BSDI Pty Ltd Hunters Hill Childcare Trust v Hunters Hill Council

BSDI Pty Ltd Hunters Hill Childcare Trust v Hunters Hill Council - [2008] NSWLEC 1470 - NSWLEC 2008 case summary — Zoe

[28]

19 In my assessment of this part of the controls it seems the demolition proposal does not reasonably comply with the stated intent of cl 19 of the LEP. In my initial assessment, this a negative aspect of the proposal, although not fatal when considering the balancing of other relevant factors. 20 An associated element of the heritage impacts concerns the An associated element of the heritage impacts concerns the streetscape . In this regard Mr O'Toole supports the demolition because he considers the dwellings only make a minimal contribution to the streetscape, due too the significant screening provided by the high boundary walls and landscaping. He also says that there are other more prominent federation style buildings towards the east of the site which contribute to a greater extent towards the streetscape. 21 However, Mr Patch says that the cumulative effect of removal of the existing dwellings and also the removal of vegetation, including the large Liquidamber in the front garden area will have a detrimental impact on the streetscape and character of the area. This impact is exacerbated by the 9m width of the proposed driveway to the basement carpark and front acoustic fence specification, which is not a representative element in this conservation area. 22 Another element concerns the compatibilty of the proposed new building with existing buildings in the area and in terms of the character of the area and impacts on the significance of the conservation area. In this regard, Mr O'Toole supports the proposal on the following basis: o The new building would be substantially screened from the public domain by the high boundary walls. o The conservation area is mixed in its built form. Along this part of the street is a mixture of a school, Federation style dwellings, more contemporary single dwellings, a whole row of residential flat buildings, a community hall and an electricity substation. Therefore no architectural type dominates. o Within the immediate vicinity of the site are several buildings of the built form as proposed here with one storey building that has a steep roof that contains an additional attic level. o The proposed materials, and the asymmetrical roof form of the proposed building are also consistent with surrounding properties. o In this location, a ramp leading to the basement car level is not inappropriate given the surrounding structures around the site. The residential flat buildings on the opposite side of the street Wide driveway is that lead to car parking at the lower level. o In addition, Council has approved other basement level car parking entrances in the conservation area. 23 In my assessment of the competing evidence, I initially accept that this site is in a prominent location and does form somewhat of a gateway to the Hunters Hill/Woolwich peninsular because it contains the first residential properties on the southern side of Church Street sighted when entering the peninsular via Church Street. Accordingly, the existing streetscape presentation comprises the masonry front, behind which is mature vegetation that allows views of parts of each dwelling. These views include the gabled roof styles, chimneys and various period window treatments.

[38]

36 Considering this significant difference in arrival direction between the experts and Mr Pindar's subsequent concession that it is probable a greater number of children could attend the new development from outside the peninsular, I am satisfied to rely on Mr McClaren's opinion in this regard. This is consistent with the comments from council's manager of Community Services that: 1. " The location of the proposed childcare centre is accessible for families from all areas of the Municipality. It is expected that the majority of children attending the centre will travel from the western side of the Municipality and areas such as Lane Cove." 37 Consequently, in the AM peak the west bound traffic will have to make some manner of U-turn east of the site because of the median in front of the driveway. According to Mr McClaren, this U-turn is likely to occur at, or within Herberton Street and he considers this undesirable in this location, notwithstanding the environmental capacity of the street is not exceeded. This concern is consistent with the resident's objections from Herberton Street, who say that this will exacerbate current unsafe and illegal traffic manoeuvres. 38 Apart from this, Mr McClaren also expresses concerns about the attractiveness and utility of the basement car park due to the queing effects along the site frontage. In the circumstances, he considers drivers will likely by-pass the basement and use Durham Street for drop-offs so as to avoid rejoining the traffic que adjacent to the basement entry alignment. Consequently he says this will then compound the intersection problems near Durham Street. 39 Mr McClarens dissatisfaction with the proposed access arrangements is reflected in the Police comments that in any consent conditions should be imposed requiring reception staff at the centre to control carpark entry in peak times by: a) A CCTV system to allow reception staff to monitor parking space and traffic flow in the carpark. b) Traffic control lights and signs operated by the reception staff be erected on the ramp and visible to traffic on Church Street. 40 In considering these different approaches to the traffic issue, I particularly note that clause 2.1 (viii) of DCP 26 states: 1. " Sites on arterial or at busy intersection should be avoided ." 41 Accordingly I am satisfied to rely on Mr McClaren's opinion that the Church Street/Durham Street intersection, with its direct connection to the freeway ramps represents a busy intersection and therefore this site does not comply with the site suitability criteria in cl 2.1 of the DCP in respect of traffic considerations. It al Accordingly I am satisfied to rely on Mr McClaren's opinion that the Church Street/Durham Street intersection, with its direct connection to the freeway ramps represents a busy intersection and therefore this site does not comply with the site suitability criteria in cl 2.1 of the DCP in respect of traffic considerations. It also seems that the Police recommended conditions would be somewhat onerous on the operator and this confirms the unsuitability of this access/entry arrangement. Amenity impacts.

