Hamptons Development Group Pty Ltd v North Sydney Council

CASES CITED: Bluestone Property v North Sydney Council [2006] NSWLEC 449

DATES OF HEARING: 20/11/2007, 12/12/2007 and 20/12/2007

APPLICANT Mr C. McEwen, SC instructed by Ms I. Ferguson of Gadens LEGAL REPRESENTATIVES:

RESPONDENT Mr C. Drury, solicitor of DLA Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10990 of 2007 Hamptons Development Group Pty Ltd v North Sydney Council

JUDGMENT 1 Commissioner: This is a Class 1 Appeal No. 10990 of 2007 between Hamptons Development Group Pty Ltd and North Sydney Council in regard to the deemed refusal of a proposal to fit out and use level 3 of Building C at Nos. 450-476 Miller Street, and No. 11 Amherst Street, Cammeray, for a 72 place child care centre. The number of children in each age group are: 0 - 2 years 20 children 2 - 3 years 32 children 3 - 5 years 20 children 2 The hours of operation are between 7am and 7pm Monday to Friday. Twelve staff are proposed.

3 Level 3 is the roof of the proposal on which a penthouse area was approved in the original consent. It was foreshadowed as a 40 place child care centre. The proposal alters and extends that to provide 542 sq m of internal space, and 551 sq m of roof deck space for 2 play areas. One is on the north side of the roof overlooking the internal courtyard of the development. The other is on the west end of the roof overlooking the residential dwellings on adjoining land to the west, the expressway to the south, and the end units of Building D. The site 4 The site is known as 450-476 Miller Street and 11 Amherst Street Cammeray. The property description is Lot 13 DP8089819, Lot 1 DP846797 and Lot 1 DP936507.

5 The property is located on the south-western corner of Miller Street and Amherst Street, Cammeray. The site is generally rectangular in shape with frontages of 80.195m to Amherst Street and 85.0 m to Miller Street; southern boundary of 77.95m to the Warringah Expressway; western boundary of 84.416m adjoining residential flats and dual occupancies. The site area is 6,815m2.

6 The site is currently under the construction of four buildings around a central landscaped courtyard. The proposed buildings are four storeys, and consist of 39 residential apartments and retail/ commercial premises. Two basement levels are proposed, to accommodate car parking; building plant/facilities. Carpark access is from Amherst Street in the northwest corner of the site. Loading facilities are proposed from Miller Street.

The locality 7 Directly north on the opposite side of Amherst Street are single storey dwellings with a 3-storey apartment building on the corner of Amherst, Miller and Abbott Streets.

8 North east of the site along Miller Street is the Cammeray Shopping Village containing buildings that are generally 2-storey in height with some 4- and 5-storey development on the western side of Miller Street.

9 East of the site on the other side of Miller Street, development is residential of 1- and 2-storey height, although immediately opposite is an on ramp to the expressway.

10 West of the site directly and adjoining the site, development is also residential of 1- and 2-storey height with detached dwellings and attached townhouses.

11 The southern boundary of the site adjoins the Warringah Expressway.

Statutory Controls 12 North Sydney Local Environmental Plan (NSLEP)

13 The site is located partly in the Residential C zone (11 Amherst Street) and partly in the Residential D zone (450-476 Miller Street) under the North Sydney Local Environmental Plan 2001 (NSLEP).

15 General Aims of the Plan (cl 2), Specific Aims of this Plan (cl 3), Consistency with aims of plan, zone objectives and desired character (cl 14), Residential D zone (cl 21).

