Zaki v City of Sydney Council

[2015] NSWLEC 1506

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zaki v City of Sydney Council [2015] NSWLEC 1506

Hearing dates:

11 November 2015

Date of orders:

30 November 2015

Decision date:

30 November 2015

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

See paragraph 46

Catchwords:

DEVELOPMENT APPLICATION: Child care centre. Adequacy of communal open space and impact on residential amenity.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development.
Sydney Local Environmental Plan 2012

Category:

Principal judgment

Parties:

Carlos Zaki (Applicant)

City of Sydney Council (Respondent)

Representation:

Counsel:
Mr M Staunton (Applicant)

Ms Berglund (Respondent)

Solicitors:
Storey and Gough (Applicant)

City of Sydney Council (Respondent)

File Number(s):

10311 of 2015

Judgment

1. Carlos Zaki (applicant) has appealed, pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal by the Council of the City of Sydney (council) of a development application (D/2014/159) for the “fitout of an existing ground floor and first floor level for a childcare centre” in an existing mixed use building at 513-519 Wattle Street, Ultimo (site).

2. The development application involves the change of use of two existing ground floor commercial tenancies to a child care centre and the use by the centre of an existing communal open space on Level 1 during the child care centre’s operating hours.

3. The key issue that remains in dispute between the parties is whether the use of the communal open space on level 1 as a play area results in an unacceptable impact on residential amenity through loss of open space for the occupants of the building and loss of outlook for the units on Level 1.

Site and locality

4. The site is occupied by a mixed use building with basement parking accessed off Blackwattle Lane, two commercial tenancies at ground floor and residential units above. The building is not strata titled and the residential units are studio and one bedroom and are generally tenanted by students.

5. The existing building provides communal open space on Level 1 (280sqm) and Level 7 (150.5sqm). Units 6, 7, 8, 9 and 10 adjoin the communal open space on Level 1.

6. The surrounding area comprises multi storey commercial, residential and mixed use developments, including buildings that form part of the University of Technology campus.

Planning controls

7. The site is zoned B4 – Mixed Use under the Sydney Local Environmental Plan 2012 (LEP 2102). The proposal is permissible with consent.

8. Sydney Development Control Plan 2012 (DCP) is relevant. It includes provisions in relation to Private open space and balconies (cl 4.2.3.7), Common open space (cl 4.2.3.8), Outlook (cl 4.2.4.10) and Childcare centres (cl 4.4.4).

9. The contentions refer to State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65). However, pursuant to s 4 of SEPP 65, the policy is not a statutory instrument that applies to the development.

Background

10. The development application was submitted to council on 7 February 2014 and refused under delegation on 7 October 2014. A review application under s 82A of the EPA Act was refused on 11 March 2015. The applicant lodged an appeal against council’s refusal of the development application on 9 April 2015.

11. I conducted a conciliation conference under s34 of the Land and Environment Court Act 1979 (LEC Act) but no agreement was reached and the conference was terminated. The applicant subsequently sought and was granted leave to rely on amended plans (Exhibit A), which resolved a number of contentions raised by council. The parties did not object to my hearing the matter and that the evidence, including the site view, would be evidence in the proceedings.

Evidence

12. The Court visited the site and surrounding area at the commencement of the conciliation conference and heard from an objector from the adjoining building (507 Wattle Street). The principle concerns of the objector, and other objectors who made submissions in response to the advertising and notification of the application, were the noise impacts likely to be generated by children using the outdoor play area, parking and safety. These matters have been addressed by council in its consideration of the application and were not pressed as reasons to refuse the application.

13. The Court heard expert planning evidence from Mr J Vescio, for the applicant, and Ms J Symons, for the council. A statement was prepared by the Building Manager, Mr A Calciano on the use of the existing communal open space but he was not required for cross examination.

Proposal

14. The proposed child care centre would be for 74 children with 13-16 staff. It would operate between 7am and 6pm Mondays to Fridays inclusive in accordance with a Plan of Management (Centre PoM).

15. The application includes the use of the Level 1 communal open space as a play area (Play area 3) for up to 20 children for two periods per day of 45 mins each. Outside the normal business hours of the childcare centre, the communal open space on Level 1 would be available for use by the residents of the building, with swipe card access. A 2.1m high acoustic screen is to be constructed at the perimeter of the open space area. The screen would be movable and would be closed and locked prior to the use of the area by children and opened after use. Landscaping will be provided in the existing planter boxes between the screen and the balconies of the units with a translucent awning above. A new lift would provide access to Play area 3 from the child care centre at ground level.

