Kakakios v Hunters Hill Council

Land and Environment Court (NSW)|2007-05-30|Before: Mr J

Introduction

COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Hunters Hill Council (the Council) of Development Application 2005/1177 to demolish the existing dwelling located on 38 Earl Street, Hunters Hill (the site).

In place of the existing house, the applicants propose to erect a part one and part two storey building, with the new building proposed to be used as a long day childcare centre for 50 children. An open car parking area for 3 cars would be provided in the front of the site.

The centre is to have seven permanent childcare staff (2 qualified teachers, 3 qualified advanced childcare workers and 2 unqualified advanced childcare workers). In addition, there would be a permanent part-time cook in the mornings and a centre director, who would not be located permanently at the site but who would visit from time to time as required.

The centre's hours of operation are proposed to be from 7.00 am to 6.00 pm, Monday to Friday.

A commercial contractor is to remove soiled linen and nappies at the end of each operating day. A contractor would remove general waste on a weekly basis.

The site is situated on the western side of Earl Street. It is the first allotment facing Earl Street south of the "T" intersection of that street with High Street.

The site has a frontage of ~ 15 m to Earl Street and slopes ~ 3m from the front boundary to the rear of the site. The site has an area of ~ 800 sq m.

A matter put as relevant by the Council is noted in the Statement of Basic Facts as "It is unusual in having common boundaries with the rear yard areas of six residential properties including two back yard subdivisions".

A dual occupancy development is located to the south of the site at 36 and 36A Earl Street. Residences at 39 and 41 High Street adjoin the site to the north.

The residence at 37 High Street partially adjoins the site. No issue is raised with respect to this property and no resident of it gave evidence.

A further residence is located at 125A Pittwater Road, a battle axe block, to the rear of the site. No resident of it gave evidence.

Boronia Park Primary School is located 70 to 80 m to the south of the site on the same side of Earl Street.

During the morning of the first day of the hearing, I attended the site with the legal representatives of the parties and those advising and instructing them.

During the course of the site inspection, I had the opportunity to hear informal evidence from the various resident objectors to the proposal. Mr Cole, solicitor for the Council, prepared a transcript of his notes of that evidence which was subsequently tendered.

Although the Council raised a variety of issues in the proceedings and the objectors canvassed a number of specific aspects of those issues in some detail, it is clear that the issues can, first, be divided into two broad categories.

The first is that the site is not appropriate as a location for any childcare centre.

The second is that, even if a childcare centre might be appropriate to be constructed on the site, the present proposed childcare centre is unacceptable.

The site is zoned Residential 2(a1) under the Hunters Hill Local Environmental Plan (the LEP).

Amongst the expressly nominated permitted uses in this zone is the use of land for the purposes of a childcare centre.

The proposal is therefore permissible under the LEP.

The Council has also have recently adopted Development Control Plan 26 Childcare Centres (the Childcare DCP).

Relevantly to the issue of location of such centres, the Childcare DCP says: 2.1 General Locational Considerations Objectives i. To encourage childcare centres in areas of need, of a high quality and which are compatible with the neighbouring land uses. ii. To ensure that the development will not adversely affect the amenity of the existing neighbourhood by way of noise, loss of privacy and traffic, heritage and conservation. iii. To ensure that the site is generally suitable for childcare centres in terms of its topography, adjacent land uses and pedestrian safety of the area. iv. To ensure that any site is free from any soil contamination.

Although I was taken to various authorities concerning the use of the word adjacent [as in (iii) above], as guidance for its application in the present instance, I do not consider that I need to make some formal determination of its meaning in this context.

It seems to me to be clear that the philosophic aim of the Childcare DCP is to encourage the establishment of childcare centres in the vicinity of schools in order to assist parents whose children's ages span both forms of education.

What might be the appropriate degree of indulgence, if any, in a planning context for locating such a childcare facility arises, it seems to me, in terms of the assessment of the individual merit of such a proposal.

These words in the Childcare DCP, certainly, do not act to impose any barrier to the location of a childcare centre on the site.

In addition, the Council proposed that DCP 15 - Residential Development needed to be considered.

However, this DCP, in 1.3 SCOPE OF PLAN, states that: This Development Control Plan applies to dwelling houses, integrated housing, low-rise multi-unit housing and residential flat buildings including alterations and additions and SEPP 5 housing within the Municipality of Hunters Hill.

