Keenwill Pty Limited v Willoughby City Council

DATES OF HEARING: 19, 22, 23 and 24/12/2008

APPLICANT Mr C. McEwen, SC with Mr M. Staunton, barrister Instructed by Sattler and Associates. LEGAL REPRESENTATIVES:

RESPONDENT Ms H. Irish, barrister Instructed by Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10898 of 2008 Keenwill Pty Limited v Willoughby City Council This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT Introduction 1 This appeal involves a development application for the demolition of an existing dwelling house and the construction of a child-care centre with basement car parking and a two-bedroom dwelling at first-floor level at Nos 5 and 7 Donnelly Road, Naremburn. The centre is to accommodate 72 children with 10 staff and will operate between 7 a.m. and 6:30 p.m. Monday-Friday. 2 There is to be a 5.5/6.2 m wide two way access into the basement car park where 20 parking spaces including a loading dock are to be provided. Ten of these parking spaces are for centre staff, nine spaces for visitors and one space for the dwelling. The site and its environs 3 The essentially hatchet shaped site (an amalgamation of lot 1 DP 949324 and lot 2 DP 1074533) has an area of 1,282 square metres with a combined frontage of about 11 m to Donnelly Street. The proposed building's footprint largely reflects the shape of the site.

4 This relatively short part of Donnelly Road begins at its intersection with Brook Street, a classified Regional Road, and extends to, and ends at the Warringah Expressway.

5 The north side of Donnelly Road where the site is located contains six allotments. It is characterised by five, one and two-storey dwelling houses. The southern side of Donnelly Road is enclosed by the Expressway's acoustic barrier that extends along the western angled boundary of the site and contains a number of canopy trees. Planning controls 6 The site is zoned Residential 2(a) under Willoughby Local Environmental Plan 1995 and in this zone the proposed child-care centre is permissible with development consent. 7 Clause 13 (3) requires that consent shall not be granted unless the consent authority is of the opinion that the development is consistent with one or more of the aims of the LEP and at least one specific objective of, in this case, the 2(a) zone. The aims and objectives of the LEP essentially provide that development should be of an appropriate scale and character and be mindful of environmental impacts and the amenity of residential areas. Commercial development should also take these matters into account particularly where it adjoins residential areas, also considering the efficiency of local or regional traffic networks. 8 The particular objectives of the 2(a) zone call for the protection of residential environments from adverse impacts associated with non-residential uses; reconsideration of the scale character and streetscape of individual localities; and the protection of residential amenity, including views, solar access, aural and visual privacy and landscape quality.

9 Clause 13 D specifically requires the consideration of any adverse impact on adjoining on nearby properties in relation to views, privacy and sunlight in the context of design alternatives and any special circumstances that might apply to the site.

10 Clause 18 imposes a maximum building height of two storeys. 11 Also applicable is the Willoughby Development Control Plan. Part G10 of the DCP contains various requirements for child-care services, dealing particularly with car parking, access, community needs, safety and standards. The objectives require that child-care facilities should be complimentary to their location, integrated into the local environment and should minimise impacts on the locality especially in terms of traffic generation and car parking. Advertising 12 The application was advertised and 11 objections to the proposal were received. Matters of concern include traffic and parking, noise, pollution and privacy. Concerns were also expressed in relation to overdevelopment, bulk and scale, streetscape and emergency evacuation. These matters were explained by a number of residents who attended the site inspection on the first day of the hearing. I also heard from two residents of the locality who were of the opinion that the development should be allowed to proceed. Council's decision 13 The application was refused by the council on 21 October 2008 for 11 reasons essentially relating to overdevelopment, bulk and scale, overshadowing, traffic and parking, vehicular access, landscaping, private open space, site frontage and noise. Taking these matters into account the council is concerned that the site is unsuitable for the proposed development and approval would not be in the interest of the public. Previous decision 14 On 11 October 2007 the Court dismissed an appeal (Mike George Planning Pty Ltd v Willoughby Council [ 2007] NSWLEC 583) involving a development application for a play School and day care facility at 7-9 Donnelly Road Naremburn. Because that the appeal involves a different site and because there are a number of fundamental differences in the form and access arrangements by comparison with the proposal, I do not intend to make any further reference to it. Expert evidence 15 On behalf of the respondent Council expert evidence was given by Mr A Burns traffic engineer, Mr G. Paroissien horticulturalist and environmental consultant and Miss A. Leung, town planner.

