Zaki v Ku-ring-gai Council

Zaki v Ku-ring-gai Council - [2013] NSWLEC 1011 - NSWLEC 2012 case summary — Zoe

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Background and the proposal 7The original development application was lodged on 12 January 2012 and notified and council received a total of 162 submissions. The application was refused on 27 March 2012. The applicant lodged an appeal and a s34 conciliation conference was held in April 2012. As a result of that conference, the applicant prepared and was granted leave to rely on amended plans. The council has notified those plans and received a total of 123 submissions which raised similar issues to those expressed in the original submissions. Those objections relate to overdevelopment, incompatible with the character of the streetscape, noise, bushfire, traffic, tree removal, loss of property value and pedestrian safety. No agreement was reached, the conciliation conference was terminated and the parties agreed that the matter be determined in accordance with the provisions of s 34(4)(b)(i) of the Land and Environment Court Act 1979. 8The plans now before the Court propose:

Demolition of existing dwelling, outbuildings and driveway;
Removal of 21 trees;
Construction of a basement level, accessed by a 6.3 m wide driveway in the centre of the site and providing parking for 22 vehicles (including one accessible space), turning bay, mechanical plant room and garbage store;
Construction of a single storey building designed for use as a childcare centre to accommodate a maximum of 78 children.
Construction of outdoor play areas, pedestrian ramps and site landscaping. 9The childcare centre would be staffed by 13 persons with hours of operation from 7 am to 6 pm Monday to Friday. 10The proposed building would be setback 14.657 m to Manning Road, which is consistent with the dwelling to the immediate east of the site. The setback from the rear boundary varies from a minimum of 14.934 m to 21.182 m and side setbacks proposed are a minimum of 2.4 m (east) and 2.57 m (west). 11The development has been designed in two buildings with play areas and the entry foyer linking each building. The front building (Building A) would accommodate 24 children aged 0-2 years and the associated outdoor playing area would be centrally located on the eastern side of the building. The rear building (Building B) would accommodate two areas; one for 24 children aged 2-3 years and the other for 3-6 years accommodating 30 children. The play areas for these children would be in the rear yard and on the western side of the building. 12During the hearing further changes were made to the proposal in response to expert evidence. After the hearing the parties provided written submissions on the conditions in dispute and costs.

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The evidence 15The Court visited the site and surrounding area and heard evidence from objectors. Their key concerns were that the proposed childcare centre is incompatible with the residential character of the area and will result in unacceptable impacts, particularly in terms of traffic, noise and tree removal. They considered the size and appearance of the centre, particularly the basement car park, to be out of character with the surrounding houses and the proposal to be an overdevelopment of the site. The principal of Beaumont Road Public School and a number of residents raised concerns about the traffic generation of the centre and impacts on parking and safety given that Manning Road is very narrow and part of a local bus route and that the school already has traffic and parking problems. Concerns about the bush fire hazard were also raised. They considered the proposal did not meet the requirements of the KPSO or DCP 57. 16The issues raised by the objectors generally reflect the contentions of council. However, council did not raise issues of traffic and parking other than the provision of a pedestrian path and driveway design. Nor did it raise bushfire contentions. In the absence of expert evidence, I accept that the issues raised by the objectors in relation to these matters have been addressed to the satisfaction of council and would not warrant refusal of the application. 17Expert acoustic evidence was provided by Mr S Cooper (council) and Mr S Gauld (applicant). Mr S Fenn (council) and Ms M Gibbs (applicant) provided arboricultural evidence and Mr J Goodwill (council) and Mr A Martin (applicant) provided evidence on planning matters. 18Mr Fenn (council) and Ms M Wilson (applicant) prepared a joint report on landscape matters but as they reached agreement they were not required for cross examination. 19Mr O Sannikov (applicant) prepared an expert witness statement to address contentions 5(a) and 5(b) which required conceptual plans for the footpath and driveway. He was not required for cross examination during the hearing but the written submissions filed after the hearing raised matters in relation to conditions and the conceptual plan for the footpath. This matter is addressed later in this judgment.

