Raymond Bazouni and Snjezena Kuruc v Holroyd City Council [2006] NSWLEC 307

Land and Environment Court of New South Wales

CITATION : Raymond Bazouni and Snjezena Kuruc v Holroyd City Council [2006] NSWLEC 307

APPLICANT Raymond Bazouni and Snjezena Kuruc PARTIES : RESPONDENT Holroyd City Council

FILE NUMBER(S) : 11264 of 2005

CORAM: Hussey C

KEY ISSUES: Development Application :- Childcare centre, overdevelopment, insufficient outdoor play area, noise disamenity, public interest

Holroyd Local Environmental Plan 1991 Holroyd Development Control Plan No. 27 LEGISLATION CITED: Development Control Plan No. 1 - Guidelines for Parking Development Control Plan No. 38 - Guidelines for Erosion and Sediment Control Children's Services Regulation 2004,

CASES CITED: Padburn v North Sydney Council [2005] NSWLEC 444

DATES OF HEARING: 31/05/2006

DATE OF JUDGMENT: 06/07/2006

APPLICANT Mr R Creighton, agent

LEGAL REPRESENTATIVES: RESPONDENT Mr G McKee, solicitor SOLICITORS McKees Legal Solutions

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

7 June 2006

11264 of 2005 Raymond Bazouni and Snjezena Kuruc v Holroyd City Council

JUDGMENT

Background 1 This appeal was lodged against council's deemed refusal of development application for a childcare centre (CCC) with underground car parking at 3 Mason Street, Merrylands. For the appeal a number of issues were initially identified, which were subsequently reduced following the submission of outstanding details by the applicant. At the commencement of the hearing, the status of the issues was clarified as follows: o Overdevelopment of the site; relating to insufficient outdoor play space/child and likely inability to obtain a DOCS licence, o Noise disamenity and associated acoustic treatment, o Traffic; this issue has been resolved following consideration of the Court-appointed experts assessment and is to be covered by conditions of consent, o Drainage; this issue has been resolved following the provision of additional detailed engineering concept designs and is to be covered by conditions of consent, o Landscaping; this issue resolved by way of amended landscaping plans and covered by conditions consent, o Erosion and sediment control; covered by conditions consent, o Public interest and matters raised by objectors.

2 Consequently, the outstanding issues concerned the overdevelopment of the site and associated noise controls, together with matters raised by the neighbours. The site 3 This site is described as Lot 31, DP 628 and is located on the western side of Mason Street. It is regular in shape, has an area of 910 sq m and a frontage to Mason Street of 16.46 m. The site has a fall of approximately 2.4 m to the rear (west) of the site. 4 There is an existing single storey fibro dwelling, an external garage and sheds currently erected on the site. A number of mature trees are also located on the site.

5 This neighbourhood is predominantly residential comprising a mixed of single and two-storey dwellings, dual occupancy and villa/townhouse development. The proposal 6 The proposal involves the demolition of the existing buildings on the site and construction of a single storey, purpose-built childcare centre. The building incorporates a basement car park for 9 vehicles. It is proposed to restrict the use of this area to the childcare staff. 7 The CCC proposes to accommodate a number of 39 children, within the various age categories.

8 The proposed hours of operation are: Monday – Friday, 7:30 am - 6 pm

9 According to the Statement of Environmental Affects (SEE), the following details were submitted: - Site area 910.56 sq m; - Floor area of CCC 325 sq m; - Outdoor play area 302 sq m; - Front landscape area 240 sq m; - Basement car park 293 sq m; (9 car spaces). Planning controls Holroyd Local Environmental Plan 1991 (LEP) 10 This site is zoned Residential A under this LEP and the proposed development is permissible in the zone with development consent. Clause 9(3) provides that consent shall not be granted to the carrying out of development of land unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

11 The objectives for the Residential A Zone include: (a) to provide and maintain the amenity of a predominantly low-density living area and to enable sensitive infill medium density housing styles; (b) to enable development for purposes other than residential only if it is compatible with the character of the living area and has a domestic scale of character; (c) to restrict development which is on traffic generating, sensitive, hazardous, noisy, including or environmentally inappropriate nature. Holroyd Development Control Plan No. 27 - Guidelines for the development of childcare centres 12 The following clauses were identified as relevant in this case: o Clause 11.2 - Parking: There must be provision for a sufficient number of off-street parking spaces for employees and parents, with the least one (1) per every employee including primary contact and support staff, plus one (1) space per ten (10) children. o Clause 12.2 - Protecting Neighbours from Noise: the noise from the Centre should not disrupt surrounding properties excessively. o Clause 14.1 - Construction Requirement/Fire Safety: All Child Care Centres are to be designed and constructed in accordance with the relevant legislation and in particular the Local Government Act 1993, and the Building Code of Australia. o Clause 15.2 - Stormwater Drainage: Child Care Centres shall not be permitted on any land unless arrangements satisfactory to the (consent authority) have been made for the carrying out of the drainage works. o Clause 15.3 - Easements: Where easements are required to be created over the downstream property, (the consent authority) requires submission of proof of the adjoining owners consent to the creation of the easement prior to the release of the approved building plans. o Clause 16 - Landscaping Controls: Landscaping should consist of cost effective items or features which produce the highest landscape value for the local character.

