Tahany Pty Limited v Waverley Council

Land and Environment Court (NSW)|2022-06-27

Judgment

COMMISSIONER: This is an appeal by the Applicant against the deemed refusal of their development application (DA106/2022) by Waverley Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal of the development application pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). As amended the development application seeks development consent for alterations and additions to an existing childcare centre and an increase in numbers from the currently approved 27 children to 43 children at 140 Clyde Street, North Bondi (Lot 2 DP 29978).
The appeal was subject of conciliation on 1 March 2022, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act), however agreement was not able to be reached between the parties and the matter was listed for hearing. On 18 March 2022 the Court granted leave with the consent of the Respondent for the amendment of the development application pursuant to the provisions of the then cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).
During the hearing the development application was further amended with the consent of the Respondent to delete the following elements of the development application: 1. The installation of timed, 10-minute, parking restrictions for four on street parking spaces in proximity to 140 Clyde Street, and 2. The creation of three passing bays with associated sign posting in Clyde Street.
As amended the development application proposes the following works external to the site:

Figure 1: Proposed angled parking in Clyde Street

Site and Locality

The site is located on the northern side of Clyde Street in proximity to its cul-de-sac head. The site is rectangular in shape with an area of 556.8m² and a frontage to Clyde Street of 15.24m.
The site currently operates as a childcare centre for 27 children and incorporates a circular driveway arrangement in the front setback. Although the centre has approval to operate until 6pm, the centre currently operates from 8.00am to 5.30pm. (Exhibit A)
The surrounding development consists of low and medium density residential development of one and two-storey character.
Clyde Street east of Hardy Street has two distinct sections: a narrow section with a width of approximately 7m, and a wider section, in proximity to the subject site, of some 12.8m in width that extends to the cul-de-sac head. Following the amendment to the development application the works proposed by the Applicant in Clyde Road are limited to the wider section of the road, see par [5].

Public Submissions

The development application was notified by the Respondent in April 2022 in accordance with the Waverley Community Participation Plan. Thirty submissions and a petition were received by the Respondent. The concerns raised can be summarised as:

That increasing the current day care numbers will lead to increased traffic congestion as well as risks to safety of children. The cul-de-sac nature of Clyde Street means that parents must travel the length of Clyde Street twice to drop off and then twice to pick children up.
The increased traffic has the potential to impact access for emergency services, garbage service vehicles and delivery trucks and will create delay for residents entering and exiting their driveway and Clyde Street more generally.
The development application does not deal adequately with the management of the pickup and drop off of children attending the centre.
That the development application will lead to a reduction to on street parking and reduce the amenity of the cul-de-sac. The introduction of angled parking will reduce the width of the cul-de-sac and impact the current use of the space for children to play.
The introduction of timed and angled parking will be inconvenient and will require residents to vacate their street parking prior to 7am and then again at from 3-6pm.
The proposed passing bays to be installed in Clyde Street will further reduce parking availability and convenience.
The expansion and intensification of the childcare is inconsistent with the residential nature of the area and its R2 Low Density Residential zoning.
The current operation of the childcare centre has amenity impacts on adjoining neighbours and has seen parents park inappropriately in Clyde Street during drop off and pick up of children. An increase in child numbers has the potential to escalate these issues.
The negative amenity impacts from noise from the childcare operations will be increased. The current centre often utilises external speakers in the rear playground and loud outdoor play, both of which are amplified by the sandstone cliff to the rear of the site.
The proposed extended hours are incompatible with a residential area.
Currently cleaners are onsite until late evening and maintenance staff regularly present on the weekends, with noise impacting adjoining properties.
The proposed extension to the front of the existing building is not in keeping with the streetscape, which is predominately residential, rather than commercial. The additional outdoor play areas proposed add to the bulk and scale of the building, rendering it incompatible with the character of the locality.
The development application is not compliant with the childcare planning guidelines.
The alterations and additions proposed will result in unacceptable overshadowing of the adjoining property, 138A Clyde Street, which will achieve less than 3 hours solar access in midwinter. Further, the proposed development will result in overlooking from Outdoor Play Area 4 to the adjoining residents living areas and private open space.
The expansion of the childcare centre will negatively impact on property prices in Clyde Street.
The centre has been approved to increase a number of time since it initially commenced in 2006 for 17 children. The current size of the centre is its maximum capacity, and no further expansion should be supported.
(Exhibit 3)

The petition notes the following issues in objection:

Decreased residential parking: No parking signs at nominated intervals along the length of Clyde Street 11 x 90-degree angle parking spaces signposted to restrict parking for a maximum of 10 minutes between 7 and 9.30am and 3 and 6pm.
Increased hours of operation of 1.5 hours per day, increasing from 8am - 5.30pm to 7.00am to 6pm.
Increased traffic congestion
Reduced safety to pedestrians
Impeded emergency vehicle access in a cul-de-sac.
Detrimental impact of a commercial operation on a residential neighbourhood.
Increased noise
Height and bulk
Detrimental impact on the streetscape.
(Exhibit 3)

The Respondent has also provided submissions to the Court on a development application that was lodged on the subject site, also for alterations and additions and an increase in student numbers. I have read these submissions which raise concordant concerns.
In determining the development application, I have read and considered the submissions received by the public as required by s 4.15(1)(d) of the EPA Act. My consideration of those submissions that remain relevant to the amended development application commences at par [27].

Experts

The Court was assisted by traffic engineering experts, Mr Calum Hutcheson for the Respondent and Mr Craig McLaren for the Applicant. The joint report of these experts was tendered as Exhibit 2 in the proceedings. The experts were not required for cross examination.
It is the agreed opinion of both of the traffic experts that the contentions previously pressed by the Respondent (see [6]) are resolved either by the amended plans or the imposition of conditions of consent. In other words, the traffic engineering experts agree that the traffic, parking and access arrangements for the proposed development are acceptable. (Exhibit 2)

Preconditions to consent

Prior to considering the remaining contention, the public interest, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16]. My consideration of the relevant preconditions follows.
The development application was lodged by the owner of the land: cl 23(1) of the Environmental Planning and Assessment Regulation 2021.
State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) came into force on 1 March 2022. In considering whether the site is contaminated, as required by cl 4.6 of SEPP RH, I have had reference to the Statement of Environmental Effects (SEE) accompanying the development application. The SEE asserts that a review of historical imagery of the site indicates that the site was occupied by a residential dwelling from approx. 1970. Further, the site has been used for the purposes of a childcare centre since 2005, a use that is proposed to continue under the current development application. I accept that the proposed works will entail minimal disturbance of the site. Having considered whether the land is contaminated I am satisfied that no further consideration of contamination is required and the precondition at cl 4.6 of SEPP RH is satisfied.
State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) came into force on 1 March 2022. On the same day State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017 was repealed, with its provisions being incorporated into Chapter 3 of the Transport and Infrastructure SEPP. Part 3.3 of the Transport and Infrastructure SEPP sets out a number of controls for childcare centres. The SEE details the compliance of the development with these controls. I note that the Respondent accepts that the proposed development complies with these standards. On this basis I accept that the proposed development application complies with the mandatory provisions of Pt 3.3 of Transport and Infrastructure SEPP. Further, I note that in determining the development application I have taken into consideration the applicable provisions of the Childcare Planning Guidelines as required by cl 3.23 of Transport and Infrastructure SEPP. I rely on and adopt the analysis of the SEE in this regard. (Exhibit A) The requirements of Pt 3.3 of Transport and Infrastructure SEPP are met.
The provisions of the former State Environmental Planning Policy (Infrastructure) 2007 are now contained within Chapter 2 of the Transport and Infrastructure SEPP. The proposed development does not qualify as a development to which cl 2.121 of the Transport and Infrastructure SEPP applies. Further, childcare centres are not defined as educational establishments. Accordingly, formal referral to Transport for NSW (TfNSW) is not required.
The site is zoned R2 Low Density Residential pursuant to the Waverley Local Environmental Plan 2012 (LEP 2012). Centre based childcare centres are a permitted use in the R2 Low Density Residential zone. In determining the development application, I have considered the following zone objectives: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maximise public transport patronage and encourage walking and cycling.
Pursuant to cl 4.3: Height of Buildings of LEP 2012, the subject site is mapped with a maximum height of 8.5m. The proposed development is compliant with the maximum building height.
Pursuant to cl 4.4: Floor Space Ratio (FSR) of LEP 2012, the subject site is mapped with a maximum FSR of 0.5:1. The proposed development is compliant with the maximum FSR standard.
The subject site is not mapped as affected by either cl 5.21: Flood Planning, cl 6.1: Acid Sulfate Soils or cl 6.4: Terrestrial Biodiversity under LEP 2012.
The development application involves minor excavation works. The Applicant has submitted a report on Geotechnical Investigation prepared by Douglas Partners dated by Dec 2021. I have read and considered this report, and the matters for consideration listed at cl 6.2(3) of LEP 2012 in determining the application.