[45]

50 As there are no stated objectives for the development standard, the SEPP 1 refers to the objectives of the LEP and derives the underlying objective as : 1. " to provide sufficient garden area to accommodate tree planting to maintain the tree covered character of the Municipality, which is reinforced by the DCP control that require the provision of 7 trees for sites in excess of 1200 sq m." 51 The SEPP 1 submits that compliance with the development standard is unnecessary or unreasonable due to the following circumstances: o The proposal is for the provision of a new purpose built childcare centre on the site containing the existing dwellings that are on lots of less than 900 sq m, which is required for a dwelling. o The childcare centre provides basement parking for the required 19 car spaces and this necessitates an area of approximately 60 sq m being required for the driveway, which consequently reduces the available garden area.. This is a safer option to the alternative on-site or on-street parking. o A further reduction in the garden area arises from an inherent contradiction between the NSW Childcare regulations and the planning controls because the regulations require that outdoor open space areas be provided with shade structures, which is at odds with not building over garden areas. The proposal includes a further 52.5 sq m of verandah areas provided for shading. o The site accommodates a number of mature and well established trees located around the periphery, which are to be supplemented. This will maintain the garden character and soften and screen the proposed buildings. o The shortfall arising from the provision of on-site parking access and the verandah shade structures is adequately off-set by the number and maturity of the trees so the objective of maintaining a garden setting is satisfied and therefore strict compliance is unnecessary. 52 The SEPP 1 then contends the objection is well founded because the objectives are achieved in that extensive areas of landscaping are provided with a depth of soil and substantial planting of lawns and gardens that achieve the benefits of the landscaping.

[48]

55 For my determination of this objection, I note that "garden area" is defined in clause 16A of the LEP as: 1. " any area within an allotment which has not been built on and which, in the opinion of the council, is designed, constructed or adapted for outdoor living or outdoor recreation, but does not include decks, balconies or swimming pools(…), driveways, parking areas, drying yards or other service areas." 56 Accordingly, I have considered this SEPP 1 objection in the context of the LEP aims and objectives. It appears to me that these controls place a high value on the conservation of the heritage identity of the area, including the treed environment and townscape quality. It is apparent to me from the view that the dominant features of this identity include the many federation houses set within generous garden settings that include mature vegetation and trees. 57 In this regard, I consider it appropriate to consider the identity of the area as the broader peninsular area that is part of the overall conservation area, rather than that defined by the immediate neighbouring properties. 58 I therefore consider this development standard endeavours to achieve more than provision of areas for large trees as stated in the objection. It seems to me that it is an important control to achieve a desirable balance between the built upon area and the associated garden area. This limits the building form so as to achieve the desired level of compatibility with the scale of existing buildings in the vicinity. 59 Insofar as there was a disagreement between the planners regarding the calculations of the garden area, I do not consider it reasonable to include the verandah areas or the drying areas, as shown on the proposed plans. Under these circumstances, I consider the resultant garden area would be less than 40%, particularly allowing for the deletion of the drying area. My assessment is that this non-compliance is excessive in the circumstances and that a complying development would more likely achieve the objectives of the standard. Therefore I do not consider the SEPP 1 objection is well founded and in this regard I rely on the opinion of Mr Adamson. Conclusions 60 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent, primarily because it represents an overdevelopment of this site. It is apparent to me that the planning controls for this part of the Hunters Hill municipality form a comprehensive raft to which development should demonstrate reasonable compliance. In this regard, the conservation controls appear pre-eminent based on the provisions of the LEP No 1 aims and objectives.

[51]

64 Supporting submissions were made regarding the principles stated in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399, wherein the Chief Judge stated: 114 Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However, care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment… 118 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. 65 If this main submission regarding the availabity of suitable sites is to be accepted, this would indicate that achievement of the DCP policy objectives would result in the provision of fewer, larger childcare centre, which may require dispensation of some of the development controls. However I note that the Council submissions are that availability of suitable childcare sites is not so critical that the development controls are to be substantially reduced. Instead, childcare centres should fit within the LEP framework. 66 From my consideration of the evidence, I am not convinced by the applicant's enquiries that the availability of suitable sites is so critically limited, necessitating the variations proposed in the subject application. Instead it seems to me that the development controls are a starting point in the selection of the suitability of a site for a particular use and consequently limit the size and scale of any development proposal. 67 On this basis, compliance with the development standard would require a smaller building footprint and resultant area for the centre. Therefore, if the minimum size centre is required to have 90 places to achieve effectiveness, then this site is most likely not suitable for this use, considering the prevailing planning context. Otherwise achieving reasonable compliance with the objectives of compatibility with the established amenity and character of the conservation area is not likely to be obtained. In accordance with the previously stated reasons, I do not consider the SEPP 1 objection to the garden area, development standard is well founded and this results in the refusal of the application. 68 Another important critical aspect of this proposal is its location at what I consider is a busy intersection. In this regard I rely on the evidence of Mr McClaren, Mr Adamson and the residents that the access arrangements to and from the centre are unsatisfactory at this busy and congested intersection for a childcare centre of this scale. As such it does not reasonably satisfy the general locational considerations in clause 2.1 of the DCP. 69 Whilst I accept that the LEP and DCP allow for changes, nevertheless childcare centres are to be integrated into the existing residential environment and conserve the identity of the area. I accept Mr Patch's opinion, which is consistent with the advise of the CAP that Kambala and Tuncurry make a significant contribution to the conservation area, which would be diminished by their demolition and replacement by the proposed large scale childcare centre building, its associated acoustic fence and shade sails in the front setback area. In this regard, I consider this is critical because of the prominent location of this site at the gateway to the Hunters Hill peninsular conservation area. Court orders

The appeal is dismissed.
The SEPP 1 objection to the garden area development standard in clause 16A of LEP 1 is disallowed.
Development consent to DA No 08 - 1038 for the demolition of 2 dwellings and construction of a 90 place childcare centre at 5 7 Church Street, Hunters Hill is refused.
The exhibits may be returned except for M, 8 and 12.

At a glance

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Before

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Judgment (53 paragraphs)

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Cases Cited (1)