16 On behalf of the applicant expert evidence was given by Mr J. Coady traffic engineer and town planner, Miss S. Hannan, horticulturalist and landscape designer and Mr M. George town planner. Contentions 17 Taking into account the Statement of Facts and Contentions and the respondent's submissions, I am of the opinion that the following are the essential matter in dispute: + The proposal will create an unacceptable traffic impact and the design and layout of the car parking areas are unsatisfactory. + The proposal does not provide sufficient or satisfactory landscaped areas and the proposed replacement of mature trees is insufficient. + The proposal will cause unreasonable amenity impact on neighbours in terms of noise, traffic congestion, bulk and scale and overshadowing. + The site is unsuitable for a childcare centre due to its location, dimensions and configuration. Traffic and car parking 18 The traffic access and car parking issue needs to be dealt with in the light of the associated provisions of the DCP. Pt G(10) of the DCP requires that: "Child care centres should not be located in cul-de-sacs or no through road except where more than one street access and egress is available to the site and the centre has adequate parking and pick-up/drop-off space." 19 Also a minimum site frontage of 20 metres is required for child care centres in residential areas and according to the respondent this requirement is not only related to traffic matters but also to amenity in the street, taking into account the objectives of pt G(10). Part C(4.3)(f) of the DCP deals with car parking for child care facilities requiring the provision of parking for staff vehicles and the setting down and picking up of children to reduce the incidence of on-street parking. Vehicles should enter and leave the site in a forward direction and two-way driveways should be a minimum of 5.5 metres in width. A drive-through for drop-off and pick-up of children is required hence there is a need to have a minimum site frontage of 20 metres or a corner location. Alternatively, where the site's frontage is less than 20 metres car parking must be provided at the rate of 1 space per 10 children. Also the car parking area must be directly linked to the entrance of the centre allowing pedestrian movement to be separated from the manoeuvring area of the car park.

20 In my opinion it is clear that the DCP anticipates, subject to amenity, traffic and parking considerations that child care centres can be established on sites having frontages of less than 20 metres. Leaving aside amenity considerations I accept the evidence provided on behalf of the applicant by Mr Coady that the car parking provision, its dimensions and the manoeuvrability arrangements including turning circle as well as access and egress to and from the basement either comply with the relevantly applicable Australian Standard or that any non-compliance, such as the aisle width and car space dimensions of concern to Mr Byrnes, is of little significance. Whilst the car parking area is directly linked to the entrance of the centre some concerns were raised regarding the physical segregation of pedestrian and vehicular movements in the vicinity of the lift and the stairwell resulting in a potentially unsafe environment. 21 In this regard, I agree with Mr Coady that the gate or gates suggested by Mr Byrnes would not be necessary as it can be expected that all children arriving at this point in the building will be accompanied and supervised. Despite this, I am sure that being the main entrance to the centre the design could be improved. In this regard I am satisfied that the application need not be refused on the basis that the site does not have a 20 metre frontage.

22 Because Donnelly Street is a no through road and the site has only one street access, and despite having adequate car parking and pick-up and drop-off spaces, pt G(10) of the DCP would indicate that the site is unsuitable for a child care centre. However, this provision cannot be a prohibition and must instead be a matter for consideration hence it is necessary to examine the intent or purpose of this particular requirement. There are no aims or objectives for this requirement so it is necessary to consider the objectives of pt G(10). Relevantly these include the provision of child care facilities that are complementary to their location and integrated into the local environment as well as minimising potential adverse impacts on the surrounding area in terms of traffic generation and car parking. 23 In essence this seems to require a consideration of the traffic impacts including amenity impacts (that I will deal with later) in the street. I have already indicated that parking and access arrangements within the site are satisfactory. The traffic experts acknowledged that despite the child care centre generating, on the basis of its 72 child capacity and associated staff, a significant increase in traffic in Donnelly Street. This is off a very low base and will be well within the street's environmental capacity.

