Land and Environment Court of New South Wales CITATION : ABC Planning Pty Ltd v Waverley Council [2006] NSWLEC 435 APPLICANT ABC Planning Pty Ltd PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 11399 of 2005 CORAM: Murrell C KEY ISSUES: Development Application :- Childcare centre, increase the number of children from 13 to 21, noise, residential amenity, safe and convenient drop-off and pick up, parking Environmental Planning and Assessment Act LEGISLATION CITED: Waverley Local Environmental Plan Development Control Plan No. 5 Development Control Plan No. 14. DATES OF HEARING: 16-17/03/2006 EX TEMPORE JUDGMENT DATE : 06/19/2006 APPLICANT Mr G Green, solicitor SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr G Newport, barrister Instructed by: Mr G Hartley SOLICITORS Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 19 June 2006 11399 of 2005 ABC Planning Pty Ltd v Waverley Council JUDGMENT This judgment was delivered extemporaneously and has been edited before publication 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Waverley Council's refusal of a development application to increase the number of children at an existing childcare centre located at 7 Lancaster Road, Dover Heights. It is proposed to increase the number of children from 13 to 21 and it is also proposed that the age group be extended to allow children between the ages of two to four, as opposed to all two-year-old children. 2 The proposed development is one that is permissible in the residential zone under the Waverley Local Environmental Plan (WLEP) and the provisions of the LEP of 1996 provide for: 10 (ii) that the council shall not grant consent to the carrying out of development within a zone unless the council is satisfied the development meets one or more of the objectives of the zone. 3 The objectives of the 2(a) low density residential zone are: a) To allow for housing only in the form of dwelling houses and boarding houses. b) To maintain, improve the amenity and existing characteristics of localities. c) To allow certain non-residential uses of low intensity which are compatible with the character and scale of low-density housing. 4 The other relevant controls in terms of the council's planning regime include the development control plan for childcare centres Development Control Plan No. 5 and the parking DCP which is Development Control Plan No. 14. 5 On behalf of the applicant, evidence was given to the Court by: Mr Betross, consultant planner, and Mr Coady, consultant traffic engineer. 6 For the respondent council, evidence was given by: Mr Sutherland, town planner, and Mr McClaren, a traffic engineer 7 Joint reports were also prepared by the experts to assist the Court and oral evidence was given in the proceedings. 8 The council identified a number of issues in its Statement of Issues as follows: 1) Whether or not the increase in the number of children presents an unacceptably high intensity of use which is incompatible with the character and scale of the residential zone. 2) Whether or not the increase in the number of children will detrimentally impact on the amenity of the neighbourhood by generating additional vehicles and noise in the vicinity. 3) Whether or not the increase in the number of children results in an unacceptable impact upon on-street car parking provision and availability for residents. 4) Whether or not there are inadequate drop off/pick up points for children attending the childcare centre in terms of the DCP. 5) Whether the proposal is in the public interest. 9 By way of background, the childcare centre, known as Jane's Place, has been operating for approximately nine years and was originally approved by the Court with a maximum number of children of ten and this was subsequently increased in an approval by council to thirteen. There have been other applications for a larger childcare facility, that is 28 children, that was refused by the council and the Court. The proposal now before the Court is for 21 children and the Court must assess the adequacy of the site and the parking in terms of the issues identified by the council for this number. 10 The subject site I should put into context in terms of the locality. The area is a residential area, with single dwelling houses on the southern side of Lancaster Road and on the northern side there are a number of residential flat buildings. The northern side of the road has a stone wall, whereby the majority of properties in this portion of the block are not accessed from the road and there is no off-street parking for many of the properties on the northern side in this block. 11 The road is one that has a variation in width. As could be seen by the aerial photograph in Mr Coady's report, the road narrows to the east past the subject site and there is parking allowed within the street. However, when cars are parked, there is only single passing for cars in the narrower portion of the street. The road outside the subject site is within a wider section of the road. It is noted that Lancaster Road is a through road that joins Old South Head Road to its west and Military Road to its east continueing through to the water on the eastern side. 12 The council, as I stated, refused the development application for a number of reasons including traffic and parking, and noise impacts. There were a number of resident objectors that gave evidence to the proceedings and they considered that the proposed development should not be approved on the basis of the existing traffic and congestion problems and the difficulty of parking within the vicinity of the childcare facility. 13 The issue of noise was raised, however, there is an acoustic report by Wilkinson Murray and the council considers, and it is the expert evidence of the planners that, subject to the recommendations of the acoustic report, the noise impacts on the adjoining residential properties would be unlikely to have a significant impact. 