This DCP is thus not asserted to apply to all development of any kind in the Council's residential zones. Therefore, although there are solar access provisions in Part 7.4 of this DCP, I have not taken them into account but have assessed solar access impacts on a general principles basis.

The second element of the general objection to the location of a childcare centre catering for a significant number of children (whether for the specific number of children, 50 - as proposed in this application - or more generally, a significant number of children) is traffic capacity of the local streets.

The objectors say that the road system of Earl and High Streets, as part of a precinct regularly used as a "rat run" to avoid the traffic control signals at the intersections of Princess Street and Pittwater Road and Ryde Road and Pittwater Road, because of the traffic volumes which are involved at times when parents might be dropping off or collecting their children from the childcare centre, renders the location of a childcare centre on the site unacceptable.

The Council supports this objection but has not called any traffic evidence with respect to it.

Two internal assessments carried out by Council officers, each of which assessments concluded, on the general proposition, that the proposal could be approved, discussed the traffic impacts. These reports concluded that, with respect to traffic carrying capacity, the local road system, including High Street, was capable of absorbing the additional traffic demand which would be generated by such a centre.

It is the applicants' case that, on the evidence of Mr Hallam, the applicants' consulting traffic engineer, the position adopted by the Council officers is correct.

With respect to Mr Hallam's assessment of traffic (as opposed to parking matters), Mr Gough, solicitor for the applicants, drew attention to the periods when it would be expected that the maximum number of the vehicle transits for the dropping off or collecting children would occur.

The first submission on behalf of the applicants was that these transits would not correspond with the dropping off or collecting times that would be involved for pupils attending the Boronia Park Public School, the school located some 70 or 80 m to the south of the site.

The second element of his submissions on this point was that Mr Hallam's analysis made it clear that, using the INTANAL modelling system, the various intersections had sufficient capacity to cope with the additional vehicle movements which would be generated by the childcare centre.

As I understood Mr Hallam's written and oral evidence, there is an attendant assumption that not all children who would attend a childcare centre on the site would be taken there or collected by vehicle.

Indeed, Mr Gough submitted that the local demand for childcare centre places, as discussed in one of the Council officers' reports, reinforced the probability that a number of the children attending such a centre would reasonably be expected not to arrive by vehicle.

Whilst the fears of the residents about traffic impacts are undoubtedly genuinely and sincerely held, the overwhelming evidence of any expert nature concerning this issue must inevitably lead me to conclude that, on traffic grounds, the site is not an inappropriate location for a childcare centre.

I am, therefore, necessarily led to the conclusion that there is no the basis upon which I could determine that the site was an inappropriate location for any childcare centre.

I therefore turn to consider the merit issues relating to the specific proposal and whether any basis can be found in the matters raised by the residents and the Council which should lead me to conclude that the appeal should be refused.

The specific objections raised to the present proposal are as follows: - Overlooking of the private open space areas of the two residences to the immediate south of the site and the two residences immediately to the north of the site; - A lack of security occasioned by the introduction of a large number of strangers into the neighbourhood on a regular basis; - Noise impacts from children playing outside with those impacts effecting all immediately contiguous residential properties; - The adequacy or otherwise of the staff parking provided; - The ability of the street in the immediate vicinity to cope with dropping off and collection vehicle movements for children attending the centre; - The appropriateness or otherwise of arrangements for collection of waste, including a daily service for collection of soiled linen; - The appropriateness or otherwise of arrangements for delivery of supplies to the site; - Reduction of the solar access of 36A Earl Street; and - Visual amenity impacts arising from the design of the building - particularly the height of the rear section on the two adjoining properties immediately to the south and the two properties immediately to the north (but at the eastern end of the site's northern boundary). Non-compliance with a development standard

As part of the joint report of the expert planning witnesses, Mr Adamson, consultant town planner on behalf the Council, proposed that the development for which approval is sought did not comply with a development standard contained in the LEP which set a minimum percentage of the site which had to be within categories defined as garden areas.

Mr Grech, consultant town planner for the applicants, disagreed with this conclusion and considered that the application was compliant.

As a precaution, however, Mr Grech had prepared an objection pursuant to State Environmental Planning Policy 1 (SEPP 1) to compliance with this development standard.

During the course of the hearing, I had the planners mark up a copy of the site plan with those areas which Mr Adamson said should be excluded from the relevant calculations and which Mr Grech said should be included.

