Coruhlu v Blacktown City Council

DATES OF HEARING: 9 July 2009 and 10 July 2009

APPLICANT Mr S Kondilios (solicitor) SOLICITOR Maddocks Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr A Seton (solicitor) SOLICITOR Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 The applicant seeks consent to build a 66 place long day childcare centre on a large vacant site at Kellyville Ridge. The Council contends that the development is unacceptable because "it is just too big". The other related issues are the traffic and acoustic impacts on the residential amenity of the neighbourhood.

2 The Court determines that this appeal for the proposed 66 place centre should be dismissed and consent refused because of the exceedence in noise levels from the traffic manoeuvring and parking onsite.

Relevant background 3 The original Development application (DA-07-1605) seeking consent to build a 72 place childcare was lodged with council 2 July 2007 and refused 2 June 2008. The applicant appealed Council's refusal and following a discontinuance of those proceedings lodged an amended application with the council in April 2009, which is the subject of this appeal.

4 As background the following is noted. Despite discontinuing the September 2009 hearing for a 72 place centre, which could have facilitated further acoustic evidence and possible amendment to the plans this did not happen prior to the current appeal being lodged. In January 2009 this appeal was lodged on the plans of the previously discontinued appeal for the original 72 place childcare centre and this was listed for hearing in April 2009.

5 The applicant changed solicitors and on 30 March 2009 a notice of motion to vacate the hearing dates of 20 and 21 April was lodged on the basis that "for reasons outside the Applicant's control it is not in a state of preparedness for presentation at a trial…". The dates were vacated to allow for the preparation of further documentation. The Court directed a new timetable for the filing of evidence and new hearing dates of 9 and 10 July 2009 were allocated.

6 Prior to the July hearing an application on 21 April was made to rely on further amended plans resulting from the applicant's expert reports that were prepared subsequent to the 2009 appeal being lodged.

The Proposal 7 The current plans for this appeal provide for a 66-place long day childcare centre at 8-12 Kilmore Street and 48 Clonmore Street, Kellyville Ridge. The centre is intended to operate from 7am until 7pm Monday to Friday and 8am to 3pm Saturday. The centre will cater for the following age groups: 16 places for 0 to 2 years of age; 20 places for 2 to 3 years of age; and 30 places for 3 to 5 years of age.

8 The plans before the Court at the commencement of the hearing show a single level building oriented to Kilmore Street, some 43 m wide, with a one way driveway and parking onsite for 21 vehicles, 11 parent and 10 staff spaces occupying the eastern part of the site from Clonmore Street to Kilmore Street. The Clonmore Street lot accommodates the one way vehicle entrance, car parking and landscaping.

9 During the hearing the applicant, on the advice of the traffic experts, changed the car-parking layout and reduced the number of car spaces from 21 to 18 based on the RTA rates of parking for childcare centres. The experts agreed that 21 spaces is an excessive supply. This also facilitates further landscaping of the car park. It was also proposed to amend the acoustic fence. However, the applicant did not take up the council's invitation to significantly reduce the number of childcare places or the hours of operation. The applicant advised in final submissions advised that the centre could be reduced by 2 places only.

10 The childcare centre is to include indoor and outdoor play areas, two offices, a kitchen, staff room, laundry, 4 storage rooms, 3 cot rooms and 2 nappy change rooms. The building has a verandah on the western elevation abutting the children's play area.

11 The Kilmore Street frontage is designed to accommodate a children's play area behind a security/acoustic fence to the street and with the vehicle egress and landscaping on the northern portion.

12 Along the northern boundary to Kilmore Street a 2 metre high boundary fence is proposed for a length of 43m including a return on the southern boundary comprising a 1.8 m acoustic fence on a 230mm brick retaining wall. The fence is a pool type palisade fence with clear polycarbonate sheeting affixed to the inside face. The design provides for planting at a height of 2 and 3 metres to screen the fence along the boundaries.

13 Figure 1 is the amended site plan in Exhibit B, prior to the revised car parking layout that arose during the proceedings. Site and Environs 14 The site is made up of four allotments with a combined area of approximately 2031 m2. The frontage to Kilmore Street is about 57m and the frontage to Clonmore Street is about 19m. The north-western boundary is 52m and the south-eastern boundary is 26m.

