Land and Environment Court of New South Wales CITATION : B T Goldsmith Planning Services Pty Limited v Ashfield Municipal Council [2007] NSWLEC 532 APPLICANT: PARTIES : B T Goldsmith Planning Services Pty Limited RESPONDENT: Ashfield Municipal Council FILE NUMBER(S) : 10325 of 2007 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Traffic, parking and safety LEGISLATION CITED: Ashfield Local Environmental Plan 1985, (ALEP) Environmental Planning and Assessment Act 1979, ss 79C and 97 DATES OF HEARING: 22/08/2007 DATE OF JUDGMENT: 24 August 2007 APPLICANT: Mr B T Goldsmith, agent SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr S N Griffiths, solicitor SOLICITORS: Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 24 August 2007 10325 of 2007 - B T Goldsmith Planning Services Pty Limited v Ashfield Municipal Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ashfield Municipal Council (the council) of a development application to alter and add to the existing dwelling house to use the ground floor as a child care centre for forty children and the first floor as a residence at Lot 1, DP 10498, being No 262 Hawthorne Parade, Haberfield. 2 I visited the land in company with the parties on the morning of the hearing and local residents gave evidence. 3 I have concluded that the application should succeed when considered under the heads of consideration of the Environmental Planning and Assessment Act 1979. I am satisfied that car parking arrangements would be met with two staff parking spaces provided on-site. The land 4 The land is situated on the western side of Hawthorne Parade and has a frontage to that street of 15.24m a rear boundary of 15.24, a southern side boundary of 78.94m and a northern side boundary of 80.82m, giving an area of about 1,217m2. 5 The land slopes gradually down to the street, and a shear rock face exists to the rear that separates the land from the Tillock Street properties to the rear. Erected on the land is a two-storey, highly modified Post-War dwelling house, carport and two outbuildings. 6 To the north of the land is Dobroyd Parade and the City West Link. Tillock Street is to the west and Waratah Street to the south. The Tillock Street properties are raised significantly higher (around 5m to 6m) than the subject land. 7 The area comprises dwelling houses, many being single-storey Mid-War Federation bungalows that dominate Haberfield to the west. Opposite the subject land, to the east, are Richard Murden Reserve and Hawthorne Canal. Relevant planning controls Ashfield Local Environmental Plan 1985, (ALEP) 8 Under the provisions of the ALEP the land is zoned 2(a)-Residential and the proposal is permissible with consent. The land is located within the Haberfield Heritage Conservation Area as identified on the council's heritage conservation map. Other planning controls 9 Other applicable controls include: · Ashfield Development Control Plan 2007, (DCP): This DCP was notified by Council on 4 August 2006 and was adopted by the council on 21 May 2007. Of relevance are: Part C7, Haberfield Heritage Conservation; Part C12, Public Notification in the Planning Process; Part C5, Dwellings in Residential Zones; Part C11, Parking; Part Cl, Access, Adaptability and Mobility; Part C2, Advertisements and Advertising Structures. · Children and Young Persons (Care and Protection) Act 1998 and the Children's Services Regulation 2004. · Road and Traffic Authority's 'Guidelines for Traffic Generating Development'. 10 Mr Hallam the traffic engineer commissioned by the council, identified the car parking supply and demand generated by the proposal as being, [Note: Exhibit 6, p4]: · Ashfield Development Control Plan 2007 Part C11 - Parking, Table 3, gives the parking requirement of a 'dwelling house' as "1 space per dwelling (preferably 2)". · DCP 2007 requires for child care centres, a parking rate of 1 car per 4 children. In addition, it specifies: A temporary pick-up and drop-off area is to be provided on site so that vehicles can enter or leave the site moving in a forward direction without conflicting with other traffic/parking movements. · The Roads and Traffic Authority's 'Guide to Traffic Generating Developments' makes the following recommendations for parking: Off-street parking must be provided at the rate of one space for every four children in attendance. Given the short length of stay (the RTA's surveys found an-average length of stay of 6.8 minutes), parking must be provided in a convenient location, allowing safe movement of children to and from the centre. Consideration could be given to reducing the parking required if convenient and safe on-street parking is available (eg indented parking bays), provided that the use of such parking does not adversely affect the amenity of the adjacent area. · Thus, for the proposed 40 children, under either the DCP or RTA requirements, a total of 10 parking spaces are required, for staff and parents. I note that some recent surveys have found slightly lower total parking rates. 