Little Darlings Child Care Centre Pty Ltd v Sutherland Shire Council [2008] NSWLEC 1110

Land and Environment Court of New South Wales

CITATION : Little Darlings Child Care Centre Pty Ltd v Sutherland Shire Council [2008] NSWLEC 1110

APPLICANT Little Darlings Child Care Centre Pty Ltd PARTIES : RESPONDENT Sutherland Shire Council

FILE NUMBER(S) : 10831 of 2007

CORAM: Hoffman C

KEY ISSUES: Development Consent :- Existing dwelling used as a child care centre, parking, noise, increase of number of children in the centre, landscaped area, streetscape, balance of built/unbuilt

Land and Environment Court Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 1 Sutherland Shire Local Environmental Plan 2000 RTA guidelines

DATES OF HEARING: 18/01/2008, 29/01/2008 and 06/03/2008

DATE OF JUDGMENT: 12 March 2008

APPLICANT Mr S. Berveling, barrister instructed by Mr P. Baltins of Willis & Bowring

LEGAL REPRESENTATIVES: RESPONDENT Mr A. Pickles, barrister Instructed by Ms J. Amy with Mr A. Markham of Sutherland Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

12 March 2008

10831 of 2007 Little Darlings Child Care Centre Pty Ltd v Sutherland Shire Council

JUDGMENT 1 Commissioner: This appeal was agreed between the parties to be dealt with under s 34 of the Land and Environment Court Act 1979. The parties met in conference on 18th January, 29th January and 6th March 2008.

2 At the final day of the conference the parties agreed to be bound under s 34(3)(b)(ii) of the Act, and so I proceed to judgment.

3 The proposal is to use an existing house on the site to create a 3rd Playroom and facilities to add 14 children to the capacity of the childcare centre. This makes the total of 54 children. The site is an existing child care centre at Nos 148-150 Woolooware Rd, Caringbah. It is on the corner with Bermuda Pl.

4 No.148 was originally approved as the conversion of an existing house to a child care centre. A second building in the back yard provided the 2nd Playroom and associated facilities, including an outdoor play yard at the rear of No.150. This proposal demolishes part of the house on No.150 to provide a 3rd outdoor play yard, and converts the house to the 3rd Playroom. 5 The applicable statute is the Sutherland Shire Local Environmental Plan 2000 (LEP) in which the proposal is Zone 2(e2) Residential - Scenic Protection being close to Gunnamatta & Burraneer Bays. The use is permissible with consent. A later statute LEP 2006 limits the number of children at a child care centre to 45. However due to savings clauses this application relates to the previous LEP and LEP 2006 has only the status of exhibited but not yet made.

6 Amended plans were produced that the respondent said were now satisfactory except for one instance, namely an existing garage with a 2nd storey storeroom adjacent Bermuda Place. The council had no record of the 2nd storey being approved, and said it was unlikely to have been approved as a 2-storey structure would require a 3m setback to the boundary and it has only about 200mm. The proximity to the boundary makes it very obvious in the streetscape and detrimental to it in the respondent's opinion. 7 The Council had a photo of the garage in 1992 when it was single storey.

8 Mr Koumoulas, the next door neighbour at 17 Bermuda Pl, said the 2nd storey was added in 2004 by the previous owners of No.150 as an extra bedroom. He had drawn it to Council's attention on several occasions as an illegal building, but council had never taken action. 9 Attending the conference for the Respondent were: o Mr A Pickles, barrister; o Ms J Amy, solicitor; o Mr A Markham, solicitor; o Mr J Gogoll, engineer; o Ms D Pinfold, town planner; o Mr D Shiels, arborist/landscape designer. 10 Attending for the Applicant were: o Dr S Berveling, barrister; o Mr P Baltins, solicitor; o Mr G Moeskops, architect; o Mr L Fletcher, town planner; o Mr C McLaren, traffic engineer; o Mr R Jackson, arborist/landscape designer; o Ms T Gowen, acoustic expert; o Ms S Ede, childrens' services consultant. 11 Attending for the Objectors were: o Mrs J Tangney of 140 Woolooware Rd, a neighbour on the north side of the site across an access laneway to the rear of Nos. 17 and 19 Bermuda Pl. o Mr K Koumoulas, of 17 Bermuda Pl, neighbour on the east side of the site. o Mssrs J & E Cook of No.2 Bermuda Pl. o Ms J Penklis of No.12 Bermuda Pl. 12 Also attending as both parties single expert was Mr S Gauld, acoustic engineer from Day Design Pty Ltd.

13 Mr Koumoulas submitted a petition of most residents of Bermuda Pl against the proposal to expand the centre, and also said he had been asked to represent the Wenborn's of No.152 Woolooware Rd, neighbours of the centre across Bermuda Pl on its corner with Woolooware Rd.

