Wang v Willoughby Council

[2016] NSWLEC 1470

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wang v Willoughby Council [2016] NSWLEC 1470

Hearing dates:

21-23 September 2016

Date of orders:

11 October 2016

Decision date:

11 October 2016

Jurisdiction:

Class 1

Before:

Morris C

Decision:

Appeal dismissed

Catchwords:

DEVELOPMENT APPLICATION: child care centre

Legislation Cited:

Willoughby Local Environmental Plan 2012; State Environmental Planning Policy No 55 - Remediation of Land

Texts Cited:

Willoughby Development Control Plan

Category:

Principal judgment

Parties:

Nan Wang (Applicant)

  Willoughby Council (Respondent)

Representation:

Counsel:
Mr A Pickles SC (Applicant)

 

Solicitors:
Mr G Christmas
Apex Planning & Environmental Law (Applicant)

  Ms K Gerathy
HSWL Ebsworth Lawyers (Respondent)

File Number(s):

151729/2016

Judgment

1. Mr Wang lodged DA No. 2015/149 with Willoughby City Council on 1 May 2015 seeking consent to construct a two level child-care centre accommodating 43 children including on-site parking and reliance on street parking. The Council refused consent on 9 November 2016 and Mr Wang is appealing that refusal.

2. The contentions in the case relate to traffic and safety, evacuation, car parking design, landscaping and trees, stormwater management, site and building design and the public interest.

The site and its context

3. The site comprises two adjoining allotment, lot 11 and lot 12 in DP 1184413 and has its primary frontage to Ashley Street, western frontage to Gibson Avenue and rear, northern frontage to Quinn Lane. The total area of the site is 1108.8 m², it is currently vacant and relatively level with a fall of approximately 1.5m from the Ashley Street frontage towards Quinn Lane.

4. The Gibson Avenue frontage of the site is directly opposite the North Shore railway line with a road bridge crossing the railway line to connect Ashley Street with the Pacific highway. An acoustic wall is erected along the western side of Gibson Avenue.

5. Adjoining and surrounding development to be site generally comprise single story detached dwellings with rear lane vehicular access. The site is approximately 800 m walking distance from Chatswood railway station.

Background and the proposal

6. The appeal was subject to mandatory conciliation on 26 November 2015 with further conferencing in February and May 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 28 April 2016, pursuant to s 34(4) of the LEC Act.

7. Following the conciliation conference the applicant sought and was granted leave to rely on amended plans and documents on 2 June 2016. It is those plans that are currently before the Court.

8. The application now proposes:

• Site remediation;

• Tree removal;

• Construction of a two level building to be used as a child care centre (CCC) for 29 children;

• At grade parking for 4 vehicles including one accessible space at the northern end of the site;

• Road widening within Gibson Avenue to provide a further 3 parking spaces, one to be also used by delivery vehicles.

9. The centre would be staffed by 5 persons of whom 4 are full time and 1 part time. Places would be offered for 4 children aged 0-2; 5 children aged 2-3 and 20 children aged 3-5.

10. The ground floor of the building would accommodate Indoor Play rooms 1A, 1B and 2 and two outdoor play areas. The Director’s office and a meeting room would be located on the upper level which is designed within the roof space so that the design of the building appears as single storey with attic space when viewed from adjacent streets. A small freestanding building is proposed adjacent to the at grade parking spaces and would be used for storage of waste bins and equipment.

11. The main entry lobby is orientated to Ashley Street with reception, pram storage and staff areas adjacent. During the hearing the applicant clarified the means of accessing the centre with access available at the rear adjacent to the storage building through Outdoor Play Area 2 for parents using security passes. They would drop off children in either Play Area 1 or the adjacent playrooms when the weather was inclement.

12. The proposed hours of operation of the childcare centre are 7.00am – 6.00pm Monday to Friday.

The planning controls

13. The site is zoned R2 - Low Density Residential under the provisions of Willoughby Local Environmental Plan 2012 (LEP). Child care centres are permissible with consent in that zone. Clause 2.3 (2) of the LEP requires the consent authority to have regard to the objectives of the zone when determining a development application in respect of land within that zone. The objectives of the R2 zone are:

To provide for the housing needs of the community within a low density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To accommodate development that is compatible with the scale and character of the surrounding residential development.

To retain and enhance residential amenity, including views, solar access, aural and visual privacy, and landscape quality.

To retain the heritage values of particular localities and places.

To encourage self sufficiency with respect to energy and food supply.

14. Part 4 of the LEP contains Principal development standards with clause 4.3 Height of buildings providing for a maximum height of 8m and clause 4.4 Floor space ratio (FSR) providing for a maximum FSR of 0.4:1. The proposed development complies with these development standards.

