Keenwill Pty Limited v Willoughby Council

DATES OF HEARING: 12, 13 October 2009 and 21 January 2010

APPLICANT Mr M Staunton, barrister SOLICITORS Sattler & Associates LEGAL REPRESENTATIVES: RESPONDENT Ms H Irish, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10381 of 2009 Keenwill Pty Limited v Willoughby Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Willoughby Council (the council) of Development Application 2009/170 for the demolition of an existing dwelling and the construction of a 72 place childcare centre at 5 and 7 Donnelly Road, Naremburn (the site). 2 The contentions raised by the council relate to: 1. the unsatisfactory design and layout of the basement car park; 2. the unsuitability of the site for the proposed development; 3. the unacceptable amenity impacts on the residents of Donnelly Road; 4. whether adequate play areas are provided for 72 children; and 5. the adequacy of the emergency evacuation route. 3 Contention 5 was raised late and could not be fully addressed at the hearing and it was agreed that contentions 1 to 4 should be addressed as preliminary issues and if found acceptable by the Court, the proceedings should be adjourned to allow further consideration of contention 5. The preliminary issues were heard on 12 and 13 October 2009 and on 14 October 2009 findings were made, as set out in the following paragraphs (see pars 13 to 35). As the findings did not conclude that contentions 1 to 1 would support the refusal of the application, the parties were directed to further discuss contention 5. As no agreement was reached, the hearing recommenced on 21 January 2010 where further evidence was provided (see pars 36 to 52). 4 A number of residents from Donnelly Road and Merrenburn Avenue provided evidence on site. In addition to those contentions raised by the council the following concerns were also raised: 1. noise; 2. privacy and loss of amenity; 3. airborne pollution; 4. damage to dwellings during construction. 5. the prohibition of vehicles turning right into and out of Brook Street. The site 5 The site comprises two allotments; Lot 1 in DP 949324 being 5 Donnelly Road and Lot 2 in DP 1074533 being 7 Donnelly Road. The areas of the allotments are 338.1 sq m and 943.5 sq m respectively, giving a total site area of 1281.6 sq m. 6 The existing development at 5 Donnelly Road consists of a one and two-storey brick dwelling with tiled roof. The irregular shaped lot has a 7.62 m frontage to Donnelly Road. 7 Donnelly Road is currently vacant and is a battleaxe allotment with an access handle width of 3.625 m to Donnelly Road. This access handle shares a vehicular crossing on Donnelly Road with the adjoining property at 9 Donnelly Road. The site slopes from its northern boundary to the road by approximately 5 m. 7 The site is located on the northern side of Donnelly Road between the Warringah Freeway and Brook Street. The Warringah Freeway cuts Donnelly Road and the site is located near the closed end of the eastern section of Donnelly Road. Access to the eastern section of Donnelly Road is available only from Brook Street. Brook Street is classified as a regional road. 8 Donnelly Road contains six residential allotments with five dwellings on its northern side, including the subject site. It is characterised by one and two-storey dwelling houses. Part of the southern side and the western side of Donnelly Road are enclosed by an acoustic barrier aligning with the Warringah Freeway. Donnelly Road is approximately 30 m in length along its northern boundary with a carriageway width of approximately 7.5 metres. The closed end of Donnelly Road does not provide a turning area. The northern boundary of the site adjoins the rear boundary of residential properties with frontage to Merrenburn Avenue. The proposal 9 The proposal seeks the demolition of the existing dwelling at 5 Donnelly Road and construction of a two-storey building with childcare centre on the ground floor with basement car parking for 19 vehicles and an associated two bedroom dwelling on the first floor. No's 5 and 7 Donnelly Road are to be consolidated into one lot. The proposal provides for 10 staff to care for the total of 72 children made up of 20 children aged between zero and two years, 32 children between two and three years and 20 children between three and five years. The proposed hours of the childcare centre are 7am to 6.30pm Monday to Friday. Relevant planning controls 10 The site is zoned Residential 2(a) under Willoughby Local Environmental Plan 1995 (LEP 1995). A childcare centre is a permissible use with consent in this zone. Clause 13(3) provides that consent shall not be granted if the Court is of the opinion that the proposal is inconsistent with one or more of the aims of LEP 1995 and at least one specific objective of the zone. The council identifies the relevant plan objectives as (b), (c), (d), (e), (k) and (l). The single specific objective of the 2(a) zone is: To accommodate dwelling houses and other land uses which are compatible with existing housing. 11 LEP 1995 provides requirements for amenity at cl 13D, objectives for the floor space ratio at cl 13E and general objectives for low density residential areas, including the Residential 2(a) zone at cl 14A and height requirements at cl 18. 12 Willoughby Development Control Plan (the DCP) applies to the site. Clause A.3 provides aims and cl C.4 provides requirements for transport. Clause G.10 provides specific requirements for childcare centres. Basement carpark 13 The traffic contentions were addressed by traffic engineers, Mr John Coady for the applicant and Mr Michael Foskett for the council. They prepared a joint report and a supplementary joint report. Following the amendments to address the council's concerns over headroom and accessibility of car space 9, the sole remaining issue was the suitability of the turning circle at the western end of the basement car park. 14 Mr Foskett maintains that the turning area should have an 8 m radius rather that the 6.3 m radius shown on the basement car park plan based on Appendix A4 of Australian Standard AS2890.1:2000 for a B99 vehicle (or the 99.8 percentile vehicle). Mr Foskett states that AS2890.1 differentiates between "parking manoeuvres" and "roadways and ramps"; the former requiring a 6.3 m radius and the latter requiring an 8 m radius. In Mr Foskett's opinion the turning manoeuvre falls within the latter category and as such requires an 8 m radius. 15 Mr Coady takes a different position. He states that it is more important to consider the practical operation of the turning area. In support of the proposed 6.3 m radius Mr Coady states that: 1. the turning circle can accommodate the turning path of a B99 vehicle specified in AS290.1; 2. only six of the 19 spaces will be required to use the turning circle; 3. the design standard is required to address a wide variety of circumstances and traffic activity including a regional shopping centre. In comparison, the proposal has a very low traffic generation rate; and 4. the use of the 8 m radius is inappropriate in the current circumstances as it is not a curved ramp, not part of a roadway and needs only to accommodate a small number of vehicles. 16 On this matter, I accept the conclusions of Mr Coady. Importantly, there was no suggestion that a B99 vehicle could not negotiate the turning area and while the larger radius would undoubtedly make this manoeuvre easier it does not mean that the larger radius should be adopted. I agree with Mr Coady that the use of a 99.8 percentile vehicle is a relatively high benchmark and when combined with the small number of car spaces that need to use the turning area to exit the carpark, the likely understanding of parents and staff of the turning area with regular use and the overall small number of movements, the 6.3 m radius is appropriate. Unsuitability of the site/ amenity 17 The unsuitability of the site for the development and the potential amenity impacts on Donnelly Road were addressed by town planners Ms Annie Leung for the council and Mr Greg Boston for the applicant, as well as Mr Coady and Mr Foskett. 18 Clause G.10 of the DCP states: Childcare centres should not be located in cul-de-sacs or no through roads, except where more than one street access and egress is available to the site and the Centre has adequate parking and pick-up and drop-off space. In residential areas a minimum 20 metre frontage is required. These requirements are supported by the following objectives: To ensure childcare centres are compatible with surrounding residential neighbourhood in terms of siting, landscaping and access arrangements for both vehicles and pedestrians; To identify preferred sites for childcare centres on irregular lots with a wider frontage; To reduce additional traffic generated by childcare centres in a cul-de-sac or no through roads as such locations to not allow for good traffic circulation and to minimise potential adverse impacts on the surrounding area in terms of noise, traffic generation and car parking.