16. The communal open space on Level 7 is not to be used by the childcare centre but will be upgraded as part of the application. The proposal includes reconfiguration of the area, BBQs, planter boxes, landscaping, furniture and an acoustic screen adjoining the studio unit (unit 7).

17. My understanding from the evidence in the Joint Report of the planners is that the acoustic screens on both Level 1 and Level 7 would be glazed to maximise outlook and light to the adjoining units. However, this is not specified in the architectural drawings or the conditions. Although, the landscape drawing refers to a “transparent acoustic fence”. To ensure that there is no confusion I have amended condition 10(b)(iv) and (v) to require that the acoustic screen on Levels 1 and 7 be glazed. My assessment of the contentions is made on this basis.

18. The communal open space areas on Level 1 and Level 7 will operate in accordance with a Plan of Management (Open Space PoM) which will limit the number of people using the areas and restrict use after 9pm on Sunday to Thursday and 10pm on Friday and Saturdays.

19. An amended option for Level 1 was discussed at the conclusion of the hearing, which involved deleting the awning and providing a fixed screen further from units 6-9 on Level 1. This option was not opposed by the applicant but council’s position was that if the application were to be approved its preference is for the sliding screen for which leave had been granted (Exhibit A). For the reasons which I discuss below, I find that both options would have acceptable impacts. However, given council’s position, and in the absence of expert evidence to support the alternate fixed screen, I have not imposed the requirement that the application be amended in this manner.

Loss of communal open space

20. The experts agree that the existing communal open space on both Level 1 and Level 7 provides little amenity or facilities for residents. Level 1 has poor solar access and is overlooked by units in the building and other buildings. They accepted Mr Calciano's evidence that the areas are predominantly used on weekends and sometimes during the evenings, not during weekdays.

21. In Mr Vescio's opinion, the communal open space is not being reduced but will be used for dual purposes to meet the needs of different occupants in a mixed use building, being the child care centre and the residents. The communal areas will be significantly upgraded which will improve the amenity of these areas and encourage greater use. The Level 1 area will be used by the child care centre only during business hours on weekdays. It will be available for use by residents in the evenings, on weekends and public holidays when the demand is likely to be greatest. During business hours, the residents can use the communal area on Level 7 and consequently there is always communal open space to meet the demands of the residents.

22. Ms Symons’ primary position is that the proposed use of Level 1 by the child care centre will reduce the amount of communal open space from 29% of site area to 11% of site area, which would not comply with the requirements of the DCP that at least 25% of the site area be common open space. She acknowledged that the communal open space areas would be improved and would be available for use by residents when it is not used by the child care centre. However, she considered the dual use of the area was not appropriate as there should be a clear demarcation of residential and commercial uses in a mixed use development. Furthermore, she raised concerns about the operation and management of the dual use of the communal open space, including maintenance issues with the moveable acoustic screen. Although she acknowledged that, with the agreed changes, the PoMs were adequate.

Impact on residential amenity

23. The proposal provides an operable screen on the outer edge of the planter boxes to mitigate the acoustic impacts of play area 3 to an acceptable level. The screen would be required to be closed for about one and half hours on weekdays when the area is used by children and would be open at other times, unless closed by residents.

24. Ms Symons is concerned that the location of the play area adjoining the living areas and bedrooms of units is not consistent with the requirements of the DCP. In her opinion, the closed screens would impact on the outlook of the adjoining units and the management of the screens is problematic. She considered that the awning together with the closed screen would create a sense of enclosure for the units. Although, she acknowledged that the proposed landscaping would screen or at least soften the visibility of the acoustic screen.

25. Mr Vescio considers that the proposed screen will have minimal impact on the amenity or outlook of the units, even when closed. He states:

“the screen is clear glazed, operable is offset 1200mm from the face of the balcony and provided with an intervening landscape screen. Further, owing to the difference in finished levels between the play area and balcony, the screen will only be approximately 900mm higher than the balustrade level. Effectively, upon establishment of the screen, the visual perception internally would be a 3m wide courtyard enclosed with a hedge screen.

26. Furthermore, Mr Vescio did not consider that the sense of enclosure of the units would be exacerbated as the balconies are already roofed. The awning is a light weight translucent element beyond the face of the units and their balconies.

27. In Mr Vescio’s opinion, the existing relationship of the units to the communal open space is problematic as without screening the use of the area could result in unacceptable acoustic privacy impacts. Particularly, as there are no existing restrictions on the number of people or hours that the area can be used. He noted Mr Calciano's evidence that there had been problems in the past with the use of the area.

Findings

28. The proposal is located within a mixed use development within a mixed use zone. The existing communal open space on both Levels 1 and 7 provides little amenity or facilities and is not well utilised, particularly during weekdays.

