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[2012] NSWLEC 1239
Land and Environment Court (NSW)
2012-08-17
Original judgment source is linked above.
Ms H Irish (Respondent) Solicitors Mr T Sattler, Sattler & Associates (Applicant)
Ms K Dean, King & Wood Mallesons (Respondent) File Number(s): 11128 of 2011
Judgment 1Donnelly Road Partnership (DRP) sought development consent from Willoughby Council to carry out alterations and additions to an existing dwelling house and use the resultant building and land at Nos. 7 and 9 Donnelly Road, Naremburn as a 72 place child care centre with associated manager's residence. The council refused consent and DRP is appealing the decision. 2There is one contention in the case and that is whether the site is suitable and the design adequate. The council has listed particulars relating to noise, access, traffic, evacuation, scale, landscaping and overshadowing of play spaces and maintains the development is contrary to its planning controls.
The site and its context 3The site comprises two adjoining allotments being Lots 1 and 2 in DP 1074533 known as Nos. 7 and 9 Donnelly Road. No. 7 is a battle-axe allotment behind No. 9, with the access handle located between No. 9 and the adjoining property at No. 5 Donnelly Road. The site benefits from a registered right of footway over Lots 1 & 2 in DP 553822, Nos. 12 and 14 Merrenburn Avenue, Naremburn. That right-of-way is to be used as an alternative evacuation route only. 4The two allotments have a combined area of 1493.2 sq m and are located on the northern side of the roadway at its western termination where the Warringah Freeway bisects Donnelly Road. The freeway divides Donnelly Road into two sections and the site is located within the eastern portion of the road. Access to this section of roadway is only available from Brook Street and the roadway is approximately 30 m in length with a carriageway of approximately 7.5 m. Currently, there is no provision for a turning bulb at the closed end of the road. 5Brook Street is a classified regional road with two northbound lanes and two southbound lanes and provides direct access to the expressway in close proximity to the intersection with Donnelly Road. 6A single storey dwelling house is currently erected on No. 9 and No. 7 is a vacant allotment. 7The site slopes from its northern, rear boundary approximately 5 m to the street. There are 4 other dwelling houses, of one and two storeys in Donnelly Road, all of which are on the northern side of the roadway. A triangular shaped residue allotment is located on the southern side of the roadway and is enclosed by an acoustic barrier aligning with the expressway. The area on the southern side of the road is within the North Sydney local government area. Dwellings fronting Merrenburn Avenue adjoin the rear of the site.
Background and the proposal 8DRP lodged Development Application 261/2011 with the council on 27 June 2011 and the application was determined by way of refusal at a council meeting held on 14 November 2011. Notice of Determination was issued on 18 November 2011. 9The appeal has been the subject of a series of conciliation conferences before another Commissioner of the Court and as a result of that process, the applicant prepared amended plans. The Court has granted leave to rely on those plans, which are now the subject of this appeal. 10The use of the site and other land (No. 5) for the purpose of a child care centre has been the subject of previous applications to the council and appeals in this Court, refer Mike George Planning Pty Ltd v Willoughby Council [2007] NSWLEC 583, Keenwill Pty Limited v Willoughby City Council [2008] NSWLEC 1520 and Keenwill Pty Limited v Willoughby Council [2010] NSWLEC 1028. 11The existing dwelling house on No. 9 Donnelly Road is to be altered and linked to a new, two storey building to be constructed at the rear of the site on what is currently known as No. 7 Donnelly Road. 12Vehicular access to the site is proposed by way of an extension to the road pavement within Donnelly Road at its western end. This work requires the removal of two casuarinas trees from the road reserve. A concrete crossover would then connect to a 3 m wide one-way ramp to be constructed in the location of the existing driveway that services the garage of No. 7. That driveway would run along the site's south-western boundary which adjoins the freeway. The ramp would provide access to the proposed basement carpark. Vehicular circulation would be in a clock-wise direction through the carpark with egress via a ramp that would be constructed in the current handle that services No. 5 and through the modified crossover to Donnelly Road. 13Carparking within the basement would accommodate a total of 20 cars for staff, visitors and the resident of the proposed dwelling. One space has been designated as a loading bay. Garbage storage is to be provided within the basement and pedestrian access to the centre would be from within that area with a secondary access also available from the front door to the existing dwelling house. 14The child care centre would be operated from within the existing dwelling (16 children 0-2 years) and the lower level of the new building (two rooms, one for 2-3 years (24) and one for 3-5 years (32)). Play areas are provided to the north and west of the building. 15A two bedroom, manager's residence with outdoor terrace area is proposed at the first floor level of the new building. 16Noise walls of varying height are proposed around the site's perimeter. 17The centre would be operated by 11 staff and it would open from 7 am to 6.30 pm Monday to Friday.