I then heard evidence and submissions with respect to each of the disputed areas and gave rulings with respect to each of them.

In addition, Mr Gough sought and was granted leave to amend the plans to delete an area of pathway across the front of the proposed building between the entrance porch area and the more westerly of the two parking spaces between the front of the building and the front building alignment - with this pathway to be replaced by a garden bed.

The consequence of my rulings on each of the contested elements (some of which were included and some of which were excluded) coupled with the amendment to which I have adverted, is I found that the garden area standard in the LEP was, as a matter of fact, satisfied by the proposal.

If I be wrong in this regard, the inclusion of a landscaped strip along the eastern end of the northern boundary of the site, which Mr Adamson and Mr Grech agreed should be included but which had previously been excluded, when coupled with the amendment to the plans to create the new garden bed adverted to above, would render any shortfall (even if I be wrong about the other areas which I have included - such as the grassed path adjacent to the disabled parking space), so nugatory that a properly prepared objection (based on these extra areas being included) pursuant to SEPP 1 would inevitably be sustained.

Issues of overlooking arise from the proposed outdoor play area for children on what is described, on the plans, as the ground floor but which, at the rear of the proposal where play area is located, is on the second storey above ground level.

This area is proposed to be surrounded by the building to the east; by planter boxes with hedging plants along the northern and southern boundaries; and by a substantial planter box with trees to be located therein along the western boundary.

In addition, a 1.2 m high solid barrier is proposed around the planter box elements of the play area for protection of the children.

It is clear that this barrier will ensure that there is no likelihood of any overlooking by children of the private open spaces of any of the surrounding properties.

As to the prospect that there would be an unacceptable likelihood of overlooking by the staff of the deck and private open space of 36 Earl Street, I am unable to accept that there would be anything other than comparatively infrequent or casual overlooking by staff as it is reasonable to expect that the concentration and focus of such staff, as was submitted by Mr Gough, would be likely to be directed toward their charges.

A similar position applies to my assessment of the potential privacy impacts on the other residences at 36A Earl Street and 39 and 41 High Street.

Indeed, as these three residences are separated to a greater extent from the upper rear play area of the proposed development, the likelihood of casual overlooking being unacceptable in any sense is significantly diminished.

In addition, it is not unreasonable, in closely settled urban environments, that there be a degree of respect between neighbours and avoidance of regular across the fence overlooking as part of that process.

The hours of the operation proposed for the centre do not include the weekends.

If the application were to have otherwise succeeded, an appropriate condition could have required that the outdoor areas, at the upper level, were not be used for any other purpose (or at any other time) than as an outdoor play space for children as proposed in the plan of management (together with such a reasonable access for building and planter box maintenance as was necessary). Such maintenance activities could be conditioned only to be undertaken during daylight hours on Monday to Friday.

A number of the residents expected a lack of security would arise occasioned by the introduction of a large number of strangers into the neighbourhood on a regular basis.

Although I accept that this fear is honestly and genuinely held, there is no evidence to support its likely realisation.

For example, the local public school to the south also causes the introduction of a large number of strangers into the neighbourhood on a regular basis and no suggestion was made that this school had caused such a breakdown of neighbourhood security.

The question of the appearance of the building and its dominance in the outlook from residences was raised with respect to 36 and 36A Earl Street and 39 and 41 High Street. Each of these locations was inspected during the course of the site view.

Ms Wall, a resident of 36 Earl Street, objected that the rear portion of the building would block the outlook from her family's rear deck area which aspect is across the existing backyard on the site to trees and residences as a middle distance perspective.

The proposal complies with the building envelope controls applied by the Council. Indeed, it is significantly below the maximum height which would be permitted for a building envelope on the site.

Having regard to the planning principles set out by Roseth SC in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23, when coupled with the fact that there would be a degree of softening of the structure as a consequence of its landscaping at both upper and lower levels and the planting of a new turpentine tree in the rear yard (which tree would, over time, be expected to become a significant canopy tree), I am satisfied that the impact on the outlook from 36 Earl Street does not warrant refusal nor contribute to warranting refusal.

The impact on the outlook of the residence at 36A Earl Street is more problematic as the impact will be, to a considerable extent, determined by the conclusions which I have reached concerning what should be regarded as the noise and solar impact acceptability or otherwise on this residence and the nature of the acoustic barrier necessary to remedy that noise impact.

As a consequence, the question of overall impact on the residents of 36A Earl Street is dealt with separately later in this decision.

