Di Federico v Fairfield City Council

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Fairfield Local Environmental Plan Rural Residential 1994 Fairfield City Wide Development Control Plan

CASES CITED: Telstra Corporation Limited v Hornsby Council Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

APPLICANT Mr C Gough, solicitor of Storey and Gough Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Ms A Seton, solicitor of Marsdens

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10614 of 2008 Enzo Di Federico v Fairfield City Council This determination was given extemporaneously and prior to publication it has been edited

JUDGMENT 1 This is an ex tempore judgment for the matter of Di Federico and Fairfield City Council.

2 The applicant in these proceedings is seeking to use the existing structure on the property for a before and after school child care. The subject property already has a child care centre erected for 87 children between the ages of zero to 5 years. It is proposed that the before and after school care be for some 25 children aged between 6 and 12 years of age.

3 The subject site is known as Nos. 145 to 161 Horsley Road, Horsley Park and it is zoned under the Fairfield Local Environmental Plan Rural Residential. The LEP is 1994 and the site as I stated is zoned 1(a) non-urban residential. There are a number of objectives in the zone which include: o to allow rural residential development; o to achieve attractive high quality development which is sympathetic to the rural environment and minimises risks from natural and man-made hazards; o to ensure that development does not unreasonably increase demand for public facilities and services; o to allow people to carry out a reasonable range of agricultural activities which are compatible with the living environment of neighbours; and o to limit activities that have a detrimental effect on the environment, particularly on noise levels and on the quality of soil, air and water. 4 It is noted in terms of cl 8 that the council cannot grant consent unless the development is consistent with one or more of the objectives of the zone as such.

5 The special provisions relating to the land are in terms of subdivision: Each parcel must be not less than one hectare. As could be seen from the site inspection the area is characterised by rural residential development, that is dwelling houses on large allotments with some agricultural pursuits on certain parcels. That is the zone requirements in terms of the subdivision.

6 I must also assess the development application under is the controls for child care centres, the Fairfield City Wide Development Control Plan, ch 13. It is noted that the section attempts to establish specific objectives and controls for child care centres although these are often located in residential zones. Council acknowledges that they are permissible in a variety of zones subject to meeting the objectives of that zone.

7 The DCP takes me to the objectives of the zone that I have just cited. The objectives include: (b) to ensure child care centres are located and designed to minimise the impact on the amenity of surrounding residents and other land users; to ensure child care centres are located and designed to provide children with a safe, healthy and active environment conducive to positive development; to ensure that staff and other users of centres are provided with a high quality working environment. 8 The overview under the heading of maximum capacities is whilst child care centres are a permitted land use in residential zones, they are also a commercial activity and must not result in any adverse impacts upon neighbours and the existing residential area. In this regard council considers it necessary, among other things, to limit the capacity of child care centres in residential zones. additionally, in acknowledging that larger centres create greater impacts to provide for varying controls of child care centres of different scales.

9 The objectives are: To ensure that the capacity of a child care centre is compatible with the existing land users and does not alter the immediate character and the amenity with existing residential areas; and to encourage distribution of smaller child care centres across all appropriate zones; and also to encourage the nought to two year old bracket. 10 The maximum number under the DCP is that it shall accommodate forty children and if a proposed child care centre has a common boundary with an existing centre then the applicant must demonstrate that the new centre is not an addition to the existing centre. That licences are not in the same name is not sufficient proof. It must be illustrated that centres cannot be combined in the future. Then it has requirements in terms of nought to two year old age groups.

11 The location requirements are: o to ensure that child care centres are provided as equitably as possible across the LGA subject to areas of greatest need being adequately serviced; o to minimise the impact of child care centres on residential amenity in terms of traffic generation, movement, traffic noise and from children by encouraging an even distribution of small child care centres in residential areas; o to encourage the clustering of child care centres with community facilities and other complementary land uses; o to ensure that selected sites are not subjected to environmental hazards that may be detrimental to the health or safety of the users of the facility; and to ensure that principal character and purpose of the various zones is maintained and that child care centres are an ancillary facility servicing the local community within which they are located. 12 The controls under location and analysis are contained in the DCP and council discourages the location of child care centres in the following zones: Non-urban residential 1(a) and the extractive industry zone. The location of child care centres shall take into consideration the proximity to environmental health or safety risk hazards. To this end consent will not be granted for centres within 100 metres of the following features: Arterial roads and high voltage power lines; telecommunications base stations and towers; LPG above-ground gas tank or tanker unloading position.

