Zaki v Council of the City of Ryde
[2016] NSWLEC 1593
•13 December 2016
|
New South Wales |
Case Name: | Zaki v Council of the City of Ryde |
Medium Neutral Citation: | [2016] NSWLEC 1593 |
Hearing Date(s): | 27, 28 October 2016 |
Date of Orders: | 13 December 2016 |
Decision Date: | 13 December 2016 |
Jurisdiction: | Class 1 |
Before: | Smithson C |
Decision: | 1. The appeal is upheld. |
Catchwords: | DEVELOPMENT APPLICATION: Child care centre; adaptive reuse of heritage building; centre design; bulk and scale; streetscape impacts; traffic and parking; number of children; resident objections |
Legislation Cited: | Environmental Planning and Assessment Act 1979 |
Category: | Principal judgment |
Parties: | Kerolos Zaki (Applicant) |
Representation: | Counsel: |
File Number(s): | 2016/00154628 |
Publication Restriction: | No |
JUDGMENT
COMMISSIONER: This is an appeal under s 97 (1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of a development application by Ryde Council (the Council), for a child care centre in Ryde.
The development proposes adaptive reuse of a heritage dwelling at 87 Bowden Street for the child care centre and an extension of that centre over an adjoining lot containing an existing dwelling at 2 MacPherson Street, these 2 properties collectively comprising the site.
The key issues associated with the appeal relate to the impact of the new development on heritage items and on the amenity of the neighbourhood.
The site and locality
The site is located on the south western corner of Bowden Street and MacPherson Streets in Ryde. MacPherson Lane adjoins to the rear.
The land has an average slope and currently contains a dwelling house and outbuildings on 87 Bowden Street and a dwelling house and shed on 2 MacPherson Street.
The dwelling at 87 Bowden Street was identified in a heritage study in 2010 as having heritage value, being a substantially intact Federation style dwelling in excellent condition and representative of the architectural style. The dwelling exhibits the principal characteristics of the Queen Anne architectural style and the landscaped setting contains a number of landscape plantings.
Existing development in the local area is predominantly characterised by low density single storey dwelling houses and medium density dwellings, although a number of two storey dwellings also exist.
Immediately adjoining the site to the south and south east (effectively wrapping around the side and rear of the site) is 89 Bowden Street. This property is currently vacant with consent granted in June 2016 for a multi dwelling housing development on it comprising three villas.
Further to the south, at 91 Bowden Street, is a single storey dwelling house on a large lot which extends from Bowden Street through to MacPherson Lane. To the north east on the opposite corner at 85 Bowden Street is a two storey dwelling house on a smaller corner allotment. To the north, at 1a MacPherson Street, is a single storey villa development whilst on the opposite side of MacPherson Lane are a series of single storey dwelling houses which front See Street and run through to MacPherson Lane. To the south east on the other side of Bowden Street on the corner at 74A Bowden Street is the Ryde Presbyterian Church and church hall. The church is heritage listed.
Background to the proposal
Development application LDA/2015/283 (the application) was lodged with the Council in June 2015. The application proposed the demolition of all structures on both lots and the construction of a part two/part three storey child care centre for 90 children to operate from 7am to 6pm Monday to Friday.
The application also proposed a basement parking area for 20 cars with two levels above. The centre included interior and exterior children’s play rooms, cot rooms and nappy change areas, staff areas, storage facilities and administration areas. External works included new solid walls for child safety and acoustic treatment, landscaped areas, and a new pathway and driveway providing access to the development.
The application was notified and 9 objections and one petition were lodged in response. The objectors raised concerns with: the number of children in a low density area; the impact of additional traffic (particularly on the intersection of MacPherson and Bowden Streets) and on pedestrian safety; parking provision; the design; and with the breach of a number of controls including height, FSR and storey controls resulting in additional bulk and adverse acoustic, visual privacy, and overshadowing impacts. Finally the application proposed the demolition of 87 Bowden Street, known locally as Dellina Palm Cottage, which was strongly objected to in submissions.
In February 2016, the Council placed an Interim Heritage Order over 87 Bowden Street under the provisions of the Heritage Act, 1977. Subsequently an amendment to the Ryde Local Environmental Plan 2014 (the LEP) was undertaken which listed this property as an item of local heritage significance.
The application was the subject of conciliation under section 34 of the Land and Environment Court Act 1979. An amended proposal arose as a result of conciliation which included, inter alia, retention and adaptive reuse of the dwelling at 87 Bowden Street and extension of the child care facility at its rear over 2 MacPherson Street (the April 2016 plans). The number of children, operating hours, and parking arrangements remained the same as for the original proposal with access to the basement car park provided from MacPherson Street.