The planning controls 18The site is zoned Residential 2(a) under Willoughby Local Environmental Plan 1995 (the LEP) and a child care centre is permissible with consent. The aims of the LEP are contained in clause 2 and the council identifies the relevant objectives as (b), (c), (d), (k) and (l). Clause 13D provides that consent shall not be granted if the consent authority is of the opinion that the proposal is inconsistent with one or more of the aims of the LEP and at least one specific objective of the zone within which the development is proposed to be carried out. 19There is only one specific objective for the 2(a) zone and that is: To accommodate dwelling-houses and other land uses which are compatible with the existing housing. 20Other relevant clauses in the LEP are 13D - Amenity, 14A - General Objectives and 18 - Height. 21Willoughby Development Control Plan (the DCP) applies to the site and the relevant sections are A.3 - Aims of the Plan and G.10 - Child Care Services. The objectives of G10 are:
The evidence 24The hearing commenced on site with evidence heard from five objectors and one supporter of the proposal. The issues raised by the objectors are summarised as follows:
Landscaping 27The council contends that the proposed landscaping does not soften the built environment when viewed from the street and adjoining properties. Ms Brown detailed this particular as the interface of the rear building with No. 5 and said the relationship was unacceptable. Ms Hanna proposed the deletion of the eastern pathway adjacent to the common boundary with No. 5 and the planting of 7 syzygium species at that location and Ms Brown said that this would be an acceptable solution to that issue. Ms Hanna also proposed the planting of a climbing ficus species along the acoustic walls adjacent to the freeway that are to be extended in height to address the acoustic criteria contained in the DCP and prepared details of the treatment of those walls as Exhibit V. Ms Brown agreed that the planting would assist in mitigating the impact of the walls.
Acoustics 28Section G.10 contains standards and criteria for noise and states: Child care centres are to be located and designed to ensure sufficient separation from busy roads and rail corridors to avoid adverse noise impacts onto the centre. Centres are to be designed to minimise the noise emitted from the centre to ensure no adverse impacts on the amenity of the surrounding residents. The following standards and criteria are required to be met:
Traffic and parking 33The council contends that the development, because of its location on a closed end road, where access is only available from a classified regional road (Brook St), will dominate and impede the efficiency of Donnelly Road and create a traffic hazard at the intersection of Donnelly Road and Brook Street resulting in an unreasonable impact on the amenity of residents of that section of Donnelly Road, particularly because of the need to impose a right turn ban out of Donnelly Road during peak periods. The DCP, in G.10 includes locational controls that state: Child care centres should not be located in cul-de-sacs or no through roads, except where more than one street access and egress is available to the site and the Centre has adequate parking and pickup/dropoff space. 34Mr Cody says that the design of the development has taken into consideration the objectives of the G.10 controls and that the impacts of the additional traffic are minimised by the way access and circulation has been designed through the basement area. He says that the issue in cul-de-sacs is that they usually have a bulb and people park there so cars can't turn around and that congestion is caused because of inadequate parking being available. In this case, he says the parking complies with the DCP control and the staff/visitor allocation should be changed to reflect better utilisation of those spaces. He also recommends that the visitor spaces be widened to facilitate better internal access. Ms Brown agrees and says that the amended driveway layout and the modified basement parking layout will provide adequate access of vehicles into the site and remove potential conflict within the driveway and basement parking areas and provide for better manoeuvrability of vehicles on site and within Donnelly Road. 35Mr Cody concludes that the development will not result in traffic congestion and is well within the RTA environmental capacity standard for the road and calculates a queue length at the intersection of Donnelly Road/Brook Street of 2 cars which, he says is acceptable. Ms Brown agrees. 36Mr Cody made reference to a determination by the Willoughby Traffic Committee made on 19 July 2006 which had approved, pending approval of an earlier development application for a childcare centre on the site, a peak 'No Right Turn' ban to restrict vehicles exiting Donnelly Road into Brook Street between the hours of 7.00 am - 9.30 am and 4.30 pm to 7.00 pm Monday to Friday. The report that considered the matter acknowledged that the high traffic volumes using Brook Street make a safe right turn out of Donnelly Road extremely difficult and for that reason supported the restriction. Ms Brown says that the additional traffic and the need for residents of Donnelly Street to turn left out of the street and travel an estimated 5 minutes during peak periods has a detrimental amenity impact however she says that this is not a reason to refuse the application. Mr Cody says there is no adverse amenity impact in terms of increased traffic hazard and that the right-hand turn ban will enhance the traffic safety of the intersection.
