Assad v Inner West Council

[2017] NSWLEC 1362

Land and Environment Court (NSW)|2017-01-31|Before: Mr P

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2017-01-31

Before

Mr P

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

Judgment

COMMISSIONER: This is an appeal against the refusal of DA 2015.179.1 for alterations and additions to an existing heritage listed building to create a child care centre for 89 children including associated car parking and landscaping works at 78 Alt Street, Ashfield (the site).
Specifically, the proposal involves:

landscaping works;
demolition of the buildings named " the Mews" and "the Cottage";
car parking for 12 cars including, 1 disabled space;
69 children for long day care (LDCC) ;
20 children for out of school hours (OOSH) care; and
10-12 staff members; and
operating hours between 7:00am and 6:00pm Monday to Friday (except public holidays).

The council maintains that the application should be refused for the following reasons:

exceedance of the maximum height standard,
exceedance of the maximum floor space ratio (FSR) standard,
unacceptable heritage impacts on the building on site and adjoining heritage item,
inadequate parking and poor access,
unacceptable acoustic impacts,
unacceptable amenity impacts,
inadequate landscaping,
poor child care centre operational functionality.

A number of residents provided evidence on the site inspection and supported the matters raised by the council, in addition to the following matters:

noise,
danger to pedestrians,
driveway would impinge upon the Taringa Street Community Garden,
adverse impacts upon the conservation area;
inadequate geotechnical investigations,
child care facility unnecessary,

[3]

Relevant planning controls

The site is zoned R2 - Low Density Residential pursuant to Ashfield Local Environmental Plan 2013 (LEP 2013). The proposed use is permissible with consent in this zone. Clause 2.3(2) provides that the Court "must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone" although the council raised no contentions in relation to cl 2.3(2). The zone objectives are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
Clause 4.3 provides for a maximum height of 8.5m and the building on the site exceeds this height with a height of 26.28m. Clause 4.4 provides for a maximum FSR of 0.5:1 and the proposed development exceeds this with an FSR of 0.65:1. The breach of the maximum height standard and FSR standard were not pressed by the council as the breach of the maximum height standard related to the existing building, particularly the steeple and the breach of the FSR standard was addressed through the re-allocation of the proposed use of the basement area.
The property is listed as heritage item No. I-21 under Sch 5 of LEP 2013 and is also located in the Taringa Estate Conservation Area No. C20. The property is located within the vicinity of the following heritage items in Sch 5 of LEP 2013:

2 Church Street,
St John's Anglican Church, 74 Bland Street,
1 Taringa Street,
4 Taringa Street, and
17 Taringa Street.

"Amesbury" is also listed on the Register of the National Estate and is also listed on the Register of the National Trust.
Clause 5.10 addresses Heritage conservation and cl 5.10(4) states: (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
Comprehensive Inner West DCP 2016 (DCP 2016) applies to the site at the time of the hearing and became effective on 10 January 2016. DCP 2016 repealed Ashfield Interim Development Assessment Policy 2013 (the Interim Policy) although the Interim Policy was in force when the development application was lodged on 23 September 2015.

[12]

Acoustic fencing

Ms Hill states that landscaping occurs on both sides of the acoustic fence to the adjacent boundary above fence height and to "Amesbury" from ground to fence.
Mr Moore states that the proposed acoustic fence remains a major affront to the heritage significance of the two heritage listed properties it will separate. The design, materials and height of the fence together promise an unsightly, unacceptable overall character and is perhaps the least successful element of the exterior proposals. Mr Moore suggested that the boundary fence could be a 1.2m fence, sympathetic to the heritage item, and a further fence some 600mm behind this fence could provide the necessary acoustic protection. This was considered acceptable to the applicant and could be the subject of a condition of consent.
Other matters seen as acceptable to Ms Hill but unacceptable to Mr Moore on the basis of lack of detail relate to fencing, detail on north-west and south-west elevational drawings, details of new windows, proposed landscaping and existing landscape features to be retained.
Overall, Ms Hill states that the proposal is consistent with the objectives in cl 5.10 of LEP 2013. The proposal has minimal change to the heritage item and its significance and will conserve the environmental heritage of Ashfield, the heritage significance of the heritage items in Alt Street, the heritage conservation area and the heritage significance of the heritage item in the vicinity, including associated fabric, settings and views.
Ms Hill concludes that the amended plans have provided a scheme which respects the significance of the heritage item. Further drawings have been prepared which accurately represent the existing building and as a result minor adjustments to windows have occurred to relate to the proportion of the existing. The proposal provides a satisfactory resolution of the proposed car park. The revised drawings provide a consistent level of excellence and adequate resolution of details and achieve the intent of the policies in the Statement of Heritage Impact.
In conclusion, Mr Moore states that the application entails more than minimal change to the heritage item, with the greatest impact arising from the proposed rear car park. While the planning and functional acceptability of the car park is a matter for the traffic experts, the design and material treatment of this area will be crucial in its impact upon the property, if it forms part of an approved strategy. The acceptability of other changes to the building both externally and internally, will depend on their execution in an appropriate manner, with due regard for the original fabric of the house. This is particularly so in terms of the proposed introduction of the passenger lift, and in the treatment of the main staircase, where adaptation to meet modern construction regulations may produce significant adverse impacts. The involvement of a heritage architect in the documentation and construction of these works will be essential to their successful realisation.
In terms of impact upon other heritage items in the vicinity of "Amesbury", and upon the Heritage Conservation Area, the appropriate resolution of conservation works upon the exterior of the house, and of the adaptation works comprising the fencing to Alt Street and the rear lane, would ensure that adverse impact is avoided. This also will be dependent on detailing, execution and supervision of the proposed works.
In order to properly protect the heritage values of the building and its setting, Mr Moore concludes that more comprehensive documentation to demonstrate that this was the substance and binding contract of any consent would be required. The present documents supporting the application, prepared in the context of the adjourned hearing, do not in his opinion, do not provide this.

