Dounis v Kogarah Municipal Council

Land and Environment Court (NSW)|2005-02-09

CITATION : Dounis v Kogarah Municipal Council [2006] NSWLEC 50

APPLICANT Dounis PARTIES : RESPONDENT Kogarah Municipal Council

Development Application :- Child care centre traffic and parking KEY ISSUES: Noise Streetscape

CASES CITED: Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83

DATES OF HEARING: 28 & 29/11/2005 & 1/12/2005

APPLICANT Mr I Hemmings, barrister SOLICITORS Heidtman + Co Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Ms C Schofield, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10820 of 2005 Louis and Amanda Dounis v Kogarah Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Kogarah Council (the council) of a development application (DA 261/05) for the demolition of all existing improvements and the erection of a childcare centre at 23 Terry Street, Blakehurst (the site). 2 The site was inspected on the first day of the hearing with representatives from both parties and a number of local residents. The site and surrounding area 3 The site is Lot 15 in DP 571117. It is irregular in shape with a frontage and southern boundary to Terry St of 19.895 metres, an eastern boundary of 43.555 metres, a rear and northern boundary of 15.715 metres and an irregular western boundary with a combined distance of 48.855 metres giving a total site area of 896.3 square metres. 4 A single storey rendered and fibre cement cottage with a detached garage is located on the site. The locality is generally one and two storey houses with generous setbacks and landscaped frontages. Medium density townhouse and villa developments are located further along Terry St towards the Princes Highway. The proposal 5 The proposal was amended prior to the hearing to better address concerns of the court appointed experts. It provides for the removal of all existing improvements and vegetation on the site and the construction of a long day childcare centre. The centre will accommodate 40 children, consisting of 10 children between 0 and 2 years, 16 children between 2 and 3 years and 14 children between 3 and 5 years. The building is located towards the eastern side of the site with outdoor play areas located adjoining the northern and western boundaries. 6 The centre will operate between 7.00 am and 7.00 pm Monday to Friday. It is proposed that drop-off and pickup times for children will be staggered between 7.00 am and 11.00 am and 3.00 pm and 7.00 pm. 7 Four car parking spaces within a garage (made up of two spaces and two stacked spaces) are located near the western boundary and the Terry St frontage. A driveway off Terry St provides separate ingress and egress for drop-off and pickup of children. Some landscaping is provided in the front setback in areas not used for the driveway. Relevant planning controls 8 The site is zoned Residential 2(a)-Residential (Low Density) under Kogarah Local Environmental Plan 1998 (LEP 1998). The proposed use is permissible within this zone with consent. Clause 7 provides zone objectives which relevantly include: (b) to maintain the amenity and low density environment of areas predominantly characterised by detached dwelling houses, and (c) to allow certain non residential development of low intensity which is compatible with the residential character and amenity of the locality. 9 Clause 7(2) provides that consent shall not be granted unless the consent authority is of the opinion that the development is consistent with the zone objectives. 10 Development Control Plan No. 11-Centre Based Child Care Services (DCP 11) also applies. The relevant requirements relate to: siting and design (2.1); location requirements (2.2); parking (2.4), outdoor play area (2.5) and landscaping (2.7). 11 On 21 November 2005 council adopted an amendment to DCP 11 (the amended DCP 11). This amendment was made after the development application was lodged. The amendment provides that Terry Street, between the Princes Highway and Resthaven Road, is included in a list of streets which do not meet the location criteria for child care centres due to the volume of traffic. 12 The other DCP amendments of relevance are the introduction of a minimum frontage requirement and changes to the off street parking requirements. The frontage requires that child care centres have a minimum frontage of 20m. The site has a frontage of 19.895m and this minor non compliance was not raised as an issue between the parties. The amendments to the off street parking requirements were a key issue in the proceedings, which are discussed under the parking issue. 13 The parties agreed that the amended DCP 11 was a matter for consideration but not to be given determinative weight. This is consistent with the decision of Lloyd J in Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83. The issues 14 The council filed a Statement of Issues containing 7 individual issues. These can be grouped into the following main areas: 1) whether the proposed development provides satisfactory offstreet parking and pickup/drop-off arrangements for children (Issues 1, 3 and 5), 2) whether the proposed development has and unacceptable amenity impact on neighbouring residents (Issues 1 and 2), and 3) whether the proposed development has an unacceptable impact on the streetscape (Issue 4). 15 The public interest and issues raised by objectors (Issues 6 and 7) are addressed in the consideration of the above issues. The evidence 16 The parties agreed to the appointment of Mr K Nash as the Court appointed town planning expert, Mr C McLaren as the Court appointed traffic engineer and Mr B Murray as the Court appointed acoustic expert. 