23 Expert acoustic evidence before the Court consists of a Noise Assessment prepared by Mr Rodney Stevens of RSA Acoustics Pty Ltd dated December 2007, submitted with the development application; a Statement of Evidence dated May 2010 prepared by Mr Brian Marston; and oral evidence provided by Mr Marston on site.
24 The Noise Assessment Report prepared by RSA Acoustics provided with the development application stated that the LA90, 15 min environmental background noise level at the site was 40 dB(A). The NSW Department of Environment and Climate Change has no policy relating directly to child care centres. Applying the Industrial Noise Policy for assessment of offensive noise, an acceptable Intrusive Noise Limit would be a LAeq, 15 min of 45 dB(A), and an acceptable Amenity Noise Limit would be an LAeq, 15 min noise limit of 55 dB(A). That results in a noise appropriate limit of an LAeq, 15 min of 45 dB(A) beyond the residential boundaries for noise emissions from the Child Care Centre building and the external activity areas. The alternative criterion of 'background plus 10 dB(A)' based on an LA10 noise limit would lead to a LA 10 noise criteria of 50 dB(A); while this would produce a more lenient noise goal, this approach is typically applied to infrequent community events considered to be of social worth or where noise exceedence is only for a small part of the working day.
25 The Noise Assessment Report noted that the activities inside the building would generally consist of quiet play and learning activities; on occasions the internal noise levels would rise to about 73dB LAeq, 15min for extended periods. With boisterous play inside, and with all the windows and external doors fully closed, the LAeq,15min noise level from indoor play activities would be less than 37dB(A) at and beyond any residential boundary; with doors fully open, that would result in noise emissions from indoor play activities of up to 43dB(A) at and beyond the residential boundaries. In relation to external noise emissions from the outdoor play area, the report stated that the average LAeq noise level in the yard area of the nearest potentially affected residence without an intervening fence should be 44 to 47 dB(A) for a group of 10 children, and 45 to 48dB(A) for a group of 20 children. A 1.8m high fence would reduce the sound levels between the children and a standing adult by 10 to 12 dB(A), reducing the potential LAeq,15 min noise levels from 48 to 50 dB(A) to 38 to 41 dB(A) from a potential 30 children. A 1.8m fence along the rear boundary would achieve a noise reduction of 7 dB(A) to achieve the noise level limit of 43 dB(A) at 24 White Cedar Drive.
26 The Noise Assessment Report assessed noise impact due to vehicle movement in the parking area, and noise from airconditioning condenser units. The Noise Assessment Report included recommendations for ratings for windows, and recommended that a 1.8m high lapped and capped wood paling fence be constructed along both side boundaries and the rear boundary, remaining at full height to within 5.5m of the front boundary and then tapering to 1m at the front boundary.
27 During the course of its consideration of the application the Council indicated its concern about the proposed noise level of children in the outdoor play area. The Noise Assessment Report was amended on 18 July 2008 to recommend that an acoustic barrier be located on the three sides of the property adjoining residential areas; such a barrier could be solid to 1.8m with a clear extension piece of 6mm thick Perspex, glass or acrylic to a height of 2.5m; the upper section of clear material could be 600mm at 45 degrees out over the external play areas.
28 Mr Marston's written report addresses the question of whether there is a need for a 2.2m high acoustic fence along the side and rear boundaries. Mr Marston states:
3.1 My original opinion expressed in a written advice for a 1.8m fence height was based on my experience in preparing reports and assessing acoustic impacts of in excess of 170 child care centres.
3.2 Except in situations of overlooking residences immediately adjacent to the outdoor activity area, noise assessment calculations have indicated that 1.8 metre high fences without openings (that is, a lapped and capped type of fencing) achieve adequate noise attenuation of outdoor activity noises within a properly managed childcare centre.
3.2 In the case of Parsonage Road, the fence height is based on the noise levels would be perceived by a standing adult in the rear yard area adjacent properties.
3.4 The calculations are based on the scenario of an adult standing within the rear yard area of the adjacent residential property (ear-height of 1.6metres) in relatively close proximity to the fence line (about 2.5 metres). On the childcare centre side children are assumed to be concentrated toward the fence line with a density of about 10 children within a circle of 5metre diameter. For greater numbers of children, additional touching circles are close packed against the fence line.
3.5 Assuming a circle touching the fence line, the distance attenuation from children to adult is 14dB.
3.6 Calculations were based on measurements carried out by myself were groups of 10 children under normal supervision caused LAeq, 15min noise levels of 48-50 dB(A) at a distance of 5 metres with no intervening barriers.
3.7 The noise limit for this site was an LAeq, 15min noise limit of 45dB(A).
29 Mr Marston commented on barrier attenuations of fences of 1.8 and 2.2 metres in height where the terrain is flat, and continued:
3.10 Higher fences will provide greater barrier attenuation.
3.11 The origins of the combined lapped and capped fencing, with inclined Perspex, is a recommendation made by one of Council's Senior Environmental Health Officer(s). I am not aware of the basis upon which that 'acoustic' design is based.