Development Control Plan No. 1 - Guidelines for Parking Development Control Plan No. 38 - Guidelines for Erosion and Sediment Control

The evidence 13 A number of expert reports were tendered and considered in respect of the aforementioned issues. These include: o Mr C McLaren, Court-appointed traffic engineer (Exhibit 3), o Mr N Lawson, Consulting engineer (Exhibit C), o Mr R Fuggle and Mr J Rothery, Joint landscape report (Exhibit 2), o Mr J Maung, Acoustic consultant (Exhibit A).

14 In addition to this, a number of objections from neighbours were lodged and have been considered in the determination of the matter.

15 Insofar as the council contends that the proposal represents an overdevelopment of the site, Mr McKee also submits that some of the detailing of the proposal is inadequate so as to allow full environmental assessment of the proposal. In particular, this refers to the level of detailing of the proposal to enable calculation of the provision of appropriate outdoor open space areas.

16 After some confusion about the number of children, Mr Creighton confirmed that the proposal was for 39 children, generally consisting of: o 14 in the 3-5 age group, o 15 in the 2-3 age group, and o 10 in the 0-2 age group.

17 On this basis, Mr McKee submits that there is a deficiency in the allocated areas, when assessed against the provisions of DCP 27 and the Children's Services Regulation 2004 Part 5 Child Number Requirements. Insofar as there are some internal deficiencies, council acknowledges that the building footprint allows amendment to achieve reasonable compliance.

18 However, Mr McKee submits there are more significant problems with the deficiency in outdoor open space provisions. Based on the council officers assessment of the development application plans, an area of 7 sq m/child is required, which results in a shortfall in the order of 115 sq m. Also the outdoor play space is not adequately shaded and there does not appear to be any storage facilities indoor or outdoor.

19 Whilst I accept that some variations in measurements may occur due to the interpretation of the plans, nevertheless I do not consider that there was any compelling evidence presented, which indicated the proposals reasonable compliance with the relevant controls outdoor play area requirements. In this event, I accept Mr McKee's submissions that it is most likely difficulties will be experienced in obtaining an operating licence from DOCS. Furthermore, I note the submissions that a smaller scale childcare centre could comply with this guideline and thereby represent an appropriate scale of development for this site.

20 Accordingly, I consider the deficiency in outdoor play area and its amenity, is an indicator of the overdevelopment of the site and therefore a negative aspect of the proposal before Court.

21 The other substantive issue concerns noise amenity. In particular this refers to the noise generated from children playing in the outdoor yard areas. Mr Maung assessed this matter and both parties confirmed their reliance on his assessment, despite an earlier acoustic report from RSA Acoustics being lodged with the development application.

22 Mr Maung undertook a site evaluation, generally in accordance with EPA guidelines. This included a noise logger being located towards the rear of the subject property to assess existing background noise. He then referred to a number of cases involving childcare centres, where various design goals have been adopted ranging from background + ( 5dB(A) or 10dB(A)). From this he adopted the standard EPA Leq(15 minute) criterion of background + 5 dB(A) for the development. By then analysing a number of different outdoor activity scenarios for the various age groups, he concluded that perimeter, acoustic fencing would be required, as detailed in Table 3. TABLE 3

Location Barrier Height (m) 29 Children15 Children Northern Boundary 3.12.6 (Western end – north of outdoor play area) Northern Boundary 2.21.5 (Eastern edge of outdoor play area to eastern edge of "transition area") Western Boundary 3.12.6 Southern Boundary 2.82.5 (Western end – south of outdoor play area) Southern Boundary 1.61.5 (Eastern edge of outdoor play area to eastern edge of southern dwelling)

23 In summary, his conclusion is that for a large number of 29 children (excluding the 0-2 year olds), significant acoustic barriers up to 3.1 m are required. Also, for noisy activities occurring inside the childcare centre, the rear doors and any windows on the internal play areas need to be closed. This assessment was not challenged by the parties.

24 A number of objections were made against this proposal. Mr Hanson, adjoining neighbour from 5 Mason Street, made the following points: · the proposal represents an overdevelopment of the site, which is out of character with this residential neighbourhood, particularly the proposed basement car park, · the proposed "steel" barrier fence will have a distinctly industrial appearance which will detract from the visual character and amenity of the residential area, · this steel barrier fence will not be acoustically effective because it will reflect noise generated by the children, considering the source height, · the proposal, including the basement garage will involve excavation adjacent to his common boundary, which may cause destabilisation and construction problems for his property, · the proposal represents a significant increase in development compared to the potential for two new dwellings on the site which would generate significantly less traffic movements and than anticipated for a 39 place childcare centre, · the proposed 3.1 m high boundary/acoustic fence will have an unacceptable visual impact because it will appear like an "industrial compound" and will cause shadowing to his backyard area.

