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Maguire v Sutherland Shire Council (1.)Furia Pty Ltd v Sutherland Shire Council (2.) [2013] NSWLEC 1115 (2 July 2013)

New South Wales Land and Environment Court

Maguire v Sutherland Shire Council (1.)Furia Pty Ltd v Sutherland Shire Council (2.) [2013] NSWLEC 1115 (2 July 2013)

Last Updated: 24 July 2013

This decision has been amended. Please see the end of the decision for a list of the amendments.

JUDGMENT

1. These two appeals are against the refusal by Sutherland Shire Council of development applications proposing the establishment of a child-care centre at two sites within the council area. Matter Number 10133 of 2013 relates to land at 36 Linden Street, Sutherland and Matter Number 10227 of 2013 relates to land at 168 National Ave, Loftus. On the motion filed by the applicants in the proceedings the Court has granted leave that the matters be heard concurrently as the applicant in the first matter shares ownership of the land the subject of the second appeal. In the interests of a just, cheap and quick resolution of the proceedings, the Court heard evidence from experts on both matters during the hearing. The parties agreed that where evidence related to both sites, that evidence be evidence in both appeals and where distinction applied because of different circumstances or site characteristics, separate evidence be heard.
   
2. The contentions in the cases are similar and relate to whether the sites are suitable for the proposed development particularly in terms of traffic movements and safety, whether adequate provision has been made for car parking, amenity impacts, streetscape, character and whether a Plan of Management submitted by the applicant is adequate to address concerns of residents. In addition, in the Linden St matter, whether it is appropriate to allow removal of street trees to facilitate access to the property and to provide on street parking. The latter contention was not pressed when it was agreed by the applicant that all of the street trees could be retained.
   

The sites and their context.

36 Linden Street.

3. The site is located on the north eastern corner of Linden and Galga Streets. It has frontages of approximately 23 m and 33.5 m to each street respectively and an area of 786.9 square metres. Galga Street is closed at its intersection with Linden Street due to the proximity of that intersection with the major signalised intersection of Linden St and River Road. The site falls from the rear towards Linden St and contains a single storey dwelling and detached garage. It is subject to flooding in terms of an overland flow path. Vehicular access is currently provided from Galga Street.
   
4. Development in the vicinity of the site comprises single detached dwellings and villa houses with residential flat buildings located closer towards Sutherland Railway Station, which is approximately 1km from the site.
   

168 National Avenue.

5. The site is located on the south eastern side of National Avenue between Orchid Avenue and Lilac Street, has a frontage of 20.117 m, depth of 50.29 m and site area of 1011.7 square metres. The land falls from the south west to north east (rear to street) with a cross fall of approximately 3m. A single storey dwelling house and detached garage are currently erected on the site with 16 trees in the front and rear yard.
   
6. Development in the vicinity of the site comprises single and two storey detached dwelling houses. The Illawarra Railway Line is located approximately 75 m to the east of the site with the Princess Highway beyond the railway line to the east.
   

Background and the proposals.

36 Linden Street

7. The proposal is for the demolition of the existing structures, construction of a single storey child-care centre with capacity for 30 children and the installation of one sign. The centre would cater for 10 x 0 - 2 year old children, 10 x 2 - 3 year olds and 10 x 3 - 5 year olds and operate from 7am to 6.30pm Monday to Friday and be staffed by 6 childcare staff and one manager/director however, in the evidence of the planning experts, this number could be reduced to 6. Similarly, Mr Nash, counsel for the applicant, advised that whilst the hours sought to operate the centre were until 6.30pm, children would leave the site by 6pm with the additional half hour allowing for cleaning/next day setup.
   
8. On site parking for six cars, accessed via Galga Street and an additional two parking spaces within the Galga Street road reserve is proposed. Those on street spaces are in the form of indented parking bays to be constructed within the existing road verge. The application has been amended to include an application for approval of the works within the road reserve under the Roads Act 1993.
   
9. The proposed building would be erected on a 7.7 m alignment to Linden Street and 8.8 m to Galga Street. A 1.5m set back is proposed to the northern boundary and 7.15 m to the eastern boundary. Access ramps and stairways encroach the eastern setback and that area is nominated as the garden area for the babies and for outdoor staff respite. It is proposed to enclose the frontage of the site with a 1.5 m high brick and timber paling fence and utilise that space as an outdoor play area for the two to five year old children. A1.8 m high acoustic fence is proposed along the side boundaries.
   