The Roads Act jurisdiction

The development application seeks consent for concurrent approval under the Roads Act 1993 (the Roads Act) for the installation of line marking and signposting to implement changes to the parking arrangements in Clyde Street. These changes are detailed in the plan extracted at par [4].
Section 39(2) of the LEC Act vests the Court with: … all the functions and discretions which the person or body whose decision is the subject of appeal had in respect of the matter the subject of the appeal
Applying Connery v Manly Council (1999) 105 LGERA 451, Goldberg v Waverley Council [2007] NSWLEC 259 and Makram Constructions Pty Ltd v North Sydney Council [2002] NSWLEC 4, I am satisfied that the Court can exercise the functions of Waverley Council under the Roads Act. However, the exercise of those functions is such to the same limitations as the Council's formal delegation pursuant to the Road Transport Act 2013 (Transport Act). The relevant delegation is extracted in Ex 3. Relevantly, the delegation allows the Council to exercise the functions of the Roads and Maritime Service (nowTfNSW ) to approve traffic control devices. However, the delegation is limited by a number of conditions, including: … 7. A Council or its sub-delegate must not exercise a function until they have notified the Commissioner of Police and RMS of any decision taken the exercise a function except where: (1) the advice of the Local Traffic Committee is unanimous; and (2) the Council or its subdelegate propose to follow such advice …
The introduction of angled parking in Clyde Street was referred to the Waverley Traffic Committee (WTC) in April 2022 for technical advice. The WTC unanimously resolved to support the introduction of the angled spaces if the subject development application was approved. I am satisfied that the orders of the Court and the exercise of the delegation is consistent with the limitations imposed on the delegation.
I am satisfied that the prescribed traffic control devices required to introduce the angled parking depicted in the 2020-661-01D - On-Street Parking Concept - Overview - 22 06 27 should be approved for installation in Clyde Street pursuant to Div 2, Pt 5.3 of the Transport Act.

Inadequate parking provision and impacts on the availability of on street parking

In the joint report Mr McLaren argues that:

The net increase of children proposed at the centre will generate a demand for four additional parking spaces.
The traffic impact assessment prepared by the Applicant identifies that a total of 12 on street spaces are located in the wider section of Clyde Street when the requirements of AS 2890.5:2020 'On-street parking' are applied.
In practice, the operational on-street capacity of the wider section of Clyde Street is some 16 vehicles.
Parking surveys undertaken indicate that ''there is limited spare parking capacity within the Clyde Street "Wide Section", especially overnight, with spare capacity generally increasing towards the centre of the day". (Exhibit 2)
There is capacity for the road carriageway in the wider section of Clyde Street to be more efficiently utilised through the implementation of 90º angle parking. Such a proposal will increase the on-street parking capacity by four spaces and forms part of the Applicant's proposed works (refer to par [5]).
As the proposed development will only utilise on street parking equivalent to the increased capacity generated by the introduction of the angled parking the development application will place no additional demand on parking availability in Clyde Street.
Outside the hours of operation of the childcare centre, the additional parking provision (four spaces) is a public benefit that arises from the implementation of the proposed development.
(Exhibit 2)

In the joint report Mr Hutcheson concludes that: '19. The provision of 4 additional on street spaces by modifying the parking restrictions to provide angle parking as shown in Appendix G of the Revised TPIA by McLaren Traffic Engineering satisfies (the) parking requirements associated with the now proposed additional 16 child care places at the centre. 20. No additional off- street parking spaces are required' (Exhibit 2)
The experts agree that the proposed development has adequate parking provision and that any impacts on the availability of on street parking are acceptable. (Exhibit 2)

Reduction in amenity of the cul-de-sac and impacts on the local street network

In the joint report Mr McLaren maintains the view, consistent with the Revised Traffic and Parking Impact Assessment (TPIA), that there will be no detrimental impacts in the traffic flow or amenity of the surrounding area arising from the development. In support of his conclusion, he notes: '38 … that the revised TPIA, conducted traffic surveys and undertook SIDRA modelling of the intersection of Clyde/Hardy Street, North Bondi, which concluded as outlined in Table 7 of the revised TPIA that there would be negligible impact on the existing intersections due to the proposed increase in scale [of the day care centre], with the intersection still retaining a Level of Service "A", in both the AM and PM peaks. 39. Further, CM notes that a residential amenity assessment was conducted within the revised TPIA, which concluded that the two-way traffic flow along Clyde Street would remain significantly below the environmental goal threshold of 200 vehicles per hour, as suggested in the RTA Guide to Traffic Generating Developments (as adopted by TfNSW). CM therefore concludes that there is no residential amenity issues raised by the relatively minor increase in two-way traffic along Clyde Street. (Exhibit 2)
Agreeing with Mr McLaren, Mr Hutcheson concludes that in his assessment any impacts on the surrounding area's amenity are addressed by: firstly, the provision of four additional on-street parking spaces; and secondly, the reduction in the number of childcare spaces proposed that has occurring during the assessment of the development application. (Exhibit 2)
The experts agree that there are no traffic amenity or other impacts on the cul-de-sac or the local street network that would warrant the refusal of the development application.