29. The existing communal open space complies with the numerical control in the DCP by providing more than 25% of the site area as communal open space (cl 4.2.3.8(1)). While the application will limit access by residents to the communal open space on Level 1, this will be during periods when the area is unlikely to be used and the communal open space on Level 7 can easily meet the demands of the residents. The area on Level 1 will still be available for use by residents in the evenings, weekends and public holidays. I accept Mr Vescio’s evidence that the communal open space is not being reduced but will be used for dual purposes to meet the needs of different occupants in a mixed use building, being the child care centre and the residents. Furthermore, the communal areas on both Levels 1 and 7 will be significantly upgraded, which will improve the amenity of these areas and encourage greater use. The proposal therefore does not offend cl 4.2.3.8(1) of the DCP.

30. The existing communal open space on Level 1 also does not comply with other common open space controls in the DCP including solar access (cl 4.2.3.8(2)), achieving a high standard of finish and design and address visual and acoustic privacy (cl 4.2.3.8(4)), provide for the passive and active recreation needs of all residents (cl 4.2.3.8(5)), provide a pleasant outlook from the units (cl 4.2.3.10) nor is it likely to achieve acceptable acoustic privacy (cl 4.2.3.11). The existing relationship of the communal open space on Level 1 with the adjoining units provides no acoustic privacy measures such as limitations on numbers of people, hours of use or acoustic screens.

31. Given the existing situation, I accept the evidence of Mr Vescio that the proposed use of Level 1 meets the objectives for a child care centre to not unreasonably impact on the amenity of surrounding residences (cl 4 4.4.(b)). With the provision of landscaping, the proposed glazed acoustic screen and awning will result in minimal change to the existing outlook of the adjoining units, whether the screen is in the open or closed position. The screen will achieve an acceptable acoustic environment, whether the area is used by the child care centre or the residents. The awning will address objects being "dropped" from units above (cl 4.4.4.4(a)) which is the requirement of the control. Although, the proposal will adjoin living and bedroom windows of dwellings (cl 4.4.4(c)), it is not in a "predominantly residential area" but rather in a mixed use building in a mixed use zone. The windows will also be separated from the communal area by the landscaping and acoustic screen.

32. I do not accept that the concerns raised by Ms Symons or the submission of Ms Berglund, for the council, that the security, maintenance and the implementation of the PoM would be reasons to refuse the application. The PoMs outline the procedure to be followed for the use of Level 1, including the opening and closing of the acoustic screen. The procedure is not unreasonable or dissimilar to management measures imposed on other child care centres which require doors and windows to be closed and that numbers of children and play times be limited.

33. The operable glazed screen will need to be maintained and may require more maintenance than a fixed screen, however, council has indicated that it prefers the screen to be operable rather than the option of a fixed screen without the awning, further from the units, which was discussed during the hearing. The PoMs and the conditions place the obligation on the operator of the child care centre to maintain the screen and, if damaged, that play area 3 not be used until the screens are repaired.

Conditions

34. The conditions were agreed between the parties with the exception of Condition 2 and Conditions 10 and 11.

Condition 2

35. Condition 2 provides:

(2)   DESIGN MODIFICATIONS

The design of the building must be modified as follows:

(a)   The highlight windows along the entire length of the shopfront elevations on Wattle Street and Wattle Place as depicted in plans DA-02 Issue J ‘Ground floor plan’, DA-05 Issue F ‘South elevation (Wattle Place)’, DA-06 Issue F ‘East elevation (Wattle Street) & West elevation’, and DA-08 Issue F ‘Section A-A’ are to be modified so that glazing is provided, and the windows are openable.

The modifications are to be submitted to and approved by Council’s Area Planning Manager prior to the issue of a Construction Certificate.

36. The applicant seeks deletion of this condition on the basis that the “highlight windows” adjoin outdoor play area 2 and that it is preferable that the glazing be removed to create better amenity for the outdoor play area than would be achieved through openable windows, particularly increased ventilation and sense that the area is an outdoor space. The council requires the windows to be retained for weather protection, security and the appearance of the building.

Findings

37. Play area 2 is within the exterior walls and ceiling of the existing ground floor of the building. Council did not press its contention that play area 2 was not suitable as outdoor space. This play area would have a greater sense of being an outdoor area if the highlight windows were removed. The area will achieve acceptable weather protection as windows to a height of about 2.4m above the floor level will be retained. The height of the highlight windows will minimise security risks by limiting access to the outdoor area and the internal areas of the child care centre can be locked off from the outdoor play area. The appearance of the building would not be markedly different with or without glazing in the windows as the openings remain the same. Condition 2 is therefore retained.