14 The respondent's issues at the start of the conference were, in summary: o Impacts on amenity of neighbours o Noise increase due to additional children in the play yard, especially for Mr Koumoulas and the Wenborn's. o Streetscape and character of the area. o Landscaped area on the site. o Parking and traffic o Overdevelopment of the site o Unacceptable precedent o Amalgamation of the site o Inadequacy of information supplied by the applicant. o Matters raised by objectors, that included most of the above matters and the 2-storey garage streetscape impacts. 15 The amended plans in the end, retained existing substantial trees in the Woolooware front yard, and added new landscaping and trees on the corner with Bermuda Pl. Carparking provided for 11 cars on site, 6 for staff and 5 for pick-up/drop-off including a disabled persons carspace. Plus, there are two more kerbside in Woolooware Rd, making 7 for parents, making 13 carspaces in total. There is a "drive-through" drop off/pickup layout, and a separate drive for 2 staff and the disabled persons carspace. It now complies with the DCP for Childcare Centres Edition 3.

16 The council engineer had raised stormwater drainage at the first day of the conference as unsatisfactory, although he believed it could be dealt with. The drawings were inadequate. The final plans showed a large detention tank on site under the carpark and another tank for water reuse for irrigation with appropriate design and drain lines. He was satisfied by this. 17 The council planner and the arborist are now satisfied that the proposal complies sufficiently with the Childcare Centre DCP to merit approval. On streetscape impact to Woollooware Rd the proposal is much improved by the retention of substantial trees, previously to be removed, and by the additional landscaping. The proposal still did not comply with the minimum landscaped area requirements of the Sutherland Shire LEP 2000 (LEP). The proposal has 45% site coverage in landscaping whereas 55% is required. The applicant submitted a State Environmental Planning Policy No.1 objection, seeking to show the objectives of the standard are met and the non-compliance should be allowed.

18 The Council experts now support the SEPP 1 objection as achieving the objectives of cl 36(1) (a) to (c) under the LEP, because the proposal as amended does retain substantial trees and adds new trees and vegetation to retain/enhance the character of the locality. Also, the site currently has only 36% landscaped area, but the demolition of part of the existing house to create more landscaped yard space increases it to 45% thus improving the balance between built form and vegetation. The removal of the 2nd storey of the garage would further improve that balance. Further, the new drainage scheme with its detention tank and stormwater re-use tank will contain urban runoff, plus the demolition of part of the existing house to create more yard increases the pervious areas on the site. 19 I agree with the respondent's and the applicant's experts in regard to the SEPP 1 objection on the proviso that the proposal is still non-compliant, and in regard to retaining/enhancing the character of the locality and the foreshore scene protection area under Cl 14 of the LEP and Bermuda Pl, and the balance of built form to unbuilt, under cl 36(b) the 2nd storey of the garage must be removed as sought in council's draft conditions. Since landscaping is important in regard to this issue, it must be maintained in future. I insert a condition thereto.

20 On the limit of childcare centres to 40 children in the Residential Zone contained in the applicable DCP. The Council experts did not contest Mr Fletchers town planning evidence that the amended plans showed achievement of the relevant objectives on amenity, noise, parking, streetscape of Woolooware Road and compatibility with adjoining uses. He noted the only immediate neighbour is Mr Koumoulas. The site has two street frontages, and the third is a shared driveway private lane. The separation from the residential uses, good on site facilities and proposed buffering to Koumoulas has enabled acceptable low level impacts. He noted the play school has existing 21 sq m/child play area and will have 30.8 sq m/child as amended. That is 4 to 10 sq m/child more than other childcare centres approved by council, this demonstrates the low intensity of site use that enables it to fit into the residential zone. 21 Although the 2nd storey of the garage is the only matter outstanding between the parties, I should also comment on the objectors concerns.

22 The main issue for the adjoining and nearby neighbours is traffic and parking and noise.

23 Mrs Tangney said the staff, who she can recognise by sight, do not currently use the on-site parking and she is concerned they will not if the proposal is approved. They park right up to her driveway such that it is not safe to reverse out into busy Woolooware Rd between cars. As a result Mrs Tangney has to reverse into her driveway off the street so she can exit in a forward direction and get good sight-lines. Reversing into her driveway has its own hazards, and frequently she is abused by other drivers who have to stop while she does it. I note there is Condition 43 of consent that requires staff to use the on-site carparks. 24 Mr Koumoulas is concerned that parents' cars queue across the drive entry to the rear access lane to Nos 17 & 19 Bermuda Pl because the entry is on Woolooware next to the centre's carpark entry. He feels this will not change or will get worse because the carpark layout will not work. Mr Koumoulas noted on the plans that if car spaces 3 and 4 are occupied none of the other carspaces can be accessed. Also most of the staff spaces are "stack-parked" so the staff have to juggle parking and that will not be popular. So they will park in the street and create more problems than now, because there will be more staff. Including new staff there will be 7 in total.

