independent hearing and assessment panel - sutherland shire

Business Paper

Independent Hearing and Assessment Panel

Tuesday, 25 July 2017 6:00pm

Council Chambers, Level 2, Administration Building

4-20 Eton Street, Sutherland

Independent Hearing and Assessment Panel 25 July 2017

ORDER OF BUSINESS

1. DISCLOSURES OF INTEREST 2. REPORTS FROM OFFICERS

IHAP001-18 Construction of 138 Place Child Care Centre - Kingsway & Marion Street

Gymea (DA16/1613)


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IHAP001-18 PROPOSAL: CONSTRUCTION OF 138 PLACE CHILD CARE CENTRE - KINGSWAY & MARION STREET GYMEA

PROPERTY: LOT 1 DP 9983, LOT 38 DP 9983, (NO. 677) KINGSWAY & (NO. 38) MARION STREET, GYMEA

APPLICANT: SUTHERLAND DISTRICT TRADE UNION CLUB LIMITED

FILE NUMBER: DA16/1613

Attachments: Appendix A

REASON FOR THE REPORT

This application is referred to the Independent Hearing and Assessment Panel (IHAP) at the request

of the Mayor, Councillor Pesce; Councillor Johns; Councillor Riad and Councillor Nicholls.

PROPOSAL

The application is for the construction of a 138 Place child care centre at the above properties.

THE SITE

The subject site consists of 2 adjoining sites that are located at the intersections of Manchester Road

with Kingsway and Marion Street, Gymea.

ASSESSMENT OFFICER’S RECOMMENDATION

THAT:

1. Pursuant to the provisions of Section 80 of the Environmental Planning and Assessment Act,

1979, Development Application No. 16/1613 for Construction of 138 Place Child Care Centre

at Lot 1 DP 9983, Lot 38 DP 9983 677 Kingsway, Gymea, 38 Marion Street, Gymea is

determined by the refusal of development consent for the reasons outlined below.

2. The proposed development is considered unacceptable pursuant to the provisions of

s.79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 in that it fails to satisfy

the objectives for the Height of buildings under clause(s) 4.3(1)(a)(i), (ii); (c); (d) and (f) of the

Sutherland Shire Local Environment Plan 2015 resulting in an inappropriate building form of

excessive height.


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s.79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 in that it fails to satisfy

the objectives for Floor space ratio under clause(s) 4.4(1)(a); (b), and (c)(ii) of the Sutherland

Shire Local Environment Plan 2015 resulting in an inappropriate building form of excessive

bulk and scale.


s.79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 in that it fails to

satisfy the requirements for Health and Safety Controls under Chapter 34 clause 3.3.1of the

draft Sutherland Shire Development Control Plan 2015 which results in conclusions that are

not in accordance with the approved NSW EPA modelling guidelines.


s.79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 in that it fails to

satisfy the requirements for Parking Controls under Chapter 34 clause 3.4.1of the draft

Sutherland Shire Development Control Plan 2015 which results in the insufficient provision of

car parking spaces and a lack of safe pedestrian transfer of children to and from the centre.


s.79C(1)(b) of the Environmental Planning and Assessment Act 1979 in that it fails to

satisfactorily resolve potential visual and privacy impacts on adjacent properties.


s.79C(1)(d) of the Environmental Planning and Assessment Act 1979 in that it fails to

satisfactorily resolve the relevant issues raised within the public submissions.

8. Pursuant to the provisions of Section 79C(e) of the Environmental Planning and Assessment

Act 1979, it is considered that in the circumstances of the case approval of the development

would set an undesirable precedent for similar inappropriate development and it is therefore

not in the public interest.


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ASSESSMENT OFFICER’S COMMENTARY DESCRIPTION OF PROPOSAL

The application is for the construction of a 138 Place Child Care Centre at the above properties.

The design comprises of a 3 storey building form extending along the length of the two combined sites

which due to their configuration results in a long and narrow building.

The centre is proposing to provide for 138 children (48 x 0 - 2 years, 40 x 2 - 3 years and 50 x 3 - 5

years) within 7 separate group rooms and 4 outdoor play spaces. The ground floor level

accommodates the younger child groups within 3 group rooms connected to a shared outdoor play

space that is partly under the building floor levels over. This level also has the pedestrian entry into

the building addressing Manchester Road, the administration office area and some under building

carparking for 12 cars.

The upper floor level proposes to accommodate the remaining group room for use by the older

children with shared outdoor play areas within the building footprint through the provision of 1.4 metre

high side acoustic walls.

The top floor level provides a large outdoor play space to the Kingsway end of the building partly

covered by some rooves.

The Centre seeks to operate 51 weeks of the year, closing on Public Holidays and approximately 1

week over the Christmas break. The hours of operation will be 7:00am – 6:30pm, with extended hours

care being available, should the community demand support it, from 6:30pm – 10pm. The centre will

be closed weekends.


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A site plan is provided below.

SITE DESCRIPTION AND LOCALITY

The subject site consists of two allotments connected at their rear boundaries which are legally

identified as Lot 1 in DP 9983 known as 677 Kingsway, Gymea and Lot 38 DP9983 known as 38

Marion Street, Gymea. It has a combined area of 1786m2. The site is a very long rectangular shaped

block with three frontages, being a 16.61m frontage to Kingsway a 112.485m frontage to Manchester

Road and a 16.15m frontage to Marion Street.

These dimensions create a narrow width relative to the site’s extended length.

The site is currently vacant with the exception of some large trees and is temporarily fenced off from

access.

Existing surrounding development consists of low and medium density residential dwellings. The

Gymea Tradies Club facility which is to be partly utilised by the proposal for the provision of car

parking is to the west.