3.12 I am advised that the Council has approved that form of 'acoustic' design in another childcare centre within the local government area.
3.13 The adoption of that design by the applicant was in accordance with recommendations of the Council's Senior Environmental Health Officer(s).
3.14 It was not my recommendation nor was considered (or is it now considered) necessary in the circumstances of this case.
3.15 I am advised that the alternative effective noise attenuation design height of 2.2 metre high fence (that is, a 1.8 metre high fence with inclined Perspex), is a preferred design for acoustic fencing by Council's officers to solid fences of greater than 1.8 metres in height.
3.16 In another childcare centre where an acoustic design of greater than 1.8 metres was required as a consequence of particular acoustic considerations, I have designed fencing which comprises a 1.8 metres timber fence with a visually transparent material above 1.8 metres. That design was to enable adjoining property owners to receive sunlight and view over the 1.8 metre high fence.
3.17 The provision of inclined Perspex from the top of the fence to a height above ground of 2.2 metres provides no greater noise reduction and Perspex projecting vertically upwards from the fence line to height of 2.2 metres.
3.18 What is determinative is the finished height of the acoustic treatment above the ground levels of the subject site and the adjoining land. Inclined Perspex as an alternative suggested to this development does have the visual advantage of appearing lower to a person standing on the receiver side of the fence.
3.19 The increase in the design height of the dividing fencing to 2.2 metres (either as well sealed solid lapped and capped fencing, or the design requested by the Council of 1.8 metres with an inclined Perspex panel to an effective height of 2.2 metres) around the outdoor activity area will provide approximately 2dB(A) additional noise reduction.
3.20 In the present case, the subject site slopes relative to adjoining land. Where the yard to yard level changes, the barrier should be measured on the level of the higher side.
3.21 The resulting barrier attenuations for the sloping situation are as follows:
For a 1.8 metre high fence, the barrier attenuation is 12 dB for the house yard on the downhill side and 12 dB(A) on the house yard on the uphill side. The calculated resulting sound level was 41 dB(A).
For a 2 .2 metre high fence, the barrier attenuation is 14 dB for the house yard on the downhill side and 14 dB(A) on the house yard on the uphill side. The calculated resulting sound level was 39 dB(A).
3.22 Increasing the height from 1.8 metres to 2.2 metres therefore provides approximately 2 dB(A) advantage for the fences around the outdoor activity area.
30 Mr Marston considered the issue of acoustic impacts and fencing at the front of the building:
3.23 In respect of the proposed fencing forward of the building alignment these fence sections are unnecessary, as the noise is assessed to an energy averaged criteria.
3.24 In energy averaging, the acoustic energy of each transient noise event is energy averaged across a period of time. In terms of the energy averaged criteria, the front parking area can operate without exceeding this criteria.
3.25 The tapered dividing fence adjacent to the car parking areas within the front setback areas provide boundary demarcation and some nominal acoustic advantage.
3.26 For typical medium-sized sedan vehicles, noise comes from the wheel/road contact point, through the front grille, from under the vehicle, out through wheel wells and from exhaust.
3.27 The wheel/road contact point is at ground level. The noise via the front grille, the wheel wells, out from under and exhaust, are about 0.5 metres or less above ground level. Car door closing noise, for typical medium-sized sedan vehicles, the source is about waist height.
3.28 The tapered fence sections should therefore provide about 3 to 5 dB(A) noise reduction advantage for the transient noise levels as each vehicle enters and leaves.
3.29 In my experience, Council policies normally allow dividing fences to be maintained at a height of 1.8 metres to the building alignment and then taper down to a lesser height of the front boundary.
3.30 If that were to be allowed in this case - that is, if the dividing fence was maintained at 1.8 metres to a distance of (say) 7.5 metres from the front boundary then taper down to a height of (say) 1.2 metres in height at the front boundary, this would provide some additional noise attenuation - particularly in respect to the adjoining property at 110 Parsonage Road.
3.31 I am otherwise satisfied that the noise impacts arising from the use of the car park as designed will not result in unacceptable impacts upon the adjoining properties on Parsonage Road.