15. Clause 5.9 Preservation of trees or vegetation is in the following form:

(1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation.

(2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council.

Note. A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner.

(3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by:

(a) development consent, or

(b) a permit granted by the Council.

(4) The refusal by the Council to grant a permit to a person who has duly applied for the grant of the permit is taken for the purposes of the Act to be a refusal by the Council to grant consent for the carrying out of the activity for which a permit was sought.

(5) This clause does not apply to a tree or other vegetation that the Council is satisfied is dying or dead and is not required as the habitat of native fauna.

(6) This clause does not apply to a tree or other vegetation that the Council is satisfied is a risk to human life or property.

(7) A permit under this clause cannot allow any ringbarking, cutting down, topping, lopping, removal, injuring or destruction of a tree or other vegetation:

(a) that is or forms part of a heritage item or that is within a heritage     conservation area, or

(b) that is or forms part of an Aboriginal object or that is within an     Aboriginal place of heritage significance,

unless the Council is satisfied that the proposed activity:

(c) is of a minor nature or is for the maintenance of the heritage item,     Aboriginal object, Aboriginal place of heritage significance or         heritage conservation area, and

(d) would not adversely affect the heritage significance of the heritage     item, Aboriginal object, Aboriginal place of heritage significance or     heritage conservation area.

Note. As a consequence of this subclause, the activities concerned will require development consent. The heritage provisions of clause 5.10 will be applicable to any such consent.

(8) This clause does not apply to or in respect of:

(a) the clearing of native vegetation:

(i) that is authorised by a development consent or property vegetation plan under the Native Vegetation Act 2003, or

(ii) that is otherwise permitted under Division 2 or 3 of Part 3 of that     Act, or

(b) the clearing of vegetation on State protected land (within the meaning of clause 4 of Schedule 3 to the Native Vegetation Act 2003) that is authorised by a development consent under the provisions of the Native Vegetation Conservation Act 1997 as continued in force by that clause, or

(c) trees or other vegetation within a State forest, or land reserved from sale as a timber or forest reserve under the Forestry Act 1916, or

(d) action required or authorised to be done by or under the Electricity Supply Act 1995, the Roads Act 1993 or the Surveying and Spatial Information Act 2002, or

(e) plants declared to be noxious weeds under the Noxious Weeds Act 1993.

Note. Permissibility may be a matter that is determined by or under any of these Acts.

(9) Subclause (8) (a) (ii) does not apply in relation to land in Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living.

16. The proposal includes tree removal and also proposes to retain two trees within the frontage of the site. There are a number of large street trees in Ashley Street that have the potential to be impacted by development on the site as well as trees within the adjoining property to the east planted along the boundary with the site.

17. The site is within the North Chatswood Conservation Area (NCCA) and clause 5.10-Heritage conservation includes objectives to conserve the environmental heritage of Willoughby and the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views.

18. State Environmental Planning Policy No 55 - Remediation of Land applies to the development with Clause 7 in the following form:

Contamination and remediation to be considered in determining development application

(1) A consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in     its contaminated state (or will be suitable, after remediation) for the     purpose for which the development is proposed to be carried out,     and

(c) if the land requires remediation to be made suitable for the purpose     for which the development is proposed to be carried out, it is         satisfied that the land will be remediated before the land is used for     that purpose.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

(3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

(4) The land concerned is:

(a) land that is within an investigation area,

(b) land on which development for a purpose referred to in Table 1 to     the contaminated land planning guidelines is being, or is known to     have been, carried out,

(c) to the extent to which it is proposed to carry out development on it     for residential, educational, recreational or child care purposes, or     for the purposes of a hospital—land:

(i) in relation to which there is no knowledge (or incomplete        knowledge) as to whether development for a purpose           referred to in Table 1 to the contaminated land planning        guidelines has been carried out, and

(ii) on which it would have been lawful to carry out such           development during any period in respect of which there is        no knowledge (or incomplete knowledge).

