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