17 I granted leave for the applicant and the council to provide additional evidence from the following experts: 18 For the applicant Mr A Darroch, town planner Mr R Tonin, acoustic expert Mr G Pindar, traffic expert Ms N Sonter, landscape consultant 19 For the council Mr Lindsay Fletcher, town planner Mr F Tambosis, traffic engineer Mr L Challis, acoustic expert Traffic and Parking 20 The impact of the proposal on traffic was raised by the residents as an issue and Mr Tambosis raised concerns that vehicles turning into and out of the site could add to the queuing that is already evident in the street. Both Mr McLaran and Mr Pindar considered that the increase in traffic generated by the proposal would not adversely impact on the traffic in Terry Street. 21 The proposal does not comply with the locational requirements for child care centres in the amended DCP 11 due to the volume and speed of traffic using Terry Street. Mr Pindar and Mr McLaren did not consider that volume and speed of traffic using Terry Street of itself made it an unsuitable location for a childcare centre and that the proposal should be considered on its merits. All experts agreed that the development should not rely on kerbside parking to meet its operational needs. The reason for this is summarised by Mr McLaran as being that Terry Street is a Collector Road that experiences traffic flows in excess of its environmental capacity. The width of the street, with parking on both sides, its use by trucks and buses and the speed of traffic using the street make it unsuitable for children to be dropped off in the street. Mr Pindar considered that the street could be used for staff parking and the occasional drop off for children. 22 The main issue between the parties was the number and arrangement of spaces required to meet the operational needs of the centre. 23 DCP 11 requires 1 space for each full time staff member, one parking bay adjacent to the driveway for dropping off and picking up of children, and one space for every two part time staff members; a total of 7 spaces. Mr Mclaren and Mr Pindar agreed that it was not appropriate to determine the operational need of the centre based on the number of staff. Particularly as staff numbers fluctuate depending upon their working hours and that staff can utilise parking for parents and carers outside the peak drop off times. They agreed that the four spaces proposed in the garage were sufficient to meet the needs of staff but disagreed on whether the parking proposed in the driveway and passing bay was adequate for parent/carers. 24 The amended DCP 11 requires 1 space per four children which equates to a requirement of 10 spaces. This rate is based on the Roads and Traffic Authority (RTA) guidelines. Mr Pindar did not support this figure on the basis that the RTA guidelines were outdated and that a figure based on his surveys was more appropriate. He considered that the number of spaces and the drop off arrangement proposed would meet the needs of the centre. 25 Mr McLaran considered the RTA guidelines to be still relevant and to reflect the surveys that he had undertaken. He recognised that the number of on site spaces could be reduced "in circumstances where it is acceptable on road safety and convenience grounds". Based on the location he considered that 8 spaces comprising 3 for staff and 5 for parents/carers would meet the operational needs in this location without "any reliance or operational spill over on street". He considered that two parent/carer spaces could be utilised by staff outside peak drop off times 26 Mr McLaran did not consider that the proposed arrangement which utilised the drive through driveway to provide two parent/carer spaces as acceptable. He stated that based on his research, the two spaces would not meet the demand for 4 to 5 parent/carer spaces in peak period for an average of 6 minutes. This would result in parent/cares using the street or the driveway being blocked by cars parking. 27 Mr McLaren was also concerned that the drop off arrangement was not safe as it did not provide a drop off to a footpath situation. A car parked in the driveway nearest the road would result in the child crossing the path of a car seeking to park in the other space nearer the centre. He considered this to be a dangerous situation. 28 Mr Pindar, based on his research, considered that for most of the peak drop off times only two cars would be parked. He stated that the presence of a third car would not cause a problem during the extent of its stay as one of the other cars would already have moved on thereby not blocking the driveway. He recognised that if a fourth car arrived the driveway may be blocked but considered this to be acceptable as, based on his figures, it would only occur at 2% of the time in the morning peak and 5% of the time in the afternoon peak. Mr Pindar did not consider the proposed arrangement to be dangerous as it is a low speed environment and children would be supervised when entering and leaving cars. 29 Mr McLaren stated that even if Mr Pindar's estimates were correct this was not an acceptable level of risk as there would be times where the driveway would be blocked and cars would need to wait. He recognised that there would be periods were the centre would not meet the parking demands such as if there were a function or in the event that more than the anticipated number of parents/carers arrived at the same time. However, the parking arrangements should be designed to meet the normal operational needs of the centre and should endeavour to achieve no risk. He stated that child care centres and schools were environments where a high standard of design was required to minimise known risk.