Leave was granted by the Court to the April 2016 plans as comprising the amended application on 8 July 2016.
Revised contentions were filed by the Council in response to the April 2016 plans. The remaining contended issues were advised as follows:
(a)The proposed part demolition and additions to the heritage listed building at 87 Bowden Street and the impacts of the proposed development on the heritage significance of this item;
(b)The design of the development including its character, bulk and scale and its impact on the streetscape;
(c)Amenity and visual impacts upon neighbouring property;
(d)Traffic and parking;
(e)Excavation; and
(f)The number of children/size and layout of the proposed development.
Additional information was also sought in terms of overshadowing of the recently approved multi dwelling development on the adjoining site at 89 Bowden Street, as well as to address heritage requirements.
In response to the amended contentions, further amended plans were prepared for the purposes of expert conferral (the September 2016 plans) and again for the hearing arising from this conferral (the October 2016 plans).
Leave was sought, not opposed and granted at the commencement of the hearing for the October 2016 amended plans to now comprise the application.
The October 2016 plans sought to address a number of issues proposing:
(a)A setback of 140mm along the laneway frontage to enable planting of a creeper to screen the wall of the car park;
(b)Increased setback of the northern ground floor terrace and acoustic screen from MacPherson Street (increased from 600mm to 2m);
(c)Reduction in the height of the acoustic screens to improve amenity but still meet acoustic requirements and provision of acoustic treatments to reflect acoustic advice;
(d)Increased setback of the staff room from the southern boundary on the ground level to 18.3m and of various acoustic screens;
(e)Provision of an administration office;
(f)At the first floor level, an increased setback of play room 6 by 8m (i.e from 19m to 27m);
(g)Increased setback and separation of the new component of the centre from the heritage listed dwelling (ie from 1.54m to 5.44m);
(h)Overall reduction of 400mm in the height of the new components of the centre;
(i)Reduction in the height of the car park walkway by 2.2m to allow installation of a planter box; and
(j)Internal design changes to improve solar access or to meet operational requirements including relocation of the lift and laundry and in the layout of the refurbished heritage dwelling. The proposal also included the removal of two original fireplaces in the heritage dwelling to provide surveillance to a child playing area.
Resident Objections
The hearing commenced on site and the Court heard from six residents in MacPherson and Bowden Streets, including adjoining residents, as well as a former Councillor of the City of Ryde. The Court viewed the appeal site from adjoining properties and from outside two heritage listed churches in proximity. An inspection was also undertaken of the heritage listed dwelling at 87 Bowden Street including its landscaped setting.
The objectors raised concerns with the application in terms of excessive height, bulk and scale, overdevelopment of the site, adverse traffic and pedestrian impacts, lack of parking and the design and use of a basement car park, overshadowing of the courtyard areas of the approved development at 89 Bowden Street, non-compliance with planning controls, the size of the centre, acoustic and overlooking impacts, and claims that it was out of character with, and not required by, the local area.
One resident gave a history of Dellina Palm Cottage to emphasise its importance and a number of residents raised concern with its loss albeit the amended application proposed its retention. Reference was also made to a petition with some 800 signatures objecting to the development.
The Applicant considered the petition should be given no weight as it related to the original proposal with many of the objectors concerned about the demolition of 87 Bowden Street, which was no long proposed, and given that many of the signatories did not live in the area.
Statutory controls
The following statutory controls are relevant to the assessment of the DA:
Children (Education and Care Services) Supplementary Provisions 2000 (the Regulations)
Ryde Local Environmental Plan 2014 (the LEP)
Ryde Development Control Plan 2014 (the DCP).
Under the LEP, the site is zoned R2 Low Density Residential. The proposed development is permissible with consent within this zoning.
The maximum height of buildings under the LEP is 9.5m and the maximum FSR is 0.5:1.
The site contains a heritage item of local significance being 87 Bowden Street listed in Schedule 5 of the LEP as ‘house and garden’. The LEP at Clause 5.10 Heritage Conservation contains objectives and provisions for heritage listed items. This includes:
cl 5.10(2)(b) whereby development consent is required to alter a heritage item;
cl 5.10(4) whereby, before granting consent, the consent authority must consider the effect on the heritage significance of the item;
cl 5.10(5) whereby the consent authority may require a heritage document to be prepared before consent is granted which assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the item; and
cl 5.10(6) whereby the consent authority may, having considered the heritage significance of the item and the extent of changes proposed to it, require submission of a heritage conservation management plan before granting consent.
