Nada v Hurstville City Council

Land and Environment Court (NSW)|2015-07-28

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2014/0928 for the demolition of existing structures and the construction of a childcare centre for 37 children and 7 staff, with 8 car parking spaces (the proposal), at 45 Ogilvy Street, Peakhurst (the site), by Hurstville City Council (the Council).
The appeal was subject to mandatory conciliation on 19 February, 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 24 March, 2015, pursuant to s 34(4) of the LEC Act.

The site and its context

The site has an area of 919.7sqm, with a street frontage of 20.115m to Ogilvy Street. The site falls gently away from the street to the western boundary. The site contains a single storey dwelling and out buildings.
Peakhurst West Public School is located on the opposite side of Ogilvy Street.
Henry Lawson Drive is to the north of the site and there are a group of small to medium scaled neighbourhood shops at the corner of Ogilvy Street and Henry Lawson Drive.
Adjoining the site, to the north, is a two storey duplex.
Adjoining the site, to the rear on a battle-axe block, is 44A Ogilvy Street, with an access handle on the southern side of the site and containing a single storey dwelling with a private open space area directly adjacent to the rear of the site.

Background and the proposal

Leave was granted by the Court for the applicant to rely on an amended proposal (exhibit J), at the commencement of the hearing, on the basis agreed by the parties pursuant to s 97B of the EPA Act. Further minor amendments were made to the proposal during the hearing in response to the evidence of the acoustic and planning experts and a further amended proposal was then tendered (exhibit N). The amendments made to the proposal, described by the architect in evidence and shown on the exhibit N drawings, are as follows:

The proposal is reduced from 40 children to 37 children;
A 150mm kerb is added to the parking bays in the front setback of the proposal and child safety gate is added at the entry;
A 4m high and 10.8m long acoustic screen constructed from 10mm polycarbonate sheets is added 900mm from the northern, side boundary, within the outdoor play area. The top 1m of the screen is angled 45 degrees inward (section CC, exhibit N);
The boundary fence enclosing the outdoor play area is raised to 2.4m high and the side boundary fence in the front setback is reduced to 900mm high; and
Internal minor amendments including changes to the layout and addition of storage areas and internal windows and minor external amendments.

The proposal is for a single storey, contemporary style, child care centre consisting of three internal play areas and associated facilities, staff area and facilities, a kitchen and outdoor play area. The proposal includes 8 car parking spaces within the front setback. The proposal includes the following numbers of children in each age group:

12 children aged 0 to 2;
14 children aged 2 to 3; and
11 children aged 3 to 6.

Planning framework

The site is zoned R2 Low Density Residential and the proposal is permissible with consent. The relevant objectives of the R2 zone are as follows: • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that a high level of residential amenity is achieved and maintained. • To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment.
The definition of child care centre in LEP 2012 is as follows: child care centre means a building or place used for the supervision and care of children that: (a) provides long day care, pre-school care, occasional child care or out-of-school-hours care, and (b) does not provide overnight accommodation for children other than those related to the owner or operator of the centre, but does not include: (c) a building or place used for home-based child care, or (d) an out-of-home care service provided by an agency or organisation accredited by the Children's Guardian, or (e) a baby-sitting, playgroup or child-minding service that is organised informally by the parents of the children concerned, or (f) a service provided for fewer than 5 children (disregarding any children who are related to the person providing the service) at the premises at which at least one of the children resides, being a service that is not advertised, or (g) a regular child-minding service that is provided in connection with a recreational or commercial facility (such as a gymnasium), by or on behalf of the person conducting the facility, to care for children while the children's parents are using the facility, or (h) a service that is concerned primarily with the provision of: (i) lessons or coaching in, or providing for participation in, a cultural, recreational, religious or sporting activity, or (ii) private tutoring, or (i) a school, or (j) a service provided at exempt premises (within the meaning of Chapter 12 of the Children and Young Persons (Care and Protection) Act 1998), such as hospitals, but only if the service is established, registered or licensed as part of the institution operating on those premises.
The Hurstville LGA Wide Development Control Plan No. 1 (DCP No. 1) applies to the site at 1.3 of DCP No. 1. The aims of DCP No. 1 are as follows: The aim of this DCP is to encourage and co-ordinate the orderly and economic use and development of land to cater for a variety of residential, retail, commercial and service needs of the Hurstville community while protecting and enhancing amenity, cultural heritage and ecological sustainability within the Hurstville LGA. This DCP was created to support and supplement the Hurstville LEP 2012 by providing objectives and guidelines for development which encourage design that responds positively to the environment and the context of the locality and generates high quality urban design outcomes. Specific aims are contained within each Section of the DCP relevant to each development type, application process, site and locality.
DCP No. 1 includes, at 3.7 'Drainage and On-Site Detention (OSD) Requirements', a referral to the Council's Drainage and OSD policy in Appendix 2. Appendix 2 includes drainage requirements, OSD requirements and design criteria. The relevant drainage requirements include the following:

All drainage to be designed for a 1:20 storm frequency;
Minimum grade to all pipes: 1%;
The last grated pit before entering a Council pipeline or kerb and gutter must have 150mm sump and galvanised mesh permanently fixed over the outlet pipes;
Two or three x 100mm PVC pipes from the last grated pit where connecting kerb and gutter;
Minimum cover over pipes: 150mm.

When OSD is required, 5.4.11.3 of DCP No. 1 requires exposed drains to be suitably covered to ensure that children cannot gain access to the drain.
DCP No. 1 includes, at 5.4, requirements for child care centres, including at 5.4.8 that a maximum of 40 children are to be accommodated in a child care centre located within the R2 Low Density zone. The minimum number of places for children in the under 2 year old age group is to be the same as the percentage of under 2 year olds in the 0-5 year old population as measured at the most recent census (35% at the 2011 census).
DCP No. 1 includes at 5.4.9, 'Building Form and Appearance', the objective of 'ensure no bright colours on building finishes'. Further, at 5.4.9.6, DCP No. 1 includes the following: No bright colours are permitted on building finishes. A schedule of colours and materials is to be submitted with the development application for a child care centre and if acceptable this will form part of the development consent.
DCP No. 1 includes, at 5.4.9.3 'Relationships to Adjoining Properties', that particular consideration must be given to the location of active outdoor play areas; classrooms and indoor plan areas; windows and doors, particularly those associated with indoor play areas; verandahs; points of entry; pick-up and drop-off points; and any plant equipment which may be required within the context of the centre.
DCP No. 1 includes, at 5.4.10.1, that 1 parking space for every 2 staff members on site be provided and for proposals without a drive-through, 1 space per 10 children to be used for a maximum of 15 minutes. Parking at a rate of 1 space for every staff member is encouraged and where the objectives for 'Access and Parking' are not compromised.
DCP No. 1 includes the following relevant objectives for landscaping: Attractive landscaped areas providing visual links to nearby open space areas. Landscaped areas which provides innovative play opportunities, is harmless to children and attracts native animals and birds. Well defined play areas and functions within the playground. Planting which provides natural shade and a high level of interest in terms of branch and trunk formation. Landscaped areas which enhances the visual quality of the site, the street presentation of the property and visual attractiveness of the playground area and screening to adjoining properties.
DCP No. 1 includes, at 5.4.12.1, the following regarding indoor spatial requirements: (b) DOCS require Indoor Space (unencumbered indoor floor space) to be provided at a minimum rate of 3.25m2 for every child licensed to be at the centre. In addition, Council has set the following rates: 15 or more children = 3.5m2 per child 12-14 children = 4m2 per child 6-11 children = 4.5m2 per child (c) For the purpose of calculating unencumbered indoor floor space, items such as any passage-way or thoroughfare, door swing areas, kitchen, cot rooms, toilet or shower areas located in the building or any other facility such as cupboards, are to be excluded.
DCP No. 1 includes at 5.4.13.2(c) that an outdoor staff facility should be provided and may include a small sitting area or deck separate from the playground area.