19. Willoughby Development Control Plan (DCP) applies to the site and provides detailed guidelines and environmental controls to guide the development within the Willoughby local government area and supports the objectives and planning provisions contained within the LEP. In accordance with section 8.2, any application for development needs to comply with all relevant provisions of the DCP which will be used, in conjunction with the LEP in the assessment of all development applications and construction certificate, however, compliance with the provisions of the DCP does not mean that a proposal is acceptable and will be approved because every application will go through detailed individual assessment. Relevant aims of the plan are:

1. Provide controls which will result in a high standard of development within the city of Willoughby;

2. Encourage development which is compatible with the urban scale and character of the adjoining neighbourhoods and which takes account of the environmental constraints of each context;

3. Ensure that new development satisfies a high standard of urban design to create a unified streetscape, which contributes positively to the streetscape, reinforces the importance of pedestrian areas and provides an attractive environment;

5. Ensure that provision is made for the safe, convenient, and efficient movement and accommodation of vehicles within the city including a reasonable number of parking spaces for vehicles generated by a development including visitor, employee, service and commercial vehicles;

8. Set appropriate environmental standards which achieve high levels of residential amenity such as solar access, privacy, noise, views, security, landscaped open space, convenience of access and parking to the occupants and two adjacent properties;

9. Preserve and enhance the character and amenity of the residential zones and to ensure that future development within those zones is compatible in scale and character with existing development;

15. Ensure that the significance of Heritage Items is identified and retained and to ensure that the special streetscape character of Heritage Conservation Areas is maintained.

20. In accordance with the table in clause A.9, Parts A - Introduction, B - Application process, C - Development guidelines and G - Controls for specific development types apply to child-care centre developments. In particular G.8 applies to child care services and provides the design, building, health and operational requirements for child care services, including family day care, child-care centres and other services. Heritage provisions are contained in Part H

The issues

21. The contentions in the case are whether the proposed development will adversely affect the local road network, particularly the safe and efficient operation of the intersection at Gibson Avenue and Ashley Street and of Quinn Lane and Gibson Avenue; whether a safe evacuation route is provided from the centre: whether the design and layout of the proposed car parking spaces along Gibson Avenue are acceptable: whether the development provides sufficient soft landscaped area and would adversely affect the landscaped character and amenity of the locality: adequate information is provided to demonstrate stormwater management from the development is acceptable: adequate facilities and a suitable layout is provided to support the operation of a child-care centre and whether the application is in the public interest having regard to the objections received in response to notification of the application.

22. Contentions regarding acoustic measures/noise impacts, environmental hazard and staff car parking were matters that the Council contended could be addressed by conditions of consent however, through the evidence process, the issue of contamination became live as it became apparent that the proposed method of remediation conflicted with the need for tree retention, particularly on the adjoining properties to the east of the site.

23. The contentions relating to an acceptable evacuation plan, the adequacy of the layout of the centre and conflicts in the plans and the recommendation of the acoustic experts were resolved through the provision of additional information. In addition, the Council had originally opposed accepting dedication of the proposed parking spaces along Gibson Avenue and, on the first day of the hearing, indicated to the applicant that it would be prepared to accept dedication of the road widening necessary to accommodate the spaces and provide for a footpath adjacent provided the costs of the works were born by the applicant including the installation of appropriate signage.

The evidence

24. The hearing commenced on site with evidence heard from a number of objectors to the proposal. The following is a summary of the issues raised:

• traffic, pedestrian, parking and safety concerns particularly at the intersection of Gibson Avenue and Ashley Street;

• questions the validity of assumptions in the traffic assessment;

• concern about the increased usage of Quinn Lane access the site and likely conflicts between the on street parking, waste collection vehicles and the reverse movements required to access garages and carports along the Lane;

• concerned the Plan of Management will not be adhered to and that the arbiter of any complaints is the Department of Education;

• questions the viability of a 29 place child-care centre and concerned that if approved there would be a subsequent application to increase numbers within the centre;

• no provision has been made to accommodate the parking required for special events; parking overflow may impact on residents of Waratah Street;

• inappropriate site for a child-care centre;

• Quinn Lane has no street lights so there are security concerns during winter at peak pickup time;

• footpath in Gibson Avenue is narrow and obstructed by electricity poles making access with prams not possible;

• the site is a gateway to the conservation area and the proposed fence is boring, the choice of landscaping items is uninspiring and there are no details of any signage which has the potential to detract from the area.

25. Ms T Michaels (applicant) and Ms C Mackenzie (council) provided expert landscape design evidence. The focus of that evidence was the ability for the development proposal to be adequately landscaped so as to meet the controls and objectives of the DCP and to assess the impacts of pruning on the amenity of viability of the adjoining trees. They agree the three street frontages and two street corners limit the location and shape of the proposed building in the site and that the proposed building and outdoor “hard” elements (e.g. ramps, stairs, car parking and the like) substantially reduce the area that can be landscaped. As such, within the proposal it is difficult to accommodate landscaping which includes two canopy trees and larger shrubs that will visually soften the built elements when viewed from any of the street frontage. The proposed built footprint limits the ability to provide a landscaped that will comply with the aims and controls for development within the NCCA and they agree the proposed development fails to provide sufficient area for landscaping which will be secondary to dominated by the built form.