15 The surrounding development is a mix of one or two storey dwellings within a recent residential release with some medium density development including residential flat buildings and dual occupancy development.

16 The adjoining property to the north at 50 Clonmore Street is a single storey brick and tile dwelling house, which is setback 5.6m from the street. Adjoining to the south at 46 and 46A Clonmore Street is a two storey attached dual occupancy development with a setback of 5.6m from the street with a 1.8m timber-paling fence erected along the common boundary with the site.

17 Adjoining the western boundary of the site at 44 Clonmore Street is a large single storey brick and tile dwelling house with a rear setback adjoining the subject site of 1.6 m. On the northern boundary at 6 Kilmore Street is a large 2 storey brick and tile dwelling with a setback of 7.5 m from Kilmore Street. A 1.8m colour bond fence is erected on the common boundary with this site. Issues 18 The contentions between the parties are the number of children, the scale of the development in the streetscape, the noise resulting from the vehicle movements associated with the proposed number of childcare places and the proximity of this development to existing childcare centres within the locality.

19 The objections raised by the local residents and nearby childcare operators overlap with council's issues but also include the capacity of the roads to deal with the increase in traffic, pedestrian safety, and the economic viability other childcare centres in this locality. The Planning Framework 20 The site is in Zone No 2(a) (Residential "A") under Blacktown Local Environmental Plan 1988 and the development of a childcare centre is permissible with consent.

21 Clause 9 of the LEP sets out the objectives of the zone as follows: 1. To make general provision to set aside land to be used for the purpose of housing and associated facilities, 2. To identify existing residential areas of a predominately single dwelling character and to maintain that character by prohibiting residential flat buildings, 3. To enable sensitive infill development of other housing types if the infill development is of a bulk, scale and appearance that does not adversely impact on adjoining development or the amenity of the locality. 4. To enable development for a variety of housing forms, including townhouses, villas, integrated housing, dual occupancies and the like, if such development does not interfere with the amenity of surrounding residential areas by way of overshadowing, overlooking, or loss of privacy, 5. To allow people to carry out a range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours, and 6. To allow with in the zone a range of non residential uses which: (i) are capable of visual integration with the surrounding environment, (ii) either serve the needs of the surrounding population or the needs of the City of Blacktown without conflicting with the basic intent of the zone, and (iii) do not place demands on public services beyond the level reasonably required for residential use." 22 The Blacktown Development Control Plan 2006 applies to the site and Part C deals with development in the Residential Zones. The respondent referred the Court to the general objectives for non-residential development in the residential zones, in particular sections 10.1.4 and 5: "Council's general objective for non- residential development in residential zones is that such development should be similar in bulk, scale, form, height, sitting and appearance to the surrounding built residential development. To meet this objective special attention to finishes, roof form, materials, paving and landscaping is required." "…setback should be in line with the adjoining residential development…" 23 Section 10.3 of Part C of the DCP specifically deals with childcare centres and this came into force after the lodgement of the application. Council at its meeting on 17 October 2007 when it resolved to prepare and exhibit these controls for childcare centres in the residential zones also resolved as follows: All development applications for childcare centres either lodged with the council prior to the above resolution or subject to prior pre-DA lodgement discussions with officers of the Development Services Unit not to be subject to the proposed new set of controls, but be encouraged to assess their application sin lights of the new controls. 24 The purpose of section 10 of the DCP is: "...To provide a clear and transparent framework for the submission and development of child care centres within the City of Blacktown.... to ensure quality design and residential integration and to minimise the cumulative impacts of excessive clustering of child care facilities on local infrastructure, residential amenity and convenient community access." 25 The objectives at clause 10.3.4 state: 1. meet the needs of the community, 2. I s appropriate to the nature of the Residential Zone; and 3. Have a minimal impact on the amenity of the streetscape. ...High design to ensure the scale of development is appropriate to the size of the site and the surrounding buildings...and protects the residential amenity of the neighbourhood." Specific objectives include: (2) To provide communities with child care centres that are appropriate in size and scale to the surrounding neighbourhood and to reduce excessive built form within residential streetscapes. (3) To ensure the amenity and character of residential neighbourhoods is protected and preserved." 26 Clause 10.3 provides "child care centres are not to exceed a capacity of 40 children", and "a proposed childcare will not be permitted if it is within a 1 km by a straight line distance of an approved, operating, proposed.. "if practical, be located on sites that have minimal common boundaries with residential neighbours."