31 In oral evidence Mr Marston commented that the proposal has been amended since the original Noise Assessment Report was prepared, including by reconfiguring the internal layout and windows of the building. Mr Marston was of the opinion that the rearrangement of the car parking has addressed the concerns expressed by Mr Stevens about noise at the front of the building. There would be a reduction of 2 or 3 dB from car start up in having a fence at 1.8m to 7.5m from the street frontage. Here the LAeq criterion is met even if there is no fence forward of the front of the building so if the fence is tapered that will mitigate short sharp sounds. The articulation of the front of the building would reduce noise impacts across the side boundaries. The noise from play area C at the front of the building would go across the road over the car parking, and the distance to the other side of the road would result in a reduction of approximately 30dB, resulting in a noise level of 35 to 40 dB(A) to the residences across Parsonage Road. Noise from the internal play area B would travel into the kitchen, storeroom, staffroom and toilet, and Mr Marston recommended that all windows on the southern boundary be kept closed at all times. The northern elevation has glass blocks which are sealed. Mr Marston addressed the operation of the proposed child care centre, noting that the majority of child care centres need to have doors and windows closed to achieve compliance with acoustic requirements at boundary; and he would recommend it here. The re-arrangement of the storerooms and the distance to the rear boundary would reduce noise, and Mr Marston recommended that the doors should be closed while children are inside the play areas.
Council's submissions
32 Mr Winn for the Council submits that the proposal is not consistent with one or more of the aims for development specified in the LEP, as required by cl13(2) of the LEP, in particular objective cl2(a)(v), as it does not respect, improve and integrate with the local character of the locality. Mr Winn submitted that there are specific concerns about the setbacks to the street, noise, impacts on the streetscape. The site area requirement in the DCP is premised on a development of this nature and size requiring a minimum area of 1,000 sq m, in order to prevent or minimise impacts of development in a residential area that is not designed to accommodate it. In relation to the public interest, the objections of residents including those not directly affected need to be taken into account.
Applicant's submissions
33 Mr Briggs for the applicant submits that the proposal is not inconsistent with the character of the area; it replaces a two storey building with a single storey building, and the setbacks and landscaping achieve consistency. The width of the site requires central car parking access, and the car parking will be located in a leafy landscape setting. In addressing amenity impacts, the applicant has put the fencing alternatives to the neighbours, and is prepared to agree to a solid fence to 2.2m. The proposal is not seeking approval for the maximum number of children, and is sustainable on the site.
Consideration
34 It was common ground that the proposed child care centre is permissible with development consent in the Residential 2(b) zone under the LEP. In BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, McClellan CJ considered the question of what weight should be given to the zoning of a site when considering an application for a development on it. At para 117, he said (omitting the case citations):
In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor, planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted.
35 In these proceedings, cl13(2) of the LEP requires that I be satisfied that the proposed development is consistent with one or more of the aims of the LEP and any relevant objectives for development, and that it is not contrary to achieving the objectives of the Residential 2(b) zone.
36 The applicant provided with the development application a Child Care Needs Assessment Report, which Council officers accepted as meeting the requirements for social impact assessment in part 4 of Part D Section 8 Child Care Centres of the DCP. The Council officers' Report (which is contained in the Council's bundle of documents in evidence) included the following comment by Community Services:
The Childcare Needs Study is satisfactory. The assessment has indicated the trend towards increased demand due to increase in population as well as the push for high quality care. The issue of viability is a commercial decision which the applicant needs to make. The application is generally supported as it addresses an identified need in the Social plan 2005-2010.
37 It may be, as suggested in the evidence provided by neighbouring residents, that the economic situation has changed since the Needs Assessment Report was prepared; however, I agree with the Council assessment that that is a commercial decision for the applicant. Any modification to the number of children, employees or parking spaces needed to meet changes proposed at a national level for staffing ratios in child care centres would require a further development consent. I am satisfied that the proposal is consistent with the aims of the LEP which include at cl2(1)(b) the development of local communities that are safe, liveable and offer a diversity of land use and economic opportunity, and with the objective for development in cl2(2)((b)(i) by providing access to a service. I am not satisfied that the proposal is inconsistent with the objective in cl2(2)(a)(v), as submitted on behalf of the Council, as for the reasons outlined below I am satisfied that it both respects and integrates with the local character of the locality.
38 The most directly relevant objective for the Residential 2(b) zone for this application is (a), "to identify residential areas of a predominantly single dwelling, low-density character, and to maintain that character". The proposed building is a single storey building and from the street will appear similar in form to a dwelling, and its height and scale are similar to existing dwellings in the locality. The car parking is to be accessed from a single driveway, and the parking spaces are to be screened from the street and from the sides by landscaping. The proposal maintains the predominantly single dwelling, low density character, of the residential area. I am satisfied that the proposal is not contrary to achieving the objectives for the Residential 2(b) zone.
39 Section 79C (1)(a)(iii) of the Act requires consideration of the provisions of the DCP. The proper approach to that task is that while not being determinative, the DCP must be considered as a "fundamental element" or a "focal point" of the decision-making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. In Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 at [27], the Court of Appeal confirmed that while it might be open to take the view that, for reasons related to a particular site, it is not appropriate to compel compliance with requirements of a DCP, I am not entitled to take the view that the standards set by the DCP are inappropriate for reasons of general policy. It was common ground in these proceedings that to the extent that the general provisions in Part C Section 3 - Residential may be inconsistent with the specific provisions in Part D Section 8 - Child Care Centres, the specific provisions should prevail.