26. Ms Mackenzie notes at Part H.1.2(c) of the DCP, and aim of the heritage controls is to ensure that the heritage significance, special streetscape and landscape character of heritage conservation areas is maintained. She says the proposed built footprint would preclude any meaningful landscaping, such as large canopy trees and shrubs and will result in a development that will not comply with the landscaping objectives and controls of the DCP, and will be notably inconsistent with the landscaped character of the NCCA. She says there is a noticeable character of canopy trees in the backyard of properties within the heritage conservation area and also between dwelling houses. For these reasons, it is particularly important to ensure the retention of the existing low fence between the site and the eastern boundary to maintain the trees on the adjoining site and provide adequate light for any supplementary planting on the site on this side. Providing the remediation issue can be resolved it would be possible to supplement landscaping along that boundary to screen the side wall of the child-care centre.

25. Ms Michaels says the species selected can be revised to be more in keeping with the NCCA.

26. The experts agree the proposed species as shown on the landscape plan, Exhibit C, are not suitable for areas where they would be exposed to concentrated foot traffic over root zones, or are located too close to hard elements and may face future removal due to disturbance of those structures however, more appropriate species and planting locations can be provided in an amended landscape plan. The proposed "grass cell" in the parking areas is unlikely to perform as cars parked over the grass cells will shade the grass during daylight hours and prevent grass growth. As a result of these comments, the applicant has deleted the grass within those cells and now proposes to utilise gravel. Other recommendations of these experts, including the deletion of the proposed pedestrian path and gate from the root zone of 31 to the side boundary have also be incorporated by the applicant in amended plan, Exhibits L and O.

27. Both experts agree that the comments on the adequacy of landscape was based on the premise of the Council's contention that, to comply with the DCP controls, a minimum area of 521.28m² of soft landscaping should be provided. That control is a control contained in Part D - Specific controls for residential development and not the specific controls that apply to child-care centres. This matter is further addressed in the planning evidence, however Ms Mackenzie agreed that, subject to more landscaping and different species selection, the proposal could provide enough planting to the Ashley Street frontage to achieve the objectives within the conservation area however, she does not consider there is an ability to provide meaningful scale for connection to Gibson Avenue and Quinn Lane which she considers important given the shape of the site and its corner location and whilst the whole area can't be landscaped well, walls and fences around the site provide for no landscaping to punctuate or connect to the public realm.

28. It is common ground that there is no control that stipulates the provision of two canopy trees within the site.

29. Ms Mackenzie and Mr R Jackson provided expert arboricultural evidence. Their report considers the trees that are shown as being retained on the landscape plan, Exhibit C including Street trees within the Ashley Street reserve and trees on the adjoining property to the east, No 163 Ashley Street. Tree 1 is a large liquidambar in the south-western corner of the site which they say is worthy of retention and protection given the long, useful life expectancy, and its prominent location. They agree the tree is likely to be at adversely impacted upon by the proposed pedestrian path through the tree's Structural Root Zone (SRZ) because there is a high likelihood that the structural tree roots, crucial to tree anchorage and stability, would be detrimentally compromised during construction of this path. Their recommendation to delete this path has been incorporated in to the amended plans

30. Tree 2, a large Sydney Blue Gum in the Ashley Street footpath is a highly significant street tree with a long, useful life expectancy which they say is worthy of a high level of consideration and protection. The tree can be retained without significant, adverse development impacts subject to specific recommendations for arboricultural management during development, and changes made to the proposed landscaping within the Tree Protection Zone (TPZ). During the site inspection, which was not attended by Mr Jackson, a significant (at least 120 mm diameter) route of that tree was observed across the frontage of the site. The experts agree that it would be necessary to construct some form of bridge over that root to provide pedestrian access to the front lobby area with the design suitable for equitable access and construction needing to be supervised by a qualified arborist. They have recommended appropriate amendments to the draft tree management plan. They also agree that the proposed landscaping within the setback area is inappropriate and recommend that appropriate trees are planted in a flexible manner to take into account the structural root zone of that tree. Plantings should be more informal with exotic species to reflect the character of the locality.

31. Trees 3 and 4 are also street trees within the Ashley Street frontage which they say should be protected through the avoidance of unnecessary SRZ impact as well as further amendments to be made to the proposed landscape plan to ensure SRZ impacts are minimised.