The presentation of the building to 41 High Street (being the residence on the corner of Earl and High Streets) will be less significant than that on the adjoining residence to the west, 39 High Street.

This arises because the slope of the land from east to west means that there is a more dominant relationship between the rear of the proposal with 39 High Street than with the front of the proposal and 41 High Street.

The reasons for this are not only topographic but also include the fact that the upper level of the proposal continues at grade rather than being stepped through the site.

With respect to 41 High Street, its terraced area is somewhat removed from the boundary with the site by a grassed area and the development is, itself, separated from the boundary by a setback within which is accommodated the disabled car parking space.

I am satisfied that the combination of the erection of a normal suburban scale fence along this boundary, as presently exists (and the acoustic barrier required, on the most adverse noise assessment basis, would not to be of a height greater than that which is presently there), leads me to the view that there is no unacceptable impact on the outlook from the rear of this property which would warrant refusal or contribute to the warranting of refusal.

As to the outlook from the rear yard and paved area of 39 High Street, it was obvious from the nature of the gardening activities undertaken that this was a more actively used area of private open space than that at 41 High Street.

This paved area is some 900 mm lower than the base of the existing fence which is a fence approximately 1.8 to 2 m high.

There is no doubt, because of the continuation at grade of the upper storey of the development, although within a compliant height envelope (and whatever the height of any necessary acoustic barrier along this boundary), the built form beyond such barrier will dominate this private open space.

As the proposed development is to the south of this residence there is no adverse solar impact of the proposal on this private open space.

Although the continuous level at the upper storey would not make it a sympathetic neighbouring development, the proposal is not so out of proportion with the nature of any two storey housing development, whether as a single dwelling or as integrated housing, which could be constructed on the site as to render the present proposal of unacceptable scale from this aspect. This impact of the proposal, at most, makes a minor contribution to refusal but does not, in itself, warrant refusal.

At the present time, the waste disposal receptacles are proposed to be on the outside of the building, on a paved area, at approximately the mid-point of the southern side of the building. Immediately to the east, between this location and the collection point on Earl Street, there is a staircase which renders impossible direct movement of these receptacles to the street.

It is the applicants' position that the proposed travel path of the waste receptacles be across the rear of the building and then along its northern side to the roadway. Whilst I have reservations about this external location for waste receptacles, I am satisfied that it would be possible, without significant difficulty, to redesign the proposal to incorporate an internal waste storage area and that this could be required to be by condition to the satisfaction of the Council.

I do not consider that on this matter warrants or contributes to refusal of the application.

The parking arrangements proposed for the childcare centre comprise three parking spaces in the front area of the site. Two of them, parallel to the street, are in the front setback on the southern side and the third, the disabled parking space, is perpendicular to the street; behind the front building line; and along the northern boundary of the site.

Although there may be multiple movements involved, I am satisfied that it will be possible for vehicles to enter and exit the site in a forward direction.

The Council and the residents say that the parking which is proposed will be inadequate.

Mr Hallam, in both his written and oral evidence, says that, as a consequence of the availability of on-street parking, the shortfall in the number of parking spaces are required either by the Childcare DCP [2.2 - Development controls (ii) and (iv)] or by the Roads and Traffic Authority's guidelines (the RTA guidelines) does not represent a barrier to approval.

The Childcare DCP requires that there be the eight on-site parking spaces. The relevant the RTA guideline for childcare centres requires that there should be nine such parking spaces.

Mr Hallam's evidence was supported by a parking survey undertaken on his behalf which he has analysed to conclude that adequate on-street parking in the immediate vicinity of the childcare centre will be available at all relevant times - particularly at peak drop-off and pick-up times.

In addition, he indicated that, in his experience, three parking spaces on-site were adequate for staff parking and that there would be no staff parking spill-over into the street. Although all three parking spaces on-site are to be used by staff, there will be seven full-time staff; a permanent part-time cook who will be in attendance between approximately 9 am and 1 pm; and a centre director whose attendance will be on a "needs basis".

It was Mr Hallam's further evidence that a combination of the availability of public transport and low income levels of childcare workers (coupled with transport sharing arrangements by them) meant that no more than three vehicles would be parked on the site by staff of the childcare centre.

If this position is accepted, then there is no likelihood of fulltime parking demand by staff in excess of the spaces on site and no permanent spill-over to on-street parking in the immediate vicinity of the childcare centre.