The Ryde Development Control Plan 2014 (the DCP) is the Development Control Plan applicable to the proposed development. The following Parts of the DCP are of relevance in the assessment of this DA:
Part 3.2 – Child Care Centres
Part 3.3 – Dwelling Houses and Dual Occupancy (built form controls)
Part 7.1 – Energy Smart, Water Wise
Part 7.2 – Waste Minimisation and Management
Part 8.2 – Stormwater Management
The issues in contention
The Council was of the view that the development was too big (in terms of number of children, bulk and scale), out of character with the locality, would adversely impact heritage buildings, and would have adverse impacts on the neighbours and the locality.
Expert advice was provided to the Court on heritage, landscape, planning, urban design and acoustic matters.
Expert evidence on heritage matters was provided by Mr Rappoport for the Council and Mr McDonald for the Applicant. Individual expert reports were filed by both experts as well as a joint expert report.
An expert report was also prepared on landscape heritage matters by Mr Taylor on behalf of the Applicant. This dealt with the garden setting of 87 Bowden Street. Mr Taylor advised that he was unable to confer with anyone from the Council on his area of expertise.
Expert planning and urban design advice was provided by Mr Layman for the Council and Mr Vescio and Mr McDonald (on heritage aspects) for the Applicant. Individual reports and a joint expert report were filed.
An acoustics joint report was also filed which indicated that the Council’s concerns with acoustic impacts had been addressed with the amended design or could be addressed by agreed conditions of consent. Similarly, the Council’s concern with excavation was only in terms of potential streetscape impacts which were separately addressed in any event.
I therefore now turn to the matters which remained in contention.
Heritage considerations
Mr Staunton, for the Applicant, advised the Court that 87 Bowden Street had been identified by the Council as having possible heritage value in 2010 but was not listed as a heritage item at the time as the Council resolved to only list properties if the owner requested this. It was only after the development application was lodged that the Council resolved to pursue an Interim Heritage Order over the property and to amend the LEP to list the dwelling in Schedule 5 as an item of local heritage significance.
The Applicant was subsequently granted Leave by the Court to amend the application in order to retain the heritage item. A Heritage Impact Statement was subsequently prepared to address the adaptive reuse of the dwelling as part of the child care centre proposal.
The site is not located within a Heritage Conservation Area but is close to other items of local significance under the LEP, including two churches; one on the opposite corner of Bowden and MacPherson Street and one within 100m of the site in MacPherson Street.
The Council did not oppose the adaptive reuse and external treatment of the dwelling at 87 Bowden Street. Mr Rappoport was however, concerned with the height of the new building in terms of its relationship with No. 87 and when viewed from the heritage listed church on the opposite corner. Specifically, his concern was with the visibility of the eastern and northern elevations from outside the church across the heritage listed dwelling at No. 87 which he considered would be an unsympathetic backdrop.
Mr Rappoport was also concerned that the new component of the child care centre would compromise the visual setting of 87 Bowden Street which is currently an open setting. He believed the building should be restricted to two storeys not three. He accepted however, that moving further north from the site there would be sufficient separation for the additional height to not be evident and he also accepted that the new building should be a contemporary building.
The Applicant argued that the three villas approved next door at 89 Bowden Street would have a greater impact on No. 87 when viewed from the east and the north east as well as more directly impact the church opposite. This new development is not set back as far from No. 87 as the new component of the child care centre.
Mr Rappoport disagreed stating that No. 89 had a two storey built form and a pitch roof, as did No. 87, whereas the roof of the new child care building was not pitched. It was the limited visual separation between the new child care centre building and the heritage dwelling at No. 87 that was of concern
There was much discussion between the experts concerning the respective heights and consequent impacts between 87 and 89 Bowden Street and the new child care centre building on the MacPherson Street component of the site
Mr Staunton argued that, from any elevation, the new child care centre would not present as three storeys. It was only the basement car park element that technically made a component more than two storeys but that the overall development was still less than the permitted height limit. He considered that, from the church, a viewer would mostly see the palm trees and only a small portion of the flat roof of the new child care building also arguing that a large two storey dwelling on 2 MacPherson Street would have the same or greater impact.
Mr McDonald also argued that the new component of the child care centre wouldn’t read as a three storey building at any point and he considered that the new building would complement but not compete with the heritage buildings on or near the site. He also noted that the eastern elevation depicted on the amended plans was deceptive as it didn’t take account of perspective namely that as you move further away it would be less apparent.
Mr McDonald was of the view that, in contrast to the proposed child care centre, the development of 89 Bowden Street showed no evidence of trying to respect the heritage building next door, being higher, further upslope, bigger and bulkier than the child care centre although he did accept that the application for 89 Bowden Street had been approved prior to No. 87 being heritage listed. He argued that the new development on 89 Bowden Street would have a greater impact than the new child care centre building on both heritage items as it was closer to the church and to the dwelling at 87 Bowden Street and was not set back as far from the street as No. 87. He also noted that there were few controls to stop such development in the street or in the area as opposed to the controls that applied to the development of the appeal site because it contained a heritage item.