Evidence and Assessment 27 The Court heard evidence from the following experts for the council: Mr Apps, town planner; Mr Gauld, acoustic consultant; and Mr Hallam, traffic consultant.

28 On behalf of the applicant expert evidence was given by: Mr Minto, consultant town planner; Mr Thompson, traffic consultant; and Mr Cooper, acoustic consultant.

29 A number of local residents attended the onsite inspection and together with the operators of other childcare centres in the locality gave evidence. The Court also received the written submissions received by council in respect of the development.

30 The owners of 6 Kilmore Street gave evidence that their amenity has been impacted by the development of units at the end of the street and that a centre of this size will further reduce their amenity. Of particular concern to them is the increase in noise and traffic generated by the number of child places.

31 The owners of 14 and 14A Kilmore Street adjoining the site were also concerned with the noise and traffic impacts of the development and the play area on their boundary fence. They did not accept that the acoustic fence would be visually acceptable or effective in reducing the impact of the childcare centre on their amenity.

32 The planners (Mr Minto and Mr Apps) agree that the proposed development generally meets the objectives of the zone, although, Mr Apps does not consider that it is capable of visual integration with the surrounding area.

33 While they accept that the streetscape is a mix of single and double storey residential development and that the residential flat buildings for this development are a dominant built form in the street Mr Apps describes them as an "end- piece to the street, rather than bulk and form in the middle of the street."

34 The respondent submits that: the proposed acoustic screen at the southern boundary at 4.8m down to 1.8 m at the front boundary is out of character and scale with the adjoining development: the development is too big in the context and setting of the street; and the height of the acoustic fence on the southern boundary is out of scale and character with the streetscape. With the benefit of a view we accept the applicant's evidence that the residential flat buildings do form part of the relevant streetscape. The childcare building is to be setback from the street frontage and together with the proposed landscaping we accept the applicant's evidence that the built form will visually integrates with the surrounding area, as required by the objective in section 10.1.4 of the DCP. The proposal is a single storey structure of a residential scale.

35 Furthermore, we accept the applicant's evidence that the roof design assists in breaking the width of the building as an elongated structure and the roof design mitigates the width of the building. We are of the opinion that the building despite its width is an acceptable form to provide a reasonable fit with the adjoining residential development.

36 The traffic experts Mr Hallam and Mr Thompson prepared a joint report. They agree that from an engineering perspective the adjacent streets have the environmental capacity to accommodate the proposed development.

37 Much of the hearing concerned the acceptability of the layout of the car park and ultimately a redesign of the car park to address pedestrian safety and the acoustic impacts on the adjoining northern neighbours.

38 Mr Hallam's evidence is that based on his surveys there is no demand for the DCP requirement for more than 8 spaces for parent/ visitor parking at a childcare centre. His evidence is that the appropriate level of parent/visitor parking is about one space per nine children. requiring 7.3 spaces, rounded up to 8 for parents and carers with 7 spaces and one for disabled parking.

39 In Mr Hallam's opinion the safest option use for the provision of the parents /visitors spaces along the southern side. The relocation to the southern side in his opinion avoids the potential pedestrian /traffic conflicts. Parents would use the parking on the same side as the proposed pedestrian path linking the car spaces to the buildings. Mr Hallam says that he traffic movements within the parking area, would be 53 vehicles/hr for the 7 -9am periods and 46 vehicles/hr for the 4pm - 6pm period. We reject the evidence of the applicant of 35 car movements because it is based on an unreliable 2-hour survey of another centre with different child place numbers and we adopt the RTA's guidelines as presented in Mr Hallam's report.

40 Mr Thompson was concerned about the noise impacts on the neighbour to the south fronting Clonmore Street would be exacerbated by Mr Hallam's redesign.

