SAAB Holdings Pty Limited v Holroyd City Council

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING: 10/09/2008 and 11/09/2008

APPLICANT Mr P. Clay, barrister Instructed by Macquarie Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Ms K. Gerathy, solicitor of HWL Ebsworth Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10046 of 2008 SAAB Holdings Pty Limited v Holroyd City Council This determination was given extemporaneously and it has been edited prior to publication

JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Holroyd Council's refusal of a development application for a forty-five place childcare centre.

2 By way of background, the matter commenced on site as a s 34 conciliation conference and a further meeting occurred where the issues together with refinements and amendments to the plans were the matters of consideration. On the second occasion of the s 34 conciliation it was clear that there was no agreement between the parties and the parties consented to the Court adjudicating the matter under s 34(4)(b)(ii) of the Land and Environment Court Act. This judgment is under s 34(5) of the Court Act.

3 I continued hearing the matter formally in court yesterday and I had the benefit of expert evidence from Mr Craig Hazell, a traffic consultant for the applicant, Mr Paul Anzellotti, a senior development assessment planner with Holroyd Council, and Mr Harding, a consultant town planner on behalf of he applicant.

4 The subject site is at 31 Davies Street, Merrylands, and it is some 865 sq m with a 15 metre frontage to Davies Street and a similar frontage, 15.6 metres to Harcus Street. On the opposite side of Harcus Street behind the subject site there is a large public open space area known as Lawson Square Park and this contains children's playground equipment. 5 The area can generally be described as a low density residential area of older style dwellings, although there is evidence of some more recent two storey development and a new dual occupancy development at number 35. There is also approval for an attached dual occupancy in the form of semi-detached dwellings on the adjoining site at No. 33 where currently there is a single storey cottage. On the northern boundary of the subject site, No. 29, there is a single storey brick dwelling with a large outbuilding/garage at the rear.

6 The only significant vegetation on the site is a eucalypt which is significant in terms of the character of the area. The area as I stated has the benefit or advantage of the large park which has a number of large trees. I note that generally the residential area does not present as a vegetated environment and the eucalypt in the rear of the subject property is important in terms of providing a canopy tree within the residential area.

7 As is not uncommon with many proceedings in this court, during the course of the hearing there have been amendments and refinements as a result of the experts discussions with various issues being refined.

8 On the first occasion when the court met on site I heard from a number of resident objectors. These include the adjoining property owner at 29 Davies Street is concerned about carparking and the pick up and drop off of children in the area and the increased noise from the facility being located next door. Concern was expressed about being exposed to the noise and the windows that are on the adjoining boundary at number 31. The other objectors that gave evidence resided at Nos 35 and 16 Davies Street, and they are also concerned about noise and traffic in what is now a quiet residential area and that childcare facility would devalue their property. From the residents at 27 Davies Street there was also concern expressed about noise and the unsavoury activities that occur in the rear laneway which are not compatible with the operation of a childcare centre. The owner of 25 Davies Street, expressed concern about safety and basement excavation in terms of the tree from 41 Davies Street, concern was expressed by the owner about parking in the street and the overflow from the childcare centre of staff parking in the street all day. For No. 14, concern was expressed that this is currently a quiet street and the proposed development would be too noisy and parking is inadequate for the facility. For the adjoining proper owner the Court also heard from the son as well as the owner who expressed concern about the stress that would be related to the noisy activity of a childcare centre next door and the impacts on health and the major issue of the laneway was also expressed. For 13 Desmond Street on the corner, once again noise and parking were expressed as a concern. 9 The Court has considered the concerns of the objectors and I have carefully considered the concerns of those residents and the Court appreciates the need to safeguard and maintain residential amenity.

10 Childcare facilities are a permissible use in the zone and the role of the court is to assess whether a proposed development would unreasonably impact on the residential amenity of the area. It is important that childcare facilities are not only designed appropriately but they are then operated and managed in such a way as to harmoniously co-exist to maintain the residential amenity of an area. That is not to say that from time to time children will not be heard playing but generally residential amenity should be maintained with ongoing management. 11 At this point I will say given this is a verbal judgment that based on all the evidence to the Court including that of the experts and the site inspection and hearing the evidence of the objectors and having regard to the planning regime or statutory planning framework under which I must consider the application I have decided that the proposed development is satisfactory. Having said this I will proceed to give detailed reasons as to why I consider it appropriate and provide the planning framework in which I must consider the application.

12 The council provided amended contentions following the s 34 conciliation conference that relate to overshadowing of recently approved dual occupancy on the adjoining land to the south at No 31. Council is of the opinion that the proposed development will impact on the northern windows of the living and dining area of this approved development.