The land is relatively flat with a 2.14m fall over a 112.485m side boundary length from Kingsway to

Marion Street.


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A locality plan and an aerial photo are provided below.

locality plan

aerial plan

BACKGROUND

A history of the development proposal is as follows:

• The current application was submitted on 28 November 2016.

• The application was placed on exhibition, with the last date for public submissions being 3

January 2017.

• An information session was undertaken on the 25 January 2017 and 48 residents were in

attendance.

• Council officers advised the Applicant on 1 March 2017 that the following deficiencies required

to be resolved within 14 days of this advice:

- A 6.4% Landscaped Area Deficiency.

- An excess in allowable Floor Area of 536m2.

- A deficiency in the number of car parking spaces provided on the site.


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- A non-compliance of the 7.5m street setback.

- A non-compliance of the 3.0m and 4.0m required side boundary setbacks.

- A non-compliance of the front fence height.

• Amended plans were lodged on 20 April 2017. The changes incorporated also reduced the

number of children to be catered for from 143 down to 138.

• The revised application was placed on re exhibition, with the last date for public submissions

being extended at the request of Councillor Johns and Mayor Pesce to 06 June 2017.

ADEQUACY OF APPLICANT’S SUBMISSION

In relation to the Statement of Environmental Effects, plans and other documentation submitted with

the application or after a request from Council, the applicant has provided adequate information to

Council to enable an assessment of this application, including a written request to vary the 9.0m

Height of Building development standard under clause 4.6 of Sutherland Shire Local Environmental

Plan 2015.

PUBLIC PARTICIPATION

The original and subsequent revised design application was advertised in accordance with the

provisions of Chapter 41 of draft Sutherland Shire Development Control Plan 2015 (SSDDCP 2015).

Council notified 57 adjoining or affected owners of the original proposal. In response, 161

submissions were received. Following the submission of the revised design Council renotified the

original adjoining or affected owners and other residents that had made submissions in regard to the

original proposal. Subsequently, 67 submissions were received.

MAJOR ISSUES

The main issues identified are as follows:

• Privacy.

• Out of Character.

• Overdevelopment.

• Overshadowing.

• Streetscape Appearance.

• Design / Aesthetics.

• Height / Bulk / Scale.

• Loss of Trees.

• Traffic / Carparking.

• Noise.

• Non –compliances with Council’s LEP / DCP.

• Impact on property prices.

• Hours of Operation.

• Over supply of Child Care Centres.


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• Applicant’s Club association / interest conflict.

Issue 1: Privacy

Comment: These impacts were more evident within the design of the original submission but

nevertheless there could be some impact through the connection and use of the various open and

enclosed areas of the centre and the passage of children along the eastern side boundaries between

these areas. Such impacts would be more infrequent as direct sight lines would be from places where

stationary activity would not normally occur.

Issue 2: Out of Character

Comment: The concerns raised here relate to the aesthetic and proportions of the proposal. This

matter is discussed in detail in the assessment section of this report.

Issue 3: Overdevelopment

Comment: The concerns raised here relate to issues 7 and 11, below and are addressed in the

assessment section of this report.

Issue 4: Overshadowing

Comment: The overshadowing of neighbouring properties created by the development remains within

the acceptable parameters of the DDCP 2015. These controls are to ensure that 10m2 of

neighbouring dwelling’s private open space and windows of living areas have 3 hours of solar access

between 9:00am and 3:00pm at the winter solstice (21 June). The applicant’s submitted shadow

diagrams demonstrate that these periods can be achieved.

Issue 5: Streetscape Appearance

Comment: See the Urban Design assessment section of this report.

Issue 6: Design / Aesthetics

Comment : See assessment section of this report.

Issue 7: Height / Bulk / Scale

Comment: See assessment section of this report.

Issue 8: Loss of Trees


Issue 9: Traffic / Carparking


Issue 10: Noise



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Issue 11: Non – compliances with Council’s LEP / DCP


Issue 12: Impact on property prices

Comment: This is not a criteria under section 97c of the EPA Act under which this assessment is

undertaken.

Issue 13: Hours of Operation


Issue 14: Over supply of Child Care Centres

Comment: While the number of child care centres have increased over recent times there is no

administrative or authority control to restrict further similar development. This issue is a market driven

or economical factor for operators of such facilities to consider.

Issue 14: Applicant’s Club association / interest conflict

Comment: The applicant has provided a declaration of affiliations as required.

Information Session

An Information Session was held on 25 January 2017 and 48 people attended.

Submission Review Panel (SRP)

As a result of the submissions received and the issues that were raised, Council's SRP decided that

the application should be referred to Council's Independent Hearing and Assessment Panel (IHAP) for

consideration.

STATUTORY CONSIDERATIONS

The subject land is located within Zone R3 Medium Density Residential pursuant to the provisions of

Sutherland Shire Local Environmental Plan 2015. The proposed development, being a Child Care

Centre, is a permissible land use within the zone with development consent.

The following Environmental Planning Instruments (EPIs), Draft EPIs, Development Control Plans

(DCPs), Codes or Policies are relevant to this application:

• Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015).

• Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment.

• Sutherland Shire Development Control Plan 2015 (SSDCP 2015).

• State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP).

Section 94 and Section 94A

• 2005 Shire Wide Open Space & Recreation Facilities.

• 2003 Community Facilities Plan.