11 The DCP and the RTA guidelines do not specify the number of staff car parking spaces, however, Mr Hallam estimated that for a child care centre of the size and location proposed it would be reasonable to assume that four car parking spaces should be reserved for staff. The proposal and its history 12 Development application No 10.2007.24.1 was lodged with the respondent council on 29 January 2007 to alter and add to the existing dwelling on the land and for the use of the ground floor as a child care centre. The proposal is described in plans in three sheets prepared by K R McDonald, architect, dated October 2006. 13 A single car parking space is proposed on-site and this was originally reserved for the proposed first floor dwelling. No on-site spaces were originally proposed for the child care centre. Notification 14 The application was notified to nearby owners and occupants from 9 February 2007 to 13 March 2007 and the council received fifteen (15) submissions. Concerns were expressed in regard to traffic and parking, safety in the street, uncharacteristic noise and activity in this part of the conservation area. The council's decision 15 When the appeal was filed the council had not determined the application however, notice dated 12 June 2007 the council refused the application for the reasons reflected in the contentions. The hearing 16 The appeal was filed on 17 April 2007 as a deemed refusal. 17 At the hearing the court heard evidence on behalf of the respondent council from: · Ms R McVicar, resident of No 49 Tillock Street, Haberfield; · Ms H Stoddart, resident of No 260 Hawthorne Parade, Haberfield; · Ms C Margiotta, resident of No 276 Hawthorne Parade, Haberfield; · Ms J King, resident of No 47 Tillock Street, Haberfield; · Mr C E Hallam, traffic engineer; and · Mr R A Moore, heritage architect. 18 Ms D Squadrito was present with an interpreter. 19 On behalf of the applicant evidence was given by: · Mr B A C Threlfo, traffic engineer; · Mr A G Patch, heritage architect: · Mr V Raciti, owner and applicant. 20 Mr P Sarin, town planner of Ashfield Council prepared the amended statement of facts and contentions dated July 2007. The issues 21 On 17 July 2007 the council filed an amended statement of contentions. Traffic, Parking and Safety 1. The proposal fails to provide onsite parking for the childcare centre and fails to comply with Part C11: Parking, of the Ashfield Development Control Plan 2007 and the RTA's Guidelines for Traffic Generating Development. Particulars (a) The proposal is inconsistent with the objectives contained in Section 1 of Part C11 of the DCP. In particular, the proposal does not comply with objective a, in that off-street parking is not provided. It also fails to fulfil objectives c and e, in that, due to the lack of off-street parking, conflicts between pedestrians and vehicles and between loading facilities and visitor parking will arise. (b) Table 3 - Car Parking Rates (see page 27) of the Part C11 of the DCP and the RTA's Guidelines require that 1 onsite car space be provided for every 4 children. The proposal does not satisfy this requirement. (c) A temporary pick-up/drop-off area has not been provided onsite, which is contrary to the requirements for parking, as contained in Table 3 - Car Parking Rates (see page 27) of the Part C 11 of the DCP. 2. As a consequence of the proposal to retain the existing high gates and high fence, there is no splay distance to the footpath on either side. This is of concern, as it is likely drivers will reverse from the driveway. It is also contrary to objective c of Section 1 of Part C11 of the DCP and Australian Standard AS2890.1 - 2004. Disabled Access 3 The proposed childcare centre fails to provide disabled access as required by Sections 5.3.1 and 5.3.4 of the Part C 1, Access, Adaptability and Mobility - of the DCP, Part D3.2 of the BCA and Australian Standard AS1428.1. Particulars (a) The ramps providing disabled access to the double gates at the front boundary of the premises and the front door do not comply with AS1428.1, because landing areas adjacent to the gate and door openings have not been provided. (b) The circulation space to be provided within the main entry, the foyer entry, the corridors and areas adjacent to the entry doors of all rooms fails the minimum provisions of Clause 7.3 of AS1428.1. (c) The ramp servicing the indoor crafts outbuilding does not demonstrate compliance with AS1428.1 because no landing area has been provided at the entry to the building. (d) No disabled parking is provided, contrary to objective of Section 1 of the Part C11 of the DCP and Section 4 of the Part