41 During the hearing the applicant amended the site plan by hand to show 7 parent /visitor spaces and 2 staff on the northern side and on the southern side 7 staff and a disabled space. The pedestrian path was widened on the northern side as was the crossing into the building.

42 The evidence is that the noise from the outdoor play areas has been addressed satisfactorily by the plan of management that will identify 20 as the maximum number of children at any one time outside and with the additional acoustic shielding proposed there is an acceptable acoustic treatment for the outdoor play areas.

43 The acoustic experts agree that generally the EPA intrusive noise level is background plus +5dB(A) and therefore with a background level of 41 the design target for this development is 46dB(A).

44 To achieve an acceptable level of noise Mr Gauld's evidence is that the car movements need to be reduced to no more than 3 to 4 movements in a 15-minute period. Mr Cooper's evidence is that the car movements are to be no more than 6 movements in a 15-minute period.

45 We agree with Mr Seton's submission that even if we accept that the parent/carer spaces are located on the northern side and the staff car spaces to the north are reduced by 3 then this would result on Mr Cooper's analysis in car movements of 8 to 9 per 15 minutes. Taking the 8 to 9 car movements that would be 32 to 36 car movements per hour. Applying the RTA design criteria of 0.8 times the number of children in the am peak the council says that the maximum number of children for this site would be 40 to 45 children to achieve the design too target of 46dB(A). The council says that the development will have an unacceptable impact on the upstairs bedroom window identified by the experts at number 6 Kilmore.

46 The applicant submits that if we apply the "intrusive" criteria the target on the revised parking layout on Mr Gauld's numbers the noise level is 49dB(A). The applicant submits that this is acceptable and referred to a number of decisions in this Court where a variation to the background noise level plus 5 was exceeded in certain situations. It is the case that the Court has in certain circumstances adopted background plus 10dB(A) for childcare centres where generally the noise is intermittent and for limited periods.

47 The application is for a large site with a large number of children .The evidence is that the noise generated by the development will exceed the design target of 46dB(A) by between 49DBA to 51dB(A). The residents and the council are concerned about the noise from the vehicles generated by such a large centre, whereas the applicant submits it is acceptable.

48 The council submits that a smaller centre would allow the building and associated facilities to integrate with the residential area and avoid the unreasonable noise and visual impacts associated with the proposal before the Court.

49 The respondent submits that Clause 10.1.4 of DCP is the starting point for a consideration of the acceptability of the development in the streetscape, and that this control seeks to ensure that the development's form, siting and scale are in line with the existing development. The respondent's evidence is that the length of this built form together with its acoustic retaining walls, shade sails, sandpits is not similar to the surrounding residential development and it does not integrate with the streetscape. The respondent submits that the proposed development is just too big and its unacceptable size is driven by a desire to have 66 children on the site. The respondent maintains that a smaller centre would provide a better 'fit' with the existing scale, siting and appearance of the existing built development. The height of the acoustic fences to the boundary is not in the repondent's submission characteristic of the streetscape.

50 During the proceedings a number of design modifications were identified to the landscaping, parking layout and fencing and we are satisfied that the proposal is capable of being integrated with the residential area such that it would not be an aberration and out of character. The single storey nature of the building and its roof form with the relief of different elements in our assessment would not warrant refusal of the application in an urban design and streetscape presentation context. The proposed development would clearly read as a childcare centre and this is a permissible use in the zone. The DCP requires non-residential uses to be similar, and the test is not one of sameness, but whether the built form can harmoniously coexist within the residential area without adverse impacts from the physical form of the building and the proposal in our assessment is satisfactory in this regard. However, the amenity noise impacts from vehicles cannot be appropriately managed and it is for this reason the application fails.

51 The determinative reason as to why the application fails in our merits assessment is that the level of noise generated by the driveway and parking does not meet the design target of 46dB(A) and the acoustic experts agree it exceeds the design target. Mr Cooper calculates 49dB(A) the Mr Gould 51dB(A).

52 This case can be distinguished on its facts to other appeals in the court. Firstly this is equivalent to a 'green fields site' and as such variation to the recognized noise criteria is not appropriate as may be the case in circumstances of an infill development, in particular where a community facility does not already exist.