24 There was some concern that vehicles associated with the child care centre that might hinder existing residents' entry and exit from their properties when encountering vehicles entering and leaving the site and queuing to exit Donnelly Street. However, I accept Mr Coady's evidence that any such inconveniences are likely to be minor and that these inconveniences would not be determinative of the application. I should also comment here that I am not concerned that there is no specific provision for the making of U-turns in Donnelly Street. Given that the proposal deals with access and parking on site rather than in the street, the likelihood that vehicles will need to make U-turns is unlikely to be any different to the present situation. Conversely, the construction of a new 5.5 metre driveway into the site as proposed would be of assistance enabling vehicles that need to turn around to execute a three point turn in what is a low traffic environment. 25 A different inconvenience for residents would result from a ban on vehicles exiting Donnelly Street and turning right into Brooke Street, a manoeuvre that is supported by the traffic experts. This ban would mean that residents departing the site during peak periods and wishing to travel to the city via the freeway would need to drive around the block, a journey that could add several minutes to the trip. Irrespective of this development I understand that the existing traffic circumstances are sufficient to require this change and in these circumstances I do not accept that the provision of such a ban on right turn movements from Donnelly Street constitutes a reason to refuse the application.

26 As for the need for banning right turn movements from Brooke Street into Donnelly Street in the peak periods, Mr Coady disagreed with Mr Byrnes arguing that the satisfactory gap analysis that he carried out is indicative of there being no likelihood of unreasonable congestion. Mr Byrnes in response explained that such a ban would enhance the safety of the intersection and the locality in general even though in its absence there would be no significant impacts on traffic. In these circumstances I accept the evidence of Mr Coady and agree that a ban on such turns would be unnecessary. 27 Again, leaving aside the question of amenity impacts in Donnelly Street, I have thus been persuaded by the evidence provided by the applicant that the child care centre should not be refused on the basis of car parking or traffic impacts taking into account the various requirements of the DCP. Landscaping 28 There are no specific landscaping controls in the DCP for child care centres hence it is necessary, and in my opinion appropriate, to consider the landscaping provisions of the DCP that would otherwise apply to the development of the site and surrounding lands. Part C(9) of the DCP deals with landscaping variously for single dwellings, dual occupancies, boarding houses, residential flat developments, mixed use residential/commercial development. In relation to residential development the intent of this section is to ensure a high standard of amenity by controlling the proportion of the site which must be landscaped to achieve adequate open space and to enhance visual quality of residential areas. The site being in a residential area should be subject to this intent.

29 I accept that the provisions of pt C(9) that deal with mixed use residential/commercial development include a requirement that there should be a minimum of 35% of the site area that is soft landscaping. In this context I also accept that this development, comprising a child care centre that is a commercial development and a dwelling house that is residential development, should be treated as a mixed use residential/commercial development. In addition I accept the relevance of other provisions of pt C(9) including the minimum dimensions for soft landscape areas of 1.5 metres and the provision of a minimum soil depth of 500mm where soft landscaping areas are provided over basements or other structures. Absorptive areas for on-site infiltration of stormwater are to be maximised. As for on-site infiltration, whilst I accept that the soft fall material in the children's play areas is absorptive and will be appropriately drained, this does not provide for on-site conditions that are responsive to the requirement for absorption of at least some rainwater into the ground as distinct from into the drainage system. These areas thus do not respond to the intent of the control. 30 Part G(10) also contains planting and landscaping requirements including tree retention and tree planting to achieve an appropriate landscape quality and amenity for the area and an attractive functional and educational natural environment for the users of this site. In this context there is a need to soften the built environment and balance sunlight access and shading. Also play zones are to be defined with the incorporation of plantings as play for educational features.