25 The objectors see daily the result of the existing carpark layout that means parents park in Bermuda Pl, or, close up against residents' driveways in Woolooware creating inconvenience and hazard. The hazards are due to the busy traffic in Woolooware because it is the only access road to all the houses on the peninsula. It is a straight road so drivers are at or near the speed limit. Parents' manoeuvring, doing U-turns, parking, unloading/loading children are a potential hazard. 26 In Bermuda Pl, the street is only 5.5m wide with 1m wide footpath reserves between the kerb and property boundaries. Opening a car door requires another car to stop, or real danger if the car does not stop. The 1m wide footpath reserve is too narrow for parent and child to walk side by side. Parents often park opposite driveways contrary to "no parking" signs put there so residents can turn in or out of their driveways in one movement. The narrowness of Bermuda Pl necessitates this.

27 The council and the applicant's traffic experts have agreed the amended plans with the carpark constructed to more flat levels than existing and with 11 car spaces on site and 2 kerbside in front of the site, now comply with council's and the Roads and Traffic Authority guidelines for child care centres and for the proposed total of 54 children on this site.

28 Mr McLaren said in his report of 13 Feb 2008 that typically staff numbers peak around midday with fewer at the start and the end of the day, so some of the staff carparks will be available for parents at drop-off/pick-up times. That would mean carspaces 2 and 5 may be available making 6 spaces on-site plus 2 kerbside. But it is true that if spaces 3 and 4 are occupied, no parents' cars on-site can move. Nevertheless, the traffic experts are happy this will work because spaces 3 & 4 will be very quick drop-off/pick-up visits, and the parties are agreed. It seems any overflow parking in Woolooware or Bermuda should be short-term and minimal and acceptable. 29 In regard to the noise concerns of Mr Koumoulas and the Wenborns, the acoustic report by Mr Gauld said that the earlier noise monitoring by Renzo Tonin acoustic expert could not represent noise nuisance from the day care centre. Mr Koumoulas said the children do bang on a slide and on a timber deck in the play areas and this may be the source of the extra noise.

30 Renzo Tonin recorded levels of 80dbA from an unattended monitor in Mr Koumoulas' front yard. Mr Gauld said that is equivalent to every child shouting for at least 40 minutes in both the morning and the afternoon play periods at a level louder than an adult male. That is not possible in Mr Gauld's opinion. He said the Leq and L90 levels in that evidence were nearly the same and it indicated to Mr Gauld the noise must have been steady in intensity and close to the microphone. He concluded the heightened noise levels must have been created by another source than the children at play. 31 Notwithstanding that he acknowledged the existing centre with children at play would exceed the council's criteria. He said it could be remedied.

32 Using professionally accepted noise levels for children at play and doing the calculations, Mr Gauld said that appropriate noise attenuation could be achieved for Mr Koumoulas by appropriate noise management eg limiting the number of children in the yards, taking crying children inside, and by providing acoustic barriers on the fenceline up to 2.6m high.

33 Mr Koumoulas thought the polycarbonate sheeting Mr Gauld wanted would be slanted at 45 degrees into the site and therefore direct water onto his property. A reading of Mr Gauld's report only says to raise the existing brick fence by polycarbonate sheeting as shown in the Tonin report. That report shows the extension on the plan 4932 sheet 1 as either 45 degree slope or vertical. If it is raised vertically and not with a 45 degree slope, I do not see how the fence would shed any more water on Koumoulas's than the existing fence. If it is at 45 degrees I agree that it should be designed with some drainage that does not shed rain water into Koumoulas's. I note a 45o component may also collect leaves etc. 34 I note from the survey plan of the site (Ref 20345 dated 30 March 2006 by John R Holt Surveyors) that the brick fence is wholly on the subject site, it does not sit over the common boundary. Presumably the fence extension could be done in brick masonry and might be more acceptable to Mr Koumoulas.

35 In regard to the Wenborn's, Mr Koumoulas said on their behalf that there is noise of children at play to the rear, I suppose, family room doors and windows that they have to keep open in summer, as they have no air-conditioning. For more abundant caution I believe the acoustic fence should be extended around to include the southern fence of Play Area 2. I insert appropriate wording into the conditions on the above. 36 An overall observation of the acoustic issues is that Play Areas 1 & 2 already exist. Play Area 3, the new one is 10m away from the Koumoulas boundary, and is between the garage and Playroom 2 and proposed Playroom 3. It should not produce nuisance, so the acoustic experts recommendations are to fix existing problems, and that is good.

37 Bearing in mind that the parties had only one issue at the end, being the 2nd storey of the garage, and I have determined that in favour of the respondent, I find there is nothing sufficient for refusal of the proposal, subject to appropriate conditions.

38 Therefore the Orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted to the extension of the child day care centre at Nos.148-150 Woolooware Rd, Caringbah from 40 children to 54 as shown in the drawings 06 04 DA 1 and 2 both issue D by Robinson Moeskops Architects, and landscape drawings 4932 sheets 1 & 2 by Jacksons Nature Works and drawing 2006/071-H1 issue O by Jens Clemensen & Assoc P/L, all as amended by and built and operated in accordance with the conditions in Annexure A hereto. 3. The documents on file are returned to the parties except the drawings referred to above, the amended facts & contentions November 2007, the Class1 appeal papers, the site survey mentioned in the judgment and the draft conditions handed up as amended on 6 March 2008.

___________________ K G Hoffman Commissioner of the Court ljr

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.