Findings 30 The proposal does not provide dedicated car parking spaces that comply with the numerical requirements in either DCP 11 or the amended DCP 11. The question is therefore whether, despite this non-compliance, the proposal meets the objectives of the control. The objectives of both DCP 11 and the amended DCP 11, although worded slightly differently, are to: Provide adequate off-street parking on site for employees and residents and parents of children attending the centre. Allow for safe, efficient transfer of children to and from the centre by providing suitable pedestrian and vehicular access on to and within the site. 31 To achieve these objectives it is not simply a task of applying the numerical requirements in either DCP 11 or the amended DCP 11 but rather to estimate the number and arrangement of spaces that will meet the operational requirements of a centre in this location. Both Mr Pindar and Mr McLaren have undertaken surveys and research of other child care centres over a number of years. Based on their findings they have reached different conclusions in relation to the requirements of this child care centre. 32 The key difference in opinion between Mr Pindar and Mr McLaren is the likely number of parent/carers in the peak drop off periods and whether the drive through arrangement is safe and can adequately cater for this demand. 33 Even if I accept Mr Pindar's figures and his assumptions about cars arriving when others are leaving, I do not consider that the proposed arrangement is acceptable as the proposed drive through provides only one dedicated parking space for parent/carers. The other space is within the driveway area. If used, it will block the passage of other vehicles and result in them waiting or reversing out of the driveway. This is clearly an unacceptable situation, considering the traffic flows in Terry Street. 34 On Mr Pindar's figures the driveway is only likely to be blocked for a short period in each morning and afternoon peak period. If Mr McLaran's figures are accepted the blocking of the driveway will occur more often in these peak periods. The figures of both experts are estimates. It is possible that more cars may arrive and stay longer than estimated by Mr Pindar, but even on his figures there will be times, albeit brief, where there is an overlap, where the driveway will be blocked and where cars will be parked in a driveway situation and children will cross the path of on coming cars. This is not an acceptable design solution for a new childcare centre in this location and it does not meet the objectives of DCP11. This arrangement may be appropriate where safe on street parking is also available but this is not the case. 35 I also prefer the evidence of Mr McLaren on the number of car parking spaces. Even though the RTA Guidelines have been in existence for some time they should not be dismissed in the manner suggested by Mr Pindar. Nor can the car parking rates in other Council areas be relied upon, particularly as these provide a wide range of figures. In my view, the provision of only five dedicated car parking spaces is inadequate for a 40 place childcare centre, particularly in a stack formation. The inadequacy of the on-site car parking is also exacerbated by the unsuitability of using Terry Road as alternative on street parking. 36 Overall, I find that the amount and arrangement of parking is inconsistent with the objectives of DCP 11 and the amended DCP 11. In my view, the degree of inconsistency is so significant that it warrants refusal of the application for this reason alone. 37 For completeness I will briefly deal with the other issues.

