Kamal Deep Arora v Blacktown City Council

Remaining Issues

1. The variation of the distance separation control and the acceptability of the cumulative amenity impacts of the two centres in Barrington Street are the only issues in dispute between the parties. All other contentions (apart from the objectors' concerns) have been resolved by the amended plans (Exhibit A), and the draft conditions of consent (Exhibit 3).

Section 34 conference

1. Before I heard this matter I facilitated a conciliation conference between the parties at the site. The conference was convened under s34 of the Court Act. At the conference the objectors present were invited to speak to their written submissions and explain their concerns about the DA to the Applicant and his consultants. The objectors who spoke generally disliked the appearance of the development particularly, the acoustic fencing and they were concerned about the cumulative amenity impacts of the two childcare centres across a 9m wide residential street. They believe that the development, if approved, will generate unacceptable noise, increased traffic and result in a devaluation of their homes. Particular attention was given at the conference to the concerns expressed by the immediate neighbours to the site. A lawyer who appeared for the neighbours at 35 Barrington Street gave detailed evidence about the special needs of Michaela who resides within that property with her family. I was told that she suffers from a number of complex medical problems including hypersensitivity to noise and the proposed use would severely exacerbate her health issues. Medical evidence supporting this is within the Council's evidence filed with the Court.
2. After hearing from the objectors' the parties remained onsite and discussed several design changes aimed at alleviating some of the objectors' concerns. Ultimately, the Applicant agreed to prepare amended plans which incorporated a redesign of the layout of the centre and the outdoor play areas, the onsite parking and the acoustic fencing on the western boundary and northern boundary. He also agreed to provide a further acoustic report to the Council. At the request of the parties I was asked to terminate the conference and return the matter to the Registrar's list to be set down for hearing.
3. On 30 March 2017 with the consent of the Council, the Registrar ordered that the amended plans and further reports/information (Exhibit A) arising from the s34 conference was substituted in the appeal. The amended application, which is the subject of this hearing, includes the following plans and reports: 1. The architectural plans prepared by arc INNOVATIONZ design &construction DW.01 -DW.18 Revision G revised 24 February 2017 2. Acoustic Impact Assessment prepared by Rodney Stevens Acoustics dated 23 February 2017; 3. Section J Report prepared by Ved Baheti dated 26 February 2017 4. Basix Certificate and Basix Stamped plans dated 27 February 2017
4. The Registrar also ordered in accordance with the parties' request that the matter be set down before me for hearing. It was further agreed that the evidence that I had received at the s34 conference from the objectors and my observations of the site and locality at that time was evidence for the purposes of the appeal hearing. For that reason the hearing commenced in the Court house at Sydney without the need for a further visit to the Site.

Expert evidence

1. The amended plans and proposed conditions of consent were assessed by the parties' town planners , Glen Apps (Team Leader, Regulatory Planning) employed by the Council, and Natalie Richter of Richter Planning consultant retained by the Applicant. These experts' opinions about the DA are set out in their joint planning report which is marked (Exhibit 5).
2. Generally speaking, these experts agree that the amendments to the design and the proposed conditions of consent have resolved any concern about the appearance of the single storey development in the streetscape and the onsite parking layout and acoustic fence.

35 Barrington Rd

1. The experts also considered the objections raised by the owners of the property at 35 Barrington Rd. They agreed that the amended plans improve the acoustic protection from noise generating activities to that adjoining property (the Torr family home) (contention 1 of the AFOFC) by: 1. relocating the open play areas away from the southern boundary; 2. pushing the building towards the southern boundary; and 3. relocating low activity rooms along that boundary, in particular, staff and office areas, laundry room and the nappy change room. With the exception of the staff room, there are no window openings on that elevation.
2. They also recommended that the Applicant designate the visitor car parking spaces for the site away from property boundary of 35 Barrington Street. The effect of this will be to have staff parking in the spaces closer to 35 Barrington Street to reduce the frequency of noise from car doors. The Applicants has agreed to do this.
3. In the end, the planners accepted that the measures taken by the Applicant to address the particular impacts of the proposed use on the amenity of the occupants at 35 were satisfactory. In fact, they said that the changes made to the DA were over and above what might ordinarily be required in a planning context. As Mr Apps quite properly accepted in Court planning controls are not directed to the particular needs of a person residing on land proximate to a development but rather to avoiding an unacceptable adverse effect upon the amenity of the land.