The 20 m frontage requirement 19 Underpinning the concerns of the council are the requirements in s G.10 of the DCP that require a 20 m frontage and that childcare centres should not be located in cul-de-sacs or no through roads. The clause provides an exception to the cul-de-sac requirement if the centre has adequate parking and drop-off and pick-up points and where more than one street access is available. 20 As I understand, Mr Foskett agreed that the proposal had adequate parking and drop-off points and pick-up points and that strict compliance with the 20 m frontage was not necessary on traffic or parking grounds. Ms Leung maintained her support for compliance with both requirements in cl G.20 whereas Mr Coady and Mr Boston stated that the particular characteristics of the proposed development supported the variation to the requirements in this clause. 21 In general terms the objectives in cl G20 deal with two broad areas, being traffic and character. The traffic impacts identified by the council are related to the movement of vehicles from Brook Street into Donnelly Street and then into the basement car park or alternatively from Brook Street into one or more of the four available street car parking spaces. The specific impacts related to noise from the vehicles, the potential inconvenience caused to residents wishing to leave their properties by vehicles attending the childcare centre and. The character impacts relate to the type and form of the development. Traffic 22 Mr Coady's traffic counts for the proposal provide for around 60 vehicle trips per hour in peak times. There was no disagreement that the additional traffic generated by the proposed development will be substantially greater than the existing traffic generated by the five dwellings in Donnelly Street but there was agreement that the additional traffic generation was still within the environmental capacity of the street. 23 I agree with Mr Coady that it is likely that at some times during the morning and afternoon peaks that existing residents may not have immediate access to Donnelly Street, as they currently have. I am not satisfied that the potential delays would be a reason to refuse the application as any delay is most likely to be of a very short duration based on the traffic counts undertaken by Mr Coady. 24 I also accept that the prohibition of right turn movements out of and into Donnelly Street on the basis of the proposed development during peak hours is not a reason to refuse the application. While it may necessitate a more circuitous route to the Warringah Freeway, it is not overly long and given the traffic flow in Brook Street during peak hours, right turn movements into Brook Street from Donnelly Street is at best, an undesirable movement during these times. 25 If these conclusions are considered against the objectives in cl G.10, then I agree that there is a no reasonable traffic basis to require strict compliance with the requirements in this clause relating to the 20 m frontage and the cul-de-sac requirements.