16 North Sydney Development Control Plan 2002 applies Section 9 with regard to car parking and Section 12 with regard to child care centres, including the area character statement for Cammeray Village Neighbourhood. Contentions 1. The Respondent contends that the application should be refused as the proposal is not consistent with the Court's judgment ( Bluestone Property DMC Pty Ltd v North Sydney Council - Appeal No. 11585 of 2005 - date of judgment - 20 July 2006) in that 72 places rather than 40 are proposed. 2. The Respondent contends that the proposed development for the use of the approved building as a child care centre for 72 children and not 40 children results in a use that is inconsistent with objectives 1(b), and (c) of the Residential D Zone pursuant to North Sydney Local Environmental Plan 2001. 3. The Respondent contends that the application should be refused as the proposal represents an over-development of the site, and the scale of the development is not consistent with the residential scale as identified in the Explanatory Notes to the objectives of the Residential D Zone pursuant to North Sydney Local Environmental Plan 2001. 4. The issues raised by objectors. The Respondent contends that, to the extent that the issues raised by the objectors coincide with the Contentions at paragraphs 1, 2 and 3 above, those issues are issues warranting refusal of the development application. The Evidence 17 The respondent's evidence was heard from: o Ms L Moore, resident objector and neighbour on the west at No. 8 Tarella Place, Cammeray. o Mr R Mossmenear, town planner for the council.

18 The applicant's evidence came from tendered documents Exhibits A to J, supplemented by submissions.

19 Ms Moore said she had developed her site with 2 dwellings in 1998 and had to put up a 2.8m high wall to reduce expressway noise, but it was still audible. She wondered if the glass acoustic barrier currently approved under separate application would be adequate to stop noise of the kids affecting her.

20 The consent for the Buildings A, B, C and D development had required units in Building D to be setback a further 4.5m to give her privacy and she thought the child care centre as a commercial use should do the same.

21 Also the traffic report for the 4 Buildings A, B, C and D envisaged a child care centre for 40 kids and this one is for 72. She thought the increased traffic generation had not been assessed. 22 Ms Moore agreed the consent for the overall development has envisaged a non-residential use for the roof penthouse. Also she was told the acoustic report did assess noise with 72 kids on the roof play areas at once, and the acoustic barrier was calculated to background plus 5dbA that is the accepted control. She asked if she would still hear the children, and was told if all 72 were outside she would, but it should be acceptable noise at 5dbA over the background.

23 She asked if there would be activity or functions such as parents nights after 7 pm. The consent conditions are said to control use of the premises to be only between 7 am-7 pm Monday to Friday.

24 On carparking the applicant referred to the plans and traffic report that allocated 10 car spaces in the basement for drop-off/pick-up when the controls required 6 spaces. They are provided in a cluster to be used only for the child care parents so that reasonable safety is provided in getting kids to and from the lifts up to the roof. Also the basement has commercial carparking spaces for customers that can be used if there is any overflow. The child care centre peak demand periods are generally outside commercial peak demand. 25 The first day of the hearing was adjourned when I discovered anomalies and inconsistencies in the drawings inter alia: - Noise barrier shown at 2.1m high, not 2.4 m as required - Proposed shade structures different to those on current approved plans and against the west elevation where they would penetrate the height limit. - Floor Plan does not match existing approved elevations, and the proposal in the tendered exhibit had no drawings of any elevations. - Fire stairs and internal stairs different to the approved plans, and said to be not part of this application, how can that be? The external fire stair if enclosed at the roof level would penetrate the height limit. If not enclosed it would have rainwater problems. - Did the acoustic expert calculate noise of the children for the elevated play equipment, or only at floor level - The continuous planter trough on the perimeter of the roof in the approved drawings is shown as a series of moveable pots in this proposal. So this application seeks to amend the existing approval. The pots are outside the apparently fixed glass acoustic barrier 2.4m high and tightly fitted between it and the parapet. How is the planter vegetation to be accessed for maintenance and watering. The planter pots in other locations have to be accessed through windows and louvered panels according to the approved drawings, how is that to be done. - If the acoustic barrier has to have opening panels for vegetation maintenance has the acoustic report considered that. 26 I advised the parties the documentation is incomplete and I could not know what the application asked for in total.

