Zaki v Ku-ring-gai Council

Land and Environment Court (NSW)|2019-11-08

Judgment

COMMISSIONER: Kerolos Zaki (the Applicant) has appealed the deemed refusal by Ku-ring-gai Council (the Respondent), of his application to modify certain conditions of consent granted by the Court under proceedings 2012/10054, for a childcare centre (the centre), located at 5 Manning Road, Killara (the Subject Site).
The consent was granted by then Commissioner Tuor in Zaki v Ku-ring-gai Council [2013] NSWLEC 1011 (the original consent)
The modification application seeks to increase the maximum number of children able to attend the centre from 78 children to 96 children (the proposed development).
The appeal had been listed for a conciliation conference on 7 November 2018 under s34 of the Land and Environment Court Act 1979. However, the Court granted leave to the Parties for the matter to be determined in a consent orders hearing.
The appeal is made pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The Parties advised that the contentions between them had been resolved and they now come before the Court seeking orders by consent.
At the commencement of the hearing, oral submissions were taken on site from the following objectors, a number of whom provided further written and photographic submissions in support of their submissions relating to the Applicant's proposed development: 1. Mr Malcolm McDonald, Principal of the Beaumont Road Public School in Killara, on behalf of 295 families within the school community, who, he said, were opposed to the application for the following reasons: 1. the Applicant's proposed an increase in numbers of children attending the centre in Manning Road would lead to an increase in traffic in the vicinity of the Beaumont Road Public School; 2. the roads in the vicinity of the Beaumont Road Public School, particularly the road passing a principal frontage of the school, have a variety of configurations that, in places, make it difficult for vehicles to pass, and which pose risks to students attending the school; 3. students attending the Beaumont Road Public School arrive from as early as 7:30AM up until 9:30AM, and depart between 2:30PM up until 6PM, as a consequence of the school's before and after school care program; 4. the increased traffic that would result from the proposed increase in the numbers of children attending the childcare centre in Manning Road would increase the traffic associated risks to students at the Beaumont Road Public School across both the morning arrival and afternoon departure timeframes identified above at [6(1)(c)]. 1. Mr Andrew Graham, a resident of Manning Road, whose submission was also made on behalf of Dean and Pat Darcy, also residents of Manning Road, who said that he and the Darcys opposed the modification application because: 1. the establishment of the centre had been strongly opposed by local residents when consent was originally granted in 2013; 2. the centre was located in a position which had too many neighbours interfacing with its boundaries; 3. during the 7 years since consent was granted to establish the centre, and since the childcare centre had commenced operations, locals had observed what they believed were "shortfalls" in relation to physical design and operations of the centre; 4. the proposed increase in the numbers of children to attend the centre would increase potential safety, traffic and noise impacts associated with its operations; 5. the operations of the centre were not, in his opinion, properly monitored in relation to the generation of noise, and the implementation of its plan of management. 1. Mr Scott Barclay, a further resident of Manning Road, who said that he opposed the modification application because: 1. it would give rise to increased traffic impacts, both in relation to the numbers of vehicles that would utilise Manning Road, and as a consequence of poor driver behaviour in Manning Road; 2. drivers going to and from the centre often travelled at speeds beyond the sign-posted speed limit for Manning Road owing to a "sense of urgency" that some parents exhibited in relation to the drop off and pick up of their children; 3. a combination of the relatively narrow width of Manning Road and its use by a large number of vehicles, including buses and garbage trucks, gave rise to increased risk to school children walking to and from the Beaumont Road Public School; 4. the risks to schoolchildren and other pedestrians using Manning Road was exacerbated by the presence of a disability access ramp in front of the Subject Site which, he said, directed pedestrians on to the road in front of the centre; 5. the above factors created what he referred to as a "crucible of risk" in the area of Manning Road in front of the centre; 6. the centre provided 22 car spaces in its underground parking area which he said was two spaces short of that which would be compliant with the applicable controls in the Ku-ring-gai Development Control Plan (KDCP). 1. Mr Steve Cartland, also a resident of Manning Road, who objected to the modification application because: 1. in his opinion bushfire risk had not been adequately addressed in the documentation provided by the Applicant in support of its proposed modification application; 2. planning for the evacuation of children from the centre in the event of a nearby bushfire had not been addressed adequately by the Applicant; 3. he had been a resident of Manning Road at the time of "the 1994 bushfire event", during which he witnessed both the challenges that might arise through ember attack associated with a bushfire, as well is the difficulties of utilising local road networks in order to evacuate people from the area in such circumstances. 1. Mr Philip Hext, also a resident of Manning Road, said that he was opposed to the Applicant's modification application because: 1. Mr Hext shared the concerns of other objectors in relation to the potential increase in traffic impacts and risks from bushfire that would arise from approval of the modification application; 2. he held ongoing concerns in relation to the design of the accessibility ramp to the centre and its impacts on pedestrians using Manning Road, as well as in relation to the removal of trees from the Subject Site that had been caused by the grant of consent for the centre. He said that replacement tree planting had not yet been undertaken by the Applicant. 1. Mr Don Ledingham, a resident of Manning Road, who said that he opposed the Applicant's modification application because it would give rise to further potential impacts on pedestrians utilising Manning Road, and it would exacerbate the difficulties which he and other residents of Manning Road experienced when exiting their driveways at peak times during the operation of the centre.