32. The experts agree that in relation to Tree 8A (Port Jackson Fig on the site) and Trees 7, 8, 9 and 11 which are located on the adjoining site there should not be an increase in the height of the existing boundary fence between a point adjacent to the rear of the building at 163 Ashley Street to the Ashley Street frontage, to avoid unnecessary pruning of adjoining trees and tree 8A.

33. They also agree that the Getex soil encapsulation method, which includes shallow excavation to the boundary and introduction of a compacted layer over the TPZs, would adversely impact on the health and viability of tree 8A and adjoining trees.

34. They note an approximately 2m wide landscaped strip is proposed running most of the length of the site and adjoining property which would exclude children's play and most other activities (with the exception of landscape and building maintenance). They agree the preferred treatment in this landscaped strip is to exclude any excavation or soil capping to avoid adverse impacts on trees 8A and the adjoining property, however they accept they are not qualified to comment on whether this will appropriately address site soil remediation requirements and they say further qualification from the soil remediation expert is required to address whether the arboricultural experts preferred treatment is appropriate for the intended use of this section of the site.

35. The experts had agreed that the proposed lilly pilly hedge planting along that boundary was inappropriate and recommended species such as camellias being planted to supplement the screening provided from trees 7, 8 and 9 on the adjoining site. They agree that this proposed landscaping would not be possible as it would require breaching of the proposed geofabric material layer intended to form a barrier between the existing soil and the air above as a site soil remediation measure.

36. In cross examination Mr Jackson advised his comments were made on the assumption that the material used to encapsulate the contaminated soil along the side (eastern) boundary of the site was permeable. Mr Pickles, for the applicant, sought advice from the consultant who prepared the remediation strategy after the Court queried how a permeable material would prevent leaching of contaminants and confirmed that the material was not permeable. This therefore affects the viability of the trees in this locality and also the ability to carry out any supplementary planting to screen the side wall of the centre as it would not be possible to perforate the material or interfere with it if replacement planting was required.

37. Mr Pickles, for the applicant, applied for an adjournment to allow further resolution of the contamination issue as Ms MacKenzie had considered the suitability of the encapsulation method and said that it would result in no water being available to 40% of the TPZ, even if the area was to be hand dug she said that it would still remove the fine root hairs and impact on the woody root mass of 40% which was not acceptable.

38. As the contamination report had been prepared in May and the joint reports prepared in September, the Court considered this had provided the applicant adequate time to revise its contamination strategy however, until the issue was raised during the hearing, no such action had occurred despite the arborists saying that clarification was required. Particular consideration was given to the fact the application was filed on 10 September 2015 in a form the applicant considered could be approved and had also been the subject of conciliation conferences. The adjournment was not allowed on the basis of the time that was available to the applicant to resolve the issue and the fact that the hearing is not the time to redesign developments in order that contentions may be resolved. That should occur well in advance of the hearing.

39. The Court notes that contamination was not a contention in the case, the contention arose as a result of the landscape evidence.

40. In relation to the proposed drainage cells to be used for the parking spaces that would be constructed in the TPZ of Tree 13, the experts agreed that up to 150mm of fill or these structures would not affect its viability. They were unsure of the precise construction methods of the proposed material.

41. Exhibit F is the manufacturer’s specification and installation instructions for “Grasscrete” the proposed method of protecting the TPZ. The specification at page 11 suggests for a maximum vehicle weight of 3.4 tonnes the 76mm cell is appropriate and would require a minimum sub-base depth of 100mm assuming a free draining allowable ground bearing of 45kN/m2 plus between 10 and 20mm of sand. No assessment of the bearing had been undertaken.

42. The experts also agreed that some form of retaining structure would be required at the boundary and adjacent to the play area and whilst this could be constructed of timber sleepers, some support posts would be required and this should be carefully managed to ensure no damage to Tree 13. It is a matter that could be addressed through further revision to the tree management plan.

43. Expert traffic evidence was heard from Mr C McLaren for the applicant and Mr K Hollyoak for the council. They agree on the majority of issues, particularly now the council is accepting the dedication of widening along Gibson Avenue for parking and loading/unloading and agree the plan prepared to address this change, Exhibit O is satisfactory other than Mr Hollyoak’s concern that delivery/waste management vehicles are required to drive on the wrong side of Quinn Lane to turn into the proposed loading bay and that those vehicles would have to overhang the footpath area when accessing the space.

44. The main difference between the experts is the intersection of Gibson Lane with Ashley Street and in particular the sight lines available to vehicles leaving the lane and observing vehicles that are heading east along Ashley Street. It is common ground that all persons who utilise the proposed parking spaces within Gibson Avenue will have no option other than to use that intersection when leaving the CCC.