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COMPLIANCE The compliance table below contains a summary of applicable development standards:

Sutherland Shire Local Environmental Plan 2015

CLAUSE REQUIRED PROPOSAL COMPLIANCE Clause 4.3 Height of Buildings

Maximum 9m 9.1m No

Clause 4.4 Floor Space Ratio

Maximum 0.7 : 1 0.52 : 1 Yes

Clause 6.14 Landscape Area

Minimum 30% 31% Yes But based on an

assumption that the ground floor level

outdoor play area are grassed and not

artificial turf or soft fall finishes.

Draft Sutherland Shire Draft Development Control Plan 2015 REQUIRED PROPOSAL COMPLIANCE

3.2 General Controls 1. Entry is to be limited to one secure point that is well lit, visible from the street and appropriately located to allow ease of access, and separated from vehicle manoeuvring areas.

Single entry provided centrally from Manchester Road

Yes

2. Appropriate viewing and supervisory areas must be provided in all internal and external areas, including the entry point to the centre.

Appropriate areas provided Yes

3. Any side of a stairway, ramp, corridor, hallway or external balcony on the premises of a childcare development that is not abutting a wall must be enclosed to prevent a child being trapped or falling through.

Side wall enclosure provided

Yes

4. The outdoor play spaces are to be: a. located to provide clear access so as to have direct access to toilets and indoor play areas; b. located (where practicable) to the northern or north-eastern end of the site and not to the south of the building; c. located away from the main entrance of the child care centre, car parking or vehicle circulation areas; d. of a design and layout that enables clear sight lines to all areas from other areas of the child care centre; e. provide adequate separation from the living/bedroom windows of surrounding dwellings; and f. adequately fenced on all sides. All gates are to be self-closing and child proof with child proof locks. All fencing to adjoining a public space is to be a minimum height of 1800mm.

Direct access provided. Located to the south and internal. Located away from these areas. Multiple levels, sight lines to all areas from other areas not available. Compliant distance separation. Adequately fenced but at 1200mm height.

Yes No No No Yes No


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5. Adequate storage areas for garbage and recycling bins are to be provided and this area is to be located on site so as to minimise noise and odour impacts on adjoining properties.

Located in enclosed area adjacent to carpark

Yes

6. Centres located on the first floor of a building shall have a safe haven and dedicated fire stair with hand rail designed to stop children falling through.

No safe haven for Level 2 No

3.3 Health and Safety Controls 1. Childcare centres located within 150m of a major road, where traffic volumes exceed 6,000 vehicles per day must, must demonstrate that the air quality at the centre will be in accordance with the NSW Environmental Protection Authority (EPA) and National Environment Protection Measures (NEPM) Guidelines for PM10, PM2.5, Nox, CO, SOx, Benzene, Toluene and Lead (PH). As a precautionary measure, where air quality tests show elevated air pollutant levels but do not exceed current air quality standards, an air quality management plan and a limited monitoring regime (every three years over a period of 10 years) may be required.

Site located within 150m of major road with traffic exceeding 6,000 vehicles per day. Air quality report provided

Yes

2. Childcare centres must not be located adjacent to development that is subject to State Environmental Planning Policy No. 33 – Hazardous and Offensive Development, where the storage of chemicals and other potentially dangerous substances presents a risk of gas leak or explosion.

No such adjacent potentially dangerous sites.

Yes

3. Childcare centres must not be located adjacent to general or heavy industrial land uses where the activities create a health or safety risk for the children or other users of the childcare centre.

Not within an industrial area. Yes

4. Childcare centres must not be located adjacent to or in view of the entrance to injecting rooms, drug clinics, brothels or sex shops.

No such uses within the vicinity. Yes

5. Parking areas must be fenced to separate the carpark from the childcare centre to prevent children exiting directly from the building into the carpark.

Fencing provided. Yes

6. Child care providers must ensure parking and manoeuvring around the development allows safe set down and pick up of children.

Adequate areas provided.

Yes

3.4 Parking Controls

1. On-site parking is to be provided at the rate of 1 space/4 children for drop off and pick up;

138 children = 35 spaces. 12 provided on site

No Refer assessment section of this report

2. Where suitable and sustainable transport alternatives are considered and incorporated into the development, variations to the above rates will be assessed on merit.

Considered. Refer assessment section of this report


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3. Subject to a merit assessment, reduced parking rates may also be considered for: a. child care centres located on corner blocks. b. child care centres that provide safe drop off zones on the street. c. child care centres with a street frontage greater than 15 metres.

Considered Refer assessment section of this report

4. It is the responsibility of the applicant through the development assessment process to demonstrate that the proposed level of parking provision is adequate, or that the overall planning benefits of the proposed development outweigh the deficiencies.


3.5 Assessment Principles for variations on car park rates for child care centres 1. Any variation to the parking rates must address the following issues (as relevant to the particular development): a. Type and scale of the development and its potential impact on local traffic and parking conditions. b. Existing parking facilities already provided prior to further development. c. Site and building constraints. d. Heritage and urban design considerations including significant streetscape elements such as sandstone retaining walls, significant mature trees etc e. On street and public parking in the area, as well as proximity and access to public transport. f. Location of local services, employment, retail and recreational facilities. g. Safety of vehicles, pedestrians and cyclists. h. Provision of any integrated, sustainable transport options benefiting the site.


SPECIALIST COMMENTS AND EXTERNAL REFERRALS The application was referred to the following internal and external specialists for assessment and the

following comments were received:

NSW Police Force

In accordance with the Crime Risk Assessment – Police & SSC Protocol 2010 the application was

referred to the NSW Police Force.

The comment provided related to Crime Prevention through Environmental Design (CEPTED) advice

on features and security measures that would assist in improving the general safety the proposed

facility.


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Architectural Review Advisory Panel (ARAP)

The application was referred to ARAP who provided the following comments:

• that the overall bulk of the scheme be reduced to create a more acceptable scale and integration

with the existing context.