Fencing

1. With respect to the acoustic fencing (contention 2) the planners agreed that while the fence as proposed might not be typical of a dividing fence found in a residential setting, the proposed fence was something seen from time to time in childcare centres and schools to ameliorate noise impacts. Moreover , childcare centres are a permissible form of development within the R2 Residential zone under the SEPP and such an acoustic fence must be anticipated and therefore acceptable in the streetscape.
2. The acoustic report prepared by Rodney Stevens Acoustic dated 23 February 2017 (Exhibit A) recommends a fence height of 2.1 m (solid continuous construction) and 50 mm thick, 1.8 m tall Slim wall (or equivalent) and either perspex or glass at least 10 mm thick, 0.3 m tall, above the Slimwall, which is to be mounted at 45° angle (towards the play area). This wall is consistent with the height of the acoustic wall approve the DA 16/03403 the approved centre at 40 to 44 Barrington Street.
3. Despite the fence being higher than standard residential style boundary fencing (normally 1.8 m high) the height difference is not considered by the planners to be significant and the higher proportion is glass or perspex so as to not be bulky or readily visible is appropriate in their assessment. This additional section (above the standard 1.8 m boundary fence height) will still let light through.
4. The fence height is considered to resolve the height/scale issue whilst also providing reasonable and desired acoustic protection for the adjoining property.
5. The acoustic fence height is also consistent with Part 31 of the Draft Child Care Planning Guideline which specifies that acoustic fencing of 2 m be provided to adjoining residential properties.
6. In the end the planners agreed that the visual impact of the fence will be minimal due to the angle of the cantilevered perspex panel (being cleared/ see-through) and will not be visibly bulky. They told me that if the development is approved then it would be preferable to have a fence installed to ameliorate the noise.

Statutory framework

1. The planners agree that strict compliance with the DCP distance separation requirement for childcares centres needs to be applied flexibly in new release areas. Furthermore, that there is merit in certain circumstances in dispensing with strict compliance.
2. They also acknowledge that cl 23(2) (a) of the exhibited draft SEPP is a relevant matter for consideration in the assessment of the DA under s79C (1) (a) (ii) of the EPA Act. This clause removes distance separation controls and provides that development for the purpose of centre based child care may be located at any distance from an existing or proposed early childhood education and care facility. Moreover, there is an inconsistency provision in the SEPP. Clause 6 provides that if there is an inconsistency between this Policy and another environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
3. The Applicant contends that there is inconsistency between cl 23(2) (a) of the draft SEPP and cl 8.1.11 of the DCP. Therefore, the DCP is subordinate to the SEPP in the same way as the Blacktown LEP 2015. Ms Richter agrees and emphasised in her evidence that the draft SEPP proposes planning controls which seek to remove barriers and onerous planning controls and instead focus on the merits /impacts of centres. In her expert opinion the two centres in this case provide for childcare choice in a growing family area and as such meet the relevant objectives of the zone. While clustering is discouraged to avoid impacts the expert evidence about noise and traffic is that there are no unacceptable amenity impacts generated by this application either alone or cumulatively.
4. Mr Apps contends that the draft SEPP merely provides that a distance separation control in a DCP no longer applies. It removes any prescriptive requirement however, that does not mean that one dispenses with sound planning principles, such as issues of cumulative impact. Mr Apps believes that the cumulative impacts of non-residential activity in this street should be avoided. In saying that he accepts that the traffic or noise experts agree that there are no unacceptable impacts generated by the proposed centre alone or when considered with the approved centre opposite. The cumulative impacts Mr Apps is concerned about relate to anticipated illegal car parking in the street by parents from both centres when in a hurry to drop off and pick up kids. Mr Apps does not believe that the parents will always use the onsite parking. Nor does he think that the proposed centre can be justified because it provides only for 0 to 3 year olds and the approved centre provides for an older age group.
5. Although the Council accepts that draft SEPP is a statutory consideration it submits that it has not commenced and in that circumstance the publicly notified DCP should take precedence for the reasons outlined by the Court in Stockland Development v Manly Council; (2004) 136 LGERA 254 at [86]; [2004] NSWLEC 472. Such an approach is in the public interest s79C (1) (e) of the EPA Act.
6. The planners accept that the proposed Child Care Planning Guidelines have been considered in this application and do not raise any issue in that regard.