Public submissions

A number of resident objectors provided evidence on site at the commencement of the conciliation conference on 19 February, 2015 and the Court, in the company of the parties and their experts, viewed the site from the private open space of the battle-axe property to the rear of the site at 44A Ogilvy Street. There were 71 submissions and a petition objecting to the proposal submitted to Council. The objections to the proposal can be summarised as follows:

The proposal will further exacerbate the traffic in Ogilvy Street associated with the primary school;
The proposal will further exacerbate the lack of on-street parking in Ogilvy Street, particularly at school drop off and pick up times;
Cars will be required to reverse out of the site and this is dangerous;
The proposal will have an unacceptable acoustic impact on the adjoining neighbours;
The proposed style and colour scheme does not blend appropriately with the residential character of the streetscape; and
Concern regarding egress of the building in the event of a fire.

Re-notification of the amended proposal

At 2.2.3.3(c) of DCP No. 1, amendments to an undetermined application which are of a lesser impact to adjoining properties that what was initially proposed, need not be publicly notified.
The amended proposal (exhibit N) includes measures to ameliorate the acoustic impact of the proposal on adjoining properties, including a 4m high and 10.8m long screen positioned 900mm from the northern boundary and 2.4m high boundary fencing around the outdoor play area. These elements of the amended proposal were not part of the original application and were included following the joint conferencing of the acoustic engineers and their agreement that raising the perimeter fence and including an acoustic screen would satisfactorily ameliorate the acoustic impact of the proposal on adjoining properties. While the introduction of these elements deals with the acoustic impact of the proposal, the physical presence of these elements cannot be described as being of a lesser visual impact when viewed from adjoining properties, when compared to what was initially proposed. For this reason, I accepted the Council's submission that the proposal should be re-notified to provide the resident objectors with an opportunity to consider the amended proposal (exhibit N). The hearing was adjourned until 6 July, 2015 to allow for the re-notification period.
On 6 July, 2015, the Council tendered a bundle containing objections (exhibit 12) submitted following the re-notification of the proposal. The objections raised in relation to the amendments made to the proposal can be summarised as follows:

The amended proposal will still result in an unacceptable acoustic impact on adjoining neighbours;
The size of the acoustic screen will result in a loss of southerly breeze to the northern neighbour at 43A Ogilvy Street and will create a 'boxed in feeling';
The height of the boundary fences is not consistent with fences in the neighbourhood;
The location of the garbage bins in the front setback will smell and attract vermin.

Expert evidence

Mr Ian Glendinning (planning), Mr Craig McLaren (traffic), Mr Soliman Hanna (stormwater) and Mr William Wang (acoustic) provided expert evidence on behalf of the applicant.
Mr Warwick Gosling (planning), Mr Terry Winning (traffic), Mr Mick Ward (stormwater) and Mr Thomas Taylor (acoustic) provided expert evidence on behalf of the Council.

Whether the proposal will have an adverse impact on the existing streetscape due to the form and appearance of the building