45. It is also common ground that a road safety audit (RSA) for the Gibson Avenue/Ashley Street intersection has been undertaken on behalf of the applicant and that this audit has found that the Safe Intersection Sight Distance (SISD) is below the requirements of the Austroads Guide to Road Design (AGTRD).

46. The sight distance to the right from Gibson Avenue onto Ashley Street is limited by an existing concrete safety barrier which is 1.7m high and 0.75m wide. The sight distance measured 3m from the stop line is 18.4m and is 30m when measured 3m from the edge of the through carriageway. The posted speed of Ashley Street is 50km/h which requires a sight distance of 88m. The recorded 85 percentile speed is 37.2km/h and this has a sight distance requirement of 58m. Consequently the sight distance at the existing intersection does not accord with current standards.

47. The RSA recommended a number of measures that could be introduced to help address the identified safety issues associated with the design of the intersection following the construction of the railway overbridge and the reduced sight lines available. These are summarised by Mr Hollyoak in his Evidence in Chief, Exhibit 8 and those recommendations that relate to the sight restriction issues are:

• The use of a convex mirror

• Banning the right turn out manoeuvre( in peak hours only);

• Consider Local Speed Zone reduction to 40km/h;

• Consider reversing flow on Gibson Avenue;

• Provision of a keep clear marking at the intersection.

50. Mr Hollyoak does not consider these measures will address the fundamental road safety issue and therefore says that intensified traffic use of the intersection should be prevented. That is because he says the use of mirrors on public roads is not desirable and the location proposed is contrary to that detailed in the 1996 RTA (now RMS) publication Convex Safety Mirrors. He cites the introduction to the document which states:

It is unlikely that the installation of convex safety mirrors will be encouraged or generated by the RTA. The majority of requests for convex safety mirrors are expected to come from property owners and developers and be directed to councils. These requests will generally be related to access from private driveways or private roads onto public roads.

51. Section 5 of the policy refers to limitations and states that convex safety mirrors should not be installed:

On public roads where alternative traffic management measures or engineering measures such as improvements to sight distance and road re-alignment are available;

Within the carriageway, including shoulders, islands and medians;

To enhance pedestrian crossing movements. Other solutions should be considered, such as relocation of the crossing point or strategically located pedestrian refuges;

Without appropriate signs,

However, at other locations convex safety mirrors may be used on public roads as an interim measure until appropriate traffic management/engineering works are carried out.

52. Mr McLaren accepts the departure from the sight distance is significant and this affects stopping distance with the existing situation at that intersection being suboptimum and no easy solution to addressing it. He says the mirror is one easy fix and says the council knows about the situation and should have already done something. He agrees that the mirror should only be used until a long term solution is put in place and that existing residents have a choice if they use the Gibson Avenue/Stanley Street intersection or use other roads to access and leave their properties whereas those persons using the proposed parking spaces within the road reserve and delivery vehicles will not have that choice. He says that the vehicle peak generation at the intersection as the result of the operation of the CCC would equate to an additional vehicle every 2-3 minutes, that there is currently no accident history for movements from that direction and because drivers usually leave the intersection clear it doesn’t take long to get out of Gibson Avenue. He says that whilst the intersection is not safe, driver behaviour and creeping through the intersection so that you can see the red light assists and people would get familiar with the platooning effect of the lights to assist them entering the intersection.

53. Mr Hollyoak says that whilst traffic in Ashley Street does give way to buses coming out of Anderson Street (opposite Gibson Avenue) drivers coming out of Gibson Avenue only are dependent on the sight line.

54. It is agreed that at the AM peak the CCC will generate an additional 23 vehicle movements (in and out) above the existing 16 vehicles exiting the intersection. During the PM peak, the existing average is 10 vehicles out and this would increase by an additional 8 movements out.

55. Mr McLaren considered the other options made from the RSA of reversing traffic flow along Gibson Avenue was not an option in these proceeding however did consider that it should have been considered previously. He says the intersection will never get traffic lights and for these reason the only option is to install the mirror, preferably on the existing blister to address the existing situation and without the mirror he would not endorse the CCC use on the site as there is certainly a need to improve the poor sightline. He says the sight distance could still be dangerous but people get used to it.

56. Mr Hollyoak was not opposed to the installation of the mirror but said the traffic volumes along Ashley Street exceeded the criteria for use (maximum 300 vph) and the traffic coming from the Pacific Highway was the issue and caused the potential conflict at the intersection, vehicle speed could not be detected using the mirror and that the mirror would not solve the problem, only make it marginally better. He recommends that no additional traffic is directed to the intersection and to do so would be dangerous. He considers the increase in traffic numbers is “massive” and is primarily at peak time, therefore increasing potential conflicts.