C11 of the DCP. This issue may be addressed with amended plans. Plans detailing disabled access should be provided at a scale of 1:50. Heritage 4 The proposal detracts from the character and heritage significance of the Haberfield Heritage Conservation Area. Particulars (a) The commercial use of the property within an established residential area is incompatible with the Haberfield Heritage Conservation Area's separation of land uses (Section 3.1 of Part C7: Haberfield Conservation Area of the DCP). Amenity Impacts 5 The noise generated by the proposal will negatively impact on the amenity of neighbours, particularly to properties on Tillock Street that adjoin the rear of the proposal, and 260 Hawthorne Parade, Haberfield. Residents of these properties have submitted objections, expressing concern in relation to the potential noise impacts of the proposal. Resident concerns 6. Residents have made submissions to Council, raising the following concerns in relation to the proposal: (a) Noise impacts; (b) Increased traffic on Hawthorne Parade; (c) Loss of on street parking (due to failure of proposal to provide adequate off-street parking); and (d) Incompatibility of the proposal with the residential character of this section of the Haberfield Conservation Area. 22 The traffic, parking and safety emerged as the salient issues. The evidence and findings Traffic, parking and safety 23 The council was critical of the fact that no off-street parking was originally proposed. Thus, the council was concerned that conflicts might arise between pedestrians and vehicles and between loading facilities and visitor parking. Staff parking 24 Mr Hallam assessed the car parking supply in the area and the demand generated by the proposal and concluded the key traffic/ parking issue is the lack of on-site car parking. He considered that it is inappropriate to rely on street parking for staff, particularly in a residential environment, and that the staff parking should be provided on-site. He considered that if on-site staff parking cannot be provided then the proposal probably represents either an inappropriate use for the land or an overdevelopment of the site. He noted that no car parking was proposed on-site for the child care centre. 25 Mr Hallam concluded that, "…while some concession might be considered for parents parking in the street outside the site, I do not consider that such concession should be made for staff to park on the street." He summarised his assessment: · for staff and occupants of the first floor dwelling, long-stay car parking on-site should be provided. · under the council's DCP and the RTA guidelines for a child care centre for forty children, ten car parking spaces for staff and parents would be required. · for a staff of eight, four staff car parking spaces would be required on-site. · if the site is restricted in area at the very least the staff parking should be provided on site, otherwise the proposal would be considered an overdevelopment. 26 During the course of the hearing the applicant indicated that he would be prepared to submit to a condition that required the first floor residence to be occupied by a manager of the proposed child care centre and for two staff car parking spaces to be provided on site. 27 Mr Threlfo considered that there would be adequate on-street parking for both parents and staff, to accommodate the likely peak parking demand. He was aware of other child care centres in the suburbs of Haberfield and Leichhardt that operate quite satisfactorily without on-site parking. 28 I am satisfied that given the location of the land opposite a park, and given that there is ample car parking during the day in the vicinity that the provision of two on-site car parking spaces would be sufficient to cater for the reasonable needs of staff. If Mr Hallam were correct in his assumption that four staff car parking spaces are required, two spaces would need to be provided on street in the vicinity of the land. I am satisfied that adequate parking is available during the opening hours of the centre to cater for this demand on street. I would not refuse the application for this reason. Parent parking 29 Mr Hallam seemed to accept that with a site that was restricted in area it would be acceptable to allow for pick up and delivery of children on Hawthorne Parade. He estimated that for this purpose around six on-street car parking spaces would be required. 30 Mr Threlfo considered that the reasons on-site parking is not proposed are the heritage and other site constraints, not the lack of site area. 31 I am of the view that the proposal to pick up and deliver children in Hawthorne Parade would be acceptable given the width of the street and low traffic volumes. Disabled parking 32 Mr Hallam was critical of the lack of parking for those disabled persons arriving by car. One staff car parking space can be provided on site for disabled use and if the grass verge were partly paved a disabled person would be able to gain access to the land from a footpath parking space. The paving of the verge would require council consent. 