Character 26 Ms Leung stated that it was necessary to comply with the 20 m frontage requirement on the basis that it would provide a design and layout that integrates better with the surrounding residential context and provides a higher level of amenity. This was not a conclusion accepted by Mr Boston. I note that the council was satisfied that the proposal, when considered against the LEP 2000 and the DCP requirements for residential development, was satisfactory in relation to gross floor area, floor space ratio, building height plane, setbacks, soft landscaped area and private open space. These are the principal development requirements for residential development. 27 While it was suggested by Ms Leung that the proposal was an overdevelopment of the site, it is in my view, difficult to support such a contention when there is almost total compliance with the principal development requirements for a residential development. Overdevelopment is an overused term that if to have any meaning, must, in this case, relate to the relevant requirements for residential development. 28 If these conclusions are considered against the objectives in cl G.10, then I agree that there is no reasonable character basis to require strict compliance with the requirements in this clause relating to the 20 m frontage and the cul-de-sac requirements.

Noise 29 The issue of noise from cars attending the childcare centre is, in my view, adequately addressed by the applicant through the noise report where it concluded that the noise generated by vehicles entering and leaving Donnelly Road would not be noticeable because the noise levels at the properties in Donnelly Road presently exceed 60 dBA Leq as a result of traffic on Brook Street and the Warringah Freeway. I note the council provided no evidence to refute this conclusion.