57. Engineering evidence was heard from Mr M Boudib for the applicant and Mr J Bazergy for the council. Their conclusions following joint conferencing were that stormwater drainage discharge could be met through the installation of on-site detention systems (OSD) and the construction of a roof over the carparking area fronting Quinn Lane.

58. This conflicted with the recommendations of the landscape and arborists who require the TPZ for T13 to be impervious so that the roots of the tree can receive rainwater. Their alternate design as shown in Exhibit K was to increase the size of the OSD basin however this area formed part of the playground area and would hold up to 500mm of water during a storm event. Mr Boudib says that the area would be fenced with logs as part of an “adventure” playground and would need a gate however this was not detailed on the plans. Mr Bazergy says that the dual use of an OSD basin for a playground was not a good option.

59. For that reason, further amended plans were tendered, Exhibit O which increased the size of the detention basin under the ramp and reduced the size of the second basin within the play area. A maximum water depth of 200mm would occur within that basin. The larger basin would be below the ramp and pathway with a heel guard grated cover along the pathway.

60. Mr Bazergy had considered the latest version of plans however expressed concerns about the calculations used. The experts subsequently resolved the majority of issues with Mr Bazergy agreeing that his concerns could be resolved through the imposition of conditions.

61. Expert town planning evidence was heard from Ms A Leung for the council and Mr G Chapman for the applicant.

62. They agree that the provisions of Part D1.8 - Landscaping of the DCP does not apply to the proposed child-care centre because that part applies to dwelling houses, dual occupancy and secondary dwellings. Part G.8 child-care centres of the DCP contains landscape provisions including planting and landscaping and they defer to the landscape experts in relation to selection of species, landscape, site usage and surface treatments.

63. Despite that agreement Ms Leung considers that the provision of quality and quantity landscaping is to ensure the proposed child-care centre development will achieve the same landscaping quality and character as other development within the locality. This is with regard to the location requirements of the child-care centre as stated in Part G.8 of the DCP and the planting and landscaping provisions that apply. She considers that the Part D.1 of the DCP provides appropriate guidelines of what developments within the R2 zone are expected to achieve. Those controls require, for sites between 1001 - 1500 m², landscaping calculated for the site of 521.28 m². The proposal provides less than 60% of soft landscaping than other developments within the locality would provide and therefore she considers the proposal does not achieve the same landscape qualities as other development at the locality or the character such as canopy tree cover. Because the landscaping behind the front building line largely consists of synthetic surfaces and pathways this does not achieve performance criteria of Part G.2- 1(xv). She says that only one canopy tree is proposed within the backyard area which has an excessive extent of impervious areas and whilst she accepts the evidence of the landscaping experts she says the treatment is "getting there" however the treatment to Gibson Lane has no landscaped quality. She agrees that if the trees can be seen above the fence and more planting is provided in the area of the reduced OSD basin and a tree planted in the north-western corner of the site providing no obstruction of views resulted that these would be good outcomes however she considers that canopy trees were an important element the character of the area and the application was deficient.

52. Mr Chapman says the proposed landscaped setting within the front setback and within the side setback areas is compatible with the landscape character of the North Chatswood Conservation Area. He says the predominant landscape character setting of the conservation area is the site as viewed from Ashley Street. The western and rear boundary adjoining a lane with rear backyard area is surrounded by side boundary fence. He says this is consistent with the Management Policies and Controls contained in Part H 3.11 North Chatswood Conservation Area of the DCP including:

- retain landscaped settings by minimising hard surfaces forward of the building line, locating car parking structures behind the building alignment, and maintaining the existing patterns of low/semi-transparent fencing to the street.

- Landscaping: Mature well vegetated front garden with exotic shrubs and trees.

65. He says the landscaped provisions contained in Part H3.11 for the conservation area make reference landscaped area forward of the building line and front garden. Further those provisions apply to properties, places and heritage conservation areas and apply to a range of land uses within those areas and the landscaped forward of the building line being the distinction to Part D .1 of the DCP. In his opinion the landscape treatment is consistent with the controls and the character of the locality.

Conclusion and findings

66. By the end of the hearing there were no plans before the Court that were consistent and therefore capable of approval. As Mr Pickles had sought an adjournment to allow the provision of plans and in particular to clarify the contamination issue, a position opposed by Ms Gerathy for the council, I indicated that I would deliver my findings and if I was to find that the application was one to which the “amber light” approach could be applied, I would detail those findings and make appropriate directions. That is particularly the case as the contamination issue is a threshold issue for which I must be satisfied that the site is suitable for development as a child care centre.

