Zaki v Ku-ring-gai Council

[2013] NSWLEC 1011

Land and Environment Court

New South Wales

Medium Neutral Citation:	Zaki v Ku-ring-gai Council [2013] NSWLEC 1011
Hearing dates:	20-21 August 2012. Further submissions filed up to 26 September 2012.
Decision date:	18 January 2013
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	See paragraph 56
Catchwords:	DEVELOPMENT APPLICATION - child care centre, tree loss, streetscape, internal amenity, impact of development on residential amenity, particularly noise, conditions of consent and costs.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ku ring gai Planning Scheme Ordinance Land and Environment Court Act 1979.
Cases Cited:	BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 Futurespace Pty Ltd v Ku ring gai Council [2009] NSWLEC 153 Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 Staldone Corporation Pty Ltd v Ku ring gai Council [2012] NSWLEC 1055
Category:	Principal judgment
Parties:	Carlos Zaki (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel Mr M Staunton (Applicant) Solicitors Mr C Gough Storey & Gough Lawyers (Applicant) Mr A Zoppo Sparke Helmore (Respondent)
File Number(s):	10054 of 2012

Judgment

1. This is an appeal against the refusal, by Ku-ring-gai Council (council), of development application (DA0671/11) under the Environmental Planning and Assessment Act 1979 (EPA Act) for the demolition of an existing dwelling and the construction of a 78 place childcare centre with basement parking for 22 vehicles at 5 Manning Road, Killara (site).

1. The issues in the case are whether the development will detrimentally impact on the landscaped character of the area; is incompatible with the streetscape; provides an appropriate level of internal amenity; will have unacceptable amenity impacts on adjoining properties, particularly in terms of noise. The parties also disagree on conditions and whether an order for costs under s 97 B of the EPA Act should be made.

The site and its context

1. The site is a rectangular allotment with a frontage of 26.06 m, depth of 76.62 m and site area of 2004.1 sq m. It is located on the northern side of Manning Road, 145 m from its intersection with Beaumont Road.

1. A single storey brick and tile dwelling with attached garage is currently erected in the centre of the site, which is heavily vegetated with a number of canopy trees.

1. Adjoining development to the west is a two storey dwelling with swimming pool and tennis court (7 Manning Road). To the east, is a two storey dwelling (3 Manning Road) and a single storey dwelling (3B Manning Road) on a battle-axe allotment.

1. Development within the immediate locality comprises a range of built form ranging from detached houses on large allotments with swimming pools and tennis courts, battle-axe allotments containing detached housing and some multi-unit developments. Part of the Lane Cove National Park is located at the western end of Manning Road and the site is located approximately 400 m from the Beaumont Road Public School.

Background and the proposal

1. The original development application was lodged on 12 January 2012 and notified and council received a total of 162 submissions. The application was refused on 27 March 2012. The applicant lodged an appeal and a s34 conciliation conference was held in April 2012. As a result of that conference, the applicant prepared and was granted leave to rely on amended plans. The council has notified those plans and received a total of 123 submissions which raised similar issues to those expressed in the original submissions. Those objections relate to overdevelopment, incompatible with the character of the streetscape, noise, bushfire, traffic, tree removal, loss of property value and pedestrian safety. No agreement was reached, the conciliation conference was terminated and the parties agreed that the matter be determined in accordance with the provisions of s 34(4)(b)(i) of the Land and Environment Court Act 1979.

1. The plans now before the Court propose:

• Demolition of existing dwelling, outbuildings and driveway;
• Removal of 21 trees;
• Construction of a basement level, accessed by a 6.3 m wide driveway in the centre of the site and providing parking for 22 vehicles (including one accessible space), turning bay, mechanical plant room and garbage store;
• Construction of a single storey building designed for use as a childcare centre to accommodate a maximum of 78 children.
• Construction of outdoor play areas, pedestrian ramps and site landscaping.

1. The childcare centre would be staffed by 13 persons with hours of operation from 7 am to 6 pm Monday to Friday.

1. The proposed building would be setback 14.657 m to Manning Road, which is consistent with the dwelling to the immediate east of the site. The setback from the rear boundary varies from a minimum of 14.934 m to 21.182 m and side setbacks proposed are a minimum of 2.4 m (east) and 2.57 m (west).