10. As the site is subject to an overland flowpath, the floor level of the building is required to be above the 1 in 100 year flood level and in this case, the floor of the proposed childcare centre is between approximately 600mm and 1.3m above existing ground levels. To accommodate the overland flow, the fencing details for the Linden and Galga Street frontages were amended during the hearing so that the lower brick sections were deleted and the fencing is now proposed to metal bars with a 50mm gap to allow for the free flow of water across the site. It was agreed that amendments would also be required to the proposed landscape plan and that this could be addressed as a condition of any consent granted.
    
11. An off-street car parking area would be provided in the south eastern portion of the site along with pedestrian access and provide for the parking of 6 cars including one accessible space. Those spaces adjoin a proposed pedestrian pathway and ramp access to the entrance of the centre.
    
12. The 2 on-street car parking spaces would be constructed within the existing road verge of Galga Street and adjacent to the proposed entry driveway. The fencing proposed at the frontage of the site restricts access from Linden Street and has been designed so that all site access is from Galga Street.
    
13. The building would be faced with weatherboards and roofed with coloured metal cladding. Three playrooms, toilet facilities, cot room, office and staff areas would be provided within the building. The proposed sign would be attached to the southern façade of the building.
    
14. The proposal considered by the council involved the removal of the three trees that are currently located on the site and four trees within the Galga Street road reserve. During the hearing the applicant provided additional details in respect of the parking bay locations, advised that it did not intend to remove any street trees and that the intended parking bays could be provided within the road reserve without damage to the trees.
    

168 National Avenue.

15. The application proposes the demolition of existing structures on the site and construction of a new, single storey child-care centre with capacity for 44 children, and includes the installation of two advertising signs, one on the face of the building and the other within the landscaped setback. The centre would cater for 24 x 0 - 3 year old children and 20 x 3 - 5 year olds, operate from 7am to 6.30pm Monday to Friday and be staffed by 7 childcare staff and 1 Director. Similar to Linden Street, children would leave the site by 6pm.
    
16. The proposed building would be constructed on a minimum alignment of 12.2m to National Avenue however, the majority of the building is set back a further 5.4m. A 1.5m setback is provided to the northern boundary and 900 m to the southern boundary. The area forward of the building would be used for the parking of seven cars including one accessible space with associated driveway areas and two landscaped areas which have a depth of 3.7 m.
    
17. Provision is made for ingress and egress driveways to service the property. Three playrooms, office areas, toilets/laundry, staff areas and a cot room would be provided within the building. The rear yard would be utilised as the outdoor play area and would be enclosed by a 2.5 m high fence of which the lower 2.1m would be timber lapped and capped and the upper 400mm, perspex. The height of that fence would be reduced along the side of the proposed building to 1.8m and taper to 1m towards the front of the site with no fence adjacent to the 3.5m landscaped setback area. It is proposed to remove 10 trees from the site, one of which may be within the road reserve. This was not clear from the information lodged with the application and is consistent with the council's contention of lack of information. Of these 10 trees, four are local weed species such as privet.
    
18. The building would be faced with weatherboards and roofed with coloured metal cladding.
    

The planning controls.

19. Both sites are within Zone 4 - Local Housing under Sutherland Shire Local Environmental Plan 2006 (LEP). A childcare centre is permissible with development consent in that zone. The objectives of the zone are:

(a) to allow low density residential buildings that complement the predominantly urban landscape setting of the zone, characterised by dwelling houses on single lots of land,

(b) to ensure the character of the zone, as one comprised predominantly of dwelling houses, is not diminished by the cumulative impacts of development,

(c) to allow development that is of a scale and nature that preserves the streetscape and neighbourhood character of the zone,

(d) to allow residential buildings that provide a variety of housing choices for the needs of the local community,

(e) to allow non-residential buildings that provide necessary services to the local community without adversely affecting the residential amenity of the zone.

20. Development standards are contained in clauses 36(5) and 45 for the LEP and require a minimum landscaped area of 45% for non-residential uses in Zone 4 (clause 36(5)) and limit the capacity of child-care centres to a maximum of 45 children (clause 45).
    
21. There are a number of clauses that a consent authority must consider before consent can be granted. They are clause 48 Urban Design - General, Clause 50 Urban Design - non residential development in residential areas and Clause 53 - Transport accessibility, traffic impacts and car parking. Relevant sub-clauses are as follows:

48 Urban design-general

(a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained by the proposed development,

(b) the extent to which any proposed buildings are designed and will be constructed to:

(i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and

(ii) contribute to the desired future character of the locality concerned,

(c) the extent to which recognition has been given to the public domain in the design of the proposed development and the extent to which that design will facilitate improvements to the public domain,......

50 Urban design-non-residential development in residential areas

(1) This clause applies to development, other than residential development, on land in the following zones:

(d) Zone 4-Local Housing,.................