[13]

Findings

Clause 5.10(4) requires the Court to "consider the effect of the proposed development on the heritage significance of the item or area concerned". The effect might be minimal and have little effect on the heritage significance of the item however in this case, I agree with Mr Moore that there are a number of reasons which must see the application fail on heritage grounds.
First, the applicant has not provided sufficient information to find that the proposed development will not adversely affect the heritage significance of "Amesbury". While many of the matters raised by Mr Moore may ultimately be able to be addressed through additional information; it is not appropriate to grant consent without this detail.
I acknowledge that Ms Hill has been deeply involved in the proposed development and that her skills and experience would be beneficial in addressing the shortcomings identified by Mr Moore, however there can be no guarantee through this part of the approval system that her association with the project will continue, for whatever reason. Given the listing as a heritage item and an understanding of its significance of "Amesbury, the details of the change of use to a child care centre must be clearly and fully documented so that there can be no dispute what is required, given that the approval can be sold at any time.
Second, I am not satisfied that the need for the acoustic fencing, in the manner proposed, is compatible with the heritage significance of the item and also the adjoining heritage item, "Roselea". The fence is to provide acoustic protection for "Roselea" from the North Play Area, directly opposite. I agree with Mr Moore that the height, construction and angular top of the fence will be apparent and detract from the setting and appreciation of both properties. The proposed acoustic fence is on the boundary between the two properties and has a vertical height of 1.8m and a clear laminated clear pane on top of this part of the fence, angled at 45 deg giving an overall height of 2.7m. This fence runs along the eastern elevation of "Roselea", at a distance of around 1.2m from the dwelling. Mr Moore helpfully made a number of suggestions to address the existing fence however these would need to be fully detailed before any consideration could be given to these alternative approaches to the acoustic fence.
Third, and according to Mr Moore, the treatment of the rear yard and the proposed car park is a very important element in maintaining an understanding of "Amesbury". In accepting that the Mews and the Cottage can be removed, Mr Moore correctly, in my view, supports the removal only on the basis that any replacement should only be by something which equally or better complements "Amesbury". I accept that the proposed car parking area, landscaping and fencing does not achieve this aim. The ability to provide any landscaping, beyond small triangles between car parking spaces, does not provide a suitable appearance from Alt Street and is a significant negative aspect of the proposed development. It was also not clear on the type and height of fencing adjoining the car park, although I accept that it is ultimately related to the provision of landscaping in this location and the amount of car parking provided. To maintain a reasonable setting for "Amesbury", I agree with the comments of Mr Moore where he states that the car park must be screened by the fencing and landscaping works, and acceptably complement the rear approach to the house to create a sense of a domestic setting. The current proposal, in my view, does not provide an acceptable response to this aim.
In accordance with cl 5.10(4), I find that the proposed development will have an unacceptable effect on the heritage significance of "Amesbury" and as such, development consent should not be granted. For completeness, I will briefly deal with the other contentions raised by the council.

[14]

Traffic, parking and access An expert joint report was prepared by Mr Craig McLaren on behalf of the council and Mr Oleg Sannikov on behalf of the applicant. The council raised a number of matters in relation to the contention relating to traffic, parking and access. The matters generally relate to inadequate number of off-street parking, access to the car park, the traffic movements needed to gain access to the car park and the adequacy of on street parking. Some of the matters are inter related.