13 The subject site is located adjacent to a transmission easement. Integral Energy advise "that the property is affected by an easement, total width of 30.48 metres encompassing overhead dual circuit 132 kilovolt transmission line 93UW between Sydney West and West Liverpool substations, consequently the property is subject to some restrictions within the easement area." On 4 July 2005 the advise of Interal Energy was: "that it has no objections to the proposed before and after school care centre and associated play area located as outlined in the submitted drawings provided that they are located clear of the easement area. Integral Energy wish to take this opportunity to reiterate that trees, plants or shrubs with a mature height that does not exceed three metres may be planted within the easement area provided they are no closer than fifteen metres from the closest structure and no closer than five metres from the vertical projection of the closest conductor. All other conditions outlined in our previous correspondence of 24 September remain applicable to the application." 14 On 22 November 2005 Integral Energy provided further advice as follows: "The power line is presently used as a back-up line between Sydney West substation, Kemps Creek and West Liverpool substation. The magnetic field is less than 0.3 milligauss under the line when the power line is energised/active but not supplying energy. The power line has been used to supply energy on only eight days between January and November 2005. At these times the magnetic field ranged from up to thirty milligauss under the power line and up to two milligauss at the long day care centre. The guidelines state that the general public health should not be exposed to electronic magnetic fields greater than 1,000 milligauss on a continuous basis." 15 The respondent outlined a number of issues. They can be summarised as non-compliance with the maximum number of children, that is the 40 as contained in the DCP, and also the requirement in the DCP not to locate facilities within 100 metres of the overhead transmission lines. The other issue was the undesirable precedent in terms of a large centre and contrary to the DCP.

16 The Court heard evidence at the on-site hearing from Mr Paul Grech for the respondent, a consultant town planner, and Mr Gerard Terrusi for the applicant, a consultant planner.

17 Mr Raymond Garrett provided evidence to the Court for the electromagnetic field and he has a Bachelor in Electrical Engineering and he worked with the Department of Defence for many years and has done Sydney electricity testing laboratory work. He currently has his own consultancy since 1995 and his speciality is in electromagnetic radio frequencies and hazards.

18 Mr Garrett advised the Court and provided a Statement of Evidence that in his opinion he considered that the proposed use of the existing building for a before and after school centre was appropriate and he provided the report which became Exhibit C. The report quantifies the electromagnetic field (EMF) strength expected to be generated by the high voltage transmission line. The main sources of EMF and factors to be considered include the voltage of the line, the current carried by the line, and the duration of line use. He also provided evidence in terms of the microtesla, that is the field strength; that the maximum rated current of the line was calculated to be 3.7 microtesla which is 37 milligauss with both circuits loaded to maximum capacity and this was current typical usage and the evidence was that in terms of his assessment that the duration of exposure - and he assessed it to be four hours or less in terms of the before and after child care centre - that these strengths do not exceed the exposure limit guideline of 100 microtesla and he referenced the RHS30 by the National Health and Medical Research Council, RPANZA and provided a table as such. 19 His analysis of the high voltage lines use over the past 12 months which was indicated or provided by Integral Energy was the 8 days and then for a maximum of less than 36 hours and a minimum of 6 hours at any one time and then he does an analysis in terms of the exposure.