Emissions 30 The issue of emission from the Warringah Freeway is also adequately addressed through the applicant's expert reports and found to be acceptable. Again, the council provided no expert evidence to refute the conclusions in these reports. Children's play area 31 Ms Treena Allen, the councils Children's Services Manager, provided evidence for the council. The issue relating to the adequacy of the children's play area relates to amendments to increase the head height in the basement car park level. This change had the consequential effect of raising a strip of the play area by 400 mm above the remainder of the play area. The use of this landscaped area remains unchanged. 32 The argument put by Ms Allen on behalf of the council was that this area should not be included in the calculations for the children's play area and as such the limit on the number of children should be reduced from 72 to 69. Mr Boston disagreed and stated that the area remained largely unchanged and was still suitable for a children's play area despite the small change in level. 33 The requirement that relates the amount of play area to the number of children comes from the Children Services Regulation 2004 and it is a matter that needs to be considered in the granting of a licence for the childcare centre. In practical terms there seems to be some merit in Mr Boston's assessment and I do not propose to alter the number of children, however, if Ms Allen's concerns are realised then the number of children will be limited to 69 through the licensing procedure. Resident concerns 34 I am satisfied that those additional matters raised by the local residents are adequately addressed through the expert reports provided by the applicant for noise and air pollution, the potential damage to dwellings at the construction stage can be addressed through appropriate conditions and the matters of privacy and general loss of amenity are not that significant that would warrant the refusal or amendment of the application given the comments in the previous paragraphs. 35 Given that there are no other reasons, including any inconsistency with the plan objectives or the specific zone objectives, that would support the refusal of the application, and also given the importance of a proper emergency evacuation procedures, I accepted the submission of Mr McEwen SC that additional time be granted for the parties to further consider the issue of the emergency evacuation. Emergency evacuation 36 The issue of the emergency evacuation was addressed at the hearing originally through the expert reports of Ms Allen and Mr Stephen Day, a fire and emergency expert, for the applicant. Mr Day prepared an Emergency Response Plan for the childcare centre that provided for an evacuation route with an evacuation assembly area in Donnelly Road then north along Brook Street to an existing childcare centre in Merrenburn Avenue. Ms Allen and Mr Day initially prepared a joint report that concluded with the agreement that the contentions raised by the council in relation to the evacuation route could be addressed on the condition that an Emergency Services Pre-incident Plan is developed and documented and which covers five specific areas. These being the Emergency Services Incident Commander will assess the situation and assign personnel to assist with the completion of the evacuation, if not completed beforehand, if needed, the Emergency Services Incident Commander will assign personnel to assist with the relocation of evacuees from the evacuation assembly area in Donnelly Road (Assembly Area 1) along Brook Street to an existing childcare centre in Merrenburn Avenue, the Emergency Services Incident Commander will ensure that appropriate traffic measures are in place, Mr Day's company to coordinate with associated emergency services agencies to ensure the Pre-incident Plan meets the required objectives, and the Emergency Response Plan will be amended to include the involvement of the attending emergency services in assisting the relocation of evacuees, if necessary. 37 Following the joint report of Ms Allen and Mr Day, Senior Constable Jewell provided correspondence that in part stated that "if it is the contention that the safe evacuation of all persons from the site is contingent only on the assistance of Emergency Services workers and I believe that this is an inappropriate site for the proposed development". 38 Ms Allen, Mr Day and Senior Constable Jewell provided a joint report. Notwithstanding her previous comments, Ms Day stated that the muster point 1 remains a concern in terms of the ability to safely contain children among emergency vehicular activity and then the possible movement of 72 young children from this area along Brook Street to Merrenburn Avenue. In her opinion that Plan does not meet the intent of parts b and d of G10 of the DCP. 39 Mr Day states that the Emergency Response Plan is based on the design of the building that minimises the risk of fire through the use of construction materials, sprinkler systems and fire rated furnishings and furniture. Also, the design consists of two separate structures and a fire rated safe haven thereby affording the opportunity to evacuate from one structure to another. The design also provides additional options for evacuation plans for both fire and other types of emergencies. 40 In his opinion, the evacuation Assembly Area 1 in the cul-de-sac of Donnelly Road is appropriate and a safe refuge for most expected incidents. The area satisfies a definition of "Assembly Area" as defined in Australian Standard A3745-2002 being a safe distance from the risk area and is sheltered by another structure. In the event that the evacuation Assembly Area 1 becomes untenable, the relocation of evacuees to Assembly Area 2 in Merrenburn Avenue would be made. In this situation, it is likely that the emergency services would have arrived and taken command of the site and given their first priority is the preservation of life, their assistance would be available. As no agreement was reached on this issue, the hearing was adjourned for further consideration by the parties. 41 The hearing recommenced on 21 January 2010 with a further joint report prepared by Ms Allen, Mr Day and Senior Constable Jewell and additional evidence from experts in the area of building regulation and fire safety by Mr Stephen Grubits for the applicant and Mr Allan Harriman for the council. They addressed a further proposal to provide two separate emergency evacuation routes. First, a grassed area on the southwest corner of Donnelly Road and Brook Street is to be used as one of the evacuation safety points and is to replace Assembly Point 1in the original Evacuation Plan. The ownership of a grassed area would need to be clarified and the use of the area would also is be subject to the maintenance by the operator of childcare centre. The evacuation from this area would proceed in a southerly direction along Brook Street under the Warringah Freeway overpass. Second, an egress path is to be developed to the rear of the property through the creation of a Rights of Footway over adjoining properties to provide access to Merrenburn Avenue. 42 There was agreement by all experts that the two emergency evacuation routes provided a satisfactory solution to the emergency evacuation and that some of the proposed features of the building, as such as the fire rated safe haven, could be reconsidered on the basis of the proposed evacuation routes. 43 At the reconvened hearing, Mr Staunton, for the applicant, submitted that while the two emergency evacuation routes addressed the outstanding issue, it was not the applicants preferred position. He submitted that the applicants preferred position was not to create Rights of Footway over adjoining properties to provide access to Merrenburn Avenue but to rely on the grassed area as the evacuation safety point and then evacuate the children along Brook Street under the Warringah Freeway. If the ownership of this area could not be clarified then an alternate assembly area on Brook Street could be used. He acknowledged that reliance on this route would require pedestrian safety fencing along Brook Street under the Warringah Freeway. 44 As the experts did not address this option in their joint report, a further report was prepared during the hearing, addressing the requirements in cl G.10 of the DCP. 45 Clause G.10 of the DCP states: An Emergency Evacuation Plan must be submitted with Development Applications for all childcare centres. This Plan should consider: a. The mobility of children and how this is to be accommodated during an evacuation (including the use of emergency evacuation cots where appropriate); b. The location of a safe congregation area, away from the evacuated building, busy roads, other hazards and the evacuation points of other residents or tenants within the building or surrounding buildings; c. Where are the childcare centre is part of a larger building or complex, that the Emergency Evacuation Plan is complimentary and consistent with other emergency evacuation plans in place; and d. The supervision of children during the evacuation and at the safe congregation area with regard to the capacity of the childcare centre and the child to staff ratios. 46 The experts agreed that an alternate assembly area on Brook Street and through the fenced Warringah Freeway underpass is an acceptable alternate area should the grassed area not be available because of the uncertainty of its ownership.