1. The development has been designed in two buildings with play areas and the entry foyer linking each building. The front building (Building A) would accommodate 24 children aged 0-2 years and the associated outdoor playing area would be centrally located on the eastern side of the building. The rear building (Building B) would accommodate two areas; one for 24 children aged 2-3 years and the other for 3-6 years accommodating 30 children. The play areas for these children would be in the rear yard and on the western side of the building.

1. During the hearing further changes were made to the proposal in response to expert evidence. After the hearing the parties provided written submissions on the conditions in dispute and costs.

The planning controls

1. The site is zoned Residential 2(b) under the Ku-ring-gai Planning Scheme Ordinance (the KPSO). Child care centres are permitted with consent in the 2(b) zone. Schedule 9 of the KPSO provides general aims and specific objectives for residential zones. Those relevant to the 2(b) zone are:

1. The general aims of this Ordinance in relation to land within Zones Nos 2(a), 2(b), 2(c), 2(d), 2(e), 2(f), 2(g) and 2(h) are -

(a) to maintain and, where appropriate, improve the existing amenity and environmental character of residential zones; and

(b) to permit new residential development only where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development.

2. The specific objectives of this Ordinance in relation to land within Zones Nos 2 (a), 2(b), 2(c), 2(d), 2(e), 2(f), 2(g) and 2(h) are to ensure that -.......

(c) any building or development work shall maintain or encourage replacement of treecover whenever possible to ensure the predominant landscape quality of the Municipality is maintained and enhanced; and

(d) any building or development work on a site avoids total or near total site utilisation by maintaining a reasonable proportion of the site as a soft landscaping area; and

(e) all new dwelling-houses and additions to existing dwelling-houses are of a height, size and bulk generally in keeping with that of neighbouring properties and, where larger buildings are proposed, they are designed so as not to dominate and so far as possible to harmonise with neighbouring development; and.......

1. A number of development control plans also apply to the application, including Development Control Plan No 57- Child Care Centres (DCP 57).

The evidence

1. The Court visited the site and surrounding area and heard evidence from objectors. Their key concerns were that the proposed childcare centre is incompatible with the residential character of the area and will result in unacceptable impacts, particularly in terms of traffic, noise and tree removal. They considered the size and appearance of the centre, particularly the basement car park, to be out of character with the surrounding houses and the proposal to be an overdevelopment of the site. The principal of Beaumont Road Public School and a number of residents raised concerns about the traffic generation of the centre and impacts on parking and safety given that Manning Road is very narrow and part of a local bus route and that the school already has traffic and parking problems. Concerns about the bush fire hazard were also raised. They considered the proposal did not meet the requirements of the KPSO or DCP 57.

1. The issues raised by the objectors generally reflect the contentions of council. However, council did not raise issues of traffic and parking other than the provision of a pedestrian path and driveway design. Nor did it raise bushfire contentions. In the absence of expert evidence, I accept that the issues raised by the objectors in relation to these matters have been addressed to the satisfaction of council and would not warrant refusal of the application.

1. Expert acoustic evidence was provided by Mr S Cooper (council) and Mr S Gauld (applicant). Mr S Fenn (council) and Ms M Gibbs (applicant) provided arboricultural evidence and Mr J Goodwill (council) and Mr A Martin (applicant) provided evidence on planning matters.

1. Mr Fenn (council) and Ms M Wilson (applicant) prepared a joint report on landscape matters but as they reached agreement they were not required for cross examination.

1. Mr O Sannikov (applicant) prepared an expert witness statement to address contentions 5(a) and 5(b) which required conceptual plans for the footpath and driveway. He was not required for cross examination during the hearing but the written submissions filed after the hearing raised matters in relation to conditions and the conceptual plan for the footpath. This matter is addressed later in this judgment.

Character

1. The experts disagree on whether the proposal is compatible with the character of the streetscape. In Mr Goodwill's opinion, the proposal includes a number of elements that are not characteristic of the low density residential area. These include the extent of excavation for the basement garage, the width of the driveway, the length of the building and its footprint (64% built upon area), the removal of trees and lack of canopy trees in the side setbacks and the extent of retaining walls.