14 The Court heard on site from a number of resident objectors and it is noted that when the matter was advertised there were a large number of objections, but there were also a significant number of letters of support for the proposed development. Mr Betross' evidence is that eight additional children is unlikely to create incompatibility with the character and scale of the residential zone, and that the additional demand and additional traffic is not significant. Mr Sutherland, on the other hand, considers that the proposal is inappropriate in terms of it does not provide for adequate drop off and pick up and parking in the subject locality. 15 Traffic surveys were undertaken for the amount of on-street parking available within the area. Currently the dwelling is used for a residential purpose as well as the childcare facility for 13 children. There are two car parking spaces in a double garage on the street boundary and it is noted there is currently a deficiency in parking. The current application would further increase the demand for parking and lead to a greater deficiency in the number of spaces for a 21 place child care centre. 16 The Court must assess the entirety of the development, that is not just the additional number of placements in terms of the increased demand for parking on the subject site but, in fact, it must have regard to an assessment of the totality of the development. It is noted that Mr Coady in his first report of October 2005 states that the purpose of this report is to assess the traffic and parking implications of the proposed expansion of Jane's Place Day Care. 17 During the proceedings however it became clear and the applicant acknowledged, that the Court's role is to assess the total development. As such the Court was referred to the case Caringbah Hotel v Sutherland Council, of his Honour Bignold J which also went to the Court of Appeal, wherein it states that the Court has a duty in assessing the proposal to extend the existing development to assess the entire development. 18 The Court must have regard to council's planning regime and council's planning regime clearly indicates that the parking requirement for the childcare centre is five spaces. That is a deficiency of three spaces over the two provided on site. The two spaces to be provided on site would be for the use of staff parking as they are configured in a double garage and therefore would not provide safe and convenient parking for parents /carers. 19 The Development Control Plan No. 14 was referred to extensively during the proceedings and in terms of the judgement of the Court of Appeal in Zhang v Canterbury Council (2001) NSWCA 167, the Court must give central, real, proper and genuine consideration to the development control plan. In that regard it is also noted that it is discretionary and the Court notes the comments of the Court of Appeal in that at par 75: and 77: "The discretion is not at large and is not unfettered. The DCP must be considered as a fundamental element in, or a focal point of, the decision making process". There was a relevant and applicable standard which was obliged to be taken into consideration. It ought to have served as a focal point for, or constituted a fundamental element in, deliberations". 20 At this point in the proceedings because it is a verbal judgement it is only reasonable, and I will go on to give my reasons, that I state at this point, that in my assessment of the application I consider the parking and the drop off/pick up facility for the children that would attend a childcare facility with 21 is inadequate and the proposed development application fails on the basis of the parking and drop-off in terms of safe and convenient parking. I am not persuaded on the evidence that the provisions of the DCP should be varied in the circumstances of this case. 21 I will just go back to the provisions of DCP 14 wherein it states that :. "in the event of any inconsistency regarding parking, this DCP prevails over other DCPs". The DCP requires for childcare centres, kindergartens, preschool centres, one parking space per four employees plus one per eight children for drop off/pick up facility. The Court appointed experts also commented on the provisions of the RTA guidelines for childcare facilities which is one space per four children and that also equates to a provision of five car parking spaces required for the subject development application. 22 I will say at this point that there is discretion to vary DCP parking requirements and they are not necessarily a hard and fixed rule. However, every development application must be assessed on its merits and I consider that the subject site in Lancaster Road is not appropriate for an intensification of the existing childcare facility. Whilst there was a great deal of focus on what the additional demand would require in terms of the facility, I must assess the totality of the application. 23 In terms of public interest, it was submitted on behalf of the applicant that the site provided an excellent site for a childcare facility and it could be seen on the view that the subject centre that provides admirable outdoor open space facilities but, in the Court's assessment the application fails on the lack of parking and a safe and convenient drop off point. At times it may be appropriate to significantly vary requirements but on the basis of the evidence before me, I am not satisfied in the circumstances of Lancaster Road that the subject site is appropriate to allow an increase in the number of children. 24 I also acknowledge that this is not a green-field site and in established areas, such as Dover Heights, one would not necessarily always require the same requirements as for green-field sites, but at the same time the access and the safe and convenient drop off and pick up is of utmost importance where the safety of small children is concerned. 