Access and Evacuation 37The council contends that the proposed development requires extensive and complicated evacuation measures. Mr Day has developed an Emergency Plan for the proposed child care centre which he says is based upon standard, best-practice procedures and refined to reflect the council's requirements. That plan nominates two evacuation routes and assembly areas, one in Donnelly Road and the other in Merrenburn Avenue which, he says, exceeds that of the majority of other emergency plans for child care centres and many commercial and industrial emergency plans. 38Ms Brown says the plan is complicated due to the need to carry out daily inspections of routes and gates and the level differences within the buildings and sites and she is unsure whether the ability for 11 staff members to undertake the nominated duties in an emergency situation can be achieved. Mr Day advises the plan is based on the employee numbers and that a crucial part of being properly equipped to respond in an emergency is the training of all staff and says the plan is suitable and appropriate for the development and isn't any more extensive or complicated than any other centres in Sydney's suburban and urban districts. Mr Day provided the Court with details of the proposed evacuation cots (Exhibit T) and demonstrated a rope that would be used to assist evacuating children. Ms Brown has seen the rope used and sees no difficulties in its effectiveness but says the issue is more complicated than just getting the children out the front of the centre.
Town Planning 39The council contends the massing of the proposed development and acoustic barriers and its relationship to adjoining dwellings will cause it to dominate the Donnelly Road neighbourhood and also be dominant when viewed from adjoining properties in Merrenburn Avenue. Secondly, that the proposed development will create an unreasonable level of overshadowing of external play spaces during the winter months as a result of the proposed buildings, perimeter fencing and acoustic barriers. 40The experts agree that the acoustic measures are required to provide an acceptable level of amenity to the occupants of the centre from surrounding noise sources and to adjoining residential properties from the proposal, that the proposed child care building complies with the applicable building height, landscape and setback controls contained within the LEP and DCP and that there are no standards that nominate minimum hours of sunlight access for child care centres. 41Ms Brown says that acoustic barriers to be erected along the site's boundaries will be significant and overwhelming from a visual and physical perspective. Mr Boston disagrees and says that when viewed from within the site, from the adjoining residential properties of from the adjacent public domain, particularly in the context of the site's proximity to the Warringah Freeway, the structures are neither significant or overwhelming, with the exception of the 2.6 m high acoustic barrier proposed along the eastern edge of the exit driveway. 42Ms Brown says the impact of the walls provide an uninteresting outlook for the children whereas Mr Boston says the outlook with the proposed landscaping is acceptable and that the height of the proposed walls is similar to a two storey dwelling house and therefore not foreign in the locality. 43Mr Boston referenced the shadow diagrams in Exhibit B and says, that even with the 3 m high fence along the northern boundary, that there will be good usable areas within the site that will receive 3 hours of sunlight during winter. Ms Brown disagrees and says that whilst the sun may hit the torso of children using those spaces, the entire northern setback will be shaded all day and so only a small portion of the play area would be available. She notes the proposal relies on a limitation of number of children playing outdoors so as to comply with the acoustic criteria so says this restriction imposes further limitations on the amount of sunlight that can be enjoyed by the children during winter. 44In relation to the objectives of the DCP, Ms Brown accepts, that with the amendments proposed by the applicant, some of her concerns are addressed however says that she remains concerned in terms of safety and design, the effectiveness of the evacuation plan, the reliance on extensive works and devices to manage the acoustic environment and that whilst the noise criteria is met through the use of those barriers, she says they are, with the landscaping proposed, integrated into the environment. It is her opinion that the significant increase in traffic and the need to implement the right-turn restriction will change the nature of the area and push traffic elsewhere. 45Mr Boston says that the additional traffic would only be perceptible to residents of Donnelly Road if they stand out the front due to the already high traffic noise levels in the area and for that reason, says the impact is not detrimental and concludes the development satisfies the objectives of the DCP notwithstanding the site is within a cul-de-sac.
