Dounis v Kogarah Municipal Council [2006] NSWLEC 50

Land and Environment Court of New South Wales

CITATION : Dounis v Kogarah Municipal Council [2006] NSWLEC 50

APPLICANT Dounis PARTIES : RESPONDENT Kogarah Municipal Council

FILE NUMBER(S) : 10820 of 2005

CORAM: Tuor C

Development Application :- Child care centre traffic and parking KEY ISSUES: Noise Streetscape

LEGISLATION CITED: Kogarah Local Environmental Plan 1998

CASES CITED: Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83

DATES OF HEARING: 28 & 29/11/2005 & 1/12/2005

DATE OF JUDGMENT: 02/09/2006

APPLICANT Mr I Hemmings, barrister SOLICITORS Heidtman + Co Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Ms C Schofield, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

9 February 2005

10820 of 2005 Louis and Amanda Dounis v Kogarah Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Kogarah Council (the council) of a development application (DA 261/05) for the demolition of all existing improvements and the erection of a childcare centre at 23 Terry Street, Blakehurst (the site). 2 The site was inspected on the first day of the hearing with representatives from both parties and a number of local residents. The site and surrounding area 3 The site is Lot 15 in DP 571117. It is irregular in shape with a frontage and southern boundary to Terry St of 19.895 metres, an eastern boundary of 43.555 metres, a rear and northern boundary of 15.715 metres and an irregular western boundary with a combined distance of 48.855 metres giving a total site area of 896.3 square metres. 4 A single storey rendered and fibre cement cottage with a detached garage is located on the site. The locality is generally one and two storey houses with generous setbacks and landscaped frontages. Medium density townhouse and villa developments are located further along Terry St towards the Princes Highway. The proposal 5 The proposal was amended prior to the hearing to better address concerns of the court appointed experts. It provides for the removal of all existing improvements and vegetation on the site and the construction of a long day childcare centre. The centre will accommodate 40 children, consisting of 10 children between 0 and 2 years, 16 children between 2 and 3 years and 14 children between 3 and 5 years. The building is located towards the eastern side of the site with outdoor play areas located adjoining the northern and western boundaries. 6 The centre will operate between 7.00 am and 7.00 pm Monday to Friday. It is proposed that drop-off and pickup times for children will be staggered between 7.00 am and 11.00 am and 3.00 pm and 7.00 pm. 7 Four car parking spaces within a garage (made up of two spaces and two stacked spaces) are located near the western boundary and the Terry St frontage. A driveway off Terry St provides separate ingress and egress for drop-off and pickup of children. Some landscaping is provided in the front setback in areas not used for the driveway. Relevant planning controls 8 The site is zoned Residential 2(a)-Residential (Low Density) under Kogarah Local Environmental Plan 1998 (LEP 1998). The proposed use is permissible within this zone with consent. Clause 7 provides zone objectives which relevantly include: (b) to maintain the amenity and low density environment of areas predominantly characterised by detached dwelling houses, and (c) to allow certain non residential development of low intensity which is compatible with the residential character and amenity of the locality. 9 Clause 7(2) provides that consent shall not be granted unless the consent authority is of the opinion that the development is consistent with the zone objectives. 10 Development Control Plan No. 11-Centre Based Child Care Services (DCP 11) also applies. The relevant requirements relate to: siting and design (2.1); location requirements (2.2); parking (2.4), outdoor play area (2.5) and landscaping (2.7). 11 On 21 November 2005 council adopted an amendment to DCP 11 (the amended DCP 11). This amendment was made after the development application was lodged. The amendment provides that Terry Street, between the Princes Highway and Resthaven Road, is included in a list of streets which do not meet the location criteria for child care centres due to the volume of traffic. 12 The other DCP amendments of relevance are the introduction of a minimum frontage requirement and changes to the off street parking requirements. The frontage requires that child care centres have a minimum frontage of 20m. The site has a frontage of 19.895m and this minor non compliance was not raised as an issue between the parties. The amendments to the off street parking requirements were a key issue in the proceedings, which are discussed under the parking issue. 13 The parties agreed that the amended DCP 11 was a matter for consideration but not to be given determinative weight. This is consistent with the decision of Lloyd J in Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83. The issues 14 The council filed a Statement of Issues containing 7 individual issues. These can be grouped into the following main areas: 1) whether the proposed development provides satisfactory offstreet parking and pickup/drop-off arrangements for children (Issues 1, 3 and 5), 2) whether the proposed development has and unacceptable amenity impact on neighbouring residents (Issues 1 and 2), and 3) whether the proposed development has an unacceptable impact on the streetscape (Issue 4). 15 The public interest and issues raised by objectors (Issues 6 and 7) are addressed in the consideration of the above issues. The evidence 16 The parties agreed to the appointment of Mr K Nash as the Court appointed town planning expert, Mr C McLaren as the Court appointed traffic engineer and Mr B Murray as the Court appointed acoustic expert. 