The planning experts disagreed on whether the proposal will have an adverse impact on the existing streetscape due to the form and appearance of the building (exhibit 3, p 2).
The childcare centre has been designed in a contemporary, playful architectural style, with metal clad skillion roofs separated by a row of clearstory windows facing north, positioned along the centre of the building and concealed behind a parapet wall to the street elevation. The street elevation consists of an irregular quadrilateral clad in compressed fibre cement painted a dark crimson red and a cement rendered wall painted in white and projecting forward, decorated with coloured triangles. The design includes aluminium framed windows and glass blocks. The side and rear elevations are predominately rendered masonry painted white. The form of the proposal is single storey, with a L shaped layout around a rear northern courtyard, 900mm side setbacks and a front setback similar to the surrounding residential development.
According to Mr Glendinning, the proposal 'is of a domestic scale', 'observes traditional setbacks' and 'has been designed to reflect its use as childcare centre' and is therefore 'not out of keeping with the streetscape'.
According to Mr Gosling, the façade of the proposal is out of character with the surrounding residential properties, as it 'has a very low percentage of glazing compared to masonry finishes', 'the character of Ogilvy Street is one of predominately single storey dwelling houses with pitched roofs with roof tiles', 'new development in the form of new dwellings and dual occupancy development are constructed with pitched roof forms' and 'the cement rendered finish with decorative cement pattern work is not consistent with the local shopping centre located to the north'.
I prefer and accept Mr Glendenning's evidence regarding the design and appearance of the proposal. It is, in my view, unnecessary and undesirable for a childcare centre to be camouflaged as a bland dwelling simply because it is within a residential area. As a permissible use within the R2 Low Density Residential zone, a childcare centre is anticipated as a building typology within the residential zone and it should be distinguished as such and easily identifiable. As a single storey, domestic scaled building, I am satisfied that the proposal is suitably decorous and appropriate in its context.
According to Mr Gosling the proposed colour scheme (exhibits L and O) is inconsistent with DCP No. 1 control 5.4.9.6 which does not permit bright colours to building finishes. The planning experts agreed that if the proposed colour scheme is unacceptable, the colour scheme can be amended and Mr Glendinning suggested livery or blonde colours and neutral tones (exhibit P).
DCP No. 1 does not define the 'bright colours' it seeks to avoid. The on-line Macquarie Dictionary's definition of 'bright' is, 'adjective 1. radiating or reflecting light; luminous; shining 3. vivid or brilliant, as colour'.
The proposed colour scheme, as shown in the coloured street elevations (exhibit L) and the Dulux colour cards (exhibit O), consists of a deep crimson red (Dulux Red Box) for the predominant portion of the front façade, with the remainder of the street façade to the north in white (Dulux Natural White). I am satisfied that Dulux Red Box is not a 'bright colour', as it will absorb rather than reflect light and it is not luminous, vivid or brilliant. The applicant submits that the colours will be applied in a matte or low sheen (non-reflective) finish, which is consistent with condition 11 of exhibit 11, requiring low reflectivity materials and finishes to be used.
There are four different sized decorative triangles with bands of orange, yellow and green, overlayed on the white portion of the front elevation and around the low window in the front facade. The colours of the decorative triangles, particularly the lime green and oranges (Dulux Melissa, Sunshine Surprise and Encounter) could be described as bright or vivid colours, however they are applied to a relatively small banded area as a feature and not to a large expanse of wall. The decorative triangles are clearly a playful appliqué, included to denote the building as a child's place and as such, these highlight colours are appropriate in the circumstances.
For these reasons, I am satisfied that the colour scheme proposed is appropriate and consistent with the requirements of DCP No. 1.

Whether the proposal should provide 13 places instead of 12 for children 0-2 years

DCP No. 1 provides that the minimum number of places for children in the under 2 year old age group is to be the same as the percentage of under 2 year olds in the 0-5 year old population as measured at the most recent census. The Council submits that the 2011 census is the most recent and there were 35% under 2 year olds in the 0-5 year old population at that time. 35% of 37 is 12.95.
The proposal provides 12 of the total of 37 places for children 0-2 years, which represents 32.4% of the total number of places. If the number of 0-2 year olds is increased to 13, the proposal would not comply with the required staff ratios and the internal space requirements and would require an additional cot, pursuant to control 5.4.13.3(1)(a) of DCP No. 1. The cot room in the 0-2 year old area has 6 cots for the 12 places. The cot room is already one cot in excess of the maximum 5 cots per room and another cot would necessitate an additional cot room.
On balance, considering the difficulties of the flow on spatial and layout implications of an additional place for a 0-2 year old, in lieu of a place for an older child; and considering that the 35% of 0-2 year olds in the 0-5 year old population in 2011 are now 4-6 year olds and the proportion of 0-2 year olds in the 0-5 year old age group in the Hurstville area may no longer be 35%; I am satisfied that the 12 places for 0-2 year olds proposed represents an adequate proportion of the total places offered and that it broadly reflects the proportion of each age group in the area, as required by DCP No. 1.