It would be improbable, if there were a permanent on-street parking demand by staff, that those staff would voluntarily agree to park at some distance from the centre in order to leave the spaces in front of the centre available for the dropping off and collection of children.

Indeed, during inclement weather, even if an involuntary parking restriction on staff as an employment condition were imposed, the attraction of breaching it and parking close to the workplace would be difficult to resist. Inclement weather, self-evidently, also makes necessary a close child pickup and collection location.

The residents also gave evidence that there were a number of spaces on the street which were utilised by them as permanent alternatives to off-street parking for their vehicles. A number of the residents had inadequate parking available within the boundaries of their property for the number of vehicles in their households.

Further, a number of residents gave evidence as to difficulties caused by vehicles parking across driveways or parking so close to driveways that, when reversing out of their properties - such a manoeuvre being rendered necessary because of a lack of turning facilities within their property boundaries - safety was compromised because inadequate sightlines were available due to these parked vehicles.

Contra to this, however, I have no evidence of any accident history in the street.

An investigation by the Council, on 30 and 31 August 2006, led the relevant officer to report that adequate parking for the childcare centre would be available on the street despite the shortage of on-site spaces.

Finally, with respect to parking demand, there is the issue of servicing of the childcare centre.

It is proposed that soiled nappies will be removed on a daily basis by an external laundry service.

No off-street loading bay is available and, if such a delivery vehicle (about the nature and dimensions of which I have no evidence) were to service the site, it would need to stop in the street or to enter the site and stop in the turning area which would otherwise be used for manoeuvring of the vehicles parked on the site.

Whether such service vehicle was reversed into the site, for ease of loading and unloading, or was driven into and reversed out of the site, the inability of a delivery vehicle to enter and exit the site in a forward direction does not represent good design.

However, on the evidence of both Mr Hallam and the Council officer's report, I am obliged to assume that the on-street parking adequacy would also be able to accommodate such pickup and collection. Again, however, such an on-street delivery and collection system also does not represent optimal design.

Deliveries of food and other necessary supplies for the centre will, according to the plan of management, be undertaken by staff using their own vehicles or by being carried by staff, on foot, after being purchased at a local supermarket.

I find the likelihood of such an arrangement difficult to accept.

The childcare centre will cater, as earlier noted, for 50 children. It is difficult to envisage that food and other necessary supplies for such a large number of children can be brought to the centre on an ad hoc or informal basis as has been proposed by the applicants.

I am satisfied that, at the very least, from time to time, there will be some necessity for external deliveries of supplies. If this were to occur, the same position would apply to such supply delivery vehicles as for the laundry service vehicle.

Whilst there was an unresolved dispute, at the conclusion of the hearing, as to whether or not the sign-posted drop-off and pick-up arrangements for the school, which had been extended in the comparatively recent past, had been so extended prior to either or both the parking counts undertaken, I consider it appropriate to assess this application on the assumption that the parking counts were undertaken on what are the presently applicable circumstances applying to the school - this being the most favourable position for the applicants.

The RTA guidelines indicate that they are not inflexible and so indicate in the following terms: Consideration could be given to reducing the parking required if convenient and safe on-street parking is available (eg indented parking bays), provided that the use of such parking does not adversely affect the amenity of the adjacent area.

As to the emphasis to be given to Childcare DCP, Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at para 75 on pp 386 and 387, three propositions emerge.

First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered.

Second, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the LEP (as is here the case).

Third, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative.

However, on the other hand, if a proposal does not meet the DCP's requirements, the Court may still grant consent, in appropriate cases, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Act.

Although a combination of the shortness of the periods for the parking counts which were undertaken compared to the evidence of the residents to the contrary of those counts; the concerns which I have about deliveries to the site; and the acceptability or otherwise of Mr Hallam's evidence about staff parking demands troubles me, I do not have sufficient certainty about these matters to conclude that the application should be refused for this reason.

However, the absence of any of the dispensation triggers specifically provided for in the RTA guidelines and the non-compliance with the Childcare DCP requirements are significant concerns.

There is no suggestion that restricted signposting of a drop off zone is proposed (or appropriate). There is also no physical re-design of the kerb and nature strip area in front of the centre proposed (even if it were possible and desirable) as also indicated by the RTA guidelines as warranting consideration for a variation to the numbers of parking spaces provided on-site.