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Acoustic 26Section 5.8 of DCP 57 provides that noise generated by a childcare centre must not be more than 5dB(A) above background noise measured at any point in an adjoining residential property. Mr Cooper and Mr Gauld accept that this is the appropriate noise criteria and agree that subject to the implementation of noise mitigation measures, the proposal will meet the noise criteria in DCP 57. The measures include noise barriers along the boundaries as well as further management measures, including limitations on the number of children in outdoor play areas 1, 2, 3 and 4 and restrictions on the type of play in these areas. 27Council's written submissions, state that it maintains its opposition to the development as: The proposed development involves the operation of a significant child care centre in a quiet suburban area. The only way the development can meet the DCP requirements is by implementing significant acoustic barriers and implementing stringent conditions on the maximum number of children allowed to engage in outdoor play and then restricting the permitted activities of those children. 28The applicant's written submissions state that the acoustic experts have agreed that the noise criteria in DCP 57 can be met subject to appropriate mitigation measures. There is nothing special about childcare centres using acoustic barriers and or limiting the number of children being permitted in outdoor play areas at any one time in order to achieve acoustic goals. The controls are a common occurrence in respect of childcare centres located adjacent to residential dwellings. There was no evidence called by the Council that suggested that the requirements of the conditions could not be met or that meeting the conditions had an unacceptable impact on the proposed use. 29The parties disagree on the imposition of conditions limiting the number of children at the centre to 40 and requiring a 12 month trial (Conditions 82, 83 and 84) and acoustic assessment by an expert agreed to by council (condition 94(a). These conditions are discussed further in this judgment.

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Findings 30In BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [117] and [118] McClellan CJ states: planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. ..... In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 31Childcare centres are permissible as an innominate use within the Residential 2(b) zone under the KPSO. It is therefore not unreasonable to assume that in 'in some form' the use of the site for a childcare centre would be permitted provided it results in 'acceptable environmental impacts' and is 'consistent with the relevant objectives of the zone'. 32There is no evidence that the size of the site, its location or its characteristics render it unsuitable for a childcare development 'in some form'. The question is whether the impacts resulting from the childcare centre, in the form proposed, are acceptable and whether it is consistent with the objectives of the zone. 33The impacts of the proposal of noise, internal amenity, and tree loss have largely been agreed between the experts. The form of the childcare centre proposed does not result in impacts which are beyond those reasonably anticipated from a child care centre. The acoustic experts have found that subject to the provision of noise barriers and management measures the noise impacts are acceptable and meet the criteria in DCP 57. The design of the noise barriers, being setback from the side boundaries with angled polycarbonate above, is not atypical for a childcare centre adjoining residential properties. Similarly, the management measures, which restrict the number of children and the nature of play, are acceptable. 34A childcare centre will require elements that appear different to dwellings. However, just because an element is different does not automatically mean that it is not compatible with residential character (see Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 at 22-31). The existing residential character is one of large houses within landscape settings. The centre is consistent with this character. The building is single storey with a pitched roof, it has a similar alignment to the adjoining dwellings and existing trees are retained in the front setback. The curve of the driveway and the landscaping minimise the impact of the excavated basement car park to an acceptable level. The building is broken into two components and provides side and rear setbacks that are consistent with the residential development in the area. While the footprint of the building exceeds that required for dwellings by the KPSO, a reasonable proportion of the site remains for soft landscaping and the landscape experts have agreed that the tree retention and replacement provide a landscape character that is consistent with the area. 35The arborists have agreed that Trees 3, 5 and 12 can be retained. The removal of Trees 16 and 22, which are significant canopy trees that contribute to the character of the area is regrettable but unavoidable due to their location within the footprint of the development and the centre of the site. 36For these reasons, I accept that the proposal is consistent with the objectives for the 2(b) zone in the KPSO and has impacts that would not warrant refusal of the application, subject to the imposition of appropriate conditions.