1. Mr Martin considered that the proposal did not have to be the same or appear as a residential dwelling to be compatible. The front setback, single storey and pitched roof of the proposal, as well as the retention of trees and the curved driveway are compatible with the streetscape character of houses in landscaped settings. Similarly the side, and rear setbacks are consistent with the mix of setbacks in the street. The length of the building is broken up into two building forms and, in Mr Martin's opinion, is similar to the dwelling on the battleaxe block at 3B Manning Road and the dwelling at 3 Manning Road.

Internal amenity

1. The planners agree that with amendments to the plans and proposed conditions to include dormer windows and additional windows the proposal achieves acceptable solar access. They disagree on the ventilation however, this was later addressed by the acoustic evidence which permitted certain doors and windows to remain open which would achieve acceptable internal amenity.

Tree impacts

1. Council did not press the contention that the application fails to comply with the requirements of Part 5.7 of DCP 57 which states:

Landscaping of new childcare centres shall be designed to minimise the visual impact of the buildings on the landscape

1. The landscape experts agree "the proposed landscape proposes to retain large existing trees to the front of the property and incorporates extensive new native planting throughout the front landscape areas". However, the arborists initially disagreed on the impact of the proposal on Trees 3, 5 and 12. They subsequently agreed that the impacts to Trees 3 and 5 could be addressed by a watering system which replicated the existing hydrological conditions. Mr Fenn also accepted that Tree 12 had no identifiable problems six years after the development of 3 Manning Road and that there was space to the north and south for the tree to expand. Mr Fenn maintained his concern about the removal of Trees 16 and 22, which are significant canopy trees that contribute to the character of the area. Ms Gibbs accepted that their removal was regrettable but unavoidable due to their location within the footprint of the development and the centre of the site.

1. The parties disagreed on the proposed condition which requires that no works occur within a specified distance of certain trees to be retained (condition 12). This is discussed later in this judgement.

Acoustic

1. Section 5.8 of DCP 57 provides that noise generated by a childcare centre must not be more than 5dB(A) above background noise measured at any point in an adjoining residential property. Mr Cooper and Mr Gauld accept that this is the appropriate noise criteria and agree that subject to the implementation of noise mitigation measures, the proposal will meet the noise criteria in DCP 57. The measures include noise barriers along the boundaries as well as further management measures, including limitations on the number of children in outdoor play areas 1, 2, 3 and 4 and restrictions on the type of play in these areas.

1. Council's written submissions, state that it maintains its opposition to the development as:

The proposed development involves the operation of a significant child care centre in a quiet suburban area.

The only way the development can meet the DCP requirements is by implementing significant acoustic barriers and implementing stringent conditions on the maximum number of children allowed to engage in outdoor play and then restricting the permitted activities of those children.

1. The applicant's written submissions state that the acoustic experts have agreed that the noise criteria in DCP 57 can be met subject to appropriate mitigation measures.

There is nothing special about childcare centres using acoustic barriers and or limiting the number of children being permitted in outdoor play areas at any one time in order to achieve acoustic goals. The controls are a common occurrence in respect of childcare centres located adjacent to residential dwellings. There was no evidence called by the Council that suggested that the requirements of the conditions could not be met or that meeting the conditions had an unacceptable impact on the proposed use.

1. The parties disagree on the imposition of conditions limiting the number of children at the centre to 40 and requiring a 12 month trial (Conditions 82, 83 and 84) and acoustic assessment by an expert agreed to by council (condition 94(a). These conditions are discussed further in this judgment.

Findings

1. In BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [117] and [118] McClellan CJ states:

planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. .....

In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

1. Childcare centres are permissible as an innominate use within the Residential 2(b) zone under the KPSO. It is therefore not unreasonable to assume that in 'in some form' the use of the site for a childcare centre would be permitted provided it results in 'acceptable environmental impacts' and is 'consistent with the relevant objectives of the zone'.

1. There is no evidence that the size of the site, its location or its characteristics render it unsuitable for a childcare development 'in some form'. The question is whether the impacts resulting from the childcare centre, in the form proposed, are acceptable and whether it is consistent with the objectives of the zone.