17 I granted leave for the applicant and the council to provide additional evidence from the following experts: 18 For the applicant Mr A Darroch, town planner Mr R Tonin, acoustic expert Mr G Pindar, traffic expert Ms N Sonter, landscape consultant 19 For the council Mr Lindsay Fletcher, town planner Mr F Tambosis, traffic engineer Mr L Challis, acoustic expert Traffic and Parking 20 The impact of the proposal on traffic was raised by the residents as an issue and Mr Tambosis raised concerns that vehicles turning into and out of the site could add to the queuing that is already evident in the street. Both Mr McLaran and Mr Pindar considered that the increase in traffic generated by the proposal would not adversely impact on the traffic in Terry Street. 21 The proposal does not comply with the locational requirements for child care centres in the amended DCP 11 due to the volume and speed of traffic using Terry Street. Mr Pindar and Mr McLaren did not consider that volume and speed of traffic using Terry Street of itself made it an unsuitable location for a childcare centre and that the proposal should be considered on its merits. All experts agreed that the development should not rely on kerbside parking to meet its operational needs. The reason for this is summarised by Mr McLaran as being that Terry Street is a Collector Road that experiences traffic flows in excess of its environmental capacity. The width of the street, with parking on both sides, its use by trucks and buses and the speed of traffic using the street make it unsuitable for children to be dropped off in the street. Mr Pindar considered that the street could be used for staff parking and the occasional drop off for children. 22 The main issue between the parties was the number and arrangement of spaces required to meet the operational needs of the centre. 23 DCP 11 requires 1 space for each full time staff member, one parking bay adjacent to the driveway for dropping off and picking up of children, and one space for every two part time staff members; a total of 7 spaces. Mr Mclaren and Mr Pindar agreed that it was not appropriate to determine the operational need of the centre based on the number of staff. Particularly as staff numbers fluctuate depending upon their working hours and that staff can utilise parking for parents and carers outside the peak drop off times. They agreed that the four spaces proposed in the garage were sufficient to meet the needs of staff but disagreed on whether the parking proposed in the driveway and passing bay was adequate for parent/carers. 24 The amended DCP 11 requires 1 space per four children which equates to a requirement of 10 spaces. This rate is based on the Roads and Traffic Authority (RTA) guidelines. Mr Pindar did not support this figure on the basis that the RTA guidelines were outdated and that a figure based on his surveys was more appropriate. He considered that the number of spaces and the drop off arrangement proposed would meet the needs of the centre. 25 Mr McLaran considered the RTA guidelines to be still relevant and to reflect the surveys that he had undertaken. He recognised that the number of on site spaces could be reduced "in circumstances where it is acceptable on road safety and convenience grounds". Based on the location he considered that 8 spaces comprising 3 for staff and 5 for parents/carers would meet the operational needs in this location without "any reliance or operational spill over on street". He considered that two parent/carer spaces could be utilised by staff outside peak drop off times 26 Mr McLaran did not consider that the proposed arrangement which utilised the drive through driveway to provide two parent/carer spaces as acceptable. He stated that based on his research, the two spaces would not meet the demand for 4 to 5 parent/carer spaces in peak period for an average of 6 minutes. This would result in parent/cares using the street or the driveway being blocked by cars parking. 27 Mr McLaren was also concerned that the drop off arrangement was not safe as it did not provide a drop off to a footpath situation. A car parked in the driveway nearest the road would result in the child crossing the path of a car seeking to park in the other space nearer the centre. He considered this to be a dangerous situation. 28 Mr Pindar, based on his research, considered that for most of the peak drop off times only two cars would be parked. He stated that the presence of a third car would not cause a problem during the extent of its stay as one of the other cars would already have moved on thereby not blocking the driveway. He recognised that if a fourth car arrived the driveway may be blocked but considered this to be acceptable as, based on his figures, it would only occur at 2% of the time in the morning peak and 5% of the time in the afternoon peak. Mr Pindar did not consider the proposed arrangement to be dangerous as it is a low speed environment and children would be supervised when entering and leaving cars. 29 Mr McLaren stated that even if Mr Pindar's estimates were correct this was not an acceptable level of risk as there would be times where the driveway would be blocked and cars would need to wait. He recognised that there would be periods were the centre would not meet the parking demands such as if there were a function or in the event that more than the anticipated number of parents/carers arrived at the same time. However, the parking arrangements should be designed to meet the normal operational needs of the centre and should endeavour to achieve no risk. He stated that child care centres and schools were environments where a high standard of design was required to minimise known risk.