Whether the proposal should provide a car parking space for each staff person

Following the amendments made to the proposal in exhibit N; including the reduction in the number of children, the raised kerb around the parking bays, the provision of a child safety gate at the entry to the childcare centre and the reduction in height of the side boundary fences in the front setback; the traffic experts agreed that the proposal is acceptable.
The traffic experts agreed that the parking spaces on the northern side of the front setback are to be used exclusively by staff. The traffic experts agreed that the parking spaces on the southern side of the front setback are to be sign posted with maximum 15 minutes duration of stay.
The planning experts agreed that by amending the total number of children to 37, the car parking provision complies with DCP No. 1 (exhibit 3, p 3).
I accept the agreement of the experts that the proposal is acceptable in terms of the design and the provision of parking and the impact of the traffic generated by the proposal.

Whether the stormwater disposal proposed is unacceptable because it does not drain by gravity

Mr Hanna's concept stormwater drainage proposal for the site proposes a charged stormwater system for roof runoff to Ogilvy Street (exhibit D). According to Mr Hanna, the impervious surface of the carpark in the front setback will be raised so as to fall to the street and water will be shed to the gutter in Ogilvy Street. The outdoor play area to the rear of the building, which is to be finished in a 'softfall rubber surface' will, according to Mr Hanna, absorb water and disperse that water to the soil under. Mr Hanna says that a pit can be incorporated in the rear garden for drainage as an alternative.
Mr Ward and Mr Hanna fundamentally disagreed on whether a charged stormwater system to Ogilvy Street is acceptable. According to Mr Ward, as the site falls to the rear boundary, the only option acceptable to the Council is for the site is to be gravity drained to Johnstone Street via easements burdening 44A Ogilvy Street to the rear of the site and 44 Johnstone Street to the rear of 44A Ogilvy Street, because draining the site to Ogilvy Street diverts the stormwater into an alternative, adjoining sub-catchment. According to Mr Hanna, both Ogilvy Street and Johnstone Street sub-catchments discharge to the same destination which is Salt Pan Creek-Georges River, however, Mr Ward disagrees that the two sub-catchments drain to the same destination.
The Council proposes a deferred commencement condition (Schedule 1 of exhibit 11) requiring the registration of a stormwater easement 1m wide for a gravity fed stormwater drainage system to Council's infrastructure in Johnstone Street, within 24 months of the granting of consent. The applicant opposes the deferred condition of consent requiring evidence of the registration of a drainage easement and submits that if I am minded to grant the consent and accept Council's position regarding the necessity of a drainage easement, that I hand down findings accordingly so that the applicant may make an application to the Court for an order imposing an easement over land pursuant to s 40 of the LEC Act.
The applicant opposes the Council's version of condition 23 (exhibit 11), regarding the stormwater system and proposes an alternative condition 23 (exhibit T). The alternative versions are as follows: Council's version (exhibit 11): 23. CC3001 - Development Engineering - Stormwater System Ref no Date Description Revision Prepared by 14-056 8 May 14 Concept Stormwater and Water Management Layout and Details A Soliman Hanna and Associates

The above submitted stormwater plan has been assessed as a concept plan only and no detailed assessment of the design has been undertaken. All stormwater shall drain by gravity to the easement to drain water in accordance with the Australian/New Zealand Standard AS/NZS 3500.3: 2003 (as amended). Design details and certification shall be submitted for approval with the Construction Certificate application. Applicant's version (exhibit T): 23. CC3001 - Development Engineering - Stormwater System Ref no Date Description Revision Prepared by 14-056 8 May 14 Concept Stormwater and Water Management Layout and Details A Soliman Hanna and Associates

The above submitted stormwater plan has been assessed as a concept plan only and no detailed assessment of the design has been undertaken. An on-site detention (OSD) facility designed by a professional hydrological/hydraulic engineer shall be installed. The design must include the computations of the inlet and outlet hydrographs and stage/storage relationships for the proposed OSD using the following deign parameters. (a) Peak flow rates from the site are to be restricted to a permissible site discharge (PSD) equivalent to the discharge when assuming the site contained a single dwelling, garage, lawn and garden, at Annual Recurrence Intervals of 2 years and 100 years. Refer to Flow Controls in Council's Draft/Adopted Stormwater Drainage Policy. (b) The OSD facility shall be designed to meet all legislated safety requirements and childproof safety fencing around the facility must be provided where the OSD facility is open or above ground when the design peak storage depth is greater than 300mm. A durable metal plate or similar sigh is to be placed at the OSD facility and must bear the words: 'This is an on-site detention basin/tank and is subject to possible surface overflow during heavy storms'. Full details shall accompany the application for the Construction Certificate. Design details and certification shall be submitted for approval with the Construction Certificate application.