47 The applicant's experts also agreed that there was compliance with the Emergency Evacuation Plan requirements in cl G. 10 should the assembly area be only the grassed area or Brook Street. 48 The council's experts also agreed that there was compliance with the Emergency Evacuation Plan requirements in cl G. 10 but with the exception of that part of b. in cl G. 10 that refers to "other hazards". Senior Constable Jewell states that given the unusual configuration of Donnelly Street there are potentially "other hazards" that may impact on the use of Donnelly Street for evacuation purposes. He describes potential "other hazards" as being the actual emergency vehicles parked in Donnelly Street that would be dealing with the threat to the childcare centre. He also states that the threat may also be located in Donnelly Street. As Donnelly Street allows only evacuation in a easterly direction because it is cut by the Warringah Freeway to the west, is relatively short, has tall acoustic walls at its non accessible end; Senior Constable Jewell does not accept that an evacuation route that relies on young children crossing Donnelly Street is appropriate. Ms Allen and Mr Harriman held similar views.

49 Mr Day stated that the time for a fire engine to reach the site from the Crows Nest Fire Station was in the order of 5 to 8 minutes. In his experience, and considering the necessary training for staff and the procedures in the Emergency Evacuation Plan, he would envisaged that most toddlers would have been evacuated from the premises within 5 minutes. The remaining children would likely to be within evacuation cots and emergency personnel could assist their evacuation. Mr Grubits agrees with Mr Day and states that in his experience most evacuations occur before emergency personnel arrive. It was not normal to have two evacuation routes and in this case, he did not consider the hazards to be that significant to warrant such a requirement particularly considering Donnelly Street was not a through traffic street and did not have a large number of lanes to cross.