Mr Rappoport accepted that the development of the site could be as high as 9.5m but remained concerned that the proposed new built form was an inappropriate backdrop when viewed from the east and north east and from the church corner in particular.
In terms of the fireplaces, the Applicant advised that one fireplace would be retained in proposed cot room 1 but two fireplaces in proposed play room 2 needed to be removed to allow surveillance of children. Mr McDonald accepted that, for adaptive reuse, the use usually needed to fit the listed building not the reverse but in this instance removal of the fireplaces was required on safety grounds, namely to allow surveillance of children. He noted that everything else was being retained. He proposed that the fireplaces be salvaged and retained for future reinstatement if the use of the dwelling ever changed, noting that the Burra Charter contemplates reconstruction.
In contrast, Mr Rappaport argued that the fireplaces were of high significance, as had been agreed by the experts, and that it would be normal practice not to remove them. Further, that the purpose needed to fit the heritage item not the reverse. He did accept that, if the nibs and partial wall elements were kept, this would reduce the impact.
Both experts agreed it would be a compromise to remove the fireplaces albeit Mr McDonald noted that they were being removed not lost.
In terms of other proposed heritage works, such as air conditioning and acoustic treatment to windows, the experts agreed with a proposed schedule of works and a condition was prepared for any consent which would satisfy Mr Rappaport in terms of the acoustic glazing treatment to windows.
Mr Taylor’s evidence to the Court on the heritage landscaped setting was that the front garden of 87 Bowden Street currently provides an appropriate setting and garden character consistent with the landscape principles of Federation gardens, including clipped hedges, lawn and feature plants. However little of the original planting remains. To the MacPherson Street side of the garden there are three mature Sago palms and, to the rear of the dwelling, a row of Chinese fan palms which form a linear visual division between the rear of the house and the remainder of the site.
Arising from Mr Taylor’s recommendation, the Applicant had modified the application to retain two of the Chinese fan palms and relocate the balance, and the Sago palms, to elsewhere on the site including over the basement car park. Other plantings and path treatments were also proposed including planting adjoining the laneway, which Mr Taylor considered helped screen the car park wall but could be removed if required by the Council.
In Mr Taylor’s view, the landscape treatment proposed provided an appropriate amenity to the site and its immediate surrounds with the established landscape patterns of the area reinforced, trees in poor health removed and a net gain of trees across the site. He concluded that the proposal was an appropriate well considered plan which satisfied the heritage and streetscape values of the place.
In submissions, Mr Staunton argued that the only outstanding heritage issues in dispute were the loss of the fireplaces and view impacts from the church on the opposite corner.
In terms of the fireplaces, the Applicant argued that the importance of supervising children justified the compromise of having to remove the fireplaces. Further, that the Applicant would accept a condition to dismantle and store the fireplaces on site, prepare an archival report and reinstate the fireplaces if the child care centre use ceased.
In terms of the heritage impacts from the new component of the development, Mr Staunton argued that one would never see the eastern or northern elevations as they were depicted in the architectural plans which lacked perspective and that the new element of the child care centre would be between 12m and 17m from the church. He argued that the proposed development was effectively two storeys and would not appear in any element as three storeys. He also noted that the Council had had no difficulty in approving a villa development at 89 Bowden Street which Mr MacDonald said would have a greater adverse impact on the church and on No. 87. He noted that the dwelling at 85 Bowden on the other opposite corner was of even greater bulk. Finally, the Council had accepted that a contemporary building was appropriate for the child care centre.
The Applicant therefore concluded that there were no adverse heritage impacts associated with the proposal – the site was not in a Heritage Conservation Area, the design had due regard to the heritage items that needed to be respected, and the development involved adaptive reuse of a heritage item.
The Applicant further argued that what had driven the amended design was the need to fit the new child care centre building in with a heritage item. All setbacks complied except to the laneway and whilst the new element of the child care centre and the heritage building were linked they would be distinguishable as two separate buildings and would appear as two separate dwellings. He noted that there had been no issues raised by the heritage experts in terms of the impacts of the acoustic fencing and that such fencing was a typical visual requirement for childcare centres.
Dr Berveling, for the Council, argued that there were three issues to do with heritage; the fireplaces, the adequacy of the conservation schedule, and the visual impact of the eastern and north eastern elevation on the heritage church. In terms of the fireplaces, there was a balance between the heritage benefit and the requirements of adequate supervision but he considered alternative arrangements could be made for supervision which could see retention of the fireplaces. The Council did accept that a conservation schedule could be agreed between the parties but were not satisfied with the schedule as it currently existed.