27 The applicant said it was thought some of the inconsistencies were due to construction certificate drawings approved after the development consent drawings. I called for them and for answers to the unknowns.

28 The respondent said it would need to look at them and possibly amend the draft conditions. A schedule was agreed and the adjournment taken.

29 On resumption, the applicant tendered amended plans and information. The respondent tendered amended conditions. 30 The applicant had done new sight line drawings to Ms Moore's residence and moved the tent shade structures back from the west elevation so they would not be seen over the acoustic screen.

31 The new western fire stairs approved in the construction certificate would not be roofed over the first flight down from the roof deck. This enabled the stair roof to be no higher than the parapet and therefore not seen from Moore's. The open flight and landing would need suitable rainwater drainage.

32 The play equipment had been relocated too and noise impacts recalculated with 10 children on top of the fort, and 5 on the raised platform. At the Moore's there would be a 15dbA buffer to the condition that the noise of the children must not exceed 5dbA above the background noise level. 33 The landscape vegetation plan previously approved is still proposed, however access to the planter troughs (now planter pots) was not considered. The revised conditions required that access for maintenance of the vegetation be provided and that the acoustic expert ensure the opening panels will not reduce the acoustic barrier performance on noise reduction.

34 Also the updated plans showed the acoustic barrier at the correct heights required by the acoustic expert report.

35 However, it was seen that the floor plan of the day care centre still did not match the approved elevations of the roof-top structures of Building C and the construction certificate drawings. Floor plans and elevations were not at the same scale and made checking difficult. The applicant was required to provide further updated drawings and the respondent advised it may need further amended draft conditions. 36 These were provided in due course. I note the further amended draft conditions refer to Drawing No. RD3-C4 dated November 2007 when Exhibit C shows that drawing mistakenly numbered RD3-C3. The applicant corrected it to be RD3-C4 amended to 11 December 2007 in oral submission. Conclusion 37 In regard to Issue 1, I accept the applicant's submission that the previous approval of the Court for the overall development of Buildings A, B, C and D did not limit, by condition, the childcare centre to 40 kids, even though the body of the judgment mentioned the applicant's then proposal for 40 kids.

39 The council's expert considered the traffic impact and concluded that the additional traffic and parking required by the 72 place centre is well within the capacity of the streets and basement parking, including staff and drop-off/pick-up requirements. Also the parking places for parents to use are convenient to the lift up to the centre and would enable reasonably safe movement of children to and fro. 40 The acoustic expert has recalculated the noise impacts for the final proposal and found that there will be no unacceptable noise to nearby residents. The obscured laminated glass or Perspex noise barrier, in its final form will achieve better than the required noise reduction. I note the drawings still say "transparent". For privacy of neighbours and occupants of the units in the development the applicant said the barrier is to be "translucent obscured glass or Perspex". The visual sight-line drawings and final layout of facilities and the obscured translucent acoustic barrier, show that the nearby neighbours will have their privacy protected.

41 Ms Moore was concerned that the acoustic expert's recalculations in Exhibit G only considered children on top of the fort play equipment to be in the 2-3 year age group. The applicant said this is a typing error, and it should be 2-5 year age group. The respondent did not object to the correction. 42 The acoustic assessment requires that the noise barrier on the northern side of Building C be increased from the approved 1.8m high to 2.4m high. The north side overlooks the central courtyard of the proposal, and is to protect the aural amenity of the occupants of the apartments in the development.

43 The 1.8m high barrier on the west and as previously approved will achieve better than the required noise reduction on Ms Moore's side.

44 The shade structures previously mentioned over the roof-top play areas and the play equipment will exceed the statutory height limit of 10m.