(2) The consent authority must not consent to development to which this clause applies unless it has considered the following matters that are of relevance to the development:

(a) the extent to which any proposed non-residential buildings and their design will integrate into the locality concerned,

(b) the extent to which any such buildings will respond to the local character, and relate to the scale, streetscape, setbacks and use of materials of residential buildings,

(c) the extent to which the residential amenity of the locality concerned will be protected from detrimental traffic-related impacts and noise associated with the development.

53 Transport accessibility, traffic impacts and car parking

The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development:

(b) the extent to which the demand for car parking, where there is good access to public transport nodes, will be managed,

(c) the extent to which appropriate levels of car parking will be provided in connection with the development,

(d) the extent to which walking, cycling and the use of public transport have been or will be encouraged,

(e) the design of proposed car parking areas and access to them.

22. Consent is required under clause 58 of the LEP to remove trees.
    
23. Sutherland Shire Development Control Plan 2006 (DCP) applies to the site and the relevant sections are:
    

Chapter 1 - Design Principles and Site Analysis

Chapter 3 - Urban Design

Chapter 5 - Environmental Risk

Chapter 7 - Vehicular Access, Traffic, Parking and Bicycles

Chapter 9 - Specific Land Uses.

24. State Environmental Planning Policy No. 1 - Development Standards (SEPP1) is a relevant consideration in the National Avenue matter as the proposal, when lodged with the council, failed to achieve the minimum landscaped area development standard. Plans increasing the extent of landscaped area were tendered during the hearing as Exhibit F, and these provide for the minimum landscaped area required under clause 36(5) of the LEP. Accordingly, consideration of the objection to the development standard is not required as all of the standards are satisfied.
    
25. Draft Sutherland Shire Local Environmental Plan 2013 has been exhibited by the Council and proposes to include both sites within Zone R2 - Low Density Residential. Child-care centres would be permitted which consent in that zone and the developments as proposed would satisfy all of the development standards included in that draft plan.
    

The issues

26. The contentions in the cases are similar, with car parking, amenity impacts, streetscape, landscaping/tree removal and matters raised by objectors common to both. In Matter 10133 of 2013, contentions regarding traffic, the adequacy of the Plan of Management (POM) and precedent were also raised. In Matter 10227 of 2013, a contention regarding conflicting plans is raised and was addressed during the hearing through the tender of further landscape plans and acoustic information.
    

The evidence.

27. The Court undertook a view of both sites in the company of the parties and their experts and heard evidence from a number of objectors to the proposals. The issues raised by those objectors are summarised as follows:
    • Traffic, parking and safety concerns;
    • Amenity impacts;
    • Streetscape.
      
28. Two people spoke in support of the applications and stated that there was a shortage of quality childcare centres within the Sutherland Shire, particularly for 0-2 year old children. Further evidence was heard in Court from a third person also supporting the applications on the same grounds.
    
29. Expert evidence was heard from:

Applicant Council

Traffic Mr C McLaren Mr B Chen (Linden St)

Mr J Cody (National Ave)

Acoustics Dr R Tonin

Town Planning Mr J Mead Mr K Nash

Traffic and Parking

Linden Street

30. The experts agree that the traffic generated by the proposed childcare centre does not give rise to traffic activity that exceeds the environmental capacity of the street, based on the assumption that 100% of the traffic will use Galga Street to access the site. A SIDRA analysis of the performance of nearby intersections was undertaken and indicates the traffic impacts associated with the centre will not substantially or noticeably worsen intersection performance and that level of Service A will be maintained.
    
31. Galga Street has a sufficient turning facility at its terminal end and the proposed development does not rely on this facility except for use of the proposed two indented parallel parking spaces along the frontage of the site. The width of Galga Street is 5.5m between roll over kerbs and is sufficient for two way passing of traffic and, in the event that cars are parked along or straddling the kerbs, there is still sufficient room for traffic to pass along the corridor given spread of driveways and that the street is not parked out. The parking survey undertaken showed that there is a low demand for kerbside parking.
    
32. They also agree that traffic flows and speed along Galga Street will be low such that pedestrian safety is not an issue. They say that the parking provided will ensure there is no reliance for parents to park along Linden Street however, if that were to occur, it would reduce traffic/parking activity in Galga Street. They recognise the parking of vehicles on the verge in Linden Street directly in front of the site would be illegal and that the closest legal parking space in Linden Street would involve a 25m walk to the site with further distance to the site entrance.
    
33. It was agreed that the proposed childcare centre would have no adverse accessibility access impact on emergency service or garbage collection services along Galga Street. They advocate a condition of consent that requires the implementation of a staff workplace travel plan to encourage staff to utilise nearby public train/bus services and to car share/pool.
    