In terms of the impact when viewed from the heritage listed church, Dr Berveling reiterated the visual impact concerns of Mr Rappoport.
Height, bulk and scale, and character impact
Part 3.2 of the DCP deals with child care centres. At cl 3.1 of Part 3.2 the objectives of the child care centre development are specified. Objective 7 is to ensure the child care centres are compatible with the streetscape and desired future character of neighbourhoods and character areas. The parties agreed that the site was not within a character area.
Control h) of the same section of the DCP requires that child care centres be designed to reflect desired/expected character of buildings in the area. In this regard, consideration is to be given to Part 4 Urban Areas, Part 5 Special Areas and Part 6 Specific Sites. The parties agreed that the site was not within a Part 5 or Part 6 area.
The experts agreed that the fundamental town planning/urban design contentions were the impact of the new work on the streetscape, the impact on the amenity of the approved development at 89 Bowden Street and on the adjacent heritage items, and the functional operation of the centre.
In terms of the character of the streetscape, the experts agreed that the immediate surrounding area is characterised by single and two storey dwelling houses and townhouses predominantly of brick and pitched tile roof construction although there is some commercial development within 100m of the site. It was also agreed that all sites within the immediate vicinity, other than those adjoining heritage items, could be redeveloped under the Codes SEPP which does not apply discretionary controls or design limitations on the materiality or roof form of development.
Whilst the Council accepted that the new element of the child care centre need not be the same as other development in the vicinity it should be compatible “as much as possible” whereas the proposed development was something quite different.
The Council was also concerned about the visual bulk of the car park podium and its appearance to the laneway.
Mr Staunton noted that the Council had not raised any issue with the setback to 89 Bowden Street in terms of streetscape and no contention in terms of the front setback to MacPherson Street. All the canopy trees would be retained even if relocated noting that Mr Taylor’s evidence had been accepted uncontested in terms of the landscape treatment for the proposed development including for the heritage item.
The Applicant also argued that the proposed development met the LEP maximum height requirement of 9.5 m. In Mr Staunton’s view if the LEP height maximum is not exceeded then the LEP height objective should be considered to be met. He also noted that the proposed FSR is 0.4:1 whereas 0.5:1 is permissible under the LEP.
Mr Vescio also noted that the LEP doesn’t contain any further limitations or restrictions on child care centres beyond the general height and FSR controls, and that the development complied with the DCP requirements in terms of the front and side setbacks and was consistent with the planning controls for the area. He argued the locality was diverse and was undergoing transition with no predominant residential form or style. He noted the site adjoined a typical laneway with high fences, garage access to development and hard edges to the laneway with an absence of laneway setbacks. Mr Vescio concluded that MacPherson Lane does not have a distinctive streetscape and, in any event, the Applicant was replacing a long colorbond fence adjoining the lane with a landscaped wall.
Mr Vescio acknowledged that many of the dwellings in the area had pitched roof forms but he also noted that a number of sites have been redeveloped and that there was no control on roof form or materials for complying residential development which will likely dictate the future character of the area.
The Applicant also argued that it was not necessary for the child care centre to look like a house as it was not a house. Mr Layman agreed that this was the case and was not what the Council were asking for. His concern however, was that the basement car park was out of character with development adjoining the laneway which was predominantly all single storey garages.
Mr Layman argued that the basement podium with a fence abutting the laneway made the development three storeys not two as defined in the DCP and whilst the floorspace may meet the numeric controls it did not meet FSR objectives. Mr Layman argued that the area was not undergoing significant transition and he was concerned with the elevated components of the child care centre and the requirement for high acoustic fences around playing areas in the vicinity of 2m.
The parties did not agree on whether the three storey element would be perceptible. Ultimately Mr Layman conceded that the development was effectively two storeys other than the podium elevation to the laneway and that it complied with the landscape setback requirements of the Council’s controls Mr Layman did not disagree that compatible development did not mean the development had to be the same and he accepted the design could be of a contemporary nature and that a complying residential redevelopment of 2 MacPherson Street under the DCP controls could be larger potentially than the proposed development. He believed the child care centre should respond to the prevailing brick and tile character but he deferred to the heritage experts in terms of compatibility with the adjoining heritage item.
The Applicant argued that MacPherson Lane had no redeeming features being adjoined on nil setbacks by high structures, garages with and without lofts above and a colorbond fence currently on the site for the length of the lane. This would be replaced with a landscape wall and the upper levels would be set back 6m from the laneway which could be reduced to as little as 1.5 m if it was treated as a side boundary and a 2 storey dwelling was built on the site instead. However if the Court so required, the Applicant agreed to set the development back further from the lane to provide additional landscaping. This could be achieved by deleting the internal pathway within the basement.