Application for consent orders

The Court's Practice Note - Class 1 Development Appeals ([99]), provides as follows in relation to applications for final orders by consent of parties in circumstances where the appeal concerns the refusal of a development application: "[99] Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary."
During the hearing the Respondent advised that it had notified all objectors that this appeal had been listed for consent orders on 7 November 2019, and that the hearing would commence with an on-site view at 9:30am.
The Respondent also advised that it had shared with the objectors in advance of the hearing, the proposed consent orders to be sought by the Parties and the proposed conditions of consent that would be presented to the Court.
The Respondent had also confirmed to the objectors that the Parties, based on the advice of their experts, had resolved all contentions in the appeal to their mutual satisfaction.
I am satisfied that the Respondent made all reasonable efforts, including by way of notification, to contact objectors to the Applicant's modification application and to ensure that they were advised of the time and date of the consent orders hearing, and of the opportunity to make representations to the Court in these proceedings .
Before the Court can grant consent, the Respondent must also demonstrate that the relevant statutory provisions applicable to the proposed development have been met, and that the concerns of objectors have been properly taken into account.
The Parties addressed these matters during the hearing at Court.

Environmental Planning and Assessment Act 1979

The objects of the \EP&A Act are: (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment
Section 4.15(1) of the EP&A Act provides: In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
This appeal comes to the Court under cl 8.9 of the EP&A Act, concerning appeals by an applicant for modifications of development consent, and which provides: An applicant for the modification of a development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.
The appeal involves the Court exercising the powers under cl 4.55(2) of the EP&A Act, which provides ...A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification:

Ku-ring-gai Local Environmental Plan 2010

Under Ku-ring-gai Local Environmental Plan 2015 (KLEP), the Subject Site is zoned R2 Low Density Residential. The objectives of this zone are to: provide for the housing needs of the community within a low density residential environment. enable other land uses that provide facilities or services to meet the day to day needs of residents. provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.
A centre based childcare facility, such as that operated by the Applicant under its existing consent, and as would be modified under the application that is the Subject of this appeal, is a permitted use in the R2 zone.

Ku-ring-gai Development Control Plan 2015

KDCP describes its intent as follows: "The intent of the DCP is to provide more detailed provisions for development to achieve the purpose of the KLEP 2015, while not being inconsistent with the provisions of the KLEP 2015."
Part 1 of KDCP provides guidance concerning parking requirements for centre base childcare facilities.