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Findings 42I accept that council's proposed amendment will address the concern of the applicant that the condition, as currently worded, would not enable the approved works to be constructed but will also ensure that the area around the trees is not used for the storage or disposal of materials. The encroachment of the steps should also be excluded. I note that the benches are unlikely to be built until the end of the construction period and, as these are proposed to be placed around the tree trunks, this area should not be excluded from the fenced area. Also if the benches involve excavation for footings near the tree trunks, this should be supervised by an arborist and a further condition to this effect should be included. The first paragraph of Condition 12 should be amended to read: To preserve the following tree/s, no work shall commence until the area beneath their canopy, excluding the immediate areas where the retaining wall, the steps and the ramp in Play areas 3 and 4 are to be constructed, is fenced off at the specified radius from the trunk/s to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site. 43Condition 29: the parties disagree on whether the condition should include a the following infrastructure works in Manning Road: Construct landings at the bus stops connected to the footpaths. The design shall be in accordance with the 'Draft' Guideline for assessing compliance of bus stops with the disability standards for Accessible Public Transport 2002 (DSAPT). 44The requirement was included in the conditions tendered during the hearing but is proposed to be deleted by council in the conditions that were filed after the hearing. Council submits that contention 5(a) required a footpath between the pedestrian entrance of the premises of the centre and the bus stop in Manning Road, near its intersection with Beaumont Road and that this should be provided not the "concrete pad" and "zig zag path" proposed by the applicant in front of the site. Further, there is no application for a Roads Act approval for these works. 45The applicant submits that a conceptual design for the "concrete pad" and "zig zag" footpath connecting the site to the kerb at Manning Road was provided in the evidence of Mr Sannikov (Exhibit D), Council did not require Mr Sannikov for cross examination and did not raise any issues with the concept plan during the hearing. Contention 5(a) does not require a footpath to Beaumont Road, and to do so would be unreasonable given that it was not raised during the hearing, there is no evidence to support that the need for a footpath is generated by the development given that the existing houses generate pedestrian traffic and there is currently no footpath. The applicant submits that the concept plans should be approved and that this would constitute an approval under the Roads Act.

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Findings 46Contention 5 (a) required: A conceptual design for a footpath between the pedestrian entrance of the proposed child care centre and the existing bus stop in Manning Road is required. 47The contention is unclear as to which "existing bus stop in Manning Street" it refers as there is currently one opposite the site and near the corner of Beaumont Road. In the absence of any evidence to the contrary, I accept the applicant's submission that it would be unreasonable to require a footpath between the site and the bus stop near Beaumont Road. However, I do not accept that the development does not increase the demand for a footpath, given that it increases to number of people likely to walk along the street. It is not unreasonable for the condition to require a footpath at least in front of the site. However, given that council now opposes the concept plan in Exhibit 5, I do not accept that this should be approved as part of the application. The condition should be retained but reworded to clarify its requirements. 48Conditions 82, 83 and 84: council submits that any approval should include conditions which limits the maximum number of children to 40 at any one time (condition 82): with an increased capacity of 78 children for a 12 month trial period (condition 83); and that a further application may be lodged before the end of the trial period to continue operating with the increased capacity (condition 84). Council submits these conditions are necessary to ensure neighbourhood amenity as the trial period will enable an assessment of compliance with the conditions, in particular acoustic compliance. 49The applicant submits that a condition requiring a trial period should not be imposed as the agreed acoustic evidence indicates that the noise criteria can be met. Further, condition 94 requires monitoring of acoustic compliance and further management measures to achieve compliance. No issue was raised during the hearing that the number of children is inappropriate and the centre is designed to accommodate 78 children. Approval of a lesser number is not warranted.

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Judgment (20 paragraphs)

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