25 In my assessment I have assumed that people would obey the law, even though is evidence to the Court that suggests otherwise in terms of the parking behaviour currently for the childcare facility. If one takes a cursory look at the time sheets for signing in and out for the thirteen children currently attending the facility, it can be seen that there is a number that sign in at the same time. For example: at 9.00am on 15th February there were five at this same time; 20th February at 8.30 there were four at the same time; similarly on 22 February there were four at the same time; and on 27 February there are five at 8.30. Furthermore staggered drop off and pick up are impracticable in terms of the management of such a facility. One can not judge what traffic one will encounter when setting out to drop a child off at a childcare facility, furthermore the carers and parents of children have commitments which cannot necessarily be slotted in to a specific drop off and pick up time. 26 As I said, one cannot assume that people will break the law in terms of picking up and dropping off children, but if there are inadequate facilities in terms of a safe and convenient drop off and pick up in Lancaster Road configured the way it is and the likelihood of congestion and concern for safety increases with a larger number of children. The applicant submitted that it should be allowed to have a trial period for three years, however, in my assessment, I do not consider a trial period is appropriate because of the need for safe and convenient drop off and pick up required for childcare facilities. 27 It is noted that Lancaster Road is classified as a local residential street and people should naturally slow down when there is a narrow carriageway and that may occur but, when vehicles are parked and there is further congestion, this does not make for an appropriate situation for a childcare facility seeking to increase the number of children. 28 Mr Coady stated that there is ample on-street parking for the facility and surveys were undertaken. However, in my overall assessment child care centres should not rely solely on on-street parking for parents and carers where safe drop-off and pick-up is also not provided. There may be a certain amount of parking demand overflow that is considered appropriate but given that the proposed development cannot provide for either parent/carer parking or a convenient and safe drop off pick-up, I am not satisfied the application should be approved. 29 A further intensification of the childcare facility would not comply or would not be consistent with council's controls in terms of its local environmental plan. In terms of cl 10(ii), the zone objectives are not met and the application is not satisfactory. The zone objective is to allow certain non-residential uses of low intensity, which are compatible with the character and scale of low density housing. I consider that the non-residential use of a 21 place child care centre would not be in character and scale having regard to the inadequate parking and the lack of a safe and convenient drop off point. 30 I am satisfied in terms of the acoustics, that the recommendations of the acoustic report would resolve or largely resolve the impacts of noise of the proposed development on adjoining properties and this is not a reason for my refusal. Childcare centres are permissible in residential zones and, in terms of noise disturbance this type of intermittent noise with appropriate noise attenuation measures should generally be tolerated in a residential zone, and this would not warrant refusal of the application. 31 However, the parking and the safe and convenient picking up and dropping of children to the facility is the determinative reason as to why the application fails on a merits assessment. The development must be able to provide for some form of safe and convenient access to the centre, in particular with an intensification of the use. Currently the centre operates and it has an approval for thirteen children. The demand for 13 children will clearly be less than 21. At the same time, I cannot merely assess the fact that the proposal is for an additional eight children to attend the centre. While this in itself represents a small increase in the traffic or number of vehicles using Lancaster Road, the development proposal must be assessed as a 21 place centre. 32 The public interest, as I stated, was raised as a reason as to why the increase in numbers of the childcare facility should be approved. . Other approvals were referred to the Court as to why this particular development application should be approved in terms of the small increase in the number of children. The Court must assess this development application on its merits and if there is a variation to the requirements for parking or for access to a centre, then it must be demonstrated by the development application under assessment. And in the circumstances I am not satisfied with the access or parking in the current proposal. 33 In terms of childcare facilities being accommodated in residential zones there needs to be a degree of tolerance, however, this may be with respect to noise and the activity of the centre on adjoining properties, but when it comes to the safety of children this is a matter that cannot be compromised. 34 Therefore, on the basis of the Court's assessment, the formal orders of the Court are: 1. The appeal in respect of the property known as No. 7 Lancaster Road, Dover Heights, is dismissed. 2. The development application submitted to Waverly Council, and as amended, for an increase in the number of childcare places from 13 to 21 is determined by the refusal of consent. 3. The exhibits, with the exception of 9, 11, 12 and C, are returned to the parties. ___________________ J S Murrell Commissioner of the Court Gv/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.