1. The impacts of the proposal of noise, internal amenity, and tree loss have largely been agreed between the experts. The form of the childcare centre proposed does not result in impacts which are beyond those reasonably anticipated from a child care centre. The acoustic experts have found that subject to the provision of noise barriers and management measures the noise impacts are acceptable and meet the criteria in DCP 57. The design of the noise barriers, being setback from the side boundaries with angled polycarbonate above, is not atypical for a childcare centre adjoining residential properties. Similarly, the management measures, which restrict the number of children and the nature of play, are acceptable.

1. A childcare centre will require elements that appear different to dwellings. However, just because an element is different does not automatically mean that it is not compatible with residential character (see Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 at 22-31). The existing residential character is one of large houses within landscape settings. The centre is consistent with this character. The building is single storey with a pitched roof, it has a similar alignment to the adjoining dwellings and existing trees are retained in the front setback. The curve of the driveway and the landscaping minimise the impact of the excavated basement car park to an acceptable level. The building is broken into two components and provides side and rear setbacks that are consistent with the residential development in the area. While the footprint of the building exceeds that required for dwellings by the KPSO, a reasonable proportion of the site remains for soft landscaping and the landscape experts have agreed that the tree retention and replacement provide a landscape character that is consistent with the area.

1. The arborists have agreed that Trees 3, 5 and 12 can be retained. The removal of Trees 16 and 22, which are significant canopy trees that contribute to the character of the area is regrettable but unavoidable due to their location within the footprint of the development and the centre of the site.

1. For these reasons, I accept that the proposal is consistent with the objectives for the 2(b) zone in the KPSO and has impacts that would not warrant refusal of the application, subject to the imposition of appropriate conditions.

Conditions

1. Condition 12: This condition requires no work within a specified distance from Trees 13, 28, 29 and 30. The Applicant does not object to the nominated distance for Tree 13 but seeks an amendment to this condition as it applies to the other trees.

1. The applicant submits that there will be a minor encroachment into the setback areas for the trees for structures such as footings, retaining wall, access ramp and steps. The encroachments comply with AS 4970-2009.

1. The Applicant submits that such encroachment will have no effect on the health or structural adequacy of the trees and that the proposed amendment will allow the development to proceed in accordance with the plans.

1. The Applicant would agree to a condition requiring such works be supervised by a suitably qualified consultant together with a condition that provides that "any work that must occur within the no work area requires the tree trunk to be protected with wooden boards surrounding the tree trunk".

1. Council submits that the suggested amendments effectively removes the protection to these trees and is beyond what is necessary to allow the approved works to occur. It submits that Condition 12 can be amended to exclude the immediate areas where approved works are to occur.

Findings

1. I accept that council's proposed amendment will address the concern of the applicant that the condition, as currently worded, would not enable the approved works to be constructed but will also ensure that the area around the trees is not used for the storage or disposal of materials. The encroachment of the steps should also be excluded. I note that the benches are unlikely to be built until the end of the construction period and, as these are proposed to be placed around the tree trunks, this area should not be excluded from the fenced area. Also if the benches involve excavation for footings near the tree trunks, this should be supervised by an arborist and a further condition to this effect should be included. The first paragraph of Condition 12 should be amended to read:

To preserve the following tree/s, no work shall commence until the area beneath their canopy, excluding the immediate areas where the retaining wall, the steps and the ramp in Play areas 3 and 4 are to be constructed, is fenced off at the specified radius from the trunk/s to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site.

1. Condition 29: the parties disagree on whether the condition should include a the following infrastructure works in Manning Road:

Construct landings at the bus stops connected to the footpaths. The design shall be in accordance with the 'Draft' Guideline for assessing compliance of bus stops with the disability standards for Accessible Public Transport 2002 (DSAPT).

1. The requirement was included in the conditions tendered during the hearing but is proposed to be deleted by council in the conditions that were filed after the hearing. Council submits that contention 5(a) required a footpath between the pedestrian entrance of the premises of the centre and the bus stop in Manning Road, near its intersection with Beaumont Road and that this should be provided not the "concrete pad" and "zig zag path" proposed by the applicant in front of the site. Further, there is no application for a Roads Act approval for these works.

1. The applicant submits that a conceptual design for the "concrete pad" and "zig zag" footpath connecting the site to the kerb at Manning Road was provided in the evidence of Mr Sannikov (Exhibit D), Council did not require Mr Sannikov for cross examination and did not raise any issues with the concept plan during the hearing. Contention 5(a) does not require a footpath to Beaumont Road, and to do so would be unreasonable given that it was not raised during the hearing, there is no evidence to support that the need for a footpath is generated by the development given that the existing houses generate pedestrian traffic and there is currently no footpath. The applicant submits that the concept plans should be approved and that this would constitute an approval under the Roads Act.