Findings on traffic engineering matters

Prior to making findings I note that the Applicant, with the consent of the Respondent, amended their development application during the hearing to remove the proposed timed parking restrictions and the proposed parking bays. A number of the residents expressed concern about these matters. However, given they no longer forms part of the development application I make no finding in relation to the merit of these traffic control devices.
Along with the expert evidence I have considered the objecting submissions, including those made orally at the commencement of the hearing onsite. However, consistent with the decision of Lloyd J in New Century Developments Pty limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 at [61] - [64] I find that I am more persuaded by the evidence provided by the traffic engineering experts than the lay submissions given their expertise and reasoning in response to the issues raised. I accept and adopt the agreed evidence and conclusion of the traffic engineers of the acceptability of any traffic, parking and congestion impacts arising from the proposed development. I am satisfied that the likely impacts arising from the development are acceptable notwithstanding the views expressed in the public submissions.
In addition to the technical issues detailed above, I note that some objectors also raised concerns that the reduction in the carriageway width of Clyde Street from the introduction of angled parking. In particular concern was expressed that angled parking will reduce the attractiveness of the street and its capacity to be flexibly used by residents for informal sport and gathering. I accept that this is a likely impact whilst ever the angled parking spaces are occupied.
However, I note that the matter of the introduction of angled parking, as detailed in the plan extracted at par [5], was referred to the WTC in April 2022 for technical advice. The report noted that should the development application be approved, the requirement to implement the works would be imposed as a condition of consent. The WTC unanimously resolved to support the introduction of the angled spaces if the development application was approved. Subsequently, the minutes of the WTC in relation to this matter were adopted unanimously by Waverley Council at its ordinary meeting of 17 May 2022. On balance, I am satisfied that the proposed introduction of angled parking is consistent with a unanimous resolution of the WTC, and the Respondent Council, and will generate additional parking in a location that the TPIA indicates has limited spare parking capacity. I accept there will be a change to the cul-de-sac head as a result of the introduction of angled parking but in my view that impact is outweighed by the benefit of increased parking provision in Clyde Street.

Amenity impacts arising from the development application are unacceptable.