Contentions

As noted above at [2], the Applicant has sought to modify certain conditions of consent granted by the Court ( the original consent ) , for a centre based childcare facility for use by up to 78 children . The Applicant seeks to increase its maximum number of children able to attend the centre up to 96 children, representing a 23% increase in the maximum number of children able to attend the centre.
This change in the maximum number of children attending the centre would be given effect through the modification of Conditions 1, 82, 87, 93 and 94
The proposed modification involves no physical works to buildings on the Subject Site.
In coming before the court to seek orders by consent, the Parties advised, and I accept, that the jurisdiction prerequisites in 4.55(2) of the EP&A Act have been satisfied in that: 1. the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted; 2. the modification application was notified between 26 September and 7 October 2019 in accordance with the provisions of KDCP, and twelve submissions were received in relation to the proposed modification. These have been considered by the Parties.
The Parties also submitted that it was their agreed position that: 1. the Applicant's modification application had been properly made; 2. the Parties' proposed amended conditions of consent adequately responds to the matters raised by the objectors in their submissions and on-site during the view. 3. having considered the matters in s 4.15(1) of the EP&A Act, all contentions in this appeal had been resolved.
The Parties further submitted that a consent authority for a modification application, such as comes before the Court in this appeal, must also take into consideration the reasons given by the consent authority for the grant of consent that is sought to be modified, and they agreed that: 1. the approval for the grant of consent that is sought to be modified was given by Commissioner Tuor the original consent judgment (Zaki v Ku-ring-gai), and; 2. the Applicant's proposal to increase the numbers of children permitted to use the centre is not inconsistent with the reasons provided by Commissioner Tuor in the original consent judgment, noting that the Commissioner had found (at [50]) that it would be unreasonable to limit the number of children to a lower number if the amenity impacts of the proposal were acceptable.
The matters raised by the objectors for consideration in relation to this appeal were identified above at [6], and can be grouped into the following subject areas arising from the proposed increase in numbers of children able to attend the childcare centre: 1. the potential impacts of increased traffic; 2. the potential impacts of increased parking; 3. the potential impacts of increased noise; and 4. bushfire related risks, including the need to evacuate children, associated with the potential for bushfires in the local area.
The objectors also raised a number of other issues of concern to them, including: 1. the design of an access ramp from the roadway leading to the entry of the centre that crossed the nature strip fronting the Subject Site, and; 2. the suitability of the Subject Site for a centre-based childcare centre.
While I note the concerns expressed by the objectors at [29], I also note that these fall outside the matters to which the Court can, and should, give consideration in this appeal because: 1. the access ramp was constructed in response to the original grant of consent, and; 2. the Court has already granted consent for the construction of the centre and in doing so has confirmed the suitability of the Subject Site for that facility.
The Parties explained how the matters raised by the objectors had been addressed by the Parties, and how this was supported by the testimony of the following technical experts: 1. Mr Oleg Sannikov, traffic engineering expert; 2. Mr Adam Shearer, acoustic expert; 3. Mr Jonathon Wood, town planning expert.

Traffic

In relation to the potential traffic impacts of the proposed development it was Mr Sannikov's evidence, conveyed within his expert report, tendered as evidence at the hearing, that: 1. the proposed development had been calculated by him to generate an additional 13 trips to and from the centre each day; 2. the operability of the roads in the local area would not be significantly impacted by the proposed development, and the roads would continue to operate at a level that was below their capacity; 3. following observations made by him during the peak arrival and departure times each day at the centre, no examples of road congestion, nor of poor driver behaviour, had been identified; 4. the centre was serviced by one or two medium sized heavy vehicles per day, but that this level of servicing does not create any 'sizeable' impact on local traffic conditions; 5. a comparison of traffic counts at the intersection of Manning Road and Beaumont Road, between existing condition and those that existed prior to the construction of the centre in 2011, indicated an increase in traffic of 22 vehicles per hour, and 25 vehicles per hour during the morning and afternoon school drop off/pick-up periods respectively, which he said, in his expert opinion, did not constitute a substantial increase and would not give rise to additional congestion on the local road system.
The Parties submitted, and I am satisfied, that, on the basis of the expert evidence of Mr Sannikov, the concerns raised by the objectors in relation to the potential impacts on traffic, had been adequately addressed.