Part C11 of the Interim Policy requires parking to be provided at the rate of 1 space for every 4 children although a lower rate may be acceptable if supported by a traffic impact study. An identical parking rate is provided in Part A8 of DCP 2016. I note that both the Interim Policy and DCP 2016 require parking to be provided on the basis of the number of children with no requirements for employees. The Interim Policy and DCP 2016 also contain a number of locational requirements for child care centres, a number of which are identified in the council's contentions. Mr McLaren and Mr Sannikov agree that application of council's car parking rate results in a requirement of 23 parking spaces for 89 children and that the application is for 12 spaces, representing a shortfall of 11 car parking spaces.
Mr McLaren states that the applicant relies upon a combination of a car parking credit for the previous use, the 12 spaces proposed and a proportion of on-street parking in meeting council's parking requirement, however Mr McLaren considers that inadequate justification is presented to justify such a significant departure from council's parking requirements.
Mr Sannikov states that although a car parking credit for the previous use was previously mentioned, he does not rely on it for his conclusion that the 12 on-site spaces is acceptable. He states that justification of a departure from the council's parking requirements is based on:

more than sufficient on-street parking opportunities in the vicinity,
RMS guidelines which allow reduced off-street car parking provision for child care centres,
availability of public transport, both bus and train, within typical catchment areas for these modes of transport, and
numerous examples of other child care centres in Ashfield which were approved with significantly reduced or nil off-street car parking provision.

The use of the rear of the site for car parking is a complex issue as it raises parking, access and heritage issues. No additional parking can be provided on site and given the previous heritage concerns relating to the presentation to Alt Street where landscaping and a sympathetic fence design is required, it is likely that this can only be practically achieved through an increase in the area available for landscaping.
Mr Moore's evidence that the gates that provide access to the car park would need to be closed when vehicles are not entering and leaving to avoid observing the car park in the context of "Amesbury", is a valid heritage consideration although I would not necessarily place the same importance on this as Mr Moore, particularly if the gates were only left open in the morning and afternoon peak drop off and pick up times. This could avoid the complicated red/green light entry system or individual remote gate openers discussed during the hearing and potentially reduce vehicular conflict near the entrance to the car park and the intersection of Alt Street and Alt Lane while still providing some of the visual historical context of "Amesbury".
Given the significant shortfall in the number of spaces that can be accommodated on the site, I am not satisfied that the evidence of Mr Sannikov supports the variation needed. A variation to the required 23 spaces through a traffic impact study is a valid approach but the evidence to support the variation was largely reactive to Mr McLarens concerns and piecemeal in its production at the hearing.
If the matters relied upon by Mr Sannikov to vary the required number of car spaces is considered, I accept Mr McLaren's conclusion that the variation has not been justified for the following reasons. First, the parking surveys of kerbside parking use are of limited use as they were conducted only on one day (Thursday 7 September 2016) and at half hourly intervals from 6.30am to 10.00am and from 3.30pm to 6.30pm. Given the large variation sought and the need to rely on the availability of on street parking, a more comprehensive study should be prepared. This is however only part of the question to be answered. The other part is the suitability of the on street parking and with the benefit of the site inspection, I agree with Mr McLaren that in some areas on-street parking zones, identified by Mr Sannikov in Alt Street is likely to be hazardous given the prevailing road width, traffic speed and peak hourly traffic flow conditions.
Second, and while the RMS Guidelines allow reduced off-street car parking provision for child care centres; this not a matter of right but a concession that may be used when other opportunities are available for safe and convienient parking and pick-up and drop-off facilities for children/parents/carers.
Third, I reject the suggestion of Mr Sannikov that some consideration should be given to other child care centres that have little or no on-site parking in Ashfield. The Interim Policy and DCP 2016 should be the focus for the resolution of any dispute over the provision of car parking rather than other examples of child care centres where the history of their approval may have been under different circumstances.

the likelihood of localised congestion within the on-site car park, laneway and possibly extending back to the Alt Street junction, although this may not be as much of a problem if the gates are open during peak times,
the lane way serving the proposed car park is only 4.9m wide and based on the Australian Standard cannot accommodate 2-way traffic although there was some agreement that it could be used but under limited circumstances for 2-way traffic, and
the inability of the proposed car park design to meet best practice of separating vehicle manoeuvring activities from pedestrians (children/parents/carers) activity generated by persons alighting/boarding from parent cars parked within the car park.