Although I am not be prepared to refuse the application solely on the basis of parking issues, the non-compliance with the parking requirements of the Childcare DCP, as reinforced by the RTA guidelines, is a matter of sufficient concern to make a major contribution to refusal of the application.

Noise impacts - the appropriate standard for assessment

During the course of the hearing, Mr Demasi, acoustic consultant for the applicants, and Mr Atkins, acoustic consultant for the council, conferred with respect to the noise impact of proposal and what ameliorative measures were required as a consequence.

They did so on the basis of an amendment to the plan of management to restrict the outside play times for the children to two blocks of an hour each.

The initial noise assessment concluded that the lowest background noise level for relevant receivers was 39 dBA.

However, as a result of the amendment to the outside play periods meaning that these would be at slightly noisier times, the experts agreed that the background noise level for purposes of assessing the impact on nearby residences should be 42 dBA.

The Childcare DCP was adopted in the recent past. There is, however, no suggestion that there was any deficiency in its adoption in the sense discussed by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472.

There is also no suggestion that the Childcare DCP was specifically adopted for the purposes of countering or blocking this application.

The relevant provision in the Childcare DCP imposes a permitted noise impact of 5 dBA above background.

It was Mr Atkins' evidence that this was an appropriate restriction to observe.

Mr Demasi, on the other hand, put the view that a margin of 10 dBA was appropriate.

In the alternative, if Mr Demasi's primary position was not accepted, it was his evidence that there was what he considered an appropriate basis for allowing an additional margin of 2 dBA above the Childcare DCP's limit of 5 dBA exceedance of background noise levels to give a permitted margin of 7 dBA as being an acceptable impact.

It is appropriate, therefore, to consider what standard should be applied prior to considering what the impact on any of the residences would be of the adoption of that standard.

There has been a variety of approaches taken by the Court, in the past, as to whether a 5 dBA or 10 dBA above background acceptability criterion should be applied.

In this instance, as with the question of parking spaces, Zhang requires that I commence with the position adopted by the Childcare DCP.

Mr Atkins says that the position adopted by the Childcare DCP is derived from the EPA's Industrial Noise Policy and is repeated in the EPA's Noise Guidelines for Local Government.

It was his evidence that 5 dBA is a level also applied in a number of other local government areas. He considers that it is an appropriate margin.

Mr Demasi conceded that it was a standard which had been adopted, in past consideration of such levels, by the consultancy which employs him. This position had changed, some time ago, to adopt the more permissive level. It was his evidence that this change in corporate position had been in response to "changing circumstances". He did not point to any formal external source which had led to this change by his employer.

Mr Demasi was of the view that the noise made by children at play was not as qualitatively intrusive or disruptive as that which would be generated from a commercial or industrial source. He did not, therefore, consider that the Industrial Noise Policy provided an appropriate source of guidance in this regard. He conceded, however, that there might be periods of intense peak noise from children's play which noise had different qualities compared to industrial noise but he did not consider that this was unpleasant or unacceptable.

Mr Atkins, on the other hand, considered that the Industrial Noise Policy should apply and was the appropriate level to apply in light of the nature of the noise and the provisions of the Childcare DCP.

I accept that the appropriate level to be applied is 5 dBA as I am not satisfied that there are cogent reasons provided to depart from the provisions of the recently adopted Childcare DCP.

Particularly, I find it disturbing that Mr Demasi is not able to point to any specific circumstance or guideline which caused his employer to adopt the more permissive position after its earlier adherence to the more restrictive one.

In addition, although the application is permissible within the zone, I am satisfied that it is appropriate to have some regard to the EPA's Noise Guidelines for Local Government to provide assistance (although not a complete foundation) for assessing the noise impact on neighbouring residential properties.

These three matters cause me to conclude that it is prudent adopt the less permissive standard in these circumstances.

I have also considered the fact that there have been a number of other determinations by the Court where the more permissive standard has been adopted (although there are also cases where the less permissive standard has been adopted) but I consider, in the circumstances of this site, that, consistent with the only recently adopted provision of the Childcare DCP, the less permissive standard is appropriate.

I therefore turn to consider the question of whether or not a further margin of 2 dBA should be allowed.

Mr Demasi put the case for such an allowance on the basis that, for a single exceedance, the EPA's Industrial Noise Policy permitted an upward adjustment of the permitted noise level (on a variable scale depending on the length of time for which the exceedance took place). After a specified maximum period of exceedance, the allowance ceased.