13 The other issues that the council raised is to the impact on the character of the area and the adjoining properties with a 3 metre high acoustic barrier required to certain portions of the side boundary fences at the rear of the property. On the southern boundary this is some 15.5 metres extending from the back boundary and on the northern boundary adjoining No 29 some 14 metres. The council is of the view that the acoustic fences are uncharacteristic of the residential area and would be inappropriate and incompatible with the scale of development and the uses of a residential area.

14 The other issues that the council raised related to signage and the amount of landscaping and amount of play area per child, traffic and parking and the acoustic impact.

15 The Court also has the benefit of the acoustic consultants in the proceedings. That is Mr Atkins on behalf of the respondent and Mr Koikas on behalf of the applicant. The experts generally agreed that the background noise of the general neighbourhood is some 36 dBA. The noise criterion to be achieved is therefore 41 dBA, that is five above the background noise.

16 The experts agreed that on the basis of twenty-three children playing outside that the noise levels could be contained to the appropriate standard with a 3 metre high acoustic fence, that is a 1.8 metres solid base and a 1.2 metre glass polycarbonate upper transparent fence on top. The analysis was also done on the basis of the number of children that would be playing outside in various activities, such as playground equipment, sand pit and other areas, and the use of what is known as the courtyard area at the rear of the childcare centre for the zero to two year olds.

17 The experts agreed that there would be a need for management of the children's activities and also agreed that there would be a need for follow-up monitoring once the centre is operational. That is a post operation monitoring of the noise and noise testing regime imposed as a condition of consent to ensure that the childcare centre operates within the noise standard requirement.

18 l also note in the conditions of consent that there is an overarching condition that 5 dBA above background is not be exceeded, Condition 121 reads, "The operation of all plant and equipment shall not give rise to continuous sound pressure noise to any residential property greater than 5 dBA". I note that Condition 21 needs to be amended as whilst the noise experts have said that the centre can operate with 23 children playing outside at any one time, it is also important that there be a general noise condition that there not be an exceedence of 5dBA above background.

19 Childcare centres are, as I stated, permissible in the zone. That does not mean they are of right allowed within the zone but in terms of the noise I am satisfied that the noise from the childcare centre can be mitigated with acoustic fencing and management so as not to create unreasonable impacts for the adjoining properties.

20 The planning regime under which I must assess the development application is provided by the council in the Holroyd Local Environmental Plan 1991. The subject site is zoned residential 2(a) and it contains a number of objectives, in particular: (a) to provide and maintain the amenity of the predominantly low density living area and to enable sensitive infill of medium density housing styles; (b) to allow people to carry out a reasonable range of activities from their homes while maintaining neighbourhood amenity; (c) to enable development for purposes other than residential only if it is compatible with the character of the living area and has a domestic scale and character; (d) to restrict development which is of a traffic generating, offensive, hazardous, noisy, intrusive or environmentally inappropriate nature. 21 The zone objectives must be taken into account in an assessment of a development application as required by cl 9(3), so that "the carrying out of development is consistent with the objectives of the zone within which the development proposed is to be carried out."

22 I am satisfied that the proposed development can coexist and is not inconsistent with the zone objectives. It will not create unreasonable traffic or parking in terms of the area generally and it will not impact in terms of being intrusive or environmentally inappropriate to adjoining properties or the residential area in general.

23 The issue of traffic generation Mr Craig Hazell provided an assessment. The proposed development provides for basement parking with some eleven spaces, four of these are for staff. It is noted in terms of council's development control plan for carparking there is a shortfall in the parking spaces provided.

24 If I go to the DCP Guidelines for Parking this is the relevant matter that I must give central consideration to in terms of carparking provision. The objectives are "to ensure the adequate and convenient off street parking facilities are provided for all vehicles generated by various types of development, to ensure that parking areas are readily accessible and usable and adequately provide for circulation and manoeuvring of vehicles and that parking areas associated provide for the necessary standards to be complied with."

25 The carparking arrangement in the basement of the development has been designed to allow for vehicles to enter and exit in a forward direction and there is a recommendation that there be an electronic sign to indicate the number of available spaces within the basement parking such that parents and carers dropping and picking up children will be alerted before entering the carpark as to whether there is an available spaces. This will prevent or decrease the occurrence of people entering the carpark and finding no parking available. There is also a need to place a separation of a barrier between the pedestrian path from the basement carpark up into the childcare centre, this is seen as necessary to ensure pedestrians are directed in a right safe manner to the childcare centre from within the carpark. The barrier is to be one that is placed in the carpark at the back of the staff parking spaces once the staff have arrived at the centre and it would be the responsibility of the director to ensure that this is erected every day. This is a pull-out system, that runs on wheels, and is not difficult to put in place for the safety of children. Whilst it is not a barrier that would prevent collision as such with the expert advice of Mr Hazell I am satisfied with the combination of the electronic sign to note the number of parking spaces available at any one time and the clear demarcation of the pedestrian area that the carpark can operate within safety.

