Kinder Palace Pty Ltd v The Hills Shire Council [2013] NSWLEC 1182

Land and Environment Court New South Wales

Medium Neutral Citation: Kinder Palace Pty Ltd v The Hills Shire Council [2013] NSWLEC 1182 Hearing dates: 26 September 2013 Decision date: 27 September 2013 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is upheld. 2. The development application for a childcare centre at 294 North Rocks Road, North Rocks, is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 1, A, B, D and E, may be returned. Catchwords: DEVELOPMENT APPLICATION - Childcare centre Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Baulkham Hills Local Environmental Plan 2005 The Hills Local Environmental Plan 2012 Cases Cited: Blackmore Design Group v North Sydney Council (2001) NSWLEC 27 Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 Category: Principal judgment Parties: Kinder Palace Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Mr A Whealy of Gadens Lawyers (Applicant) Ms J Mort of The Hills Shire Council (Respondent) File Number(s): 10134 of 2013

Judgment 1This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by The Hills Shire Council (council) of a development application (DA 581/2012/HA) for a 40 place childcare centre at 294 North Rocks Road, North Rocks (site). 2The Amended Statement of Facts and Contentions stated that the application should be refused due to inadequate vehicle access and parking layout (Contention 3), acoustic impact from the internal areas (Contention 4) and that the proposal is not in the public interest as it does not meet the objectives for the zone in Baulkham Hills Local Environmental Plan 2005 (LEP 2005) and The Hills Local Environmental Plan 2012 (LEP 2012) (Contention 5). These contentions have been resolved through amendments to the plans, the proposed conditions of consent and the agreement of the experts.

Site and locality 3The site is irregular in shape with an area of about 1,126 sq m. It falls approximately 5 m from front to rear and is developed with a part one/part two storey detached dwelling. 4The locality is characterised by low density residential development, being predominantly single storey houses on large allotments with landscaped frontages and wide side setbacks.

The proposal 5The development application is for the demolition of the existing dwelling and construction of a childcare centre accommodating 40 children and associated works. 6The proposed childcare centre building is partially two and partially three storeys. The lower ground floor area is proposed to contain an outdoor underfloor play area. The ground floor is at the same level as the car parking area and is proposed to contain three playrooms and toilet facilities. The first floor is proposed to contain staff facilities such as kitchen, staff meeting room and laundry. It is proposed to provide a lift to permit disabled access between the floors. 7Car parking is proposed to be provided within the front setback for 12 vehicles, comprising four staff parking spaces and eight visitor parking spaces (including an accessible space). It is proposed that the centre will have five staff members and provide long day care for 0-2 year old (4 children), 2-3 year old (16 children) and 3-5 year old (20 children). The proposed hours of operation are 7:00am to 6:30pm Monday to Friday. The building is proposed to be constructed of face bricks with a rendered and painted finish, with pitched concrete tiled roofing.

Planning framework 8The development application was lodged on 25 November 2011. At the time of lodgement, the site was zoned Residential 2(b) under LEP 2005 and development for the purpose of child care centres was permissible within the zone. 9LEP 2012 commenced on 5 October 2012 and the site is zoned R2 Low Density Residential. Development for the purpose of childcare centres is prohibited within the R2 Low Density Residential zone. 10Clause 1.8A of LEP 2012 provides: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 11The parties referred to the relevant authorities that deal with the weight to be given to a draft planning instrument that has commenced (see Blackmore Design Group v North Sydney Council (2001) NSWLEC 27, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 and Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142). 12The parties agree that the proper approach to the assessment of the application is that the development remains permissible, and must be assessed under LEP 2005, but regard must also be had to whether the application is consistent with, and not antipathetic to, the aims and zone objectives of LEP 2012. 13The experts have agreed that the built form and design of the proposal is compatible with the area and that there are no adverse amenity impacts such as noise and traffic. The proposal, as amended, therefore addresses the objectives of the Residential 2(b) zone in LEP 2005 and the R2 Low Density Residential Zone in LEP 2012. The parties therefore agree that the application is consistent with, and not antipathetic to, the aims and zone objectives of LEP 2012. 14The Hill Development Control Plan 2011 (DCP) is also relevant.

Evidence 15The Court visited the site and heard evidence from objectors. The key concerns of the objectors were the impacts of traffic generated by the proposal. They considered that there are already safety issues associated with North Rocks Road, which would be exacerbated by the proposal and cars parking on the street. The objectors were also concerned about noise impacts from the centre, particularly from cars parking and children playing. The proposed fences would not ameliorate the noise impacts and would be too high. They also considered the height and bulk of the building to be out of character with the predominantly single storey dwellings in the area. 16The following experts prepared joint reports and were available on site to explain why the issues in dispute between the parties had been resolved: * Mr S Cooper (A) and Mr D Giffney (R) - acoustic * Mr K Hollyoak (A) and Ms V Sivakumar (R) - traffic and parking * Mr N Dickson (A) and Mr S Butler (R) - planning and urban design 17The acoustic experts agreed that the proposal would comply with the relevant noise criteria. In particular, the noise generated from the cot room and nappy change area was acceptable. Closing windows and using an acoustic ventilator for natural ventilation could further address noise from the cot room. Noise from the outdoor play areas would be mitigated through the provision of a 1.8m fence above a 300mm high retaining wall. A section of the rear fence would need to be 1.95m high to achieve compliance. 18The traffic and parking experts agreed that the revised car park layout and driveway complied with the requirements of AS/NZS 2890.1:2004. They accepted that the proposal would not impact on the safety of traffic and pedestrians using the road system. 19The planning and urban design experts agreed that the proposal responds to the objectives of the Residential 2(b) zone under LEP 2005 through suitable landscaping, appropriate setbacks and satisfactory building height. The proposal remains permissible despite the commencement of LEP 2012 and is consistent with the zone objectives for the R2 low density residential zone. The number of children has been reduced to 40 and the building footprint is similar to that of a single dwelling. It provides for the need for childcare within a low density residential area.

Findings 20The experts have agreed that the amended plans and conditions have resolved the issues in dispute between the parties. The objectors have raised additional issues, which were not raised by council. In particular, they considered that the traffic generated by the proposal would increase the potential for safety impacts on North Rocks Road. The applicant's traffic study dealt with the traffic impacts of the proposal, including sightlines, street parking, likely traffic generation. The council has reviewed and accepted the conclusions of this report. In the absence of any expert evidence to the contrary, I accept that the likely traffic impacts of the proposal have been adequately assessed and are reasonable. The parking provided on site complies with the requirements of the DCP and does not rely on on-street parking. 21Similarly, the experts have agreed that the use of the proposal will meet the relevant noise criteria. The height of the proposed fences is similar to that of residential boundary fences and is not uncharacteristic of the area. 22While the proposal is two to three storeys, due to the slope of the land and the setback of the upper storey, it will have a similar bulk and scale to existing buildings in the area. It is within a landscaped setting with appropriate setbacks. The proposal is compatible with the desired future character for residential development sought by the planning controls. 23I accept that the issues in dispute between the parties have been resolved and that the appeal may be upheld and development consent granted.

Orders 1. The appeal is upheld 2. The development application for a childcare centre at 294 North Rocks Road, North Rocks, is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 1, A, B, D and E may be returned. Annelise Tuor Commissioner of the Court

********** 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: 27 September 2013