The Council also proposes condition 25 in regard to the stormwater proposal and this is not opposed by the applicant: 25. CC3004 - Development Engineering - Stormwater Drainage Plans Ref no Date Description Revision Prepared by 14-056 8 May 14 Concept Stormwater and Water Management Layout and Details A Soliman Hanna and Associates

The above submitted stormwater plan has been assessed as a concept plan only and no detailed assessment of the design has been undertaken. Stormwater drainage plans including pipe sizes, type, grade, length, invert levels, dimensions and types of drainage pits prepared by a qualified practising hydraulics engineer (with details of qualifications being provided) in accordance with the Australian Institute of Engineers Australian Rainfall and Runoff (1987) and Council's Stormwater Drainage Guidelines, shall accompany the application for the Construction Certificate.

The Council responded to the applicant's version of condition 23 with an alternative deferred commencement condition and a new condition 26, filed by eCourt on 8 July 2015, at the request of the Court. The Council's alternative deferred commencement condition requires the person with the benefit of the consent to extend Council's drainage system from the gully pit located in front of 63 Ogilvy Street for approximately 180m, to terminate with a gully pit fully contained within the street frontage of 45 Ogilvy Street and to obtain approval for this extension. Accordingly, condition 23 is reworded as follows: CC3001 - Development Engineering - Stormwater System Reference No. Date Description Revision Prepared by 14-056 8 May 14 Concept Stormwater Soil and Water Management Layout and Details A Soliman Hanna and Associates

The above submitted stormwater plan has been assessed as a concept plan only and no detailed assessment of the design has been undertaken. All stormwater shall drain by gravity to the upper level of Council's kerb inlet pit which is to be constructed directly in front of the development site. Council's drainage system is to be extended to this point with a 375mm (min,) diameter pipeline with all costs borne by the developer. The internal drainage system is to be designed in accordance with the Australian/New Zealand Standard AS/NZS 3500.3: 2003 (as amended). The design of this proposed drainage system must be prepared by a qualified practising hydraulics engineer (with details of qualifications being provided) and be submitted for approval with the Construction Certificate application.

The Council's proposed new condition 26 is as follows: 26. CC3005 Development Engineering -On Site Detention Reference No. Date Description Revision Prepared by 14-056 8/5/'14 Concept Stormwater Soil & Water Management Layout and Details A Soliman Hanna & Associates

The above submitted stormwater plan has been assessed as a concept plan only and no detailed assessment of the design has been undertaken. An on-site detention (OSD) facility designed by a professional hydrological/hydraulic engineer, shall be installed. The design must include the computations of the inlet and outlet hydrographs and stage/storage relationships of the proposed OSD using the following design parameters: (a) Peak flow rates from the site are to be restricted to a permissible site discharge (PSD) equivalent to the discharge when assuming the site contained a single dwelling, garage, lawn and garden, at Annual Recurrence Intervals of 2 years and 100 years. Refer to Flow Controls in Council's Draft/Adopted Stormwater Drainage Policy. (b) The OSD facility shall be designed to meet all legislated safety requirements and childproof safety fencing around the facility must be provided where the OSD facility is open or above ground when the design peak storage depth is greater than 300mm. A durable metal plate or similar sign is to be placed at the OSD facility and must bear the words: "This is an on-site detention basin/tank and is subject to possible surface overflow during heavy storms." Full details shall accompany the application for the Construction Certificate.

