested in response to complaints is unreasonable as it may not be possible to determine whether the noise is emanating from the child care centre on the site or the adjoining centre at 66 Dover Road. The adjoining centre has been approved without noise conditions or acoustic fences. Further condition 5E establishes the requirements for a complaints procedure to be followed by the child care centre. Noise testing would need to be carried out on adjoining residential properties that the applicant does not have access to.

42 It is the responsibility of council to enforce the conditions of consent and require testing if there is an alleged breach. In this regard, I have retained condition 5H, which requires that noise emissions comply with background plus 5dB(A) thereby providing an appropriate criteria against which noise levels can be measured and enforced.

43 With the imposition of these conditions the acoustic fences are acceptable. However, by way of comment the appearance of the acoustic fences from within the childcare centre is of concern particularly when their height is considered relative to that of a child. In many locations the fences are screened by storage sheds, play structures or landscaping. However, in some locations the 3.3m height of the fence would be visible. Given that this occurs in limited locations it is of itself not a reason for refusal of the application but is a negative feature of the proposal.

Other issues and conditions

44 Some residents raised concerns about the number of children attending the centres. The proposal is to accommodate two centres with a maximum of 112 children (76 in the ground floor centre and 36 in the first floor centre). The Regulation 58 of the Children’s Services Regulation 2004 (the Regulation) limits the licence for the number of children attending a centre to a maximum of 90. There is no limitation on two centres being located in the same building and managed by the same operator provided that they are separately licensed.

45 The intent of the licence limit is not clear, however, larger or aggregated centres, particularly in or adjoining residential areas, are likely to generate greater impacts. While there would be economies of scale in providing two centres on the one site the appropriateness of this as a learning environment for young children is unclear. However, this was not raised as an issue by council and is not a matter addressed in the DCP other than referring to the licensing requirements (Part E cl 3.3). It is therefore not a matter upon which the application can be refused.

46 Other conditions in dispute between the parties are conditions 5F and 5G. Condition 5F requires that the operation of the centre comply with the requirements of the Plan of Management. This condition is reasonable but I have amended it to reflect that changes to the Plan of Management may be required from time to time but only with the approval of council.

47 Condition 5G limits the number of staff to a maximum of 16 full time and 2 part time. The parking requirements were based on these numbers and it is therefore reasonable that the condition remain.

48 For the above reasons the Orders of the Court are:

1. The appeal is upheld.

2. The development application (DA 675/2006) for a child care centre building at 70-74 Dover Road, in accordance with the plans filed on 1 June 2007, is determined by the grant of development consent subject to the conditions in Annexure A.

3. The exhibits, except exhibits 3, 4, B, M, O and Q, may be returned.

__________________
Annelise Tuor
Commissioner of the Court