Parking

It was common ground between the Parties that: 1. when it had been constructed the centre had, as required, included parking within the basement of the building that provided 22 car parking spaces, including a clearly marked and well located, accessible parking space that was compliant with the provisions of Standards Australia, Australian Standard AS2890.1, (2004), being the standard for off-street parking. 2. the relevant control within KDCP concerning the provision of parking for the proposed development was the control in Part 10B.1 (duplicated in Section C Part 22.2 of KDCP) which require that the centre provide 24 parking spaces (one space per four children) for the number of children proposed by the Applicant to attend the centre; 3. the off-street car parking spaces provided by the Applicant represented a shortfall of two car parking spaces against the relevant control in KDCP, based on the existing basement car parking capacity at the centre; 4. the objectives for the controls in Part 10B.1 of KDCP are: "1. To provide safe vehicular access and on-site manoeuvrability. 2. To provide car parking that satisfies the demand generated by the centre. 3. To design car parking areas that are compatible with the character of the surrounding area. 4. To locate and design car parking to minimise disruption to local traffic. 5. To ensure car parking does not affect the safety of the children. 6. To ensure car parking does not create adverse impact on the visual quality and character of low density residential areas." 1. the Introduction to KDCP provided in Chapter 1 of that document, said that: "The design controls demonstrate the preferred ways in which the objectives are to be achieved for improving site and building design. The controls focus on building performance/functionality, form, layout, sustainability, and residential amenity. Council may consider alternate solutions to the controls provided in this DCP where: i) the alternate solution is considered to be a reasonable planning outcome; and ii) the alternate solution achieves the aims and objectives of that design element."
It was Mr Sannikov's evidence, conveyed within his expert report, tendered as evidence at the hearing, and supported by the Respondent Council based on its own internal review of Mr Sannikov's expert report, that no additional parking should be required of the Applicant because; 1. based on observations of the centre during its operations: 1. the current basement car park is currently underutilised, providing at least 13 spaces that remained vacant throughout the day based on current operations; 2. the existing car park would cater adequately for the estimated increase in parking demand generated by the proposed development; 3. notwithstanding the above point at [(b)], Manning Road provides adequate additional short term parking capacity should this be required to meet the shortfall in parking against the provisions of KDCP.
The Applicant said that the adequacy of available on-site parking to meet the demand of the proposed development was supported by the findings of Commissioner Gray in Crawford Education Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1388, in which the Commissioner had said (at [56]) that: "Further, Mr McLaren opines that the one car parking space for every 4 children is an over-estimate of the parking required…"
Commissioner Gray then concluded (at [69]): "…I accept that the evidence of Mr McLaren that the parking rate of one space for 4 children in the KDCP is an over-estimate, based on the queuing analysis and the RMS childcare survey results from 2015. As such, the actual parking demand of the proposed development will be less than the number of parking spaces required by the KDCP…"
The Respondent submitted that it accepted the Applicant's submission, that the proposed on-site parking was sufficient for the purposes of the proposed development, and noted that: 1. its own survey of the use of parking at the centre had confirmed the outcomes of the survey undertaken by Mr Sannikov; and 2. Council's own internal assessment of the proposed development had confirmed that the proposed on-site parking was sufficient for the purposes of the proposed development.
Consequently, the Parties submitted, and I am satisfied, that, on the basis of the expert evidence of Mr Sannikov, the concerns raised by the objectors in relation to the potential parking impacts of the proposed development had been adequately addressed.

Noise

In relation to the submissions of the objectors that the proposed development would give rise to further unacceptable noise related impacts, the Applicant said that its acoustics expert, Mr Shearer, had said, in his expert report tendered as evidence at the hearing, that: 1. the application does not propose any increase to the total number of children permitted in the outdoor play areas at any given time during the operation of the centre, and that the operation of these areas will be consistent with conditions 86 and 87 of its original consent; 2. the centre's plan of management dated May 2019 provides confirmation that the approved number of children permitted to play in the outdoor area at any one time is not proposed to increase; 3. there will be no increase in noise emissions from the outdoor play area should the Applicant's proposed increase in numbers of children at the centre be approved; 4. noise emissions from the use of the basement car park as a consequence of the proposed development are calculated to increase by 1dB, which is considered a negligible increase, generally not perceptible to the human ear; 5. all calculated noise levels from the centre would remain consistent with noise criteria applicable at all sensitive receiver locations.
Consequently, the Parties submitted, and I am satisfied, that, on the basis of the expert evidence of Mr Shearer, the concerns raised by the objectors in relation to the potential noise impacts of the proposed development had been adequately addressed.