34. In view of the above, they conclude that the cul-de-sac location for the childcare centre is supportable on merit with regard to the traffic and parking considerations and that there are no safety reasons to refuse consent.
    
35. The only area of disagreement between the two experts was whether the two proposed indented parking bays to be constructed within the Galga Street road reserve should be fully designated for use of staff/parents/persons associated with the childcare centre. Mr McLaren says that if considered necessary and acceptable to the Sutherland Traffic Committee, the spaces could be time limited with a 10 minute restriction imposed between 7am and 9am and 4pm and 6pm, the agreed peak times for parking demands associated with the proposed centre.
    

National Avenue

36. The experts agree that the proposal provides for 7 off-street parking spaces which is less than the 11 required under the DCP or the Roads and Traffic Authority publication Guide to Traffic Generating Developments - Version 2.2 October 2002. Of those 7 on-site spaces, 3 would be for staff use and 4, including one accessible space, would be available for set-down/pick up activity and the width of the latter should be a minimum of 2.6m which could, through amendments to the plans lodged with the council, be accommodated in front of the building.
    
37. They agree that the parking shortfall would be made up through use of on-street parking spaces and that there is capacity in National Avenue to provide these spaces however, Mr Cody says the reliance on on-street parking is excessive for the site. They also agree that the peak parent/carer parking demand potential typically occurs between 7.00am - 9.00am and 4.00pm - 6.00pm with the peak staff parking demand potential typically occurring between 10.00am - 4.00pm. Accordingly, Mr Cody accepts that, subject to careful management of staff working times (i.e. no more than 5-6 staff on site between 7.00 - 9.00am and 4.00 - 6.00pm), only one of the parking spaces allocated to parents/carers can be used for staff parking between 9.00am - 4.00pm and, if consent is granted, this should be a condition of consent. If this condition is implemented, Mr Cody accepts that there is adequate parking on site for staff.
    
38. It is common ground that parking for two cars could be accommodated on street adjacent to the site and that this would be acceptable. To ensure sufficient area is available and to provide appropriate clearance from adjoining driveways, the experts agree that the northern, entry driveway should be moved 200mm to the south and reduced in width to 3m. They also agree that it is appropriate to restrict access from the site to left turn out only between the peak periods to improve safety. This would also address a concern raised by residents of the difficulty associated with the low sun angle at certain times of the year which affects vision when travelling south.
    
39. Mr McLaren says that the shortfall of 4 parking spaces can be accommodated on-street along the eastern side of National Avenue for the combined kerbside length in front of Nos 166, 168 (site) and 170 National Avenue however, at the site inspection, it was agreed that a rock face in front of No 166 restricts access and therefore, it is more likely that cars would park to the south of the site. He says that the workforce is generally female, under the age of 25 and a high proportion of this staff are typically dropped off/picked up/live locally or use public transport and therefore the driver rate of the workforce could be lower than 50% and if this is the case, the level of on-site parking for staff would be satisfactory, so agrees with Mr Cody. He says that the peak demand for child setdown/pick up activity is typically 1 space per 8 children, such that the demand for a 44 children centre would be 5 to 6 spaces and not 7 as Mr Cody advocates.
    
40. Mr McLaren undertook a probability analysis of the occurrence of 1 to 5 parents parking spaces occurring based upon AUSTROADS queueing analysis and parking utilisation formulae, which demonstrates the low percentage of occurrence for 5 parent cars occurring at any particular instance. He concludes that the likely peak parking demand will be 8 to 9 spaces (of which 3 will be staff) in operational terms, which can be effectively managed by the on-site parking supply (even if the disable bay and adjacent shared zone was excluded) and up to three on-street spaces, two of which would be in front of the site. The potential for up to three kerbside spaces to be used for child set-down/pick-up activities is an acceptable and manageable outcome consistent with the RTA guidelines.
    
41. Mr Cody says the concept of probability analysis is not a reliable basis for predicting the actual parking demand characteristic associated with such a small centre and whilst accepting the duration of stay is less than 10 minutes, some stay for prolonged periods. Mr McLaren applied the 6.8-minute service standard recommended in the RTA's guidelines, which he says are called up in the council's DCP.
    
42. Mr Cody made suggestions to address the parking issues associated with the development through the elimination of the accessible parking space and utilisation of the shared space for parents/carers as he says the space is not required under the DCP and with such a small centre, it would be unlikely the space would be required. If the space were required at some stage it could be converted back for the time it was required. He said that with the use of these two additional spaces and the two on-street parking spaces adjacent to the site, the parking demands of the centre would be satisfied. He acknowledged that the option might not be available in the event that there was a legislative requirement to provide the accessible space and if this was the case, says that the number of children to be accommodated should be reduced to 36 or 40.
    