25 Mrs Hanson from 5 Mason Street made the following objections: * the proposed scale of the childcare centre is excessive in this neighbourhood, but she would not object to a smaller, more "domestic" scale centre for approximately 15 children, * the scale of proposal will create significant traffic/environmental impacts, * based on the general noise level of children playing in the neighbourhood, she does not consider the proposal provides sufficient outdoor play area, * the proposed 3.1 m high acoustic fence adjacent to the common boundary will cause shadowing and other adverse impacts on her property, to the effect that she has postponed plans to build her "retirement" home on her property because of the detriment she considers will be generated from the proposal.

26 Mr G Robinson, from 4B Holsworth Street, owns a duplex property adjoining the rear boundary of the proposal and he made the following objections: - the proposed 3.1 m high acoustic fence to be erected on his common boundary will be a radical intrusion, which will cause severe shadowing of his eastern and part southern open space areas, which are setback approximately 3 m from the common boundary, - his courtyard areas are already relatively small, with limited opportunities for a sunny position, which will be eliminated by the proposed fence, - the height of the fence and its resultant other shadowing will also restrict his limited landscaping opportunities and lawn areas, - in principle he has no objection to an appropriate sized childcare centre on the subject land, providing it is of a smaller scale, which correspondingly reduces the need for such high acoustic barrier fence within this residential neighbourhood.

Conclusions 27 Having considered the evidence, the submissions and undertaken a view I do not consider this application merits consent. In the first instance, I accept Mr McKee's submissions that some aspects of the proposal are ill defined and non-compliant with the DCP and other relevant controls. In particular, I accept the submissions on behalf of the council that the proposal does not provide sufficient area of outdoor play area. Accordingly I consider this indicates an overdevelopment of the site.

28 Notwithstanding this, I note Mr McKee's submissions in this regard that a smaller childcare centre, which complies with the relevant controls would likely be more acceptable to council and the community. Such centre will then be more likely to obtain the requisite licence from DOCS, considering that the Children's Services Regulation 2004, Part 3 - Facilities and equipment requirements provides for: 30 Space requirements: centre based children's services (1) … The premises of a centre based children's service must have at least 3.25 square metres of unencumbered indoor play space per child that is exclusively for the use of children provided with education and care while in attendance at the service. (4) Subject to subclauses (7) and (8), the premises of a centre based children's service must have at least 7 square metres of usable outdoor play space per child that is exclusively for the use of children provided with education and care while in attendance at the service. 29 Whilst the applicant submitted that the application for this licence could be made subsequent to the consent being granted, I do not consider this approach is appropriate in this case considering the apparent non-compliance in the outdoor play space, which has not been justified by the applicant.

30 More importantly however, I consider the necessity to construct the predominant 3.1 m high acoustic fence uncharacteristic and undesirable in this neighbourhood. As the applicant somewhat clarified the specification for this fence to be of a Colourbond specification and erected on the common boundary with neighbouring properties, I accept the council and neighbours submissions that this will have a "foreign", compound-like appearance, which is uncharacteristic and not of a scale consistent with this residential neighbourhood.

31 Furthermore, because the applicant declined to setback the fence in the order of 1 - 1.5 m to enable perimeter landscaping to mitigate the visual impact of the fence, I am satisfied that the visual impacts of the fence are exacerbated.

32 Another unreasonable outcome is that both the neighbouring properties at 5 Mason Street and 4B Holsworth Street, will be significantly overshadowed. In this regard, I have considered the planning principles outlined in Padburn v North Sydney Council [2005] NSWLEC 444, concerning the impact of development on neighbouring properties. One of the relevant themes is that: in assessing an impact, one should balance the magnitude of the impact with the necessity and reasonableness of the proposal that creates it. An impact that arises from a reasonable or necessary proposal should be assessed differently from an impact of the same magnitude that arises from a reasonable or unnecessary proposal. For example … 33 It seems to me that the height and scale of the surrounding acoustic fence represents a significant intrusion into this urban area, which results in an unreasonable balance because it creates excessive adverse visual and overshadowing impacts on the adjoining properties. In my assessment, the height and specification of the fence required to mitigate noise from the 29 (older) children, is excessive in the context of this residential neighbourhood. 34 In the ultimate, I accept the submissions on behalf of council and the neighbours that the surrounding fence is of excessive height, which will introduce a significant foreign element into this residential neighbourhood, which is inconsistent with its residential character. As such, I am unable to conclude that the development is consistent with the zone objective (b), which only allows non-residential development when it is compatible with the character of the living area and has a domestic scale character. Instead I accept the neighbours submissions that it will have an industrial type presentation/scale, which is therefore unacceptable.

35 Furthermore, I am inclined to accept the council submissions that this relatively high enclosure does not adequately satisfy the objectives of DCP 27 in providing a functional and pleasant environment for the users of the development. From the council submissions, I accept that a smaller scale development on the site, requiring lower fences and associated landscaping should result in a more acceptable environment.

36 For these reasons, I consider this application should be refused. Court orders 1. The appeal is dismissed. 2. Development consent to DA 2005/50, for the construction of a 39 place childcare centre at 3 Mason Street, Merrylands, is refused. 3. The exhibits may be returned except 1, 7, A, B, and D. ___________________ R Hussey Commissioner of the Court rjs

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