It was Mr Demasi's evidence that each of the two play periods, if taken separately, was of a sufficiently short length to permit an additional 2 dBA margin to be added to the margin of 5 dBA found in the Childcare DCP.

Mr Demasi put the position that each of the two play periods was a separate and a single event and that, as a consequence, each of them qualified for an additional 2 dBA allowance.

It was Mr Atkins' position that the EPA's Industrial Noise Policy made it clear that such an allowance was permitted for only one single period on any day.

Mr Cole rhetorically put the proposition that, if Mr Demasi's approach were to be adopted, a "55 minutes on and 5 minutes off" approach could lead to virtually continuous levels of noise but with each 55 minute period noise event being a single discontinuing period of time and thus entitled to an exceedance allowance.

Although an extreme example, I am satisfied that the general approach taken by Mr Cole (in submissions) and Mr Atkins (in evidence) is the correct one and that the guidelines are designed to permit relaxation for a single incident in any day.

It is therefore appropriate to assess this application on a maximum permitted exceedance of 5 dBA above backround.

The acoustic experts agreed on the heights of the acoustic barriers required to meet the 5 dBA standard if it were to be applied.

I therefore turn to consider the impact of the required barrier on each of the contiguous residences [other than 37 High Street - see (10) above].

The needed acoustic barrier to the driveway serving 36A Earl Street, effectively the acoustic barrier for 36 Earl Street, would be 1.8 m - the height of a normal suburban rear boundary fence - thus acoustic barrier impact on 36 Earl Street can be disregarded.

The needed acoustic barrier to 41 High Street would be 2 m - similar in height to a normal suburban rear boundary fence - thus acoustic barrier impact on this property can also be disregarded.

Through their spokesperson, the residents of 39 High Street raised their concern at the proposal dominating the outlook from the rear area of their property.

This property's paved outdoor area is some 900 mm lower than the base of the existing approximately 1.8 to 2 m high fence. The needed acoustic barrier to this property would be 2.6 m high.

The impacted aspect is to the south and there is, therefore, no solar impact of such a barrier - no matter how it was constructed. In any event, any concern held about this proposal would be tempered by the necessary impact of any compliant built form, erected on the site within the Council's height controls.

In addition, the aspect of the rear of this property benefits significantly from the green garden space to the east within its own private open space. This would also moderate the impact of the barrier and built form to the south.

Whilst the height of this fence is clearly somewhat intrusive, the necessity for it only makes a minor contribution to refusal and would certainly not warrant refusal in its own right.

With respect to 125A Pittwater Road, the height of the acoustic barrier is to be 2.9 m above ground level on the site.

There is some degree of stepping down beyond the present boundary fence but this was not examined on the site view and I make no assumptions, as a consequence, about what it might be. However, it is clear that the necessary acoustic barrier is of a significant and not normal suburban dimension.

No objection to the proposal was received from the owners of this property. I have no evidence as to the utility of its private open space and it was not visited during the course of the site view.

Although, undoubtedly, the acoustic barrier would be a significant backdrop to any rear private open space of this property, some compensation would offset the impact by virtue of the existing vegetation which is to be retained on the site. The addition of the turpentine tree to be planted in the north western corner of the site would also provide some visual amelioration - if some clear acoustic protection elements were incorporated into the barrier.

Although this barrier will be substantially high, on such limited evidence as I have concerning this property, I cannot the satisfied that this impact would warrant refusal or contribute more than a minor element to warranting refusal.

Finally, I turn to the cumulative impacts on 36A Earl Street. The needed acoustic barrier to 36A Earl Street would be 2.5 m - significantly higher than a normal suburban rear boundary fence.

On the assumption that such an acoustic barrier were to be constructed (if it were not, the noise standard I have determined is appropriate would be breached significantly - warranting refusal on this basis), two potentially significant impacts would be caused to 36A Earl Street by the proposal.

These are: - Loss of solar access; and - Loss of outlook.

This house has limited private open space. Its principal private open space is located to its north and directly adjacent to its current boundary fence with the site. Although there is, on the plans, some private open space on the western side of the house, the residents gave evidence that they used the space to the north of the house.

Although there was some unresolved disagreement as to the height of the present boundary fence, when measured on the 36A Earl Street side, I observed on the view that the outlook from this space to the north and west was dominated by the canopy of the various trees in the vicinity; with the sky above together with some limited middle distance perspective over the site.