• that the central section of the building be reduced in height and a deep setback introduced to

create a landscaped court that relieves the unbroken built form along Manchester Rd and

protects the amenity of eastern neighbours.

• that the street frontages and front setback zones are designed and detailed by an experienced

landscape architect, taking into account the matters raised in this report.

• that on-site car-parking is located below ground, and the overall provision and location of all

required car-parking agreed with Council.

• that compliant outdoor play areas are more contiguous with group rooms and operationally

independent from the roof level. This may require a reduction in the size of the centre.

• that internal planning is re-organised to allow improved/controlled access to northern sun for play

areas and group rooms.

• that the east and west facades are fully protected with external sun shading during the warm

months.

• that deep soil areas are provided so that mature trees might be integrated wherever possible.

• that annotated 1:20 details of all proposed façade types and the roof forms including drainage

are provided with the DA submission and form part of the consent documentation.

• that likely costs associated with the complex architectural form and detail of the building are fully

understood and confirmed by the proponent.”

Traffic Engineer

The application was referred to Council’s Traffic Engineer who provided the following comments:

• “In accordance with Council’s DCP, the applicant is required to provide 35 parking spaces on-

site for 138 children.

• In response, the applicant has proposed 35 parking spaces including 12 spaces on-site ( i.e. 10

visitor and 2 staff parking spaces) , and relies on 16 spaces within Gymea Tradies, and 7 timed

parking spaces on-street.

• The parking survey along the Manchester Road frontage to the development site indicates that

maximum 3 to 4 parking spaces are currently vacant during the peak hours. Therefore,

maximum 4 parking spaces on-street along Manchester Road frontage to the development site

can be provided for the proposed Child Care Centre, result in a shortfall of 3 parking spaces.

• Parking survey undertaken by RMS were found the parking rate of 1 space per 6 children for

childcare centre up to 100 children. It is therefore considered reasonable and conservative to

adopt parking rate of 1 space per 5 children for this development.

• Applying 1 space per 5 children, the proposed development require 28 spaces for 138 children,

hence the provision of 32 parking spaces is considered adequate to meet the peak parking

demand.


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• Traffic modelling shows there would be minor impact to surrounding road networks from the

development generated traffic.

Based on the above consideration the proposed child care centre can be supported with following

conditions of consent:

• Maximum 4 on-street 15 minute parking spaces during peak hours along the Manchester Road

frontage to the development site can be provided subject to approval from the Sutherland Traffic

and Traffic Safety Committee.

• 12 on-site parking spaces shall be dedicated to visitors / parents parking. No staff parking

spaces on-site permitted for this development.

• 16 spaces for staff parking within Gymea Tradies shall be dedicated to Childcare centre with

proper signage and line marking.”

From a planning perspective support on the basis of raw numbers alone (despite significant non

compliances) is insufficient to support the proposal on parking grounds. Fundamentally, development

sites should be able to accommodate their own parking needs. Child care centres are a sensitive use

and safe access should be assured. Remote parking that requires parents to negotiate a busy road at

peak times is a poor outcome. This coupled with the parking needs of 25 staff is problematic and is

symptomatic of an intensity of development beyond the capacity of the site.

Given the significant shortfall in car spaces by a ratio of 12 spaces to 138 customers, the likelihood of

spaces being available during morning drop off is very low. This will lead to queuing both within the

traffic aisle and potentially into Manchester Road (double parked). This is likely to result in passing

traffic, sweeping around queuing vehicles.

From a safety perspective, again coupled with the promoted off-site parking that encourages

pedestrian activity with young children is particularly inappropriate.

Whilst it is acknowledged there are signalled lights and crossing at the intersection of Kingsway and

Manchester Road, this in itself does not serve to sufficiently justify the great number of pedestrian

movements generated as a consequence of the parking shortfall.

This issue is discussed further in the assessment section of the report.

Communities Unit

The application was referred to Council’s Communities Unit who raised concerns with concealment

areas; access control; the logistics of staff to monitor all the activities in various spaces; graffiti; lighting

and accessibility. As a consequence the proposal could not be supported in its present form, without

much further and informed detail relative to crime risks and proposed operational methods for

extended hours.


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Environmental Science

The application was referred to Council’s Environmental Science Unit who provided the following

comments:

The submitted air quality report is not modelled on an appropriate method of measurement as it hasn’t

been based upon the submitted traffic report vehicle numbers; nor does it account for a probable

estimated 30% increase in traffic flow due to the increased nearby development occurring or

considered the impact of traffic stopped at the Kingsway / Manchester Road intersection traffic lights.

A more informed modelling analyses known as CAL3QHC in accordance with approved EPA NSW

modelling guidelines is recommended.

Environmental Health

The application was referred to Council’s Environmental Health Officer who provided the following

comments:

“There are variances of operating hours. The completed application form identifies hours as 7am -

6.30pm. The SEE quotes 7am – 6.30pm with prospect of extending hours forward to 6.30am and later

to 10pm, the Traffic & Parking Impact Assessment report mentions 7am – 9pm and the Acoustic

Report is based on use from 7am – 9pm. As background noise levels vary over the course of a 24

hour day it is important that hours of use be designated so the proper background level is used.

Waste collection - Whilst not part of the acoustic assessment it was been mentioned in the Traffic

and Parking Impact Assessment report (it was referenced in the SEE) that waste collection should be

performed by contractor between the hours of 9.30am and 3.30pm so as not to conflict with peak

street parking time of parents dropping off and picking up children. This is supported as the CC centre

is described as requiring 2 attendances per week and requiring a number of bins to be emptied at

each attendance clearance before 6.30am or after 9.00pm (the maximum spread of hours that have

been mentioned in the several supporting ‘expert’ Reports) would be an unreasonable impact upon

the neighbourhood.