Objectors' evidence

1. The Court is required to consider the local residents evidence and give it appropriate weight as it forms part of the public interest: s79C. To the end I have read and considered all of the written submissions lodged with the Council in respect of the DA and the oral evidence received at the s34 conference held onsite. I have also read the further submission received from Mr Torr (the adjoining owner at 35 Barrington Rd) who gave additional oral evidence at the hearing.
2. In considering the community responses to this application an evaluation must be made of the reasonableness of the claimed perceptions of adverse effect on the amenity of their land. An evaluation of reasonableness involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on the amenity of their land. A fear or concern without rational or justified foundation is not a matter which by itself can be considered as an amenity or social impact Telstra v Hornsby Shire Council (2006) 146 LGERA 10 at [192- 195]; [2006] NSWLEC 285.
3. The local residents' who object to the development spoke honestly about their concerns. However, their views were not supported by any objective assessments and contrary to the expert views expressed by the experts engaged by the Council and the Applicant. In those circumstances I must prefer the experts' objective assessments about the acceptability of the traffic, noise and amenity impacts of the proposed centre alone and any cumulative impacts generated by both centres operating together. Therefore, I am satisfied on the evidence before me that any relevant planning concern raised by the objectors has been satisfactorily addressed by the amended design and the conditions of consent proposed by the Council and the expert evidence.