Following the Council's response, the matter was listed in court and further evidence was provided by the stormwater experts regarding Council's alternative deferred commencement condition.
According to Mr Ward, the purpose of the Council's alternative deferred consent condition is to require the stormwater collected on the site to be drained southward along Ogilvy Street, instead of northward, as proposed by the application. The experts agreed during concurrent evidence that it is preferable for the stormwater from the site to be shed southward along Ogilvy Street, as proposed by Council's alternative deferred consent condition, instead of northward, as proposed by the applicant.
The experts agreed that 39 and 43 Ogilvy Street discharge to Ogilvy Street presumably via a charged system and 51, 53 and 57 Ogilvy Street discharge to Ogilvy Street via gravity, due to the local topography.
Following a request by the Court for evidence of any negotiations with the owners of properties to be burdened by a stormwater easement from the site, the applicant tendered an email from the owner of 44 Johnstone Street, dated 15 June 2015, stating that he would not willingly negotiate with the applicant to provide a stormwater easement across his property (exhibit R).
I prefer and accept Mr Ward's evidence regarding the necessity for a drainage easement for the proposal, to allow the roof and surface runoff to drain via gravity Johnstone Street, as the site falls away from Ogilvy Street and the existing overland flow drains to the Johnstone Street sub-catchment.
I found Mr Hanna's proposal and his evidence did not provide me with the confidence necessary to be certain that his stormwater drainage concept proposal is feasible. Efficient surface drainage is imperative for a childcare centre, as the safety of young children at the centre is paramount. The proposal substantially decreases the areas of deep soil when compared to the existing conditions on the site, which will result in an increase of surface water runoff, yet the charged system proposal dealt with only the roof runoff. I do not accept that it is satisfactory in all the circumstances to allow rainwater to pool and be absorbed by the softfall rubber surface in the outdoor play area. In the joint report of the experts (exhibit 9), they agreed at 4(ii) and (iii) that the soil is not suitable for an absorption/transpiration system (such as an OSD) due to the clay/rock strata, which suggests the rate of water absorption through the softfall rubber surface may not be rapid. The softfall rubber surface is not shown on Mr Hanna's stormwater plan (exhibit D) and instead it indicates the entire outdoor play area is lawn, suggesting that Mr Hanna did not turn his mind to any constraints associated with the softfall rubber surface at the time he prepared the stormwater drainage concept plan. I accept that the proposal may have been capable of being modified to add a pit to the outdoor play area for drainage, however I am not satisfied that the proposal for the drainage of the front setback is satisfactorily resolved either.
Mr Hanna's evidence that the rainwater falling on the proposed impervious surface of the carpark, which occupies the entire front setback except for a narrow strip of boundary planting, would be drained by raising the levels of the impervious surface adjacent to the new building so that the water is shed towards the Ogilvy Street gutter, is not possible with the levels shown on his own drawing (exhibit D). The FFL of the childcare centre is RL 34.20 and the footpath level at the proposed driveway is RL 34.22. The architectural drawing shows the ground level outside the entry as RL 34.10 (exhibit N, DA-386-A2 rev F). Given the constraints of these levels, it is impossible to provide a fall to the Ogilvy Street gutter, without raising the FFL of the childcare centre.
There are other minor inconsistencies in the concept stormwater drainage proposal (exhibit D) including note number 5, 'all balconies to have floor waste connected to downpipe', yet there are no balconies in the proposal.
The proposed charged system draining southward along Ogilvy Street, with a requirement to extend Council's drainage system from the gully pit located in front of 63 Ogilvy Street for approximately 180m, to terminate with a gully pit fully contained within the street frontage of 45 Ogilvy Street and to obtain approval for this extension, is not a preferable option to the Council's required drainage easement, because it has a number of significant constraints, including the local topography and the difficulty of obtaining sufficient falls for pipes under driveways of adjoining properties, which remain unresolved.
The onus is on the applicant to demonstrate to the Court that their concept drainage proposal complies with Council's stormwater drainage requirements or meets Council's objectives for stormwater drainage and is a feasible solution, even as a concept proposal. The applicant has not, in my view, adequately demonstrated that either the proposal in exhibit D or the option to drain stormwater collected on the site southward along Ogilvy Street are sufficiently workable solutions. Consequently, I accept Council's preferred option for a requirement that the applicant to obtain a stormwater easement 1m wide for a gravity fed stormwater drainage system to Council's infrastructure in Johnstone Street.
I accept the applicant's submission that in the circumstance that I find for the Council regarding the necessity of a drainage easement, they wish to make an application to the Court for an order imposing an easement over land, pursuant to s 40 of the LEC Act.
It is satisfactory for the stormwater drainage proposal to be designed and documented to Council's satisfaction prior to the issue of a Construction Certificate.

