Land and Environment Court of New South Wales CITATION : Wenland Pty Ltd v Tweed Shire Council [2006] NSWLEC 621 APPLICANT Wenland Pty Ltd PARTIES : RESPONDENT Tweed Shire Council FILE NUMBER(S) : 10450 of 2006 CORAM: Brown C KEY ISSUES: Development Application :- construction of a child care centre - parking - noise - character LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Tweed Local Environmental Plan 2000 CASES CITED: Architectural Property Services Pty Limited v Rockdale City Council [1999] NSWLEC 83; Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 DATES OF HEARING: 21/09/2006 EX TEMPORE JUDGMENT DATE : 09/21/2006 APPLICANT Mr J Robson SC SOLICITORS Bolster & Company LEGAL REPRESENTATIVES: RESPONDENT Mr T Smith, solicitor SOLICITORS Stacks Northern Rivers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 21 September 2006 10450 of 2006 Wenland Pty Ltd v Tweed Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of DA 05/1381 by Tweed Shire Council (the council) for the construction of a child care centre at 38 Woodlands Drive, Banora Point (the site) The site and surrounding area 2 The site is Lot 1326 in DP 1005077. It has a frontage of 39.5 m to Woodlands Drive and a frontage of 29.118 m to Leisure Drive providing a total site area of 1,531 sq m. 3 The locality consists of a range of community based land uses including a child care facility opposite the site, an indoor sports centre, primary and secondary schools and a community centre. Residential development is located to the east and north east of the site. The site is currently vacant with no significant features. The proposal 4 The proposal provides for the construction of a part single storey and part two storey building to be used as a long day child care facility. The facility is to accommodate a maximum of 75 children with 9 staff. It is to operate between 7 am and 7 pm Monday to Saturday. Car parking is provided in a 13 space car park between the proposed building and Woodlands Drive with access from Woodlands Drive. Planning controls 5 The site is within the 2(c) Urban Expansion Zone under Tweed Local Environmental Plan 2000 (LEP 2000). The proposed use is permissible with consent. LEP 2000 provides a number of requirements however, none relate to the issues in the proceedings with the exception of cl 8, Consent Considerations. 6 Development Control Plan No. 2 - Site Access and Parking (DCP 2) provides requirements for car parking for child care centres, in addition to other land uses. 7 Draft Tweed Shire Development Control Plan 2006 (the draft DCP) also applies as it has been advertised and is a consolidation of all council's development control plans. It provides different car parking requirements for child care centres than DCP 2. 8 Development Control Plan No. 26 - Child Care Centres (DCP 26) also applies. The issues 9 The council filed a Statement of Issues containing six separate issues although they can be combined into the single issue of whether the proposed child care centre provides adequate off street car parking. The issue is essentially a contest between DCP 2 and the draft DCP. 10 The council maintained that the draft DCP was the appropriate document for the application to be considered against whereas the applicant's principal submission was that DCP 2 was the appropriate document for consideration. The applicant's secondary submission was that even if the draft DCP was given determinative weight, the parking was still adequate considering concessions available in the draft DCP and the characteristics of the application and its context. The evidence 11 Mr Jim Glazebrook provided planning evidence on behalf of the applicant and Mr Joshua Townsend provided planning evidence on behalf of the council. 12 Mr Martin Findlater provided engineering evidence for the applicant and Mr Robert Hanby provided engineering evidence for the council. 13 Local residents, Miss D Pidding of 36 Woodlands Drive, Mr B Santone of 8 Birkdale Court, Miss L King of 9 Birkdale Court, Mr A Wilson of 34 Woodland Drive, Miss M Nobbs of 20 Woodland Drive and Mr Ray Tate of the Nora Point Residents Association provided evidence on site. All opposed the development applications for reasons that included additional traffic and parking in Woodland Avenue, loss of privacy, noise and safety. Adequate off street car parking? The number of spaces 14 DCP 2 requires parking to be provided at the rate of 0.5 spaces per staff member and one space per 10 children. Putting aside the requirements for bicycle parking and delivery vehicles, which I will deal with later, there was no dispute that the proposal satisfies the requirements for staff and customer parking. The proposal provides 13 spaces where DCP 2 requires 11 spaces. 15 The draft DCP requires parking to be provided at the rate of one space per staff member and one space per six children. Considered against the draft DCP the proposal requires 19.5 spaces or 20 spaces rounded up for staff and customers. 16 On the question of the relevant parking requirement; DCP 2 came into effect on 16 November 1999. The council has not repealed DCP 2. The draft DCP forms part of the consolidation of all council development control plans into a single document. As part of this process of consolidation and following complaints over the parking associated with child care centres, the rates were amended. The draft DCP was advertised between 14 June 2006 and 11 July 2006 and adopted by the council however, held in abeyance until the preparation of a Shire wide local environmental plan. Work on the Shire wide local environmental plan has been underway for a number of months however no timetable was available for its completion. 17 While s 79C(1) of the Environmental Planning and Assessment Act 1979 does not include draft development control plans as matters to be taken into consideration of a development application, it does not preclude the Court in taking them into consideration. It is a question of the weight that should be attributed to the draft DCP. 18 In this case, I accept the submissions of Mr Robson SC, the applicant's advocate, that the draft DCP should be given some weight but not determinative weight for a number of reasons. Importantly, the development application was lodged with the council on 21 November 2005. It was submitted on the appropriate planning controls at the time, relevantly, DCP 2. The application was subsequently considered and refused by the council prior to the draft DCP being presented to the council. I note that the council officer's assessment report does not refer to the draft DCP but only that there had been concerns over parking from residents near existing child care centres. 