Kitchen fit-out – no detail has been provided of the fit-out of the kitchen however at this ‘concept’

stage this is not defeating of the application. There is no reason to suspect the kitchen will not be able

to meet a fit-out complying with AS4674 – Design, construction and fit-out of food premises.”

Subsequently, recommended conditions of consent have been provided that could address these

issues.

Engineering (Assessment Team) The application was referred to Council’s Assessment Team Engineer who provided the following

comments;

“Engineering matters with the exception of Traffic are satisfactory subject to the implantation of

appropriate conditions.”


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ASSESSMENT

A detailed assessment of the application has been carried out having regard to the Heads of

Consideration under Section 79C(1) of the Environmental Planning and Assessment Act 1979.The

following matters are considered important in the assessment of this application.

Height of Buildings The proposed development fails to comply with the development standard for height. Clause 4.3(2) of

SSLEP 2015 stipulates a maximum height of 9.0m for this site. The proposal seeks to have an overall

height of 9.1m for the lift overrun located about the central portion of the building.

The objectives of the height of buildings development standard set out in clause 4.3 (1) of SSLEP

2015 are as follows:

(a) to ensure that the scale of buildings:

(i) is compatible with adjoining development, and

(ii) is consistent with the desired scale and character of the street and locality in which the

buildings are located or the desired future scale and character, and

(iii) complements any natural landscape setting of the buildings,

(b) to allow reasonable daylight access to all buildings and the public domain,

(c) to minimise the impacts of new buildings on adjoining or nearby properties from loss of views,

loss of privacy, overshadowing or visual intrusion,

(d) to ensure that the visual impact of buildings is minimised when viewed from adjoining

properties, the street, waterways and public reserves,

(e) to ensure, where possible, that the height of non-residential buildings in residential zones is

compatible with the scale of residential buildings in those zones,

(f) to achieve transitions in building scale from higher intensity employment and retail centres to

surrounding residential areas.

The proposal which consists of 3 storeys, fails to demonstrate that the proposed height is compatible

with the scale of the surrounding and adjoining residential development. The proposal is not

consistent with the desired scale and character of the street and locality or the desired future scale

and character of this locality. Additionally, it has not been demonstrated that the visual impact of

buildings is minimised when viewed from adjoining properties or the street or that the impacts of new

buildings are minimised on adjoining or nearby properties from a loss of privacy or overshadowing.

The proposed development is located within zone R3 Medium Density Residential. The objectives of

this zone are as follows:


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Zone R3 Medium Density Residential

• To provide for the housing needs of the community within a medium density residential

environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provides facilities or services to meet the day to day needs of

residents.

• To encourage the supply of housing that meets the needs of the Shire’s population, particularly

housing for older people and people with a disability.

• To promote a high standard of urban design and residential amenity in a high quality landscape

setting that is compatible with natural features.

• To allow development that is of a scale and nature that provides an appropriate transition to

adjoining land uses.

Although the proposed land use is permissible within the R3 zoning the intensified capacity of the

facility has a consequence of a scale and height that unreasonably dominates the locality.

The applicant has lodged a written request in accordance with the requirements of clause 4.6 of

SSLEP 2015.

A full copy of this request is on the file and the most relevant section is reproduced below:

“The building style will be a modern form that will complement both the existing club to the west and

the adjacent residential areas to the east and north of the site. Much of the childcare centre will sit well

below the 9m level. The Tradies club located opposite the site to the west is significantly larger in bulk

and scale than the proposed childcare building.

Accordingly the new centre will assist in providing a transitionary form between the club and the

existing residential area to the east.”

In considering of the written request against clause 4.6 (3)(a) and (b) about whether the request

demonstrates the following:

a) that compliance with the development standard is unreasonable or unnecessary in the

circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development

standard.

The written request avoids recognising the height, scale and character of the more immediate and

extensive residential development that directly adjoins the site and results in a more significant visual

impact upon those properties. Additionally, in considering that the requested variation is only for

100mm and that the site is regularly flat and regular in shape, there are no constraints which would

warrant the need to breach the maximum allowable height, nor has it been demonstrated that the

development needs to extent to the full height as proposed.


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In that the applicant’s written submission isolates the offending element as being a small portion of the

whole building, the justification is biased more toward the relationship of the proposed building form to

the larger Tradies Club building opposite rather than the immediate adjoining lower density residential

development.

In this respect the submission fails to demonstrate that compliance with the height development

standard is unreasonable or unnecessary in the circumstances of the case. It also fails to

demonstrate sufficient environmental planning grounds to justify varying this development standard. It

does not provide an “appropriate transition” to adjoining “land uses”.

The proposed development is not in the public interest as the proposal fails to comply with the

objectives for both height and the R3 zone.

The proposed variation does raise any matters of State or regional environmental planning

significance. In addition there is a public benefit to maintain the height development standard in the

circumstances of this case.

In conclusion, the variation to the height development standard fails to satisfy all relevant parts of

clause 4.6 and therefore the variation cannot be supported.

Floor Space Ratio The development proposes a FSR of 0.52:1, which complies with the maximum allowed floor space

ratio (FSR) of 0.7:1 pursuant to Clause 4.4(2) of SSLEP 2015.