Bushfire risk

In relation to the concerns expressed by objectors in relation to bushfire risk, including concerns relating to the need to evacuate the centre in the event of a nearby bushfire, the Applicant said that these matters had been assessed by its expert planner, Mr Woods, who had said, in his expert report tendered as evidence at the hearing, that: 1. he had reviewed the bushfire prone land map in KLEP and determined that the Subject Site did not fall within an area that is identified as being bushfire prone land; 2. in his expert opinion, as a consequence of the Subject Site not falling within an area that is identified as bushfire prone land, the Applicant's proposal to increase the numbers of children permitted to attend the centre did not require any further formal assessment of bushfire risk; 3. notwithstanding his assessment above at [(2)], he noted that any risk associated with bushfire in the local area was likely to arise from an area to the west of the Subject Site, and that access to the Subject Site, and evacuation from it, was available via a route following Manning Road and Beaumont Road to the east that would not require any bushfire prone land, or any buffer zone lands, to be traversed by those evacuating or those seeking to reach the Subject Site to assist with an evacuation.
Consequently, the Parties submitted, and I am satisfied, that, on the basis of the expert evidence of Mr Wood, the concerns raised by the objectors in relation to bushfire risks had been adequately addressed.

Other matters

The Applicant submitted that the expert report of Mr Woods had also addressed further regulatory matters in relation to the proposed development, and in relation to which he had concluded that; 1. the proposed development was compliant with the relevant provisions of: 1. KLEP, including in relation to its permissibility in the R2 Low Density Residential zone applicable to the Subject Site; 2. KDCP, noting that the provisions of the NSW Department of Planning and Environment, Child Care Planning Guideline, (2017), prevail over the provisions of KDCP to the extent of any inconsistency; 3. the Child Care Planning Guideline, including the requirements for the internal and external physical environment of the centre.
The Respondent agreed with the submissions of the Applicant in relation to the compliance of the proposed development with the regulatory provisions identified by Mr Wood in his expert report.
The Applicant also tendered a revised plan of management for the centre, dated November 2019. Following an inquiry from the Court, the Applicant agreed that this should be further revised to include: 1. a Complaints Handling Procedure for the receipt, acknowledgement and response to complaints from residents living in the vicinity of the centre, and; 2. a review procedure for the plan of management.
Following the conclusion of the hearing, the Applicant filed a revision of the final plan of management, which I have reviewed.
I am satisfied that the further revised plan of management is consistent with the principles established by the Court for such plans in the case of Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315.
I am further satisfied that, as the Parties submitted, supported by the evidence of Mr Wood, the Applicant's proposed development is compliant with the provisions of the instruments and policies identified above at [44].

Conclusion

I am satisfied that: 1. the Applicant's modification application has been properly made; 2. all contentions in this appeal had been resolved, and the resolution of the contentions is supported by, and reflected in, the Parties' proposed modified conditions of consent; 3. the Court's requirements concerning the notification of applications for final orders by consent have been satisfactorily addressed; 4. the concerns of the objectors to the Applicant's proposal to increase the number of children permitted to attend the centre from 78 to 96 have been addressed to my satisfaction; 5. the jurisdictional perquisites applicable in the appeal, including the provisions of ss 4.15 and 4.55(2) of the EP&A Act have been satisfied; 6. approval of the Applicant's modification application is in the public interest.
Consequently, I conclude that the Applicant's modification application for the proposed development should be approved, subject to conditions.

Orders

The orders of the Court are: 1. By consent, the appeal is upheld. 2. The Applicant's modification application to modify development consent DA067/11 granted by the Court on 20 March 2013 in proceedings 2012/10054, is approved, subject to the conditions of consent annexed hereto at Annexure 'A'. 3. The exhibits are returned, except Exhibits A and 2. …………………………. Michael Chilcott Commissioner of the Court Annexure A (369 KB, pdf)

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: 12 December 2019

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Cases Cited (3)

Cited By (2)