45 The increase of the noise barrier to 2.4m high also exceeds the height limit and the applicant lodged a SEPP No. 1 objection to the height limit to permit these non-compliances. The respondent took no issue on the SEPP No. 1. This is partly due to the roof-top rooms being previously approved also exceeding the 10m height limit. The objectives of the height limit are in summary: to limit the height of buildings in residential zones to acceptable bulk, desired streetscape character, match the land form and have appropriate roof forms. To retain or share views, to maintain solar access to existing dwellings, public reserves and streets, while promoting sunlight access to new buildings. Maintain privacy for existing dwellings and promote privacy for residents of new buildings and to prevent excavation except for garages and carparking.

46 The objectives of the building height plane are similar.

47 The increased height of the obscured glass acoustic barrier and shade structures are less than the previously approved roof-top buildings of Building C and maintain visual and aural privacy of existing dwellings and promote the same qualities for residents of the new building without any adverse impacts on the other objectives.

48 I accept the applicant's expert's SEPP No. 1 objection and permit the exceedences of the height limit in this particular case.

49 The respondent says that the daycare centre is too big to comply with the aims of the Residential D Neighbourhood Business zone: (b) permit a range of small businesses that serve local needs, and (c) encourage active street life while maintaining high residential amenity. 50 And the respondent says it does not comply with the Note in the statute for Residential D zone.

51 I note that a small part of the site is zoned Residential C, but it is not land that Building C of the development is upon. In any case Residential C and D allow childcare centres with consent.

52 The respondent says the daycare centre is not small, and being on roof-top does not encourage active street life.

53 The applicant submitted that objective (c) is irrelevant to this proposal because it must apply to the whole development of the 4 buildings, and that was considered in its approval and there are small commercial/retail spaces provided at the street front. Also the approval of the complex envisaged a child care centre on the top of Building C, so the proposal must be consistent with objective (c).

54 I accept that submission, and add that the parents in drop-off/pick-up activity may well use the opportunity to frequent shops on the street front of the development and so contribute to the desired activity. Also the Note in the statute for Residential D zone obviously refers to the street front commercial/retail spaces not a roof-top use. There is also case law to say a Note does not form part of a statute.

55 In regard to the proposal being too large, the applicant noted zone D objective (a): (a) encourage a wide range of services and shops, which serve the surrounding residential neighbourhoods. 56 The proposal will serve the surrounding residential neighbourhoods and is an expected service for families in residential areas. Other uses permissible with consent in the zone are community facilities, educational establishments, hospitals, places of assembly, recreational facilities, all of which could be larger and have greater impact than this proposal. I was told there are no other child care centres close by, so it appears the service would provide a needed facility.

57 Ms Moore said the proposal is not consistent with objective (d) of the zone to encourage shop-top housing. I accept that the overall development of the 4 buildings DOES have shop-top housing. Also cl 21(2)(c) of the LEP controls the floor space of buildings that can be used for non-residential purposes in the Residential D Neighbourhood Business zone, and the proposal complies with that.

58 It seems to me that a child care centre has space requirements that are different to a neighbourhood shop or business. True the space is directly related to the number of children, but the nature of this single floorspace is "small business" in my opinion and that is borne out by the minimal and acceptable impacts that make it compatible in the context of its surroundings under cl 16 of the LEP. 59 The increase from 40 places to 72 places in the centre is demonstrated to be acceptable. It will be conveniently located for use by local families, and is properly located in the Cammeray Village Centre.

60 It complies with the specific requirements in the applicable DCP 2002 Area Character Statement for the village, including the setback specified to Ms Moore's property.

61 Overall I find no reason sufficient for refusal of the proposal, subject to appropriate conditions. Orders 62 The Orders of the Court are:

1. The appeal is upheld. 2. Development consent is granted for the use of Level 3 of Building C of the development at 450 - 476 Miller Street and 11 Amherst Street, Cammeray as a 72 place child care centre as shown on drawings named in Condition A1 of Annexure A hereto, all as amended by and built in accordance with the conditions in Annexure A. 3. The exhibits are returned to the parties except Exhibits 6 and C.

      K G Hoffman
      Commissioner of the Court
      ljr

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