20 Mr Garrett noted that Integral Energy said there are no existing plans to upgrade the feeder but if land uses change then there could be a proposal to modify the use of the line. In his conclusions he states: "In terms of health, based on calculations and the information supplied by Integral Energy, the transmission line complies with the statutory requirements and guidelines for exposure to electromagnetic fields in all surrounding areas accessible by residents and the general public including adjoining residences. It should be noted that these requirements and guidelines are based on past scientific knowledge which may not necessarily reflect the latest research. To account for the continuing advancement of knowledge the international community, including the Australian Government and the World Health Organisation (WHO), advise the use of the precautionary principle." Of specific concerns is the finding by the UK NRPB, which in fact is an advisory group, and replicated elsewhere of a possible doubling of the risk of leukaemia in children when exposed to a power frequency magnetic field of greater than 0.4 microtesla. The NRPB report concluded that from a review of studies conducted in a residential environment the possibility remains that high prolonged time weighted average exposure to power frequency magnetic fields can increase the risk of leukaemia in children. The report only considered studies based on residential exposure and it is the National Radiation Protection Board in terms of the abbreviation I provided. 21 Mr Garrett further states: "Although magnetic fields of the order of 0.4 microtesla or more, up to .71, may occur at the boundary of the proposed before and after school child care centre the transmission line is typically in use for only eight days per year. Further, the children in care will be present for no more than three to four hours on those days. Given that the time weighted average of the studies considered by the NRPB would have been based on an exposure of at least eight hours per day residential exposure, it can be deduced that the time weighted exposure of the children in care would be less than half that of the studied group to less than an equivalent exposure level of 0.36 microtesla and then for only around eight days in the year. These figures don't change if this is a typical use per day as such." 22 Mr Grech on behalf of the respondent provided the Court with a public consultation draft of 7 December 2006, Radio Protection Standard, Exposure Limits for Electric and Magnetic Fields, this is a draft report. I have seriously considered the implications of the exposure and during the on-site hearing the parties were asked to formulate a condition such that the centre would cease operating in the event that there would be a change to the use of the transmission easement, that is if it was used for a greater voltage or if it was used on a permanent basis as such. This was also on the basis that the before and after school centre would cease to operate if there was scientific research established that a child care centre should not be located within fifty metres of an overhead dual circuit operating less than continuously.

23 The Court in its deliberations has referred to the judgment of Telstra Corporation Limited v Hornsby Council of 24 March 2006, a judgment of the Chief Judge of this Court. He considered in that, whilst it was for a telecommunications tower, the public health benefits, and he also notes the application of standards: It is not appropriate for a Court to set aside or disregard authoritative or scientifically credible standards, nor is it appropriate for a Court to pioneer standards of its own, and the creation of new standards is the responsibility of other authorities with special expertise. His honour also refers to previous judgments in terms of broader policies and the basis of reasonable and substantiated evidence and as such I will just read one paragraph in his judgment at 206: "To make an arbitrary decision would cause a greater disservice to the community than making a rational one. " 24 The Chief Judge states: "Similarly, the World Health Organisation has urged 'that scientific assessments of risk and science-based exposure limits should not be undermined by the adoption of arbitrary cautionary approaches. That would occur, for example, if limit values were lowered to levels that bear no relationship to the established hazards or have inappropriate arbitrary adjustments to the limit values to account for the extent of scientific uncertainty." 25 On balance having considered the evidence I am persuaded by Mr Garrett that the location of a before and after school centre to utilise the existing building on site should be approved in terms of this contention; or there is nothing that would warrant refusal of it at this point in time and as such it would be subject to clearly the provisos that the transmission easement is not used on a permanent basis or more than a certain number of days per year, which I will come to later, and also in terms of if it is established by scientific research and studies then clearly the operation of the before and after school care would need to cease.

26 The issue was also raised in terms of the DCP requirement that there be no child care facilities within 100 metres. I have given that central consideration in my assessment and in doing so I have had regard to the fact that this is a before and after child care centre and I have the benefit of Mr Garrett's evidence and analysis in this regard about limiting the number of hours. I am also satisfied that approval of this before and after school facility it would not present a precedent to be relied on for the establishment of a new child care centre. I note in terms of the controls that the before and after school centre does fall within the general definition of child care centre.

27 On the issue of non-compliance with the maximum number of children, that is 40 children in any one centre, I have had regard to the objectives of the DCP and also the need to satisfy or not be inconsistent with the objectives of the zone. In this regard it is clear that a maximum number of children of 40 is one that in a residential area certainly has clear merit and in terms of impacts it is certainly an appropriate way to minimise impacts on adjoining residential properties, in terms of noise, in terms of traffic generation, and other such issues.

28 With respect to the location, that is the residential-rural zone as it is, I am satisfied that the proposed development, that is the before and after school care use of the existing building, would not be inconsistent with the objectives of the zone and also not inconsistent with the objectives articulated in the DCP for the maximum number of children.

29 In my assessment of the before and after school care, whilst it will take the total number of children to some 112, at the same time the before and after school care I consider to be a complementary facility in terms of the existing child care centre and not an increase in the total number of small children nought to five in the child care centre. There would be benefits gained by co-location of a before and after school care and child care premises in terms of people dropping and collecting children.

30 For the issue of undesirable precedent I was referred to the judgment of Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 of his Honour Lloyd J wherein precedent can be a reason for refusal in its own right if in fact it would be readily invoked by other persons seeking the same use or the same approval.