There is no doubt that, at present, this is a pleasant (although compact) and enjoyable living space.

There was also unresolved disagreement about the adequacy of the shadow diagrams concerning their adequate depiction (or not) of shadows which would be cast by: - The proposed sail cloth shade structures for the upper children's play area; and - The proposed landscape planting at the upper level.

I have considered the impacts on 36A Earl Street on the most favourable basis for the applicants. That is, I have assumed their shadow diagrams are accurate and complete. As I have concluded that, on this basis, the proposal's cumulative impacts on this property are unacceptable and warrant refusal, I do not need to speculate as to what would be the position on a less favourable basis.

The present proposal shows a paling style fence along this boundary. At 2.5 m high as an acoustic barrier, it has the solar impact set out in the following paragraphs.

At 9am on 21 June, the proposal and its necessary acoustic barrier entirely overshadow this house's private open space at ground level.

At noon on 21 June, the proposal and its necessary acoustic barrier overshadow approximately 50% of this house's private open space at ground level.

At 3pm on 21 June, the necessary acoustic barrier overshadows approximately 25% of this house's private open space at ground level.

The 9 am to noon impacts are a significant decrease of the present solar access for this space.

The living and dining rooms of this house have windows to the north. The shadow diagrams show that there will be no loss of solar access to these windows.

If the fence is constructed as shown, there will be the significant winter morning loss of solar access to the private open space. Although there would be limited to no view to the built form directly to the north, as it would be virtually entirely blocked (save, perhaps, for taller persons standing against the house's front walls) by the acoustic barrier, this will also effectively remove the present pleasant outlook and replace it with a sense of enclosure.

As 36A Earl Street is down slope, it will also have the bulk of the two storey component of the proposal in its north-eastern aspect.

This combined impact is not acceptable - being rendered necessary, as it is so rendered, by the out of suburban scale of the necessary acoustic barrier. On this model, the application warrants refusal.

A more finely balanced position emerges if the possibility of some transparent element is postulated for the upper portion of the acoustic barrier.

Although I have no detail of how such a barrier would be constructed, I have considered such an option in abstract - consistent with the present approach of the Court to "approvability" in Class 1 merit appeals.

A transparent upper portion of such a barrier would likely significantly improve the solar access position for residents of 36A Earl Street (although there might be some qualitative impact - a matter about which I would merely be speculating and therefore about which I make no finding).

However, there would necessarily be some visible structure, including such supports as were required for it. In addition, although the proposed building is compliant with the relevant height and building envelope controls (which are limitations rather than targets for aspiration), the proposal will be significantly bulky in the outlook from this house (although softened by the proposal's upper level landscaping).

Assessing the proposal on the assumption of a transparent upper portion of the acoustic barrier, I could not conclude that such a modified structure's impacts on 36A Earl Street would warrant refusal outright. However, I do consider that the residual impacts (were such an option to be pursued) would still make a significant contribution to cumulative grounds for refusal.

Although I have concluded that, on the general question of site suitability, the site is not an inappropriate location for a childcare centre, I have concluded that, for the reasons set out, this specific proposal is not acceptable.

I have so concluded as I consider that the impact on the residence at 36A Earl Street is unacceptable on the basis of the present acoustic barrier design (without needing to add the other contributory inadequacies of the proposal).

If I be wrong about the sufficiency of the adverse impact on the residence at 36A Earl Street as a sole reason for refusing the application, I would also reach this conclusion based on the cumulative adverse impacts (after allowing for the possibility of a modified and less impacting partially transparent acoustic barrier adjacent to 36A Earl Street - such an allowance being consistent with the present approach of the Court to "approvability" in Class 1 merit appeals).

These cumulative adverse impacts comprise the bases of objection put by the Council and the residents which I have found, at least in part (as earlier discussed), to be warranted - together with the lesser impact I conclude would arise if a more sympathetic acoustic barrier were erected to the north of 36A Earl Street.

The orders of the Court, therefore, are: 1. The appeal is dismissed; 2. Development Application 2005/1177 for the demolition of the existing dwelling at 38 Earl Street, Hunters Hill and its replacement with a fifty place childcare centre is determined by the refusal of development consent; and 3. The exhibits are returned.

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.

CITATION : Kakakios v Hunters Hill Council [2007] NSWLEC 342

Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373; Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

(2001) 115 LGERA 373

At a glance

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