Conclusion and findings 46Having regard to the contentions, evidence in the proceedings and the council's planning controls, it is clear that the issues in the case are whether the external impacts of the proposal, in particular, the traffic generation and management issues, and the acoustic mitigation measures are acceptable and satisfy the council's planning controls. In addition, design and operational issues of the amenity of the play areas and whether the proposed evacuation strategy is appropriate for the site are considerations. All must be assessed against the relevant statutory instruments. 47I acknowledge that the site has been the subject of several previous applications for use as a child care centre and that other applications for land adjoining the site have also been before this Court. I do not consider that it is appropriate that I use those cases as the basis for my consideration but rather assess the application on its merits in accordance with the legislative, statutory and local planning controls and associated policies and the facts of this case and the current circumstances as they now exist. 48The experts agree that, with the deletion of the eastern pathway and provision of additional landscaping in that location and the use of a creeper planted along the acoustic walls, the impact of the necessary acoustic walls would be softened. I am satisfied that the proposed landscaping plan and the additional works is an appropriate landscape treatment of the site and would be consistent with the character of the area. 49Mr Cooper has demonstrated that, with the acoustic walls proposed, it is possible to operate the centre in accordance with the noise criteria established in the DCP and also provide for natural ventilation of the building. The provision of natural ventilation is important both in terms of sustainability and providing a quality environment within the centre. 50The residential component of the development is also designed so as to meet the necessary acoustic environment. I have no evidence that any other appropriate noise criteria is not satisfied. Mr Cooper's evidence, not disputed by Ms Brown, is that it is not necessary to provide the 3m acoustic wall along the northern boundary of the site and that this wall could be 2 m high. Ms Irish submits that the wall should be 3 m as that is the applicant's proposal and had been offered to address submissions from residents of Merrenburn Avenue. I am satisfied that a wall height of 2 m is all that is necessary however, if the residents of adjoining properties are seeking a higher boundary fence, I do not consider that this would adversely impact on either the child care centre of the amenity of those properties. I acknowledge the fact that all relevant noise standards are met does not mean residents of adjoining properties will not hear noise from the child care centre, just that it operates in accordance with standards deemed to be acceptable by the regulators. 51The higher fence would increase shadows into the site however, I am satisfied, on the basis of the evidence available, that there are no standards for the amount of sunlight required for child care centre play areas and that, in accordance with Mr Boston's evidence, there are play areas that will receive a minimum of three hours per day and the condition limiting the number of children outdoors at any one time to 24 can be appropriately managed. 52The additional barriers to be added to the acoustic wall adjoining the freeway will significantly increase the height of that wall however, in this location, I do not consider that this is inappropriate in the circumstances of the case. It will not impact any of the adjoining residential properties and it will provide improved acoustic benefit to those residents. There are higher acoustic walls on the southern and western sides of Donnelly Road and therefore, the proposed heights are not inconsistent with the character of the area. The provision of acoustic walls to address noise is a recognised solution in the Interim Guidelines provided impacts on amenity, solar access, vegetation and safety are taken into consideration. In view of the above conclusions, I am satisfied the development accords to the requirements of the SEPP and those guidelines. 53The DCP discourages the establishment of child care centres in a cul-de-sac or closed road. There is no dispute that Donnelly Road is a closed road and the only access is off Brook Street, a regional road. The reason provided in the DCP is that the council considers these locations do not allow for good traffic circulation or to minimise potential adverse impacts on the surrounding area in terms of noise, traffic generation and car parking. The locational criteria suggest that, where more that one street access and egress is available to the site and the centre has adequate parking and pickup/dropoff space, it may be appropriate to site a centre within a cul-de-sac. 54The site has, by way of a registered right of footway, access to two streets. I accept