The objectives of the floor space ratio development standard set out in clause 4.4(1) of SSLEP 2015

are as follows:

(a) to ensure that development is in keeping with the characteristics of the site and the local area,

(b) to ensure that the bulk and scale of new buildings is compatible with the context of the locality,

(c) to control development density and intensity of land use, taking into account:

(i) the environmental constraints and values of the site, and

(ii) the amenity of adjoining land and the public domain, and

(iii) the availability of infrastructure to service the site, and

(iv) the capacity of the road network to accommodate the vehicular and pedestrian traffic the

development will generate, and

(v) the desirability of retaining the scenic, visual, and landscape qualities of the area.

The proposed development is located within zone R3 Medium Density Residential. The objectives of

this zone are as follows:


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Zone R3 Medium Density Residential

• To provide for the housing needs of the community within a medium density residential

environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of

residents.

• To encourage the supply of housing that meets the needs of the Shire’s population, particularly

housing for older people and people with a disability.

• To promote a high standard of urban design and residential amenity in a high quality landscape

setting that is compatible with natural features.

• To allow development that is of a scale and nature that provides an appropriate transition to

adjoining land uses.

The original submission had 1.8m and 2.1m high acoustic screens to these areas at which time the

additional calculable floor area was brought to the attention of the applicant. In response, the

applicant chose to reduce the height of the screening rather than provide a design response that dealt

with the impact of floor space across the development in a holistic fashion. The reduction in screen

height to 1.4 metres was intended to exclude the play areas from calculable floor space and provide a

compliant floor space ratio whereas technically, the planning instrument requires balustrade to be less

than 1.4 metres in height. As the screen height reduction technically remained within the height that

triggered floor space the applicant has responded noting that the intent of the revised balustrades

were to exclude the play areas from calculable floor space and the proposal has now been formally

amended to provide these walls/screens at 1.39m to eliminated this technical breach.

Regardless of the technical compliance with floor space considering this amendment, these play

spaces ‘within’ the building continue to contribute significantly to the bulk and scale of the building. In

this regard, the proposal is not consistent with clauses 4.4(1)(a), (b), and (c)(ii) in that the bulk and

scale of the development is not compatible with the context of the locality and is therefore not in

keeping with the characteristics of the site and the local area. Furthermore, the bulk, scale and

intensity of the land use has a detrimental impact on the amenity of adjoining land and the public

domain in terms of visual intrusion, privacy, traffic and parking.

Additionally, the ARAP had commented that the proposed roof top play area separate to any internal

Group (class) Room was perhaps forcing a more complex management issue just for the compliance

of providing the relevant government regulation required open space. There is some common sense

in this comment in that it would require staff to manage groups of young children (3 – 5 year olds) up

and down levels either by a single lift or the external open stairs.


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Containing these “open” play spaces within the building footprint at upper floor levels will inevitably

create more building form which in this circumstance results in the taller and bulker structure. Whilst

the lower screens ‘technically’ removes the non-compliance with permissible floor space ratio, there

remains other significant consequences created by these elevated play areas discussed further in this

report that indicate the resulting building bulk is unacceptable in this locality and that the development

is inconsistent with the objectives of the R3 zone.

The proposed development is not in the public interest as the proposal fails to comply with the

objectives for both FSR and the R3 zone.

Assessment Principles for the Siting of Childcare Centres

Council’s draft Development Control Plan 2015 provides assessment principles for the siting of child

care centres as follows:

Not all sites can provide sufficient safety and amenity for children. Neither are all proposals compatible

with protecting the amenity of adjoining residents or businesses. Therefore, each DA for a child care

centre must be judged on its merits, having regard to all relevant LEP and DCP controls.

There are difficulties for this particular site in allowing a design providing sufficient safety and

amenity for children due to its location adjacent to a busy road network, narrow proportional

shape and the desire to provide the facility for a large number of children. The combination of

all these factors balanced against the solutions provided with on street parking near a busy

intersection and internal open play areas indicates there are compromises to the safety and

amenity of children that could attend this centre.

Similarly, the amenity of adjoining residents is compromised by the comparative taller building

structure. The amenity of the Tradies Club operations is also compromised by the need to

provide the required car parking for this facility within their immediate and existing club car park

area.

The number of children a child care centre can cater for is a function of land size, spatial requirements

set out in Education and Care Services National Regulations 2011, LEP landscape area minimums,

DCP parking rates and other considerations.

Whilst the required “numbers” for these measures are compliant there are compromises to the

design of the proposed centre that are as a result of this land size, orientation and proportions.

In this regard, the large number of children sought to be catered for by this application is

significantly unsustainable in that the relatively simple exercise of allowing children access to

the open outdoor play spaces requires some strict time discipline and process due to the

disjointed roof top area and the overseeing of smaller segregated groups so that the noise

levels are within acceptable levels.


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Larger sites support larger spaces, both indoor and outdoor, and ensure a greater variety, diversity

and number of play opportunities for children. They also provide greater flexibility to take advantage of

other site planning issues and constraints (such as providing sufficient landscaping, car parking and

providing adequate setbacks to neighbours).

The proposed design in its elongated and narrowed building form does not provide a greater

variety, diversity and number of play opportunities for children that a larger site with reasonable

proportions would allow. In this circumstance the building displaces the significant area of the

site. This large, elongated building footprint also causes the development to struggle to provide

the required landscaped area and fails to provide appropriate car parking facilities on site.

Centres should be located in close proximity to existing public transport nodes and be available to

good vehicular access without unduly affecting traffic in surrounding streets.

The site has good location to existing transport nodes being close to the Gymea shopping

centre but its vehicle access and proposed on street car parking spaces close to the

intersection of a busy traffic network will have some level impact on traffic in the surrounding

streets. Typically, users of childcare centres drive to the centre. Off street parking combined

with the need for users to cross the road close to the intersection of the Kingsway is a poor

outcome.