Findings

As a childcare centre is a permissible use within the R2 Low Density Residential zone, it is an anticipated building typology and it should be identifiable as a childcare centre. I am satisfied that the proposal, as a single storey, domestic scaled, contemporary styled building, painted in crimson red and white with decorative triangular motifs on the street elevation, is suitably decorous and appropriate in its context.
I am satisfied that the 12 places proposed for 0-2 year olds represents an adequate proportion of the total places offered and that it broadly reflects the proportion of each age group in the area.
I accept the agreement of the experts that the provision of 8 parking spaces complies with the requirements of the planning controls. I accept the agreement of the traffic experts that the proposal is acceptable both in terms of the design of the parking within the front setback and the generation of traffic in the area.
A Plan of Management for the operation of the childcare centre was tendered by the applicant (exhibit S). The conditions of consent (exhibit 11) include condition 29 requiring a Plan of Management to be provided to Council for their approval prior to the issue of a Construction Certificate. Any issues relating to the future management of the childcare centre will therefore be addressed, to Council's satisfaction, in a Plan of Management to be provided pursuant to condition 29.
I accept the agreement of the acoustic experts, that following the amendments made to the proposal in exhibit N and the conditions of consent (exhibit 11), coupled with appropriate management strategies to ensure that the noise level emitted from the outdoor play area shall not exceed the background noise level by more than 5 dB for more than 2 hours each day (to comply with the Association of Australian Acoustical Consultants 'Technical Guideline Child Care Centre Noise Assessment', as required by condition 52 at Annexure A), that the proposal is acceptable in terms of its acoustic impact on neighbouring properties.
I accept the evidence of Mr Glendinning that the form and size of the acoustic screen in the outdoor play area is equivalent to the built form of a single storey structure positioned 900mm from the boundary and for this reason, the addition of the acoustic screen is acceptable in terms of its visual impact when viewed from the adjoining dwelling and backyard to the north. I am satisfied that the benefit of the acoustic screen in ameliorating the acoustic impact of the outdoor play area on the adjoining dwelling outweighs its detrimental visual impact when viewed from the adjoining property.
I accept Council's preferred option that the applicant be required to obtain a stormwater easement 1m wide for a gravity fed stormwater drainage system to Council's infrastructure in Johnstone Street.

Conclusion

For the reasons provided in the judgment, I am satisfied that the proposal can be granted consent.

Directions

The applicant is to make an application to the Court for an order imposing an easement over land pursuant to s 40 of the LEC Act, no later than 25 August 2015.
The respondent is to file the conditions of consent in exhibit 11, amended to delete the deferred condition of consent in schedule 1 and to delete conditions 23 and 25 and replace condition 23 with the following: 23. CC3001 - Development Engineering - Stormwater System The design of the proposed drainage system must be prepared by a qualified practising hydraulics engineer (with details of qualifications being provided) and be submitted to Hurstville Council for their approval and evidence of their approval is to be provided to the certifier prior to the issue of the Construction Certificate. All stormwater shall drain by gravity to the easement to drain water in accordance with the Australian/New Zealand Standard AS/NZS 3500.3: 2003 (as amended).
Liberty to restore on 2 days' notice. Orders will be made in chambers. ____________ Susan O'Neill Commissioner of the Court

Amendments 10 November 2017 - Restricted in error 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: 10 November 2017

At a glance

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Judgment (21 paragraphs)

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Cited By (1)