Consideration

1. When the Council's internal officer assessed the original proposal he reported concluded that whilst unusual to have 2 childcare centres on the same street, the combined total number of children will be 78, and therefore the impacts will not be any worse that 1 large centre such as the one that was approved at 23 Alex Avenue in October 2015 (Folio 69 Exhibit 1). The proposed centre is relatively small with only 42 places and only marginally exceeding the DCP requirement (Folio 67 Exhibit 1). The centre opposite is also small at 36 places. Both centres cater for a range of childcare needs offering care for different age groups. Thereby I accept that the proposed development meets the objective of the R2 zone by providing services that will meet the day to day needs of new residents in this suburb. All of the experts (including Mr Apps) agreed that the acoustic, traffic and streetscape impacts of the proposed childcare centre when assessed alone or with the approved centre opposite were acceptable. The Council planning report in respect of the original DA said this; and the experts in their individual and joint reports have confirmed this to be the case in respect of the amended DA.
2. The proposed use is permissible; and the planners agree that there is a need for more than 1 child care centre in the 1km radius in this Precinct because it is a new release area. It will be occupied by a higher percentage of young families whose parents both work and use childcare. Both planners consider that there is merit in dispensing with the 1km distance separation in the DCP. They accept that distance separation control in the DCP has been dispensed with by the Council on two occasions in the past. The only point of disagreement is the extent to which the distance separation should be varied in this case.
3. Mr Apps believes that the proposed centre should not be located opposite the approved centre because it is too close. He believes that the accumulative impacts will be unacceptable. And, the fact that the two centres are relatively small and cater for two different age groups is not a basis for an approval of this DA.
4. Mr Apps contends for a refusal of this DA because he believes that the users of the two centres will illegally park in front of driveways and on the street rather than the car spaces provided onsite. And, Mr Apps believes that this illegal parking on the street will generate adverse amenity impacts for the local residents. Mr Apps' belief is based upon his experience as a compliance officer with the Council and as a father with children who use childcare centres. He also told the Court that he had experienced such problems personally as he lives proximate to an existing child care centre albeit in a different area.
5. Not surprisingly, I cannot accept Mr Apps' evidence about this issue as being either objective or relevant. It is not based on any proper planning grounds. Rather, Mr Apps contends for a refusal of this DA on an assumption that the users of the centre will park illegally and contrary to state traffic laws and the conditions of development consent. However, the expert traffic evidence, which is not contradicted, supports an approval of this DA. It concludes that the 9 m wide local road (Barrington Street) can support the anticipated traffic for this centre and the approved child care centre (Folio 68 Exhibit 1). Both childcare centres offer complaint on-site parking; and I understand that there are parking restrictions in front of the approved centre. Shortly stated, the traffic evidence raises no issue or amenity concern from traffic or parking associated with an approval of this the DA. Moreover, the Court does not assess a new DA on the basis of an anticipated breach of the law or the breach of conditions of consent. This is not a case of there being evidence of past impacts on this site to support such a finding in respect of this new centre: Jonah Pty Ltd V Pittwater Council; (2006)144 LGERA 408 [2006] NSWLEC 99. Should Mr Apps' fears be realised and illegal parking eventuate as a result of the use of the proposed centre then the police and the Council will have reason to take appropriate action.
6. After careful consideration of all of the evidence and relevant controls I am of the opinion that Mr Apps' evidence does not provide any satisfactory planning basis to refuse this DA or to require strict compliance with the distance separation requirement in the DCP. Accepting that the purpose of the DCP control is twofold namely: 1. to ensure that child care centres are not clustered together, and spread out to afford better access to such services; and 2. to minimise any adverse impact on the amenity of the residential areas
7. Mr Apps and Ms Richter agree that there is a need for another child care centre between Hambledon Road and Schofields Road; and strict compliance with the DCP control would preclude this happening (Joint report at [25]).
8. In agreeing that there is merit is dispensing with the 1 km distance control because there is a greater need for child care centres in release areas and offering no satisfactory planning basis why an approval of this relatively small centre is unacceptable - other than a fear of illegal parking by those using the centre - I must prefer the evidence of Ms Richter to that of Mr Apps.
9. I have considered carefully the impacts of the noise on the adjoining property at 35 Barrington Street and accept the experts agreed position that the measures incorporated into the design to limit noise impacts to that property are more than might normally be required. In saying that I appreciate the personal hardship this permissible use may have on the current residents of that property. However, as Mr Apps quite properly accepted during his oral evidence in Court - planning controls are not directed to the particular needs of a person residing proximate to a development but rather to avoiding any unacceptable adverse effect upon the amenity of the land. In this case the Court is satisfied that the acoustic impacts to the land at 35 Barrington Rd have been satisfactorily addressed by the redesign of the centre, the conditions and other measures outlined earlier in this judgment .
10. In summary, I am satisfied on the evidence that the amended application and conditions do minimise impacts on the residential land proximate to the proposed centre and the cumulative impacts of both centres. I find that the acoustic measures incorporated into the design of the proposed building (including the fencing and parking layout) coupled with the proposed conditions of consent will satisfactorily ameliorate unacceptable noise to the residential land proximate the site and the locality more generally.

Conclusion

1. Therefore, for the reason stated I have decided to uphold the appeal and grant development consent to the amended application in accordance with the council's draft condition in Exhibit 3. The Court orders are: 1. Appeal upheld. 2. Development consent is granted to DA 15/02702 for construction of a single storey childcare centre accommodating 42 places, associated parking and landscaping at lots 459,460 and 461 DP 1198882 37 - 41 Barrington Street, The Ponds in accordance with the amended application in Exhibit A and the conditions of consent in Exhibit 3. 3. The exhibits are returned except Exhibits A & 3. ……………………………… Commissioner Dixon 385906.16 Dixon (C) (298 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2017