Noise 38 The noise experts agreed on measures to ensure that there is not an unacceptable noise impact on adjoining residential properties. These included physical measures such as four metre high acoustic fences being provided along the north and west boundaries, the building being air conditioned, the windows of the cot room being closed and management conditions including that the outdoor areas not be used for play for more than three hours per day. 39 The proposed acoustic fence is set back about 700mm from the boundary, it is vertical to a height of 2.4m and angled to a height of 4m. The degree of angle can be varied provided an overall height of 4m is achieved. The fence is proposed to be clear polycarbonate. In addition, a fence is proposed along the boundaries. This is not required for acoustic reasons but to delineate the property boundary. Landscaping is to be provided in the strip between the boundary fence and the acoustic fence. 40 While the experts agreed that the acoustic fence would achieve an acceptable noise level they disagreed as to whether it was required. This difference resulted from different opinions as to the appropriate noise standard. 41 Mr Murray stated that:

It is generally accepted that an appropriate noise criterion for childcare play is an LAeq,15min noise level of RBL + 10dBA. This criterion takes into account the fact that play would affect a receiver location for no more than three hours on any day. Given that this criterion assumes that noise from child play is less annoying than that from industrial activity and given that it would result in noise levels above a long term criterion for part of the day, it is important that the criterion not be exceeded at relevant residential receivers. 42 At ground level this criterion could be achieved by a 2.1m fence on the boundary. The higher fence is required to achieve this noise criterion for first floor windows of 25 Terry Street and 2 Deller Place. With the windows closed the criterion could be achieved internally with the lower fence. Mr Murray considered that the noise criterion was not required if rooms were used as bedrooms as their usage and that of the child care centre would not overlap. 43 The evidence of the residents is that the rooms were not solely used as bedrooms but as a study (25 Terry Street) and a combined bedroom/living area (2 Deller Place). 44 Mr Tonin equated the noise of a childcare centre to that of industrial noise and applied the more stringent criteria of plus 5dBA. To achieve this criterion at ground level the 4m acoustic fence was required. The criteria would also then be met at first floor level windows. 45 Mr Challis stated that the "pre eminent parameter for assessing the potential noise is the L 1,1-minute, and not the LAeq,15min " as in his opinion noise such as children crying and teachers shouting had an unacceptable impact. He also considered that it was difficult to limit the usage of the outdoor area of play to three hours a day. In his opinion, the proposed 4m acoustic fence was necessary to meet this criteria at both ground and first floor level. 46 Both Mr Tonin and Mr Challis agreed that if Mr Murray's criteria were used an acceptable noise environment at ground level could be achieved by a 2.1m fence, but not at first floor level. 47 The provision of the 4m acoustic fence raised issues of its impact on residential character. The planning experts held differing opinions as to whether the proposed 4m acoustic fence was appropriate in a residential area. Mr Darroch considered that acoustic barriers for childcare centres were a "fact of life" and that any childcare centre in a residential area is likely to require some form of acoustic barrier to minimise noise impacts on adjoining neighbours. He considered the appearance of the fence to be acceptable when viewed both externally from the site and internally within the site. In his opinion landscaping had a different role to play in a childcare centre and the location of the screen hedge behind a polycarbonate fence was acceptable as it was visible but protected the children. 48 Mr Nash and Mr Fletcher considered the acoustic fence to be a poor planning outcome for the site that was uncharacteristic of a residential area. They were concerned about the appearance and maintenance of the landscaping between the acoustic and boundary fence. Mr Fletcher considered that landscaping within a child care centre had a similar role to play as that in a residential environment. While care needed to be taken as to the choice of plants to ensure children's safety this did not obviate the need to provide a "pleasant environment". In his opinion the landscaping combined with a 4m fence did not achieve this objective. 49 The planning experts also held different opinions as to the need to provide a 4m high acoustic fence for the first floor windows. Both Mr Nash and Mr Darroch considered the noise impact on these rooms to be acceptable due to their use. However, Mr Darroch considered that the appearance of the acoustic fence was acceptable and it should therefore be provided to mitigate any impact on these rooms and to further reduce the impact at ground level.