43. None of the experts engaged could assist the Court in determination of the issue and for that reason, written submissions were provided to determine whether the space was required under the Building Code of Australia, the Disability Discrimination Act 1992 (DDA) or other legislation. The parties agree that, in accordance with the DDA, an accessible parking space is required and that the threshold to designate a specific bay is where a site provides for more than 5 parking spaces. Only one accessible space is required.
    
44. In view of the legislative requirement, the plans lodged by the applicant provide for 7 on-site parking spaces, one of which is an accessible space, the suggestion of Mr Cody to utilise the "shared" space cannot be implemented.
    
45. The traffic experts also agree that the ingress and egress driveways provide adequate sight distance for vehicles entering and leaving the site as required under Clause 3.2.4(A) of AS/NS2890.1:2004 and that the peak period traffic generation of the 44 place centre would be:

7.00am - 9.00am 35 vtph

2.30pm - 4.00pm 13 vtph

4.00pm - 6.00pm 30 vtph.

46. With this traffic generation, they agree that the development has no unacceptable traffic implications in terms of road network capacity or traffic-related environmental effect.
    
47. The council contended that the location of the site, near the crest of a hill is not suitable for a childcare centre. Mr McLaren says the road frontage is not steep and traffic speed is not high so the local traffic environment is acceptable with regard to road safety considerations and on-street parking for 3 to 4 spaces is acceptable given that spaces are available, conveniently located and safe for use by parents/carers. The use of kerbside spaces will be of a short duration, and will not unduly affect/burden neighbouring properties at the times that this parking occurs.
    
48. Mr Cody says that whilst the location of the site on a steep section of National Avenue near a crest is not ideal for a childcare centre, the proposed centre is acceptable if adequate provision is made for parent/carer parking, of if the child enrolment is reduced to 36-40 spaces. He says that if the development is approved, a condition of consent requiring the construction of a concrete pedestrian footpath along the frontage of the site should be imposed. The applicant accepts the imposition of that condition.
    

Acoustics

49. Acoustic reports were lodged with each development application and are included within the Applicant's Bundle of Documents, Exhibit B in each proceeding. The Principal of the firm that prepared the report, Dr Tonin, prepared further reports, Exhibits E and D in the respective matters. The purpose of that report was to address issues that had been identified by the planners during their joint conference and to clarify issues that arose in relation to fencing details.
    

Linden Street

50. Dr Tonin had considered the recommendations made by the planners in relation to fencing in their Supplementary Joint Report, Exhibit F. That recommended that the fence height on the northern boundary be increased to 2300mm tapering to 1200mm at the front boundary from the front alignment of the dwelling at No 34 Linden Street and that it continue along the eastern boundary of the site. Dr Tonin said that such a fence, constructed as recommended in the original acoustic report, would ameliorate any noise impacts associated with the childcare centre so that it would achieve compliance with the controls contained in the DCP. He advised that such compliance does not mean that the noise of the centre would be inaudible.
    
51. The owner of No 34 had requested a 2.7m high brick fence along the common boundary and Dr Tonin said that a masonry wall would far exceed the acoustic requirements specified in the DCP and all that is needed is a colourbond or lapped and capped fence. If the wall were to be masonry, acoustic detailing would be required at any point of the site affected by the overland flowpath.
    

National Avenue

52. Dr Tonin stated that the only fence required along the northern boundary of the site to achieve the council's acoustic controls was the fence that enclosed the rear play area. He agreed that a 1.8m high fence measured from the existing ground level of the adjoining property to the north adjacent to the proposed building would be desirable but is not required to achieve the noise goal and concurred with the recommendation of the planners that no fence be erected along the first 3.5m of the site on that side and from that point a fence either 1.5m or 1.7m high as described in Exhibit F as Options 1 or 2 would be appropriate.
    

Planning

Linden Street

53. The experts agree that 8 parking spaces are required for the centre however do not agree on whether the use of on street spaces to achieve this number is appropriate. Mr Nash says the extent of non-compliance, where 8 spaces are required and only 6 are available on site is significant, being a 25% variation, and likely to have an adverse impact on the residential amenity of residences in Galga and Linden Streets and says there is already reliance on the use of the verge for parking in Galga Street. Mr Mead disagrees and says that the council has widely and consistently supported child care centre applications that do not comply with the off-street car parking requirements where it can be demonstrated that on-street parking is safe, convenient and can adequately cater for any shortfall. He has undertaken surveys which show that, during the peak parking demand for the centre, there is ample on-street parking capacity in Galga Street.
    