67. Apart from the contamination issue, which in itself has the potential to limit the opportunity for planting and therefore screening of the side wall of the CCC, the bearing of the stratum is unknown and therefore precise levels for the carparking area are also not confirmed and whether these works would impact on the TPZ of T13 in the event that additional excavation was required. Similarly, no details of how the surface level, large root of T2 was to be bridged whilst still providing for disability access was known in terms of materials and grades and it was agreed that the landscape plan required significant amendments.

68. It was agreed that the Plan of Management (POM) that had been prepared required further amendment, particularly in relation to access to the centre to clarify sign in locations and other matters. The Tree Management Plan also requires amendment.

69. Having regard to the evidence, I am satisfied, with appropriate amendments to the landscaping plan and with a form of contamination solution that provided for additional screen planting along the eastern property boundary that the design of the development is consistent with the character of the locality as detailed in the relevant controls within the DCP. I do not accept that for a development to be consistent with the locality the quantitative controls for landscaped area for dwellings, dual occupancies and secondary dwellings have to be met. That is because those controls do not apply to the development and also because the landscape controls and objectives that are contained in Part G for CCCs and Part H for the HCA must take primacy.

70. In this regard, I agree that the development is generally consistent with the objectives of those controls and in particular would ensure the predominant landscape quality of the area and the amenity of immediately surrounding areas is maintained or enhanced and carparking is provided to the rear. Fencing to the side, whilst in this location is 2.1m high and not 1.8m as required is consistent with the acoustic wall along the railway and not a reason in itself to refuse consent.

71. There is no control that calls for canopy trees, either within the generic controls or within the locality statements for the North Chatswood Conservation Area. The latter describes the important elements as predominately single storey detached housing; lots sizes vary; similar width frontages; buildings are usually consistently spaces and of similar scale and bulk within each streetscape; mature landscaped gardens are an important quality of the area; most street have well-established street trees; rear lanes accommodate separate access to off-street car parking. The landscape experts agree that exotic trees and shrubs including camellia species are common in setback areas rather than canopy trees.

72. The proposal will retain the existing street trees and the important trees within the site frontage and whilst the opportunity to plant more than one canopy tree within each play area is limited this is not inconsistent with the immediate locality where the street frontage contains the main vegetation. The retention of existing trees and supplementary planting with exotic species would therefore be consistent with the controls.

73. It is common ground that existing sight lines at the Ashley Street/Gibson Avenue intersection are substandard. The application relies on the use of a convex mirror to address this situation with Mr McLaren saying that it is required to improve sightlines and without it he would not endorse the use of the site with the dropoff points as proposed.

74. Mr Hollyoak took a more conservative approach and says that whilst the mirror would improve the existing situation that the mirror would not solve the problem, only make it marginally better. He recommends that no additional traffic is directed to the intersection and to do so would be dangerous. He considers the increase in traffic numbers is “massive” and is primarily at peak time, therefore increasing potential conflicts.

75. I prefer Mr Hollyoak’s evidence. The increase in traffic movements at the currently substandard intersection during peak times is significant. Those persons attending the CCC will change over time so will not be accustomed to the risks associated with the intersection. That is also the case for delivery drivers who may changer regularly.

76. The mirror is only one of 5 recommendations made in the RSA.

77. I note the RMS does not favour the use of mirrors as a long term solution and whilst I accept the council is aware of the issues associated with the intersection, there is no evidence of any long term solution to the sight distance. I also note the traffic volumes along Ashley Street exceed those where the use of mirrors is recommended and for these reasons and those outlined above, I am not satisfied that the traffic impacts of the development area acceptable or are capable of being solved through any amended proposal. It will remain a dangerous intersection with a significantly reduced sight line from that considered appropriate under relevant standards and as such the additional traffic resulting from the proposed CCC is inappropriate in the circumstances of the case.

78. For these reasons the “amber light” approach is not appropriate and I find the site is not suitable for development as a child care centre.

79. The Orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 2015/149 which proposes site remediation; tree removal; construction of a two level building to be used as a child care centre for 29 children; at grade parking for 4 vehicles including one accessible space at the northern end of the site and road widening within Gibson Avenue to provide a further 3 parking spaces, one to be also used by delivery vehicles at Lot 11 and lot 12 in DP 1184413 known as 165 Ashley Street and 22 Quinn Lane Chatswood is refused consent.

3. The exhibits, other than exhibits A, L, O and 2, are returned.

_____________________

Sue Morris

Commissioner of the Court

**********

Decision last updated: 11 October 2016