Land and Environment Court of New South Wales CITATION : Lawson v Parramatta City Council [2006] NSWLEC 418 APPLICANT Bruce Lawson PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 10050 of 2006 CORAM: Tuor C KEY ISSUES: Development Consent :- Conditions of approval for a child care centre Car parking, requirement for a slip lane, noise impacts, consistency with zone objectives. Parramatta Local Environmental Plan 1996 Parramatta Local Environmental Plan 2001 LEGISLATION CITED: Land and Environment Court Act 1979 Roads Act 1993 Environmental Planning and Assessment Act 1979 CASES CITED: Newbury District Council v Secretary of State for the Environment (1981) AC 578 DATES OF HEARING: 14/06/2006 and 16/06/2006 EX TEMPORE JUDGMENT DATE : 06/16/2006 APPLICANT Mr M Henry, barrister SOLICITORS Coleman and Greig LEGAL REPRESENTATIVES: RESPONDENT Mr P Marincowitz SOLICITORS Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 16 June 2006 10050 of 2006 Bruce Lawson v Parramatta City Council JUDGMENT 1 This is an appeal against three conditions imposed by Parramatta City Council (the council) on the development consent (DA 240/2005) for a 79 place childcare centre at 234 Windsor Road, Northmead (the site). 2 Council granted consent to the application on 21 December 2005, subject to conditions: The conditions in dispute are: Condition 15: The development shall make provision for a total of 29 car parking spaces. This requirement shall be reflected on the Construction Certificate plans. The approved car parking spaces shall be maintained to the satisfaction of the Council, at all times. Reason : To ensure adequate car parking facilities are provided. Condition 16: Windows on the southern and western sides of the property be of fixed sound proof glass. Details to be submitted to the Principle Certifying Authority before issue of Construction Certificate. Reason: To comply with council's resolution. Condition 37: The design requirements of the deceleration lane, central concrete median island and driveway shall be in accordance with the RTA Road Design Guide and other Australian Codes of Practice. The certified copies of the design plans shall be submitted to the RTA for consideration and approval prior to the release of the construction certificate by Council and commencement of road works. The developer shall be responsible for all public utility adjustment/relocation works, necessitated by the above work and as required by the various public utility authorities and/or their agents. The RTA fees for administration, plan checking, civil works inspections and project management shall be paid by the developer prior to the release of the approved road design plans. In addition to the above, the applicant may be required to enter into a "Works Authorisation Deed" with the RTA. Reason: To comply with RTA requirements. 3 The site, its context and history of the application and the statutory controls are in the Statement of Basic Facts. The site and its context 4 The site is located on the western side of Windsor Road, Northmead. It is rectangular in shape with a frontage of 51.67 m, a depth of 54.245 m and a total site area of 2802 sq m. 5 The site is occupied by a part one, part two-storey house which is listed as a heritage item under Parramatta Local Environmental Plan 1996 (LEP 1996). Adjoining the site to the north, south and west is The Willows Retirement Village. Planning framework 6 The site is zoned Residential 2(a) under Parramatta Local Environmental Plan 2001. The proposal is permissible with consent. Clause 16(3) provides that consent must not be granted unless the consent authority is of the opinion that the development is consistent with the objectives of the zone. 7 The relevant objectives of the 2(a) Residential zone are: (a) To enhance the amenity and characteristics of the established residential area, and ….. (c) To ensure that building form, including that of alterations and additions, is in character with the surrounding built environment, and ….. (e) To allow a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods. 8 Parramatta Development Control Plan 2001 (DCP 2001) was the Development Control Plan at the time the application was lodged. The relevant provisions are 4.3.1 - Visual and Acoustic Privacy, 4.3.5 - Vehicular Access, Parking and Circulation and 4.4.5 - Cross Ventilation. 9 Parramatta Development Control Plan 2005 (DCP 2005) came into effect on 14 December 2005. It does not apply to applications lodged prior to this date. The relevant provisions have the same affect as those in DCP 2001. The evidence 10 Mr C Hallam, the Court appointed traffic expert, provided evidence on conditions 15 and 37. Mr J Goodwell, the council planner and Mr M Armstrong, the architect for the proposal, provided evidence on condition 16. 11 The Court heard evidence on site from a number of residents. Their main concerns were that the parking proposed was inadequate and would result in the car park of The Willows being used. They considered that a deceleration lane or slip lane was required due to the speed and volume of traffic using Windsor Road and the curve in the road which resulted in safety issues for cars slowing down to access the development. They stated that the two car spaces provided in the existing parking area on site were unsatisfactory as the access was off the pedestrian crossing. 12 The written submission of Mr Martin, on behalf of the Owners Corporation of The Willows Retirement Village, provided an alternative parking arrangement and an indicative slip lane (Exhibit 5). Mr Martin recognised that the slip lane did not comply with the 50 m requirement of the RTA but he noted that neither did the slip lane outside The Willows development and that, in his opinion, the RTA requirements were only guidelines. 