31 There are particular requirements for outdoor areas including children's facilities, solar access and ground surfaces. Where any outdoor area is artificial, not being part of the natural environment, the application must outline how the greening of this area will occur taking into account the safety of ground surfaces, the use of pots and containers for planting and the softening of the built environment. In relation to these requirements I am not convinced that these matters have been appropriately attended to. The landscape experts agreed that the soft landscaped area comprises 19% of the site. The area of soft fall play areas which can be considered to be landscaped area as distinct from soft landscaped area is 22% of the site. These areas, together with other landscaped areas that do not comply with the minimum 1.5 metre dimension, or the 500mm minimum soil depth requirement, result in a total landscaped area of 67%. 32 Ms Hannon was of the opinion that the landscaped area, including the soft landscaped area, was satisfactory and an appropriate response to the requirements of the DCP and the surrounding area. Mr Paroissien disagreed with Ms Hannon. He was of the opinion that the small triangular-shaped area in the north-west corner of the site, that is the main deep soil planting area, is insufficient to compensate for the lack of deep soil planting on the remainder of the site. Even taking into account the other deep soil planting areas on the site that do not involve the creation of planters above structures, I am inclined to agree with him that these deep soil planting opportunities are insufficient, especially considering that the soft landscaped area only comprises 19% by comparison with the 35% that I accept as being a reasonable interpretation of the DCP.

33 Whilst there was some dispute between the landscape experts regarding the likely outcome of the landscaping proposal as a whole, it seems to me that there was agreement that the landscaping would most likely be sustainable, although given the constraints imposed by the building design and the available soil volumes at least some of the trees would not grow to anticipated dimensions. Also if I understand his evidence correctly Mr Paroissien believed that with more deep soil planting opportunities a more appropriate scaled and located tree canopy would result. In this regard I accept his evidence. 34 Ms Leung also dealt with landscaping and was of the opinion that the proposal would provide a low standard of landscape amenity well below that expected in the 2A zone and the predominant landscape character of the area would not be maintained. Having a total impervious area of over 80% it would fail to meet the intent of the DCP to maximise absorptive landscape areas for on-site infiltration of stormwater.

35 Mr George disagreed, emphasising the fact that this is for a child care centre not a dwelling house and that any non-compliance with the DCP's requirements would be minor. He emphasised the fact that there is adequate landscaped open space around the building separating it from adjoining properties. On-site drainage will be appropriately managed. 36 In relation to landscaping overall I find in part at least the evidence of Mr Paroissien and Ms Leung to be persuasive. I would not be concerned about the loss of the existing trees on the site if an appropriate replacement regime were proposed. However, I am unable to comfortably conclude that this would be achieved in the light of the proposal's significant non-compliance with the 35% soft landscaped area requirement in the DCP.

Amenity impacts on neighbours 37 Ms Leung had a number of concerns regarding amenity impacts for neighbours. Importantly these include the general amenity of properties in Donnelly Street and Merrenburn Avenue at the rear. More particularly these include the overshadowing of 9 Donnelly Street, noise impacts on Merrenburn Avenue residents and the general amenity impacts associated with the increase in the number of vehicles using Donnelly Street. Plainly the existing residents of Donnelly Street will notice the difference in the number of vehicles using the street and according to Ms Leung this change to the street's amenity is of concern but given the traffic expert's conclusion that this is within the environmental capacity of the street I agree with Mr George and conclude that this is not a matter of determinative concern.

38 As for the concerns regarding noise impact I note the conclusions contained in the applicant's environment noise assessment report that examines anticipated noise emissions from the centre, taking into account existing noise levels and subject to certain recommendations the report concludes that the development will comply with relevantly applicable EPA guidelines.

39 Residents were also concerned regarding the bulk and scale of the development. However, taking into account that the building complies with the applicable height requirement in the LEP having a floor space ratio of 0.45:1 that is consistent with the maximum permissible floor space ratio for a dwelling house in Naremburn of 0.45:1, and bearing in mind the landscape experts' agreement that the total landscaped area of the site is 67% and despite the building's footprint of 74% I find it difficult to accept this contention. In this regard I accept the evidence of Mr George that the building will provide minimal public presence within the street and outside the site. 40 Ms Leung was also concerned as to amenity consequences of not complying with the 20 metre frontage requirement in the DCP, including pedestrian and vehicular conflicts at the street alignment and insufficient landscaping. As for landscaping despite the fact that there is to be a 5.5 metre wide driveway and two footpaths into the site, the landscape plan shows the provision of two landscaped strips extending into the site that will provide various plantings including canopy and other trees and shrubs. Taking into account the extent of landscaping within properties on this side of Donnelly Street I find this arrangement to be reasonably satisfactory although with some adjustments to the design the extent of landscaping across the frontage could be increased and improved. This may also require a modification to the access arrangements to 9 Donnelly Street that presently exist across part of the frontage of this site.