Outdoor play areas should be adequately separated from adjoining properties to ensure that

surrounding amenity is not significantly adversely affected.

Elevated play areas do not necessarily provide adequate separation which in this instance can

mean that not only the amenity of the immediately adjoining properties area affected but also

the next adjoining properties. As there is the potential for disturbance of more than two sets of

neighbours the adequacy of separation to ensure that the surrounding amenity is not

significantly adversely affected cannot be assured.

In assessing an application for a childcare centre in a location where building users are likely to be

exposed to health or safety risk (such as long term exposure to air pollution from major roads or

industrial areas), Council will adopt a 'precautionary principle' approach. Such an approach requires

that where serious or irreversible risks to health are identified, uncertainty over the scale or nature of

the impacts should not be used as a reason for postponing measures to prevent health risk. Measures

employed to prevent adverse health impacts may include relocation and redesign to reduce exposure,

screening, or refusal of the application.

The site’s location adjoining the Kingsway which has an Annual Average Daily Traffic Count of

greater than 20,000 vehicles has been evaluated by the applicant’s Air Quality Occupational

Hygienist consultant as being safe for the proposed child care centre use. Whilst this is true for


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the existing circumstances, however, allowances have not been made for increased intensity of

development both at Miranda to the east and the Kirrawee Brick Pit site to the west, which will

see significant increases in vehicle movements around this locality. As a consequence it cannot

be assured that the safe levels of air quality can be achieved in the future.

Although there are a number of constraints and opportunities on any individual site, there are also

some common elements which make sites more appropriate or ‘preferred’ for child care centres,

particularly in relation to safe vehicular access and egress. These include sites with any of the

following:

(a) corner lots, as these have potential for separate vehicular entry and exit points, and present

opportunities for minimising privacy and noise impacts/conflicts with neighbours;

(b) sites on low volume traffic roads, or which are located at least 150m from a major road where

traffic volumes exceed 6,000 vehicles per day;

(c) sites that do not create unsafe traffic situations;

(d) sites with wide frontages which can accommodate in-out driveways for on-site parking;

(e) sites with no impediments to disabled access;

(f) sites which have a wide direct street frontage (not battle-axe lots).

In regard to these matters the design provides for separate vehicle entry and exit points but the

site is not addressing a low volume traffic roadway and has the potential to create unsafe traffic

situations with the proposed on street and off site car parking spaces. The parking arrangement

encourages pedestrian crossing Manchester Road close to the intersection of the Kingsway.

It is preferable to provide child care centres at the ground floor level as they enable high levels of

access to landscaped outdoor play spaces. However, Council acknowledges that this may not always

be possible due to the density of development in some areas.

This is a large site, albeit of an elongated shape, and there are opportunities to provide a child

care centre on a ground floor level accessing landscaped outdoor play areas. However, this

would require a significant reduction in the number of children.

Stormwater Management Clause 6.4 requires Council to be satisfied of certain matters in relation to stormwater management

prior to development consent being granted. These matters include maximising permeable surfaces;

on-site stormwater retention minimising the impacts on stormwater runoff. These matters have been

addressed to Council’s satisfaction.


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Urban design (non-residential)

Clauses 6.16 and 6.18 of SSLEP 2015 contain certain matters of consideration relating to urban

design. The application has failed to satisfy these matters, in particular the proposed height, bulk and

scale of the building form relative to the existing and future desired character of the locality is not

complimentary to the location or context. More so, the development results in an abrupt transition of

building size to the expected predominantly residential development adjoining the sites.

The applicant’s architect stated that the design philosophy was developed through a concept of linking

the origins of the place and area to the proposed specific site. This was based upon their

understanding that the Eora People were the traditional owners of the land, significant to the place,

whom were coastal dwellers with strong shore navigation that could be attributed to their hunting and

fishing techniques that relied strongly on their sight for navigation. As such their concept is based on

sight lines, navigation and visual connection between spaces and levels.

The architect further stated that the design principle uses key design patterns, relating to children’s

play, to enhance the child’s experiences throughout the spaces, and to add to the architectural

articulation of the building both internally and externally.

Whilst the building envelope and fabric may have taken these concepts as a direction for its façade

expression, it has resulted in a very distinctive and visually dominant building that expresses itself

more as a landmark structure rather than being readily recognised as a children’s care centre within a

residential context.

Some of the recommendations of the ARAP review were adopted by the revised design but only to a

minor extent in that the overall bulk of the scheme has not been reduced to create a more acceptable

scale and integration with the existing context. Neither has a below ground on-site car-parking

solution been considered, nor that compliant outdoor play areas are more contiguous with group

rooms and operationally independent from the roof level.

Archaeological Sensitivity Council records indicate that the subject site is rated low in terms of Archaeological Sensitivity. A site

inspection did not reveal any evidence of shell material or significant sandstone features within the

development zone. The proposal does not warrant an Aboriginal Archaeological Study being

undertaken.

Tree Removal

The proposed development involves the removal of 19 on site trees and plantings and 7 street trees.

Whilst the street tress have been severely pruned for power line clearance and could be replaced with

more appropriate plantings and two (2) of the on-site trees which are significant could be retained with

an alternate design.


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Parking

In order to provide the number of car parking spaces as required by Council’s DCP the application has

‘spread’ the majority of spaces off site, firstly as on street kerb parking adjacent to the site and

secondly on the Tradies separate parcel of land opposite where the club premises are located. Even

in doing so, at Council’s parking rate of 1 space per 4 children, the centre having 138 children and

thereby requiring 35 car parking spaces there is still a shortfall of 3 car spaces with their provision of

only 32 spaces. Fundamentally, the facility should provide its own carparking.