Conditions 10 and 11

38. Council’s proposed Conditions 10(b)(ii) and 11(b) provide:

10(b)(ii) Noise emitted from operation of the child care centre, including all outdoor play areas, is not to exceed the project specific noise criteria stipulated in Section 4.5 of the acoustic report, as measured at the boundary of any nearby residential receiver;

11(b) An LAeq,15 minute noise level emitted from the use must not exceed the LA90, 15 minute noise level by more than 3dB in any Octave Band Centre Frequency (31.5 Hz to 8 kHz inclusive) when assessed inside any habitable room of any affected residence or noise sensitive commercial premises….

39. The applicant submits that there is an inconsistency between these conditions as they refer to different noise criteria. The project specific noise criteria in Condition 10(b)(ii) are based on the acoustic reports that accompanied the application, which have been accepted by council. The project specific noise criteria in the acoustic report are to be “assessed at the most affected point on or within the adjacent residential property boundary” which is reflected in Condition 10(b)(ii). Whereas, Condition 11(b) requires that the noise level be assessed from inside any habitable room of any affected residential premises or noise sensitive commercial premises. The criteria are mutually exclusive in that the criteria in Condition 10(b)(ii) may be met outside but may not satisfy the criteria in Condition 11(b) when measured inside without a reduction in the noise generated by the proposal.

40. Council submits that “Condition 10(b)(ii) sets an upper noise limit that must be demonstrated prior to the issue of construction and occupation certificates and is effectively a condition precedent whereas Condition 11(b) is a condition subsequent.

Findings

41. The acoustic reports that accompanied the application have been assessed and accepted by council and noise from the child care centre was not raised as a contention, other than the amenity issues in relation to the design of the acoustic screen, which have been discussed above.

42. The acoustic report established the project specific noise criteria as:

(a)   LAeq (15 minute) level of 60dBA for outdoor play when the outdoor areas are used for more than 2 hours per day.

(b)   LAeq (15 minute) level of 65 dBA for outdoor play areas

(c)   LAeq (15 minute) level of 60 dBA for all other noise sources (mechanical plant, car park, indoor play areas)

43. Condition 10 requires certification that the proposal will comply with the project specific noise criteria prior to construction and occupation certificates. Condition 11 is intended to require that the noise emitted from operation of the child care centre does not exceed appropriate noise criteria. I accept the applicant’s submission that the project specific noise criteria in Condition 10(b)(ii) are the appropriate upper noise limits that the proposal should be certified to satisfy and that the use of the childcare centre should be required to comply with these criteria in Condition 11(b). The council’s suggested criteria in Condition11(b) are measured from a different location and at a different level. In the absence of any evidence as to why the internal noise criteria suggested by council is to be preferred, I accept that the project specific criteria established in the acoustic report are appropriate and the wording of Conditions 10 and 11 suggested by the applicant, are included in the conditions of consent.

Other conditions

44. There were minor differences in the wording of some conditions in the council’s version filed on 13 November 2015 and the applicant’s version filed on 17 November 2015. On 17 and 26 November 2015, the applicant submitted a revised drawings that clarified the location of the acoustic screen on level 1. Minor changes to the PoMs have also been made and the conditions amended for consistency and to clarify that the acoustic screens on Levels 1 and 7 are glazed.

45. For the reasons discussed above the appeal may be upheld and development consent granted subject to conditions.

Orders

46. The orders of the Court are:

1. The appeal is upheld.

2. The development application (D/2014/159) for a child care centre on the ground and first floor of an existing mixed use building at 513-519 Wattle Street, Ultimo, in accordance with the following plans, is approved subject to the conditions in Annexure A:

Drawing Number	Architect	Date
DA-01 Issue E	DBG	22 August 2014
DA-02 Issue J	DBG	8 July 2015
DA-03 Issue I	DBG	17 November 2015
DA-04 Issue B	DBG	23 June 2015
DA-05 Issue F	DBG	8 July 2015
DA-06 Issue F	DBG	8 July 2015
DA-07 Issue F	DBG	8 July 2015
DA-08 Issue H	DBG	17 November 2015
DA-09 Issue F	DBG	26 November 2015

3. The exhibits, except Exhibits 1, A, B and C, are returned.

Annelise Tuor

Commissioner of the Court

10311 of 2015 Tuor(30.11.15) (O) (8.07 KB, pdf)

10311 of 2015 Tuor (C) (202 KB, pdf)

10311 of 2015 Tuor PoM Child Care Centre (495 KB, pdf)

10311 of 2015 Tuor PoM Communal Areas (388 KB, pdf)

10311 of 2015 - DA Architectural Plans (Rev. J) - 301115 (2.24 MB, pdf)

Decision last updated: 03 December 2015