19 In Architectural Property Services Pty Limited v Rockdale City Council [1999] NSWLEC 83, Lloyd J found that a development control plan that was not current at the time of the consideration of a development application could be taken into account. In Architectural Property Services the development control plan had reached a greater level of certainty than in this case as had it been formally adopted as a development control plan. 20 If the draft DCP was considered as a policy, in the manner set out in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, I am not convinced that it would alter my findings that it should not be given determinative weight. It is a document that has yet to be tested in any meaningful way and based on the evidence of Mr Hanby who honestly stated that the research into the concerns that led to the amendment to the parking rates was inconclusive. The adoption of the new parking rates was also based on a review of other local government areas rather than any specific research for the Tweed local government area. 21 The draft DCP also contains a number of opportunities for amendment to the specified parking rates in a manner similar to DCP 2. Clause 2.4.1 provides that "to support the strategic plan, ESD and reduced car dependence principles" car parking can be reduced to 80% of the generation rates subject to the satisfaction of the objectives being satisfied. 22 The aims of the draft DCP seek to in part, "promote flexibility in the provision of parking by allowing…. a net increase in on street parking as an alternative to off-street parking". The aims also seek to prevent parking nuisance to adjoining properties "to the extent that casual visitors' spaces are no longer readily available for those adjacent properties". 23 In my view, the proposal satisfies these aims. The proposal promotes flexibility and in the event that overflow parking does occur on the street, it is likely to be only for a very short duration and limited to the morning and evening peak periods of the centre. With the 80% reduction from cl 2.4.1, 16 spaces would be required under the draft DCP. There is some merit in the applicant's argument that even under the draft DCP the proposal is acceptable considering the 80% reduction from cl 2.4.1and other parking available near the site. 24 In any event, I have found that the principle control for the assessment of the parking is DCP 2 and that as the proposal exceeds the requirement for staff and customer parking without the need to invoke the 80% concession in cl 4.11, the appeal should be upheld. Bicycle parking/ loading area 25 In relation to the provision of bicycle parking, I accept that a condition identifying the area for cycles appropriately addresses the council's concerns as sufficient area is available on site. The designation of a specific loading area is in my view, unnecessary and is more appropriately addressed through a condition that restricts service and delivery vehicles to times outside the peak areas and where surplus on site parking will be available. Resident concerns Noise 26 The local residents raised additional issues not raised by the council. The applicant addressed the issue of noise from the facility through an acoustical report. As I understand, the council accepted the findings that required the provision of acoustical fencing. In the absence of any evidence to suggest that the conclusion of the acoustical report was incorrect, I accept the issue of noise is appropriately addressed. Character 27 The part two storey component of the proposed building was seen as being inconsistent with the single storey residential development in the area. While the site is similarly zoned to the adjoining residential development, it is identified in the Banora Point West - Tweed Heads South - Development Control Plan 3 as a site for neighbourhood business. As the site is for all intents and purposes a commercial site, I see no reason why it is necessary to adopt the single storey character of the adjoining residential development. The site is also opposite a range of community uses that are clearly different in character to the nearby residential development. I did not understand that the two storey component to create any impacts on adjoining residential properties in relation to amenity issues such as loss or privacy or overshadowing. Conditions 28 Of the conditions in dispute and not addressed earlier in the judgment, the following conditions were not agreed. 29 Condition 12 requires a 3 m landscape buffer to be provided along the boundaries. This requirement comes from DCP 26. Mr Robson SC submitted that DCP 26 was not relevant as it refers to in fill sites within low density residential areas. He submits that the site is not zoned residential and therefore, could not be seen as in fill development. 30 While the argument has some merit, I am more convinced that the condition is unnecessary for another reason. Mr Townsend states the underlying objectives of the requirement is to provide a buffer between the adjoining residential developments in relation to noise. If this is accepted, then the proposal adequately addresses this concern (according to the council) through the proposed acoustical fencing and without the need for the 3 m landscape buffer to be provided along the boundaries. The imposition of the condition achieves no benefits external to the site and as such, can be deleted. 31 Condition 13 should also be deleted as the car park layout is appropriately addressed in the plans referred to in condition 1. 32 In accordance with cl 8(1), consent may be granted as the matters in cl 8(1)(a)(b) and (c) have been satisfied and considered and the proposed development was found to be acceptable. Orders 33 The orders of the Court are: 1. The appeal is upheld. 2. Development Application 05/1381 for the construction of a child care centre at 38 Woodlands Drive, Banora Point, is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits E and 5. ___________________ G T Brown Commissioner of the Court 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.