54. Mr Nash says the council has a long-standing policy since prior to 2000 that child care centres were prohibited in cul-de-sacs. This policy was embodied in Sutherland DCP 2000 and continued under the current DCP (Chapter 9 - Specific Land Uses - Child Care Centres, clause 2.b.1.2(6). This states:

Childcare centres are not permissible in dead end streets or cul-de-sacs due to traffic movements and parking problems.

55. Mr Mead says that, whilst council's prior DCPs and its current DCP include this clause, the LEP permits childcare centres without exception within Zone 4 and that the clause must be considered as an important statement of council's policies and controls but is not determinative to prohibit development. He refers to the introduction to the DCP which states:

Each application will be considered on the individual circumstances and merits of the case in terms of the achieving (sic) the objectives. Any variation to the controls must be supported by a statement demonstrating how the objectives are fully satisfied.......

56. The objectives for childcare centres are contained in clause 2.a.1 of the DCP and are:

a. achieve development of high quality in its provision of services and facilities for users

b. ensure childcare centres are located and designed so that they do not pose a health or safety risk to children using the centre, particularly where they are proposed in close proximity to main roads, industrial development, railway lines, transmission lines and electrical substations.

c. ensure childcare centres are situated such that the environmental impact on health from sources such as noise and air pollution are minimised.

57. Mr Mead says that the proposal does not offend any of the objectives of the control as a result of its likely traffic and parking characteristics, a view supported by the traffic experts. The subject cul-de-sac assists with accommodating the use without traffic or parking problems because: it contains a purpose designed turning head; is not surrounded by houses as is the case in a traditional cul-de-sac where several driveways to single dwelling front the cul-de-sac; is the last property on the northern side of the cul-de-sac so turning activity into and out of the site, as well as manoeuvring associated with use of the proposed on-street spaces, is removed from the majority of properties in the street.
    
58. Mr Nash acknowledges the traffic experts agreement that the number of vehicles generated by the proposal is satisfactory but is concerned of the likelihood of parents experiencing congestion or inadequate vehicular access to the centre via Galga Street will use Linden Street for kerbside parking which would introduce safety problems as the carriageway is narrow and any parking at the kerbside proximate to the site would require vehicles traveling south to River Road to cross over double white lines. Alternatively, they will park on the wide grass verge in front of 34 Linden Street. In cross-examination, he acknowledged both practices would be illegal.
    
59. Mr Nash says the design of the development is unsatisfactory because it turns its back on the primary frontage to Linden Street and the presentation to that street is further dominated by the proposed access ramps required to facilitate access to the playing areas arising from the need to elevate the floor level to address the overland flowpath. He says the façade design treatment and roof form are out of character with the existing built form, the location of the six parking spaces will be visually intrusive in terms of streetscape and that overall, the design and presentation of the proposed development to both Linden and Galga Streets will be less than satisfactory and likely to be a negative contribution to the streetscape and residential character of the locality.
    
60. Mr Mead says the proposed building form is of a scale and appearance that is compatible with the character of surrounding development, provides for a single storey building well below the maximum height limit, floor space ratio and compliant with landscaped area provisions, front, side and rear setbacks. The ramps will be largely obscured by the boundary fence and landscaping, further opportunity exists to plant the street verge on Linden Street to assist softening the façade and this would be an acceptable condition of consent and address Mr Nash's concerns regarding parking in that location. He agrees that further improvements could be made to the appearance of the building, particularly through the introduction of eaves and that these changes could be the subject of a deferred commencement consent condition.
    
61. In relation to the carpark, he says that it is not incompatible with the streetscape, the council regularly accepts childcare centre carparks within the setback area and whilst it will not be the same, the overall development, through the provision of greater setbacks and landscaping will improve the existing streetscape and be consistent with the zone objectives as well as Clauses 48 and 50 of the LEP.
    
62. The experts agreed that the introduction of privacy screens and the increased fence height as recommended by Dr Tonin, would address privacy and acoustic concerns. Such matters can be addressed through consent conditions.
    

National Avenue

63. The experts held similar views to those expressed for the Linden Street site in relation to the location of the carpark within the front setback area, reliance on on-street parking, building design and materials and streetscape. Mr Nash says that the setback of the proposed building, from 12.2m to 17.6m is substantial, exposes windows on the front and side facades of No. 166 to the carpark activity, and is not in character with the front building setbacks of dwellings in National Avenue, therefore the development does not integrate with the locality so does not satisfy the relevant provisions of the LEP.
    
64. Mr Mead disagrees and says there is no established building alignment, there is no defining architectural features and the character is of a domestic nature, with buildings of similar scale, setbacks, roof forms and materials so that the proposal would be entirely compatible within its context and consistent with the LEP requirements.
    