53 Furthermore, we are not satisfied that the exceedence in the noise level is appropriate where such an exceedence is a direct result of noise generated by vehicles manoeuvring and parking on site. We accept that noise exceedence above the criteria may be appropriate where it relates to children playing during the day as opposed to a concentration of vehicles at the start of the day between 7 and 9am. In this regard a later starting time of 7:30 a.m. would only serve to concentrate the number of car movements even though this would have the advantage of a half hour later start. We recognise that the exceedence in the noise design target of 46dB(A) is only for the morning period as the spread for collection of children of an afternoon evening is over a greater number of hours.

54 In support of the development Mr Minto advised the Court that the site is within and adjoins one of Sydney's designated growth centres and therefore is ideally suited for the proposed use. Furthermore, he argued its proximity to Windsor Road and the public transport corridors further strengthens the suitability of the site. However, we no not accept that the number of child places is appropriate for this site because of the unacceptable acoustic impacts generated by the drop-off period for the number of children at 64 or 66. The applicant was asked during the course of the hearing if it was prepared to consider a reduction of the number of childcare places and submitted that 2 less chid care places would not be an imposition.

55 In our assessment the noise from children playing during the day and a relaxation of the design standard cannot be compared to the movement of vehicles and the closing of car doors. Furthermore where there is an exceedence of noise from children playing the management plan for outdoor play times and number of children concentrated in any one area can be varied over time. In this regard we accept the submissions made on behalf of the applicant that the plan of management will co-ordinate out door play times to ameliorate the acoustic impacts of the use of those areas on adjoining properties. However, for the generation of vehicle movements and parking the noise exceedence could not be controlled and indeed from the evidence to the court this would require a reduction in numbers of children to between 40 and 45. Clearly if there was an approval for a 64/66 place centre this number could not reduced on the basis of future noise monitoring. The number of children is clearly critical to both the viability of a centre and enforcement of conditions because of the sensitivity on the calibration of whether noise levels are reasonable or not.

56 We note that from the management plan that the core hours for the operation of the centre are between the hours of 9 a.m. and 3 p.m. and therefore a staggering of the delivery of children of a morning could not be accommodated given the proposed management and operation of this long day care centre. In our assessment it would be impractical to approve a long day centre on the basis of staggered starting times. We further note from Mr Minto's evidence that the demand is for a long day centre and that this site in his well located given the close proximity of the site to be major centre and the arterial road.

57 The proposal seeks consent to operate from 7am until 7pm. Practically the planners agree that these times accommodate working parents and commuter delay. Mr Apps however, proposed a 24-month trial period for a starting time of 7am reverting to a core start time of 7.30am. Other childcare centres in the locality have hours of operation ranging from 6.30am until 7pm.

58 In our assessment the applicant has not persuaded the Court that the circumstances of this 'greenfields site' warrant a variation from the accepted noise criterion of background plus 5dB(A) where the exceedence relates to the movement of vehicles that cannot be ameliorated and appropriately contained on site. We accept the traffic experts opinion that all vehicle movements should be contained on site for a 'greenfields site" and on street parking would be inappropriate given the circumstances.

59 On the question of the more recent provisions of the DCP to limit child-care centres to 40 places and manage the distribution in localities we have not given weight to these provisions in our determination having regard to the resolution of the Council that existing development applications be considered in accordance with the controls at the time the application was made.

60 We heard evidence from the operators of the nearby child care centres who opposed the application on the basis that the area has a sufficient number of child care centres to meet the current needs of the locality. However, competition between commercial operators is not a relevant matter and the proximity of other centres is also not a matter to be given weight for the assessment of this application given the council's resolution when the amendments to the DCP were introduced.

61 Accordingly based on our assessment above the development application as amended for a 64 or 66 place centre for the subject site does not warrant approval because of the exceedence in noise levels generated by the number of vehicles to serve the proposed development and therefore the appeal is dismissed.

      Jan Murrell
      Commissioner of the Court
      Ajl/ljr

      S Dixon
      Commissioner of the Court
      Ajl/ljr

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