50 On this contention, I support the approach adopted by the council's experts on the unsuitability of Donnelly Street for the sole evacuation route. I am mindful that the evacuation of young children in an emergency situation requires a greater degree of caution than situation where the evacuees are more likely to be adults therefore requiring less supervision. 51 I accept that the council's experts argument that Donnelly Street is unacceptable because of its configuration. While the street has no through traffic, it only has one option for evacuation directly to the east when leaving the site. The historical cutting of Donnelly Street by the Warringah Freeway has created a situation where there is no practical access around the end of Donnelly Street because of the freeway acoustic wall and lack of a footpath. 52 The short length and relatively narrow width of a 7.5 m of Donnelly Street also limits the area for the parking of emergency vehicles in the event that they are required to attend the site. The need to traverse Donnelly Street to link with the evacuation route under the Warringah Freeway is problematic and potentially unsafe given the age of the children at the centre, the need to use this area for the movement of evacuation cots and the potential conflict between evacuees and the parking of emergency vehicles and associated equipment. Even if Mr Day is correct in stating that most evacuation would take place within the first five minutes, it still leaves a number of the children, including those in the evacuation cots, to be evacuated. Even though emergency personnel may be available to assist in the evacuation of the site, I agree with Senior Constable Jewell that this is a contingency that should not be relied upon for the safe and efficient evacuation of children from the site. Conditions of consent 53 The applicant provided separate sets of conditions for their preferred evacuation route (that is, the sole route via the underpass to the Warringah Expressway) and the alternate dual evacuation route of the council. Having accepted the council's version of the evacuation route, there are still a number of differences between the applicant and the council on the conditions relating to the chosen evacuation route. The differences relate principally to whether a number of requirements should be deferred commencement conditions or operational conditions although the applicant had accepted that there should be deferred commencement conditions relating to: an agreement by the affected property owners of the Right of Footway to provide the evacuation route to Merrenburn Avenue, and certification that the design of the path for the Right of Footway to provide the evacuation route to Merrenburn Avenue will have a suitable gradient and surface for the movement of the proposed evacuation cots. 54 The main areas of disagreement are: whether the time to satisfy the deferred commencement conditions should be 6 months (the council) or 24 months (the applicant). in the event that the construction of the pedestrian safety barrier is required, whether the requirement should be a deferred commencement condition (the council) or operational condition that requires all approvals to be obtained prior to the issue of a construction certificate (the applicant), whether the amendment of the Emergency Evacuation Plan to reflect the chosen evacuation route should be a deferred commencement condition (the council) or operational condition that requires amendment prior to the issue of a construction certificate (the applicant), whether the management, maintenance and use of the easement for emergency purposes should be a deferred commencement condition (the council) or operational condition that requires approval of the certifier to be obtained prior to the issue of a construction certificate (the applicant), and whether the registration of the easements for the evacuation route should be a deferred commencement condition (the council) or operational condition that requires registration to be obtained prior to the issue of a construction certificate (the applicant).

55 In considering the different form of the conditions, I am satisfied that the applicants deferred commencement conditions are appropriate for establishing that the Right of Footway can be established through an agreement with the relevant registered proprietors and that the path satisfies the relevant gradient and surface for evacuation route. The remaining matters identified by the council has deferred commencement conditions are, in my view, appropriate addressed as operational conditions given the need to satisfy these requirements prior to the issue of an occupation certificate or construction certificate. 56 Also, given the likely time taken to negotiate the Right of Footway over the adjoining properties, I accept the applicant's time of 24 months to satisfy the deferred commencement condition as the appropriate time, in this case. Minor amendments were made to other conditions to provide consistency with the amended conditions.

Orders 57 The orders of the Court are: 1. The appeal is upheld. 2. Development Application 2009/170 for the demolition of an existing dwelling and the construction of a 72 place childcare centre at 5 and 7 Donnelly Road, Naremburn is approved subject to the conditions in Annexure 1. 3. The exhibits are returned with the exception of the exhibits A and R.

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