65. The experts agree that it would be appropriate to amend the location of the pedestrian path along the southern boundary and increase the extent of landscaping in the vicinity of the shared parking area adjacent to the accessible space and that this additional area would achieve compliance with the landscaped area development standard. The Court notes that such works would not allow the use of the accessible space to meet the additional on-site parking numbers suggested by Mr Cody.
    
66. Mr Nash says that the proposed sign within the front landscaped area is too big and unnecessary. Mr Mead agrees the sign is too big and that a sign with an area of approximately 1.5sqm would be acceptable. Mr Nash said that, if a sign was necessary in that location, it should be non-illuminated, a basic identification sign and of a simpler and clear design so as not to visually dominate the streetscape. He then questions the need for a second sign on the face of the building if a sign is allowed within the setback.
    
67. Both planners agreed that the further information provided by Dr Tonin addressed the outstanding acoustic concerns and fencing details could be conditioned in the event that consent is granted.
    

Conclusions and findings

Linden Street

68. Having regard to the evidence and consideration of the planning controls, I am satisfied that the development would not present any adverse traffic/parking safety concerns. The provision of the two indented parking bays adjacent to the site to cater for the shortfall in parking are the only areas of dispute between the parties in regard to parking. In the circumstances of the case, where that parking can be provided adjacent to the site, in a convenient and safe location as has been demonstrated by the applicant and agreed by the traffic experts without impacting on the amenity of adjoining properties.
    
69. I accept the evidence of those experts and consider the reliance on that parking is appropriate and not inconsistent with the objectives of the DCP. There will be additional traffic using Galga Street to access the site however the volume is well below the environmental capacity of the roadway. I note that the site is well serviced by public transport with regular bus services operating throughout the duration of the operating hours of the centre and providing access from different locations and Sutherland Station is within walking distance, albeit, Ikm away. It is therefore likely that staff in particular, would make use of these services.
    
70. I do not accept that the DCP can prohibit the establishment of childcare centres in cul-de-sacs. That is because, in accordance with the provisions of Section 74C(5)(b) of the Environmental Planning and Assessment Act 1979 a development control plan has no effect to the extent that it is inconsistent with the LEP. A childcare centre is permissible with consent on the land within Zone 4 and therefore the DCP cannot "prohibit" the grant of that consent. The DCP can act as a guide to preferred locations and accordingly, regard must be had to the locational objectives contained within the plan. Those are cited at [55]. I am satisfied, on the basis of evidence before me, that the centre does not pose any health or safety risk to children using the centre and that any potential environmental impacts to health are minimised.
    
71. Considering the zone objectives and the particular provisions of clauses 48, 50 and 53, I am satisfied that, subject to the amendments to the design of the building as detailed in the council's consent conditions and agreed by the applicant, the design of the development will integrate into the locality; is consistent with the character, scale, streetscape, setbacks and materials used within that locality; is not inconsistent with the built form envisaged within that area and will provide for additional planting within the road reserve thereby enhancing the public domain. There is no evidence that the noise or traffic generated by the development will detrimentally affect residential amenity. I accept that residents will hear noise associated with children playing at the centre however, the extent of that noise will, subject to compliance with the recommended conditions of consent, comply with the noise goals contained within the DCP.
    
72. The proposed POM will also ensure that the amenity of the area is protected.
    
73. In relation to issues raised by objectors and not addressed above, I accept the advice of Dr Tonin that increasing the fence height to 2.3m along the northern and eastern boundaries of the site will adequately address noise concerns and also mitigate any privacy/safety concerns. It is not appropriate to require the applicant to construct an acoustic fence to standards above that contained in the DCP and accordingly, the northern fence is only required to be constructed of lapped and capped timber or metal as described in the acoustic reports. In the event that the owner of the adjoining site desires masonry, the option of the owner contributing towards the cost of the higher standard remains and is a matter between them and the applicant. The cost of replacing the existing fence to the standard required is to be at the full cost of the applicant, only the additional costs associated with upgrading it to masonry would be borne by the adjoining owner should they so choose.
    
74. The proposed conditions that require the installation of signage to ensure the availability of the turning head for traffic manoeuvres, the tree planting within the Linden Street verge adjacent to the site and the retention of the street trees within Galga Street have regard to resident concerns.
    
75. The council does not refute that there is a shortage of childcare within its area, particularly for 0-2 year old children and in this regard, a condition of consent ensuring that this age group is accommodated, should be imposed in any consent granted and has been incorporated into the agreed conditions.
    
76. I am satisfied that the flooding issues can be addressed through the proposed consent conditions.
    

National Avenue

77. My findings, having regard to the evidence provided and considering the planning controls, in relation to the traffic, siting and design of this development are the same as that detailed above for the Linden Street proposal however, I do not consider that any changes to the design of the building are required. The setbacks along National Avenue and the housing types are varied with no consistent architectural character. The proposed building is of similar size and scale to the dwelling houses in the locality and not inconsistent with the desired future character of the area. The retention of the existing established trees within the setback will integrate the development with the streetscape and assist in ameliorating the impact of the carpark.
    
