Mamari, George v Parramatta City Council [2006] NSWLEC 807

Land and Environment Court of New South Wales

CITATION : Mamari, George v Parramatta City Council [2006] NSWLEC 807

APPLICANT: PARTIES : George Mamari RESPONDENT: Parramatta City Council

FILE NUMBER(S) : 10738 of 2006

CORAM: Watts C at 1

Development Application :- Childcare centre KEY ISSUES: Character of area Traffic and parking Objectors concerns

Parramatta Local Environmental Plan 2001, (PLEP) LEGISLATION CITED: Parramatta Development Control Plan 2001, (PDCP) Environmental Planning and Assessment Act 1979, ss79C and 97

DATES OF HEARING: 07/12/2006

EX TEMPORE JUDGMENT DATE : 12/07/2006

APPLICANT: Mr C P Malley, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Maclarens Lawyers RESPONDENT: Mr P Marincowitz, solicitor SOLICITORS: DLA Phillips Fox

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

7 December 2006

10738 of 2006 - George Mamari v Parramatta City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Parramatta City Council (the council) to refuse a development application to remove three (3) trees, alter and add to the existing dwelling and to use it for a thirty-two (32) place child care centre at No 1 Cliff Avenue, Winston Hills. 2 I visited the land in company with the parties on the morning of the hearing and I heard from local residents. 3 I have concluded that there are no traffic or town planning issues that would cause me to refuse the application. Conditional approval is indicated. The land 4 The land is situated on the eastern side of Cliff Avenue between Allambie Avenue and Reillys Road, Winston Hills. It is irregular in shape and has an area of 1,299.5m2 with a frontage of 21.28m to Cliff Avenue and a depth of 59.80m and 62.35m. 5 Erected on the subject land is a single-storey and part two-storey brick dwelling with sandstone foundation walls. 6 Residential dwellings surround the subject land. Relevant planning controls Parramatta Local Environmental Plan 2001, (PLEP) 7 Under the provisions of the PLEP the land is zoned Residential 2(a) and the proposal is permissible with consent. The land is not within a conservation area or is there any heritage item on or near the land. Parramatta Development Control Plan 2001, (PDCP) 8 The PDCP applies to the land and relevant sections include Sections 4.3 (Amenity Issues) and 4.4 (Design Issues). The proposal and its history 9 Development application No 631/2005 was lodged with the respondent council on 14 July 2005 to remove three (3) trees, alter and add to the existing dwelling and to use it for a childcare centre. 10 It is proposed to operate the centre between the hours of 7.00am to 6.00pm Mondays to Fridays. Notification 11 The application was notified to nearby owners and occupants between 7 September 2005 and 28 September 2005 and the council received at least thirty objections. 12 Major concerns of residents were: · Amenity: the proposal will impact on the existing amenity of the area due to additional noise generated by the children and vehicles. · Noise: the proposal will increase the noise levels in the area due to the number of outdoor play areas. · Increased traffic impacts and inadequate parking on site: the proposed use will result in an increase in traffic and demand for on-street parking in the area. Also concern has been raised that parents driving vehicles to drop off and collect their children will park their cars on the street which will impact on pedestrian and traffic safety and restrict access to driveways. · Excessive hours of operation: the hours of operation being from 7am - 6pm, Monday to Friday. · Excessive number of childcare centres within the area: there are a number of childcare centres already located in the area. · Safety issues: the safety to the children from the risk of snakebites. 13 Submissions were also received from the applicant enclosing letters to two of the objectors addressing their concerns. 14 The development application was referred internally for comment: · Landscape officer on 26 July 2005: The recommendations outlined in the arboriculture assessment on pages 11 and 12 shall be implemented. The subject Jacaranda located at the front shall be removed as it is in fair condition only and is expected to live for only 5 - 15 years. This is a common garden species with little contribution to the landscape character of the street. The tree shall be replaced with one Angophora costata (smooth barked apple) provided in a 100-litre container. A further Angophora costata (Smooth-barked apple) shall be provided in a 100 litre container and planted at the front with minimum distances of 2 metres from any boundary. All labels are to remain on plants and delivery receipts or copies of plant purchases, stating species, amount, and container sizes of plants, shall be made available to Council's Compliance Team to facilitate certification that the landscape plan and conditions of consent have been implemented. All landscape works are to be maintained for a minimum period of two years. · Community Services on 26 July 2005 who had no concerns with the proposal. · Traffic and Road Safety Engineer on 26 July 2005 and on 3 August 2006. There were no traffic comments in respect of the initial referral to traffic. In respect of the second referral to traffic on 3 August 2006 traffic advised that the proposed childcare centre would increase the current peak hour traffic volume in Cliff Ave from 17 vehicles by an additional 25 vehicles. The increase is relatively large compared to the existing volumes but in absolute terms it is a small amount and would not create an excessively adverse impact on amenity or safety. There is also an existing traffic safety matter at the intersection of Cliff Avenue that requires investigation regardless of whether or not the proposed child care centre proceeds. · Environmental Health Officer on 26 July 2005: The Environmental Health officer requested that the applicant provide further detailed plans outlining the extent of food serviced to be conducted on-site, if food services are to be provided onsite. The applicant provides to Council the exact details of the kitchen and the exact details of the waste service (contractor, number of services per week) to be provided to the childcare facility when it becomes operational. · Drainage Engineer on 26 July 2005 who had no concerns with the proposal.