13 The residents were also concerned about the noise from the development, particularly the cot rooms which faced living areas and balconies off dwellings adjoining the southern boundary of the site. 14 The residents stated that the conditions should be retained. In addition to these matters, the residents raised concerns relating to the suitability of a childcare centre on a main road adjoining residential development. Captain Johnson, on behalf of the Salvation Army Trust which manages The Willows, in his written submission, also raised concerns about the consistency of the proposal with the zone objectives and the impact of the proposal on the curtilage of the heritage item. 15 At the conclusion of evidence, Mr D Wilson, barrister on behalf of the Salvation Army, sought to make an application to be joined under s 38 of the Land and Environment Court Act 1979 to make submissions on the consistency of the proposal with the zone objections. This application was opposed by Mr Henry, the applicant's barrister. For the reasons I provided during the hearing, I did not permit the application. Issues 16 The key issue in the appeal is whether the imposition of the conditions meets the test in Newbury District Council v Secretary of State for the Environment (1981) AC 578. The test being that a condition must: (a) fairly and reasonably relate to the development for which consent is given, and (b) be imposed for a planning purpose, and (c) be reasonable in the sense that it must be a condition which a reasonable local authority properly advised might impose. Condition 15 17 Condition 15 requires 29 car spaces to be provided on site. The application proposes 20 spaces; two being provided in the existing parking area at the south-east corner of the site and 18 in the new car park at the north-east section of the site. The 20 spaces comply with DCP 2001, which requires one space for every four children in attendance. Mr Hallam reviewed this requirement as to whether it would meet the operational needs of the development. He stated that the Roads & Traffic Authority's Guide to Traffic Generating Development (RTA Guidelines) has the same requirement as DCP 2001, plus an option of reducing the number if convenient and safe on street parking is available. In his opinion, there would be no justification to reduce the numbers, but the 20 spaces would be adequate for parents and staff. Mr Hallam based this conclusion not only on the RTA guidelines but on surveys he has undertaken of childcare centres which confirm that the RTA guidelines are reasonable. 18 Mr Hallam explained that although the rate is expressed as a per children rate it takes into account both children and staff. He considered that examining the requirements of other council areas was of little relevance as the RTA has researched the parking requirements of childcare centres and is therefore a more authoritative document. Mr Hallam did not consider that it would be likely that parents would park in The Willows car park given the provision of adequate parking on the childcare centre site. He noted that parents travelling south bound may choose to park in Ventura Road and cross over Windsor Road at the traffic lights. However, he did not consider this to be a reason to increase the number of spaces on site. 19 Mr Hallam stated that the two existing spaces were adequate for staff parking despite their access being off an existing drive way and the pedestrian crossing. Mr Hallam recognised that this access was not ideal but it was an existing arrangement. The proposal for two staff cars is no different to it being accessed for residential use and is acceptable due to the limited number of cars likely to use the area. 20 Mr Hallam recommended that the new car park be widened and the splay increased to improve access and facilitate cars waiting for spaces. The Applicant has accepted this recommendation and it has been incorporated into a condition of consent. Mr Hallam examined the proposed car park plan provided by Mr Martin. He stated that while more parking could be provided on site, for the reasons stated above, he did not consider it to be necessary. He also raised concerns about Mr Martin's proposal as it would increase the number of cars exiting near the pedestrian crossing. 21 For the reasons outlined above, condition 20 is modified to provide for 20 car parking spaces. Condition 37 22 Mr Henry submitted that Condition 37 does not explicitly require a slip lane to be provided but just the design. Nonetheless, the key question is whether the slip lane is needed to ensure safe access to the site. Other conditions require a median strip in Windsor Road to be provided to ensure that access to the site is by a left turn only which was a requirement of the RTA in granting its concurrence to the application under s 138(2) of the Roads Act 1993. 23 Mr Hallam examined the need for a slip lane but concluded that it is not required. His main reasons for reaching this conclusion can be summarised as being that the RTA does not require a slip lane but does not oppose one if designed in accordance with the RTA Road Design Guide. Also, the RTA Road Design Guide would require a 50 m long and minimum 3 m wide slip lane. This would extend further to the south than the property and necessitate the relocation of services, including two traffic lights and an electricity pole. The slip lane would widen the pedestrian crossing and remove about 3 m from the curtilage of the heritage item. 24 Mr Hallam noted that The Willows had a reduced slip lane but considered it unlikely that the RTA would permit this to occur at this site given its consideration of the matter to date. On this basis, he considered the slip lane shown in Mr Martin's objection would not be approved. 25 Nonetheless, Mr Hallam considered the key question to be whether a slip lane was necessary. While he recognised that a slip lane would improve safety and traffic flow, as acknowledged by the RTA, he concurred with the RTA's opinion that it was not required to achieve an acceptable level of safety. He stated: There is no simple "warrant" for the provision of a slip lane. It is a matter of judgment. At intersections, slip lanes are rarely used for traffic safety reasons, but are used for traffic capacity reasons. Drivers approaching intersections have an expectation that they will need to slow down and/or stop, particularly when the intersection is traffic signal controlled. The close spacing of the subject driveway to the Ventura Road junction is relevant in this regard. 