78. The site however has different attributes and site constraints, particularly in relation to the road environment. Whilst the traffic generated by the development is within the environmental capacity of the road system, it is not possible to provide indented parking bays or accommodate for the parking shortfall immediately adjacent to the site. Some use of parking in front of neighbouring properties would be required. The traffic experts disagree on the quantum of that use. It varies from one to three spaces. The site is also in close proximity of the crest of a hill and the evidence is that, at certain times of the year, the sun contributes to a traffic hazard when driving southbound.
    
79. The DCP does not specify that the accessible parking space is to be in addition to the number of spaces required and therefore, based on the rate of one space per 4 children, the on-site parking provisions allows for 28 children. With the additional two on-street spaces that are agreed can be provided in front of the site, a further 8 children can be accommodated and the parking requirement satisfied. Any further enrolments would necessitate the use of parking beyond the site.
    
80. Whilst Mr Cody, accepts the use of the two on-street parking spaces immediately adjacent to the site, he does not support the use of any additional on-street parking spaces. To do so is inconsistent with the objectives of the DCP which require all spaces to be onsite. Mr McLaren says that there is adequate capacity within the street to provide that parking. Given the location of the site, I am not satisfied that it is reasonable to rely on that on-street parking beyond the frontage of the site to address any shortfall. That is because of the reduced sightlines that would occur between vehicles leaving the sight and oncoming vehicles. Whilst a sign directing vehicles to turn left out of the site may assist in addressing this conflict, such sign is advisory only and cannot be relied upon to ensure that all vehicles turn in a southerly direction.
    
81. I accept that at times, persons will choose to park in different locations along National Avenue however, this is no different to visitors or residents using those spaces. The site is not well serviced by public transport. Whilst it is an approximate walk of 1k from the nearest railway station at Loftus, the bus services that provides access does not run on a regular basis, the service available, particularly in the mornings at opening times, is poor and the areas from which the service operates is limited. Therefore, I consider that it is likely that staff will be more reliant on cars to access the centre.
    
82. For this reason, I consider that the size of the centre should be reduced to 36 places. This would ensure that the peak parking demands for the centre could be met on site and through the use of the two parking spaces immediately in front of the site. I am satisfied that, whilst this is contrary to the requirements of the DCP, the spaces can be provided in a safe and convenient manner without impacting on the amenity of adjoining residents and therefore achieve the objectives of the control. Provided the enrolments are limited, I consider, based on the evidence, the site is suitable for use as a childcare centre.
    
83. In relation to the matters raised by objectors, the evidence is that there will be no reliance on Ardisia Place for parking. The agreed position of the traffic, acoustic and planning experts in relation to fencing, driveway location/width and landscaping address amenity and safety impacts associated with use of the site. By its nature, a childcare centre will look different to a dwelling house however, this does not mean that it is not compatible with the character of the area, particularly having regard to the scale and design of the proposed building. The council, through its planning controls, have determined childcare centres are an appropriate form of development within residential areas. There will be some effect from the development however, because the development meets the planning controls, that effect will be reasonable. I am satisfied that the development is consistent with the objectives of the council's planning controls.
    
84. The conditions in both matters have been agreed between the parties with the exception of the materials to be used in the construction of the northern boundary acoustic fence at Linden Street. The council require this to be masonry and the applicant says that either lapped and capped timber of metal are appropriate materials. The evidence from Dr Tonin is that a masonry fence would exceed the noise goals specified in the DCP
    

Orders

85. The Orders of the Court are:
    
    • (1) In Matter No 10133 of 2013
      
      • (a) The appeal is upheld.
        
      • (b) Development Application DA12/0840 for demolition of existing buildings and construction of a 30 place childcare centre at 36 Linden Street, Sutherland is approved as a deferred commencement consent and subject to the conditions in Annexure A.
        
      • (c) The application for works within the Galga Street road reserve is approved subject to the conditions in Annexure B.
        
      • (d) The exhibits, other than exhibits A, D and 3, may be returned.
        
    • (2) In matter No 10227 of 2013
      
      • (a) The appeal is upheld in part.
        
      • (b) Development Application 12/0673 for demolition of existing structures and construction of a 36 place childcare centre at 168 National Avenue, Loftus is approved subject to the conditions in Annexure C.
        
      • (c) The exhibits, other than exhibits C and 3 may be returned.
        

_____________________

Sue Morris

Commissioner of the Court

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Amendments