However, Mr Staunton believed the Court should find the relationship with the heritage item acceptable and that the form of development was not out of character with the existing or anticipated future character of the area.
Impacts on Neighbours
Mr Layman acknowledged that the amended proposal had addressed the Council’s concerns in terms of overshadowing although, in terms of visual impact, he noted it remained close to No. 89.
Mr Vescio argued that the amended plans substantially increased the setbacks beyond DCP requirements for dwellings, medium density dwellings or child care centre requirements, that the new element of the centre would have quality materials and articulation, and that the amended proposal would improve solar access relative to the lodged application. Furthermore, the highest part of the building was between 7.8 and 8m, well below the LEP height limit and the centre had been redesigned to minimise the impact when viewed from 89 Bowden Street albeit the design of No. 89 had not had regard to how 2 MacPherson Street may be redeveloped. Mr Vescio also noted that if the application was for a villa development, it could be two storeys only 3m from the laneway and have greater impact on neighbours.
The parties agreed that the visual impact to 91 Bowden Street would not be significant, as it was well setback with planter boxes in the setback area, and that there would only be impacts on oblique views from across the villas at No. 89.
The Council also acknowledged that there would be acoustic compliance but this would require screening treatment.
The Applicant argued that the proposal would have minimal amenity impacts because the site was a corner site with roads as neighbours on three sides and that there were only two adjacent neighbours; one with a shed adjoining the site, being No.91 and one currently being redeveloped for villas, being No. 89. Mr Staunton claimed that the developer of No. 89 had known of the application for the subject site when seeking approval as had the Council. He also argued that the development met all of the relevant controls being under the height limit and only having an FSR of 0.4:1 whereas the DCP allowed 0.5:1. It was also a permissible use
In summary, in terms of the objectors, Mr Staunton noted that the height and overshadowing issues had been addressed to No. 89 so that the overshadowing now complied and the wall height was below that permissible. In terms of impact on No. 91 Bowden Street, the shed on that property ameliorated any impacts and views of the building would be across the intervening villa development, which would not be a ground for refusal.
In terms of acoustics, the experts agreed on appropriate treatments which could result in screens less than 2.1 m high and the Applicant also argued that the centre would only be operational Monday to Friday not on the weekends or in the evenings.
Size and layout of the centre
The Council’s concern with the size of the child care centre was that it necessitated inclusion of upper level play areas with external components, in particular play areas 5 and 6, arguing that upper level usage for child care was uncharacteristic and not compatible with child care centres in other areas. Furthermore, these play areas at the upper levels were also adding to the bulk and scale of the development. There was also concern with play areas in the front setback area which required acoustic fences to the streetscape.
Mr Layman was of the view that there were too many children being accommodated in the development which had necessitated upper level and elevated play areas, which were uncharacteristic of child care centres, and increased the number of car bays required. This affected the size of the parking and requiring a basement car park and podium, adding to the bulk and scale of the building.
Mr Vescio noted an open car park could be an alternative but he considered that this was be a less attractive design outcome. He provided the Court with examples of child care centres in the Ryde LGA which had play areas in front setbacks and/or at upper levels. One such centre had both parking and play areas in the front setback and a recently approved 110 children child care centre at 87 Park Street had an upper level playing area as well as a basement car park. The examples provided were all within 1km of the site and all in residential areas. Mr Vescio argued that the DCP discouraged two storey child care centres on the basis of safety not in terms of visual impact.
The Court was taken to various figures within section 3.2 the DCP, being Figures 3.2.04, 3.2.05 and 3.2.09, which are photo examples of child care centres. The photos include an existing dwelling converted to a child care centre, a child care centre on a corner with a roundabout, and a large scale purpose built centre, all in residential areas. At least one appears to have a play area in the front setback to the street and Mr Vescio argued that the DCP encourages child care centres on corners to minimise neighbour impacts.
The Council accepted that the DCP contained photo examples of such development. Dr Berveling noted however, that there was no evidence of the circumstances of those cases and they did not provide justification for non-compliances if the objectives of the DCP could not be met.
Mr Staunton argued that the examples of the child care centres provided were the examples used by the Council in their DCP. They showed a variety of child care centre designs located amidst low density dwellings houses and included examples of centres with upper floor play rooms and play areas in the front setback.
However, Dr Berveling argued that the upstairs play areas were indicative of a centre design which maximised the operation to the detriment of the streetscape and locality.