31 In the circumstances of this case I am satisfied that the precedent issue is not one that would warrant refusal of the application. The proposal is a large facility in a residential rural area that has been approved by the council and in terms of the character of the area I agree with Mr Tunnisi that there would be little difference in the scale of the use of the building for before and after school care to what is seen on the site today. I appreciate that the subject building was not built in accordance with the plan as such, and that is a matter for separate proceedings, and that there are alterations to the building elevations, but on balance I do not believe that these changes make the built form unreasonable in terms of the use of the building on the site. There will be an increase in intensity but that increase in intensity would not warrant refusal or change the character of this rural residential area.

32 As I stated, in terms of the built form, the proposal in my assessment is not a marked change from that that has been approved by the council although this is a matter for the council in terms of the building as constructed as compared to the approved development application. This is not an issue that I need to address at this point in time.

33 It was also discussed on site about the fact that there had been additional paving, that is hard concrete areas constructed. There was discussion provided about canopy trees being provided at a greater level which would ameliorate the built form and the mass that has already been approved on the site, and indeed in particular along the boundary adjacent to the transmission lines there is the opportunity for further plantings of canopy trees in particular as opposed to low level landscaping that would still not interfere with the electricity transmission line and would be contained completely within the boundary of the applicant's property, bearing in mind the comments made by Integral Energy in its correspondence.

34 Also in terms of the front landscaped area I am satisfied that additional canopy trees could be provided to allow this development to sit comfortably within with a rural residential landscape as such.

35 When the building is viewed from the road, I note the road is at a significantly higher level than the building itself and with built form it is not one that will be prominent or overwhelming in terms of the visual impact from the road.

36 The other condition to be imposed, which the applicant did not oppose and clearly in terms of Mr Garrett's assessment, there is the need to limit the number of hours to a maximum of four hours per day and as such the hours of operation for the before and after school are is limited to a maximum of four hours per day, 7 until 9am and 4 to 6pm of an evening.

37 Given that the development is already constructed and erected, a deferred commencement clearly cannot be provided but at the same time it is noted that there needs to be additional landscaping and this should addressed by further work with the applicant having to submit to the council for its approval a landscape plan to show the appropriate number of canopy trees to be provided in strategic locations when viewed from adjoining properties and the roadway.

38 As such, the conditions need to be specific in terms of the canopy trees and the applicant should provide a plan which shows appropriate canopy trees that will attain an appropriate height commensurate with the scale of the development. The applicant must provide this to the council prior to the issuing of orders. This is not just a matter of being conditioned to be left to a private certifying authority as clearly the landscaping is an important element in terms of maintaining the character of this rural residential area to provide appropriate landscaping for the size of the buildings located on the site.

39 With respect to the condition forwarded by the applicant for the overhead electricity transmission line, this will be reworded to say: "the overhead dual circuit is used no more than thirty days per year at the current voltage, or cannot become a permanent transmission line, and it must remain as a back-up line to supply electricity and" - and it will not be and/or, it will be or - "the scientific research establishes that a child care centre should not be located within 100 metres of an overhead or fifty metres of an overhead dual circuit 132 kilovolts electricity transmission line operating less than continuously. " 40 Then the hours of operations will be amended accordingly such that it accords with Mr Garrett's recommended exposure of four hours.

41 An amended landscape plan was filed and served on 27 February 2009 and while the council noted that it has not been prepared by a qualified landscape architect the council raises no objection to the species selected. I am satisfied the amended plan is capable of being implemented and the council has recourse if the condition is not actioned and I have deleted reference to a qualified landscape architect.

42 Following my findings above condition 4 re: Badgery's Creek Airport was in dispute. I have determined that it is costly and unnecessary to carry out the report at this stage and the applicants alternative condition is imposed. This still provides certainty and would allow such a report and works to be carried prior to this airport becoming operational as Sydney's second airport, if and when this occurs.

43 Therefore in my overall assessment accordingly the formal orders of the Court are: (1) the appeal to use part of the premises known as 145-161 Horsley Road, Horsley Park is upheld in part; (2) the development application submitted to Fairfield City Council for the use of the building is approved subject to the conditions in annexure A; and (3) the exhibits except for 1, 3 and A will be returned to the parties.

      J S Murrell
      Commissioner of the Court
      ljr

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.