The public submissions identify a number of amenity impacts arising from the proposed development and its operation including noise generation, overshadowing, the compatibility of the use with the low-density character of the locality, and the bulk and scale of the building in the street scape. I have considered these issues in the following paragraphs.
The Applicant has submitted an acoustic assessment of the proposed development prepared by The Acoustic Group, dated 26 July 2021 (the Acoustic Report).
In relation to the concerns expressed by the residents that the additions to the centre will generate excessive noise I rely on the uncontested conclusion of the Acoustic Report, reproduced below, to conclude that any noise impact from the centre will achieve acoustic compliance (+5dB(A) above background). The acoustic criterion of +5dB(A) above background arises from the Association of Australasian Acoustical Consultants Guideline for Childcare Centre Acoustic Assessment, version 3 (the AAAC Guideline). The AAAC Guideline nominates the acoustic criterion of +5dB(A) above background at the nearest residential receiver as acceptable in circumstances where outdoor play extends beyond four hours.
Further, I note that the implementation of the recommendations of the Acoustic Report are expected to improve the acoustic compliance of the existing centre. 'With respect to noise emitted from the classrooms, the following restrictions to the operation of the external doors/windows of the classrooms are required to satisfy the background +5dB(A) criterion: The windows on the southern façade of the classroom on the ground floor level are required to be closed when the classroom is in use. Natural ventilation to this classroom can be achieved by opening the bi-fold doors along the northern façade of the classroom; and The first floor level classroom is to operate with the northern facing door to Outdoor Play Area C, the western facing door to Outdoor Play Area D and the windows on the southern and western facades closed when the classroom is in use. Natural ventilation to this room can be achieved by opening the sliding door on the northern façade which leads to Outdoor Play Area D.' … In terms of noise emissions from the Childcare Centre, the following physical noise controls are to be implemented into the design of the Childcare Centre to satisfy the AAAC Guideline's noise target of background +5dB(A): The eastern side of Area A is to have a full height barrier (i.e from the ground floor of the outdoor play area to the underside of the first floor level deck) which extends to the rear façade of the childcare centre building for 6.8m. … The western side of Area A is to have a full height barrier (i.e from the ground floor of the outdoor play area to the underside of the first floor level deck) which extends from the rear of the carport for 8.5m. … The barriers along the eastern and western sides of the first floor deck and the intermediate barrier between Areas C and D are to have a height of 2.3 metres above the first floor level. … The northern side of the first floor deck is to have a 1.39m high barrier which has a solid (ie gap-free) construction. … The underside of the first floor deck (ie. above area A) is to be lined with an acoustic absorptive material that has a noise reduction coefficient (NRC) of not less than 0.85 … (Exhibit A)
Compliance with the recommendations of the Acoustic Report is proposed as an agreed condition of consent. (Exhibit 6) Further, those conditions require that compliance is certified prior to the issue an Occupation Certificate for the development.
I accept the evidence and recommendations contained in the Applicant's acoustic assessment and the conclusion that the implementation of its recommendations will achieve compliance with the acoustic criterion of +5dB(A) above the measured background noise level. I note that the agreed conditions of consent include a requirement for the development to be carried out in accordance with the acoustic assessment, to be certified prior to occupation, and include an ongoing requirement for the centre to achieve the acoustic criterion. On this basis I am satisfied that any noise impacts arising from the development will be acceptable. Further, the Plan of Management addresses the issue raised by the objectors in relation to the use of amplified sound in the outdoor play areas by excluding the use of amplification of music outside the building. (Exhibit A)
I note that the objections raise concern about the overshadowing impact arising from the proposed development. The solar access to properties located in the northern side of Clyde Street in proximity to the subject site are impacted by overshadowing arising from the large rock face/ cliff that is present at the rear of these properties. The Applicant has prepared shadow diagrams demonstrating the overshadowing arising from the alterations and additions both with and without the existing impact of the overshadowing from the rock face. Having reviewed these diagrams and considered the submissions I am satisfied that the proposed works will have a marginal effect on the existing substantial overshadowing experience by the adjoining properties as a result of the rock face. I am satisfied the overshadowing impact generated by the proposed development is acceptable.
A number of objections raise concerns about compatibility of the proposed development, and the use of the site as a childcare centre, with the existing residential character of Clyde Road and its low-density zoning. In considering these objections I note that the proposed development is compliant with the controls in LEP 2012 that are relevant to bulk, scale and intensity of development, see pars [24] and [25]. Further, the proposed use of the site for the purpose of centre-based childcare is a permitted use in the R2 Low Density Residential zone. These two factors point towards a conclusion that the development proposed is reflective of the character anticipated by the planning controls and are planned for elements in the locality. However, a development may be held to be incompatible due to its impacts. In this case, on the evidence such impacts are, in my view, acceptable. Applying the principle in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [117] it is appropriate to give weight to the planning instruments and where environmental impacts are determined to be acceptable grant consent to an application for a use that is permitted in the zone.

Findings on amenity

In the preceding I have reviewed and made findings on the issues raised by the residents in response to the development application. Further, giving the appropriate consideration to the public interest required by s 4.15(1) of the EPA Act, I am satisfied the issues raised when considered individually and or collectively do not warrant the refusal of the development application.

Conclusion

After an assessment of all the evidence under s 4.15 of the EPA Act including the evidence of the objectors, I am satisfied that the amended development application is acceptable on its merits. In my opinion the development application warrants approval subject to the annexed conditions.

Orders

The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application 106/2022 for alterations and additions to an existing childcare centre and an increase in numbers from the currently approved 27 children to 43 children at 140 Clyde Street, North Bondi. (3) Pursuant to s 138 of the Roads Act 1993 consent is granted for works in Clyde Street to introduce angled parking as depicted in the approved plan 2020-661-01D 'On-street Parking Concept - Overview 220627. (4) Exhibits are returned except for Exhibits 1, A and B

Amendments 20 July 2022 - Development Applicant Number in Paragraph 1 and Order 2 has been amended from DA 314/2021 to DA 106/2022. 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: 20 July 2022

(2003) 127 LGERA 303

(1999) 105 LGERA 451

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Cases Cited (7)

Cited By (1)