26 As I stated earlier there is a slight shortfall of one carparking space under the DCP. However I am satisfied on the basis of Mr Hazell's evidence that the one carparking deficiency can be accommodated on street and this is contemplated in the controls. Mr Hazell has indicated that there is an availability of some fourteen spaces on the western side of the road which would be regarded as safe and convenient parking for the childcare centre.

27 I am also satisfied that the location of this childcare centre would not create unreasonable traffic generation within what is a quiet residential street and it is an appropriate location for a childcare centre and childcare centres generally should not be located on busy main roads.

28 The other matter that I must take into consideration in assessing the development application is that of Development Control Plan No. 27 'Guidelines for Childcare Centres'. There are a number of numeric standards, however I am also conscious, as has been pointed out by the respondent, that compliance with the development control plan does not ensure approval as each application must be assessed on its merits. That is a merit assessment must be undertaken and a mere ticking of numerical standards certainly does not guarantee approval.

29 The Childcare DCP also requires that the plan be read in conjunction with council's other development control plans and policies which may contain more specific controls. In this regard the Holroyd Development Control Plan 4A Guidelines for Detached Dwelling Houses was brought to the Court's attention and this requires consideration of the objectives for the low residential density zone. That is to establish overall guidance for the development of environmentally and sensitive detached dwelling houses and to ensure that new development does not detract from the residential amenity of established residential areas. The objectives and the controls of this DCP must also be considered when non-residential development is being placed in a residential area. Once again I have considered to the objectives of the zone which are reiterated in the development control plan that I have already cited.

30 The objectives of the Childcare Centre DCP are: to ensure that sites containing centres are appropriate for that purpose and provide a functional and pleasant environment for their users; to ensure that sites containing centres are compatible with the environment in terms of physical appearance and landscaping; and to ensure potential impacts from centres such as those created by noise, traffic generation and street parking are minimised. 31 There are controls that relate to solar access and daylight design, retention of special qualities/features such as trees, existing streetscape character. For solar access to adjoining dwellings the potential to overshadow adjoining dwellings and in this regard shadow diagrams were finally provided during the course of the proceedings to indicate the shadow impact on No 31, that is the proposed dual occupancy. There are also provisions in the DCP for access and parking. I am satisfied the proposal for the access and parking is appropriate.

32 On the issue of overshadowing the living and dining room side boundary windows to the proposed dual occupancy at No 31 this would not warrant refusal of the application. I am satisfied the solar access meets Council's DCP requirement as the family living areas are at the rear adjoining the private open space and this faces west. While sun will not penetrate the side boundary windows this could not be expected to be maintained by even a two storey dwelling on the subject site. Furthermore the solar access maintained to the northern dwelling will be at least equal to the soar access for the other southern dwelling of the proposed dual occupancy. Therefore the impact on solar access is not a reason to refuse the application and indeed solar access is reasonably maintained to meet council's standard.

33 The DCP at cl 12.2 also states that noise from the centre should not disrupt surrounding properties excessively. As such it is contemplating in terms of council's planning, framework and regime that childcare centres in residential areas clearly are a different use to a residence but the objective is to ensure that they do not disrupt properties in terms of excessive noise or other impacts.

34 While not an issue raised by the council, I am satisfied the proposed development will sit comfortably in the streetscape. The propose childcare centre will present as a domestic scale development within a residential area and with appropriate landscaping. The floor space ratio is 0.43:1 and 0.5:1 is the standard.

35 The retention of the tree at the rear as I stated earlier is most important. The impact of the acoustic fencing on the property at number 33 which is at the rear of the subject property I note that the tree with its extensive canopy will provide for amelioration of the acoustic fencing such that it will not be highly visible and it will not be overpowering or imposing in terms of the property at number 33. The tree will not only be the significant benefit to the area but ameliorate the acoustic fence.

36 With respect to the acoustic fence on the property adjoining at No 29. Photographs were provided that show the rear covered terrace of the subject property at No 29 and the awning that extends here and the proposed building length of the development will extend within that space and then the acoustic fence to 3 metres will commence approximately three quarters of the way down the rear outdoor terrace area of No 29. The actual fence itself, a 1.8 metre solid fence, will be slightly lower than the existing Colorbond fence and the provision of 1.2 metres of upper portion perspex glazing or clear polycarbonate up to 3 metres I am of the opinion that this will not unreasonably impact on the amenity of the adjoining property at No 29 or have an overwhelming effect. The fence has the benefit of providing noise amelioration or mitigation which is appropriate and not inconsistent for childcare facilities in a residential zone.

37 It is most uncommon today that there would not be some form of acoustic fencing for a childcare centre. The experts agreed that with over ten children playing in the rear yard at any one time it would require some form of acoustic fencing. The experts also agreed that there could be a maximum of twenty-three children outside playing which is approximately half the total number of forty-five for the proposed centre.