Apart from the number of spaces the complications involved with these arrangements are that there

could only be a maximum of four (4) on street 15 minute timed parking spaces available, subject to

approval from the Sutherland Traffic and Traffic Study Committee, and not the seven (7) spaces

identified by the applicant within their submission. Additionally, the sixteen (16) car parking spaces

illustrated on the architectural drawings within the Tradies Club’s property will require a modification of

the club’s existing development approval to ensure that unimpeded access is available solely for the

child care centre use for the perpetuity of the centre’s use. This also gives rise to pedestrian

movement and child safety.

Within the submitted Child Care Management Report it has been stated that based upon being

compliant with the educator : child ratios detailed in the Early Education and Care Services National

Regulations there will be 25 employees needed for the operation of the centre that is catering for 138

children.

The applicant’s submitted traffic report nominated 18 spaces as being required for staff based on a

presumption that 50% of Council’s DDCP 2015 Child Care Centre car parking requirement rate of 1

space per 4 children is for staff car parking spaces. This is further justified by the assumption that as

the site is convenient to public transport routes a ratio of 1 car space per 2 employees is reasonable to

adopt. This report further states that it is relevant that a rate of 1 space per 2 employees is

reasonable based on Council’s nominated rate for hotel / motel accommodation, serviced apartments

and marinas.

However, it is considered that a more practical staff car parking number requirement should be

evaluated upon the actual staff numbers. In this instance, if 25 staff utilise the available 32 spaces

there would be only seven (7) car spaces for all of the parents of the proposed 138 children to attend

this facility.

Even allowing for some portion of staff not requiring car parking, it still must be realised, if only for

practical reasons, that with a centre that proposes to cater for 138 children the parking needs for the

parents taking and picking up their children would be of a greater number than staff.


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But more importantly to be able to safely access these parking spaces without needing to cross busy

intersections or manoeuvre into and out of parking spaces on a busy roadway (that is, Manchester

Road). It is noted that other and currently operating larger child care centres provide a substantial

number of car parking spaces on-site usually within a basement area.

Another result of the arrangements for the proposed on-site carpark area is that a large portion of the

street setback areas to Marion Street and Manchester Road are occupied by hard pavement finishes

which does not allow for some reasonable landscaping features that could assist in softening the

visual impact of the proposed development.

Hours of operation

The proposal seeks to operate the centre 51 weeks of the year, closing on Public Holidays and

approximately 1 week over the Christmas break. The hours of operation will be 7:00am – 6:30pm,

with extended hours care being available should the community demand support it from 6:30pm – 10pm. The centre will be closed weekends.

The proposed extended hours is an unusual consideration for this type of facility and as such would

need substantially more clarity in operational, security, access, social impact and noise control to be

assessed as being a reasonable or supportable use of the centre.

Noise Control The original proposal provided 1.8m high acoustic barriers to the elevated play areas to dampen the

noise of children’s activities within these areas upon neighbouring properties.

The revised design reduced these barriers to a 1.4m height in order to exclude these areas from

calculable floor area (see previous Floor Space Ratio).

Subsequently, the acoustic report was revised and as a result the outdoor play areas will require the

children to be divided into smaller groups of either 5 or 6 within the elevated play areas to reduce

noise. This is symptomatic of a development of an intensity beyond the capacity of the site. This

division creates 4 to 5 groups within each play area at one time which in turn places a higher

responsibility upon staff to monitor and ensure that the groups remain detached from each other. This

appears to be problematic in that there are to be 6 staff members to attend to the suggested 9 groups

of 3 – 5year olds on the Level 2 play area that is located on the top of the building.

Additionally, the applicant’s acoustic consultant report has evaluated the operational hours as being

between 7am to 9pm: Monday – Friday and if the play areas were accessible for play after 6.30pm

there may be additional noise amenity impacts upon neighbouring properties that are unexpected

through the operational requirements of the centre.


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SECTION 94 CONTRIBUTIONS

Due to its nature, the proposed development will not require or increase the demand for local and

district facilities within the area. Accordingly, it does not generate any Section 94 contributions.

DECLARATIONS OF AFFILIATION, GIFTS AND POLITICAL DONATIONS

Section 147 of the Environmental Planning and Assessment Act, 1979 requires the declaration of

donations/gifts in excess of $1000. In addition Council’s development application form requires a

general declaration of affiliation. In relation to this development application no declaration has been

made. In relation to this development application the following declaration has been made:

Donations were made to the political campaign (Michael Forshaw) on 12 August 2016 and to the

Australian Labour Party on 10 September 2016.

CONCLUSION

The subject land is located within Zone R3 Medium Density Residential pursuant to the provisions of

Sutherland Shire Local Environmental Plan 2015. The proposed development, being a Child Care

Centre, is a permissible land use within the zone with development consent.

The application was placed on public exhibition and submissions were received from 67 households.

The matters raised in these submissions have been discussed in this report.

The proposal includes a variation to building height. Additionally, the lack of reasonable and safe car

parking access, inadequate noise control and the visual dominance of the proposed building create

poor and unreasonable amenity impacts. These variations have been discussed and are considered

unacceptable.

The application has been assessed having regard to the Heads of Consideration under Section 79C

(1) of the Environmental Planning and Assessment Act 1979. The application will result in any

significant impact on the environment or the amenity of nearby residents. Following assessment,

Development Application No.16/1613 cannot be supported for the reasons outlined in this report.

RESPONSIBLE OFFICER The officer responsible for the preparation of this Report is the Manager Major Development

Assessment (PBro)

File Number: DA16/1613


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