Mr Layman agreed that he had assumed, perhaps incorrectly, that all the children slept or played at the same time and he accepted that the Applicant would need to comply with the Childcare Regulations and would be licensed. The Applicant argued that child numbers would be limited if the facility was considered to be inadequate. Details were provided to the Court about supervision, access to amenities and how the facility would operate.
Mr Staunton argued that there was precedent of the Council approving child care centres with upstairs play areas and in any event the use of the child care centre would be regulated irrespective of the DCP or Council controls in terms of play area sizes, location and useability.
Parking and access
Section 5.0 of Part 3.2 the DCP contains objectives and controls for parking, traffic and access associated with child care centres. In terms of parking, control f) states that underground parking is not permitted in low density residential areas. Mr Staunton argued that, as parking is permissible in the LEP in the R2 zone, it cannot be prohibited by a DCP control pursuant to s 79C (3A) of the Act. Furthermore, although Council raised non-compliance with this DCP control, no evidence was provided as to why the car park in this form was unacceptable.
A traffic and parking assessment was submitted with the application. In a report to the Council on the original application, Council officers stated that the proposal would have adequate off street parking and comply with the provisions of the DCP and that the Council’s Senior Development Engineer had considered the proposal to be acceptable from a traffic, parking and pedestrian safety perspective, subject to the imposition of recommended conditions of consent.
The Applicant had also offered works within the MacPherson and Bowden Street road reserves including new pathways, street tree planting, parking spaces, and traffic control devices. However, the Council officer recommended that many of these works, particularly the on street parking and traffic control devices, were unnecessary or inappropriate in the context of the development. Therefore, although these works were offered by the Applicant, it was recommended that they not be required.
The Applicant provided expert advice and an expert witness to address traffic, parking and access however, no similar expert was provided by the Council. The only evidence before the Court on these matters was therefore the officer’s report to Council on the original application in which these issues, which largely remained unchanged with the amended application, were all considered to be adequately addressed.
Findings
The application before the Court was substantially modified to that which had been refused by the Council. In particular, in response to the heritage listing of 87 Bowden Street, the proposal was modified to retain and adaptively reuse this dwelling as part of the child care centre development rather than demolish it and build a totally new facility.
Many of the objections to the original application were on the basis of the proposed demolition of 87 Bowden Street. With its retention, the challenge then became appropriate integration of the new element of the child care centre with the now heritage listed dwelling at No. 87 on the same site. Having regard to the evidence provided, I find that the resultant development is one that warrants approval.
In coming to that conclusion, I note that the child care centre as now proposed complies with the core LEP controls of height and FSR and is in fact below the maximum permissible development facilitated by both these controls. Setbacks are also generally compliant. Furthermore, the recommendations of the heritage landscape consultant were incorporated into the amended proposal so that the landscaped setting of the heritage building has been retained and much of the vegetation on site retained, relocated or enhanced to provide a buffer to adjoining residential development.
I also note that the only immediately adjacent residential property in Bowden Street is currently vacant awaiting redevelopment for three villas and that the application was amended to minimise adverse impact on the open spaces of these new dwellings. The only other adjoining property for part of the site, 91 Bowden Street, will be separated from the development primarily by the new villa development on No. 89 but also by a shed on the laneway of that property immediately adjacent to the common boundary with No. 2 MacPherson Street, with the only portion of common boundary being the rear yard of No. 91.
I therefore accept that there will be no adverse amenity impacts on any adjoining residential property which would warrant refusal noting also that there were no substantive issues in terms of amenity impacts to neighbours raised by the Council or which arose from expert evidence, notwithstanding the objections of residents.
A number of the residents objected to the development on the basis of traffic and parking concerns. However, the only evidence before the Court was that the parking numbers provided comply with DCP provision requirements and that the access and parking arrangements were to the satisfaction of the Council engineer. I therefore must accept the expert evidence that parking and traffic is not a ground for refusal.
In terms of the presentation to the laneway, I accept the evidence of the Applicant that the lane does not have a consistent character and few redeeming features. The Applicant’s proposal to replace the existing colorbond fence with a small setback to provide landscaping along the podium/car park wall was in my view sufficient treatment for this elevation. However, the Applicant has agreed to a Council condition to increase the setback to 1m to improve pedestrian amenity and landscaped treatment to the lane, and this condition has been imposed in the consent accordingly.
I do not disagree with Mr Layman that the design of the new element of the child care centre will not be generally reflective of the predominant existing character of the street but I also accept that properties in the street and in the locality have and can be redeveloped for dwellings of not dissimilar bulk, scale or character to the child care centre design proposed. Therefore the design may well be reflective of the desired future character given it reflects a scale of development facilitated, and therefore envisaged, by the controls.