38 I am satisfied that while acoustic fences are not a common characteristic of the residential area this is not the test. There is no childcare facility in the general vicinity of the subject site and therefore acoustic fencing would not be common. However the test is whether the acoustic fence would unreasonably impact on the amenity of the adjoining properties and given the extent of the acoustic fence provided, in terms of its length and height, it will not be overwhelming in my assessment. It will not impact unreasonably on the enjoyment of the adjoining premises. At the same time it provides for the necessary attenuation of noise such that the proposal is not inconsistent with the objectives of the zone.

39 Throughout these proceedings there has been amendments and refinements proposed to the plans and there has been including the area required for the number of children proposed. Mr Anzellotti's evidence is that the proposed is too big a forty-five place childcare centre. In this regard I am satisfied that a forty-five child place centre can be accommodated on the subject site. This is the maximum number of children allowed in a childcare centre within a residential area in terms of council's development control plan and I give central focus to the DCP in terms of Zhang v Canterbury City Council [2001] NSWCA 167 Court of Appeal Judgment. At the same time I am also satisfied on a merits assessment that the proposed development with an FSR of 0.43:1 is not an overdevelopment of the site and can be accommodated such that there are not unreasonable adverse impacts and this non-residential use could coexist. 40 The issue of parking is now satisfied by the proposed amendment in my assessment. Similarly the issue of noise attenuation for adjoining properties was not an issue that had been properly addressed when the court first met on site and this issue has now also been resolved in my assessment.

41 The proposed development also satisfies the requirements of DOC's in terms of the areas required for each child, that it the internal and external spaces. It is noted that there is an amendment required to the plan to incorporate or delete certain landscaping strips to incorporate into the play area of the rear yard.

42 As has been pointed out correctly by the respondent the plans still do require amendments and resolution of the finer detail to ensure that the development proceeds in a satisfactory matter. As such I will not issue final orders until such time as an amended plan is submitted to the Court to show the landscaping to meet the requirements for outdoor open space area for forty-five children. The parking layout requires notations on the plan to show Mr Hazell's requirements as shown in his report. The signage can also be worked through in terms of council's requirements and there also is a need for the details of the fencing to be provided in an amended plan.

43 There was some concern as to how the fencing should be erected and for certainty and clarity it seems that a detail of the fencing and the type of materials as to their longevity is required to ensure that over time they do not become an eyesore. I observe other acoustic fences where polycarbonate or glazing is in place without the need for frames completely surrounding the polycarbonate but just structural supports for the polycarbonate. The type of fencing, whether it be fibrous cement, whether it be lapped and capped fencing, needs to be also resolved to ensure that in the execution of the plans that the facility can then operate in an appropriate manner.

44 The landscaping plan, therefore, also needs to reflect changes as well as the architectural. There also needs to be changes to the plan of management such that it is clear that twenty-three children at any one time can only play outside in terms of the noise criteria and specifications of the acoustic engineers.

45 On receipt of the amendments and then on the receipt of conditions which will reflect the need for post monitoring after three months operation of the childcare centre on two separate days needs to be incorporated into the conditions as well as a condition such that a maximum of twenty-three children are outside at any one time. I note that the acoustic engineers said that with the provision of the acoustic fencing that the time of the children being outside would not necessarily be limited because the noise standard could be complied with, nonetheless that the plan of management should reflect the outdoor play times as well. The conditions need to incorporate the need for 5 dBA not to be exceeded with the children playing as well as for other equipment such as air conditioning et cetera.

46 The respondent has also raised the need for certain other conditions to be refined and the submission of amended plans and time for the conditions to also reflect same will allow for certainty and clarity in terms of the approved development.

47 On the basis of my assessment, I am satisfied that in the context of council's planning regime and what can be anticipated or contemplated in terms of its development control plan for childcare centres on a merits assessment, despite compliance in a numeric sense, on a merits assessment I am also satisfied that a forty-five place childcare centre can be accommodated on the subject site without unreasonable impacts on adjoining properties and consistent with the zone objectives and the development control plan objectives. 48 Today the exhibits can be returned with the exception of A, F and 8. The amended plans will be given a new exhibit number P and the amended plan of management will be exhibit Q. These will also be retained for the court file and the amended conditions will become Exhibit 11 also retained for the court file.

49 Accordingly, on the receipt of the amended plans and documentation the court's orders will be: (1) The appeal in respect of the property known as 31 Davies Street, Merrylands, is upheld; (2) The development application submitted to Holroyd Council and as amended is approved subject to the conditions contained in Annexure A. (3) The exhibits are returned except A, F, P and Q, 8 and 11.

      J S Murrell
      Commissioner of the Court
      ljr

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