26 Specifically, Mr Hallam considered that the volume of traffic using the site and its location, did not necessitate the slip lane. He noted that the RTA Guidelines states that deceleration/acceleration lanes may be required in high speed locations, for high traffic generating developments, at mid-block and rural locations. This proposal does not meet these criteria. 27 Mr Hallam recommended changes to the new car park and driveway to further improve safety and access to the site. The Applicant has agreed to these changes and they have been included as a condition of consent. 28 I accept the opinion of Mr Hallam. I am satisfied that he has considered the adequacy of the parking provision and the need for a slip lane and, for the reasons he has given, that access to and from the centre can be safely provided without the slip lane but with the widened driveway and splay. Consequently condition 37 is deleted and conditions which reflect Mr Hallam's recommendations are imposed. Condition 16 29 Condition 16 requires fixed soundproof glazing to the windows which adjoin residential boundaries. The purpose of the condition is to ameliorate noise impacts from the centre on adjoining residential development. A noise assessment by Renzo Tonin & Associates Pty Limited was prepared as part of the development application. This did not specifically deal with noise generated from internal spaces. The report was prepared on the basis of earlier plans which had smaller and fewer windows facing these boundaries. 30 The key difference between the experts was that Mr Goodwell was concerned that the windows off play areas and cot rooms faced directly onto residential boundaries. Due to the slope of the land, these windows were elevated above the fence level and noise would be transmitted to adjoining properties. He noted that the noise report estimated noise levels of 68dBA for children and 74dBA for staff. While he acknowledged that cross ventilation was desirable, this could still be achieved, in his opinion, by permitting windows other than those to play areas and cot rooms to be openable. He considered that even though there was currently no development along the western boundary, these windows should also be sealed as the land is zoned residential and is likely to be developed at some point in time. He concluded that the noise levels at the boundary of the site need to achieve an acceptable level to maintain residential amenity of existing and future development. 31 Mr Armstrong explained the use of the rooms and that only the upper section of the windows would be openable. He considered that the benefits of cross ventilation outweighed any likely noise impacts. He stated that the centre had been designed to mitigate noise impacts by placing buildings around the boundary shielding the play areas from the adjoining properties. Mr Armstrong considered that the combined effect of the use of the rooms, setbacks and landscaping would mitigate noise impacts to an acceptable level. 32 There is no expert noise assessment of the internal play areas and cot rooms. The applicant declined the opportunity to provide further evidence or for the condition to be amended to place an appropriate noise criteria at the boundary to be met by the development. The use of the play areas and the cot room will generate noise levels. If windows are open this noise will travel to adjoining properties as the windows are above the level of the fence. The southern boundary adjoins balconies and living areas of The Willows residences. While there is currently no development along the western boundary, this can occur in the future and, where possible, a development should mitigate its own impacts within its own site. I accept the desirability of achieving internal cross ventilation but in the absence of expert evidence that demonstrates that an acceptable noise level can be achieved, I accept Mr Goodwell's evidence that condition 16 be amended to require fixed soundproof glazing to the windows to the cot room and play areas on the south and western boundaries. Other Issues 33 In relation to the other issues raised by the objectors, particularly the consistency of the proposal with the zone objectives, I accept council's submission that the proposal meets these objectives. 34 No evidence was submitted that indicated that the proposal would not enhance the amenity and characteristic of the established residential area and meet objective (a). The proposal is single storey, the overshadowing diagrams indicate that acceptable solar access will be maintained, with the amendment of condition 16, noise levels are acceptable and traffic and parking impacts are acceptable. Other impacts were addressed in council's report. 35 Objective (c) is met by the retention of the heritage item and the single storey form of development on a large site with landscaping. Objective (e) is met by the provisions of a community facility. I therefore accept that the proposal is consistent with these objectives. 36 Council assessed the heritage impact of the proposal. No evidence was presented or issues raised by the objectors in this regard. The new car park will change the curtilage of the item but I accept the change is acceptable given the new use of the site. Orders 37 The orders of the Court are: 1. The appeal is upheld. 2. The development application (DA240/2005) for a childcare centre at 234 Windsor Road, Northmead, is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits C, 4 and 10, may be returned. ___________________ Annelise Tuor Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.