Findings

1. Contention 5 (a) required:

A conceptual design for a footpath between the pedestrian entrance of the proposed child care centre and the existing bus stop in Manning Road is required.

1. The contention is unclear as to which "existing bus stop in Manning Street" it refers as there is currently one opposite the site and near the corner of Beaumont Road. In the absence of any evidence to the contrary, I accept the applicant's submission that it would be unreasonable to require a footpath between the site and the bus stop near Beaumont Road. However, I do not accept that the development does not increase the demand for a footpath, given that it increases to number of people likely to walk along the street. It is not unreasonable for the condition to require a footpath at least in front of the site. However, given that council now opposes the concept plan in Exhibit 5, I do not accept that this should be approved as part of the application. The condition should be retained but reworded to clarify its requirements.

1. Conditions 82, 83 and 84: council submits that any approval should include conditions which limits the maximum number of children to 40 at any one time (condition 82): with an increased capacity of 78 children for a 12 month trial period (condition 83); and that a further application may be lodged before the end of the trial period to continue operating with the increased capacity (condition 84). Council submits these conditions are necessary to ensure neighbourhood amenity as the trial period will enable an assessment of compliance with the conditions, in particular acoustic compliance.

1. The applicant submits that a condition requiring a trial period should not be imposed as the agreed acoustic evidence indicates that the noise criteria can be met. Further, condition 94 requires monitoring of acoustic compliance and further management measures to achieve compliance. No issue was raised during the hearing that the number of children is inappropriate and the centre is designed to accommodate 78 children. Approval of a lesser number is not warranted.

Findings

1. I accept the applicant's submission that a trial period is not appropriate. The acoustic experts agree that the proposal can comply with the noise criteria and compliance monitoring will be undertaken. While the approval is for 78 children there are limitations on the number of children that can play outside at any one time. The number of children that can be outside would be the same whether there is a maximum of 78 children or 40 children at the centre. The difference in overall numbers would result in a different number of children inside the centre not outside. The centre is designed to accommodate 78 children and it is unreasonable to limit this number and impose a trial period given that the evidence is that the amenity impacts of the proposal are acceptable. Condition 82 is amended to be a maximum of 78 children and conditions 83 and 84 are deleted.

1. Condition 94(a): in council's submission, noise monitoring of the operation of the centre should be undertaken by an "independent suitably qualified acoustic consultant as agreed between the parties". The applicant agrees to the condition requiring noise monitoring but not that the acoustic consultant must be approved by council.

Findings

1. Condition 94 requires the acoustic consultant to be independent (94(a)); the testing to be carried out without the prior knowledge of the owners/or operators of the centre (94(c)); a report on compliance to be submitted to council and if there are any non compliances then recommendations are to be made and implemented (94(e); and further testing undertaken 94(f)). I accept the applicant's submissions that these measures are adequate to monitor compliance with the noise criteria and thereby ensure that impacts on residential amenity are reasonable.

Costs

1. The council submits that the applicant has made further amendments to the plans and effectively been given leave to file amended plans. As the amendments are not minor, an order for costs under s 97B of the EPA Act should be made.

1. The applicant submits that the changes are minor and made in response to the evidence of the experts and therefore s 97B does not arise (see Staldone Corporation Pty Ltd v Ku ring gai Council [2012] NSWLEC 1055 at [163]). Further, each of the amendments is minor in nature in the context of the development, whether considered individually or cumulatively and did not require significant reassessment (see Futurespace Pty Ltd v Ku ring gai Council [2009] NSWLEC 153).

Findings

1. I accept the applicant's submission that the amendments are minor. The changes could be imposed as conditions of consent, but it is preferable that they be incorporated into a final set of plans to ensure consistency and certainty in the development consent. As the changes are minor an order for costs under s 97B does not arise.

Directions

1. The parties are to file agreed conditions which reflect this decision by 25 January 2013. Orders will then be issued in Chambers.

Annelise Tuor

Commissioner of the Court

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Decision last updated: 21 January 2013