that alternate vehicular access is not provided and the right of way will only be used in emergencies however, there is no dispute that the design of the development provides adequate parking and pickup/dropoff space. The one-way circulation system through the basement ensures that there will be no adverse impacts on traffic flow in Donnelly Road. The two car queuing length at the intersection with Brook Street is not unacceptable and accordingly, I consider the traffic and parking design of the development is appropriate and satisfies the objectives of the DCP. 55There is no dispute that the centre would introduce additional traffic to Donnelly Road however, the evidence is that the volume is within the environmental capacity of the road. There is one amenity impact that requires particular consideration and that is the need to impose right-hand turn restrictions at the intersection of Donnelly Road and Brook Street during peak periods. I agree that this will inconvenience residents of Donnelly Street as it would add to travel time however, I consider, based on the evidence provided, that the intersection is one that already presents safety risks. The resident's evidence, Exhibit 2, goes to this fact and includes advice of accidents causing injury have occurred. The council's local Traffic Committee also recognised safety risks in approving the right-hand turn associated with an earlier development application. Accordingly, I am satisfied that the proposal to ban right-hand turns at peak periods, whilst having an impact on the residents, has a greater public benefit in terms of road safety and is therefore, as agreed by Ms Brown, not a reason to refuse consent. 56As mentioned above, the site enjoys two means of pedestrian emergency vehicle access points. A contention in the case is that the evacuation plan proposed is inadequate. The evidence of Mr Day is that the centre can be safely evacuated by the staff who would normally be in attendance at the centre. Ms Brown considered the plan to be complicated. I have no evidence that the plan is more complicated than that adopted in any other child care centre and also note that, in the council officer's report regarding the application, that plan had been reviewed by the council's Manager, Children's Services and found to be satisfactory. 57The LEP requires the Court to be satisfied that the development is consistent with at least one specific objective of the 2(a) zone. There is only one such objective and accordingly, I must be satisfied that the development is compatible with the existing housing. The development is designed to retain the existing dwelling at the front of the site. Currently, there are two concrete driveways that run in locations similar to the circulation driveways proposed to service the basement carpark. In terms of changes to the streetscape, there will be no significant change. The addition of the two storey building to the rear, whilst a building of larger bulk and scale than the dwellings in the locality, is not considered to be incompatible with that existing housing. 58Ms Brown accepts that the visual impact of the building is acceptable and the experts agree that the building complies with the applicable building height, landscape and setback controls contained in the LEP and DCP. Applying the tests in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, and having regard to the findings detailed above, I am satisfied that the development is compatible with the existing housing. 59I am also satisfied, based on the planning evidence that the aims of the DCP and in particular, those in G.10 are met. There is no evidence that the development would not meet the needs of the community. Whilst there was one person providing evidence in support of the proposal, I place limited weight on that submission. 60There is agreement that the development is well designed and I am satisfied that it will be safe and meet appropriate design standards. The evidence provided is that it has been designed so that the recommended noise standards are met and there is no contention in the case in relation to air quality impacts. I have addressed the issue of the building being complementary to its location and consider that it is integrated into the local environment and that its design has minimised potential adverse impacts on the surrounding area in terms of noise, traffic generation and car parking. 61I am therefore satisfied that the proposal is suitable and consent can be granted. Final conditions have not been resolved between the parties and there are matters that must be addressed in accordance with the changes reflected in this judgment. 62To allow the making of final Orders, the parties are directed to file agreed conditions, in electronic format, that reflect my findings by 4pm Friday 31 August 2012. Final Orders will be made in Chambers.
Sue Morris Commissioner of the Court
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. Decision last updated: 28 August 2012
Donnelly Road Partnership
Willoughby Council