Findings 50 The permissibility of child care centres within a residential zone assumes a degree of compatibility between uses. LEP 1998 requires consistency with the zone objectives which include the requirement that non residential uses are compatible with the residential character and amenity of the zone. 51 Compatibility of childcare centres in a residential environment is also emphasised by the provisions in DCP 11 including the location objectives in section 2.2 which relevantly provide: · Locate Centre Based Child Care Services so they do not detrimentally effect residents in terms of noise, loss of privacy, traffic generation and on street parking. 52 The objective of the noise control in section 2.8 is to · Minimise noise generation from the centre and intrusion of noise from external sources. 53 The standards of the noise control recognise that to achieve this objective noise barriers may be required as well as careful design of the centre. 54 In this context, I do not accept that the noise generated by a childcare centre is akin to industrial noise or that the criterion should be based on the upper noise limit of children crying and staff shouting. Rather I accept the logic of Mr Murray as to the appropriate noise criterion to be applied, particularly as this recognises the limited number of hours that the outdoor areas are used for play. Acceptance of this criterion would result in the requirement at ground level of a 2.1m acoustic fence, which is generally consistent with a residential fence and therefore appropriate within a residential context. 55 However, a 2.1 m fence would not meet the noise criterion for the first floor windows and the 4m acoustic fence is required, which generates its own impacts. Balancing the impacts of the fence against the noise impact on these rooms, considering their usage, the fence is the less desirable option but is recommended by the majority of the experts. 56 The 4m acoustic fence is a solution to a problem that would probably not arise with a different location, site or design. The location criteria in section 2.2 of the DCP recognise that the placement of child care centres, particularly play areas, in close proximity to residential uses is problematic. While the non satisfaction with any of these criteria is not an automatic reason for refusal, it is harder to minimise impacts on amenity if the criteria are not met. As with this application, an "engineered" solution is required to solve a problem, which may not have arisen on a different site. 57 While DCP 11 recognises that acoustic barriers may be required, I do not accept that it contemplates a fence of the size and length proposed. The fence is a significant structure along the west and north boundary of the site that is not designed as an integral part of the development. The fence may be screened from the adjoining neighbours by the proposed landscaping but it is clearly visible from within the childcare centre and its impact is unacceptable, particularly when considered from the view point of a small child. 58 The structure is not screened from within the play area and the placement of landscaping behind the polycarbonate provides little amenity. While the objectives of the Landscape control in section 2.7 are un clear, it is clear from the standards that landscaping is to play an important role in the design of the centre to screen, provide shade, garden beds and 40% of the site is to be soft landscaped. A 700mm wide landscape strip "caged" between two fences along the west and north boundary with one tree is not an acceptable landscape treatment to adjoin a children's play area. 59 While the landscape screen will be visible behind the polycarbonate fence I do not accept that it will fulfil the normal range of functions expected of landscaping. I also do not accept that landscaping in a childcare centre has a markedly different role to play to that in a residential environment, other than the selection of plants being safe and suitable for such an environment. The acoustic fence and its landscape treatment do not "provide a functional and pleasant environment for staff and children" which is one of the objectives to consider in choosing the location for a childcare centre and is an unacceptable solution.

Streetscape 60 The planning experts held different opinions about the impact of the childcare centre on the streetscape. Mr Nash considered that the roof form was not in character with existing development and built form. Mr Fletcher raised concerns about the appearance of the parking and setback area. Mr Darroch did not share either of these concerns. He considered that as the childcare centre is not residential it will inevitably appear different. In his opinion the roof form arose from a functional response to provide sunlight into the centre in winter and not in summer and that the treatment of the setback area was an inevitable result of providing access and parking on site.

Findings 61 An objective of section 2.1 Siting, Layout and Design is that "the design should fit within the streetscape" the relevant standard is that:

Buildings located in residential areas must be "residential" in external appearance and finishes and visually conform with nearby residential streetscapes. 62 The streetscape is not one with clear residential character other than one and two storey house of various styles set in gardens. The proposal is a contemporary design and is not "residential" in appearance. Its design has responded to the functional requirements of a child care centre and to environmental constraints. It would appear in the streetscape as a use other then residential, none the less it is of a domestic scale and while different would "fit" into the streetscape. The parking and setback area would be more characteristic of the streetscape if greater landscape screening were provided between it and the street. However, of itself this is not a reason for refusal. Orders

The appeal is dismissed. 2. The development application for a childcare centre at 23 Terry Street, Blakehurst, is refused. 3. The exhibits may be returned.

      Annelise Tuor
      Commissioner of the Court

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Judgment (21 paragraphs)

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Cases Cited (1)