41 As for concerns regarding pedestrian and vehicular conflict I accept the likelihood that the majority of users of the child care centre will attend in vehicles with their parents or carers and that the number of pedestrians is likely to be very low, hence conflict is likely to be minimal and to the extent that it might occur drivers can be expected to be aware of their responsibility to give way to pedestrians on a footpath. 42 Finally, in relation to amenity impacts is the issue that is fatal to the application, that being the overshadowing of the existing dwelling house at 9 Donnelly Street. The solar access requirements for dwelling houses are contained in pt D(2.9) of the DCP and include the need to maintain solar access for neighbours by the careful siting and orientation of buildings and the use of setbacks which increase with building height. Shadow diagrams are to be provided for 9am, noon and 3pm on 22 June, the winter solstice, together with a calculation comparing the extent of additional overshadowing calculated as a percentage. Elevational shadow diagrams may be required. Where possible new buildings are to be sited to maintain approximately three hours of solar access to living areas and the principal open space recreational areas of adjoining properties. Where existing overshadowing exceeds these requirements the area of sunlight both vertically and horizontally should not be reduced by more than 20% although buildings on east/west oriented allotments may not always be able to achieve this requirement.

43 The town planning experts agreed that the overshadowing requirement of the DCP are not complied with as overshadowing of No. 9 will result in there being less than three hours of sunlight access between 9am and 3pm at the winter solstice and that the proposal will increase existing overshadowing by more than 20%. Mr George, by reference to an approved dual occupancy development for the subject site, explained that the increased overshadowing is not significant and that there remains adequate solar access. Also the owner of that dwelling is the applicant for the child care centre and would be prepared to install skylights in the existing dwelling. 44 Ms Leung did not agree, explaining that the extent of overshadowing is significant mainly because the rear courtyard and north-facing windows will be completely overshadowed and overshadowing of other private open space will be substantially increased. She did not accept that the applicant's ownership of No. 9 was of any relevance in the consideration of whether to permanently remove adequate solar access to the existing dwelling house. According to the shadow diagrams the north-facing windows of number 9 presently have the benefit of sunlight penetration to various degrees between 9am and 3pm. For some time before and after midday these windows are largely unaffected by overshadowing from the existing fence that divides the two properties. Whilst there will remain an extremely small amount of sunlight penetration at 9am I expect that this will soon disappear. From probably just before 3pm I estimate that about one-third of the windows will be in sunlight but this will vanish shortly thereafter.

45 In this context I agree with Ms Leung that this is unsatisfactory in the light of the requirements of the DCP. I also give no weight to the fact of the applicant's ownership of No. 9, nor do I accept that this concern can be overcome by the installation of skylights. This matter is of sufficient significance to warrant refusal of the application. As indicated above cl 13D of the LEP requires the consideration of any adverse impact on adjoining properties in relation to matters such as sunlight, considering whether there are design alternatives to mitigate the impacts or any special circumstances that might apply to the site. 46 In this context I do not accept that there are any relevant special circumstances that would overcome the need to avoid any such adverse impact. It is also plain that this effectively being a greenfield site that there are numerous design alternatives that could avoid this impact. Such alternatives could include the relocation of the first floor dwelling and taking into account what I have said about the landscaping may even require that the development be reduced in size.

47 This consideration, including my concerns in relation to soft landscaping, adds to my conclusion that the proposal is unsatisfactory and should not be approved in its present form. In the circumstances I conclude that whilst the site is not fundamentally unsuitable for the purpose of a child care centre this application should not be approved. Orders 48 The orders of the Court are therefore: 1. The appeal is dismissed. 2. The development application for the demolition of the existing dwelling house and the construction of a child care centre with basement car parking and a two bedroom dwelling at first floor level at number 5 and 7 Donnelly Street, Naremburn is determined by refusal. 3. Exhibit A is retained.

      T A Bly
      Commissioner of the Court
      ljr

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