Furthermore, the Council did not take issue with the contemporary design of the centre, only with the number of storeys, potential heritage impacts and use of the upper level and front setback areas for play areas.
Having regard to the approval for 89 Bowden Street, and noting the modern large dwelling at 85 Bowden Street, I accept Mr McDonald’s advice that the impact of the proposed new element of the centre on the nearby heritage listed items, being 87 Bowden Street and the church on the opposite corner, will be acceptable and will be of no greater impact than the approved redevelopment of No. 89, the existing large dwelling at No. 85 and any potential two storey dwelling which could otherwise be developed at 2 MacPherson Street.
Whilst the basement car park gives rise to a potential 3 storey element, I accept that the location of this element is such that it is unlikely to be visible to the extent that it would have an adverse impact. I accept that the DCP can not preclude this car park when the LEP does not preclude a car park and also note that the Council’s engineers were satisfied with the proposed parking provision. Whilst not raised substantively in evidence, it is arguable that excavating and screening the parking in the manner proposed is a preferable outcome in terms of visual and acoustic amenity for adjoining residents, the streetscape and the adjacent heritage items than an open air car park for 20 cars would likely be.
I also note that the development makes a positive heritage contribution in that it adaptively reuses a local heritage item of value to the local community, being the dwelling at 87 Bowden Street. Whilst the loss of two original fireplaces in that dwelling is regrettable, and would preferably be avoided, I accept that the Applicant is only removing the fireplaces to meet safety requirements for surveillance of children which must be given higher priority than retaining these elements. In approving the development, I have nevertheless imposed the condition offered by the Applicant requiring that the fireplaces be retained and reinstated on site in the event that the child care use ceases.
The Applicant otherwise accepted an updated schedule of works sought by the Council for adaptation of the heritage item should be required as a condition of consent and had taken on board the key recommendations of the landscape heritage consultant and the acoustic consultant.
In terms of the use of the upper level of the child care centre for play areas, and the location and use of the external play areas proposed, I believe this is a matter best left to the licensing Regulators which don’t preclude these options. In evidence, the Applicant demonstrated an understanding of the operation of child care centres which indicated that such areas would comply with the Regulations whilst also meeting acoustic requirements.
I am therefore satisfied that the Plan of Management as proposed by the Applicant in conjunction with the required licensing regime for child care centres will suffice in terms of the adequacy of the management and layout of the facility including the inclusion of upstairs and external play areas in the manner proposed.
Conditions of approval
The parties generally agreed with a set of conditions should approval be granted however, a number were in dispute.
The Council proposed that, if the Court was generally satisfied with the updated Schedule of Conservation Works proposed by the Applicant, there was not a requirement for a deferred commencement condition to require an updated Schedule before an operational consent took effect. However, the Council did seek a condition requiring the Schedule be further updated to deal with the acoustic glazing of windows as agreed by the heritage experts. As I accept the Schedule of Conservation Works as proposed and amended by the Applicant, I have only imposed the condition on glazing sought by the Council, it being an operational rather than a deferred commencement condition.
The Council also sought retention of the existing Frangipanni trees on the southern side of the existing dwelling at 87 Bowden Street, arguing that the trees are located away from the proposed works and can be retained. Further that, as the trees are in reasonable condition and no valid reason for their removal was provided, they should be retained and protected during the redevelopment of the site. The Applicant’s arborist had suggested they be considered for retention. Mr Taylor also noted that, whilst not original plantings and over mature (meaning they would be unlikely to survive relocation), the Frangipannis contribute to the overall aesthetic values of the place. I agree they add to the landscape setting of 87 Bowden Street and, as their retention can be accommodated, I have imposed the condition for their retention sought by the Council.
There was also disagreement about the wording of a condition dealing with public domain works. In essence the only point of disagreement was the Applicant’s desire to only reinstate any kerb or gutter in MacPherson Lane damaged by construction rather than to reconstruct the lane’s kerb and gutter for their entire lane frontage even if it was not damaged, as sought by the Council. I consider the Applicant’s position to be reasonable in this regard and have imposed their proposed wording of this condition accordingly.
Finally, I have amended the reference to the approved plans in the consent to reflect the revision numbers and dates of the plans upon which Leave was granted to the Applicant to rely upon during the hearing, as reflected in Exhibit H.
Orders
The orders of the Court are:
(1)The appeal is upheld;
(2)Development Application LDA/2015/283 for a child care centre at 87 Bowden Street and 2 MacPherson Street, Ryde is approved subject to the conditions set out in Annexure “A”.
(3)The exhibits, other than Exhibits A, B, H and 2, are returned
__________________
Jenny Smithson
Commissioner
154628.16 - Annexure A - Conditions of Consent (163 KB, pdf)
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