33 In order to ensure a path of access for people in wheelchairs, the applicant proposes ramped access to the porch. It would also be necessary to ensure there is a path with no steps from the staff disabled car parking space and from the footpath in front of the land. 34 With the child care centre wheelchair accessible there would be no reason to refuse the application in this regard. Environmental impact of traffic in Hawthorne Parade and other streets in the vicinity 35 Mr Hallam was satisfied that with the current levels of traffic in Hawthorne Parade, the additional traffic generated by the development would not result in the environmental capacity thresholds being exceeded. 36 Although his evidence did not extend to Tillock Street it would seem logical that the environmental capacity of that street would not be exceeded as well. 37 Despite nearby residents being concerned for the additional traffic in the streets near the proposed child care centre there was no objective evidence to support their concerns. 38 I am satisfied that the environmental capacity of Hawthorne Parade and possibly of Tillock Street would not be reached with the imposition of additional traffic likely to be generated by the proposed child care centre. I would not refuse the application for this reason. Pedestrian safety 39 Mr Hallam was concerned that with the retention of the high gate on the driveway and high front fence, a driver reversing out across the footpath would be likely to threaten the safety of parents and children on the footpath during the morning and afternoon peaks. 40 Messrs Hallam and Threlfo agreed that if the driveway gates were removed and the side fence with No 264 Hawthorne Parade were reduced in height to no more than 1m then the concerns about pedestrian safety on the footpath would be removed. 41 The applicant was willing to submit to a condition requiring sightline splays to each side of the entrance to the driveway and for the front fence to be lowered to around 600mm in height to improve sight distances. 42 Given the changes to the design to improve sightlines I would not refuse the application for this reason. Heritage conservation area 43 The council pressed the issue that the proposal would detract from the character and heritage significance of the Haberfield Heritage Conservation Area. Mr Moore supported the council's position in this regard. 44 Mr Moore stated: …the LEP and the DCP for Haberfield, read together with the statement of significance for the conservation area, provide a clear basis for concluding upon the inappropriateness of the proposal. The property is capable of reasonable use as a house, the purpose for which its neighbouring properties are used, and no reasonable consequence ensues for the applicants from the refusal of this proposal, in my opinion. The proposal is unsympathetic and would represent poor planning management in what is one of the most significant conservation areas in Australia. It would undoubtedly encourage copycat proposals for similar inappropriate uses elsewhere in the area. 45 Mr Patch for the applicant, was of a contrary view and that the proposed use was most satisfactory in this part of Haberfield Conservation Area. He was also of the view that the land is not part of Stanton's Haberfield and a 'later fringe area'. 46 I am satisfied on the evidence of Mr Patch that the 'commercial use' of the land would not significantly detract from the significance of the heritage conservation area. Noise 47 Ms Stoddart, resident of No 260 Hawthorne Parade on the site inspection pointed to the position of the large air conditioning units in the side passage of No 262 Hawthorne Parade that continue to cause her noise concerns. 48 Mr Goldsmith told the Court, that in the redesign of the proposal those air conditioning units would be relocated away from adjoining properties and screened to ensure the noise levels are reduced to being inaudible at neighbouring properties. I accept that commitment and a condition is imposed to that end. 49 For the above reasons, the appeal is upheld. Conditions 50 The conditions are those in Exhibit 10 as amended during the hearing. Condition 14 was an agreed condition on the configuration of the driveway and Condition 15 required the front fence to be sympathetic in the heritage conservation area. 51 Condition 10 addresses the air conditioning unit operational noise and states: The air conditioning unit(s) must be maintained and function, so as to be inaudible in your neighbours' homes during the hours of 10.00pm to 7.00am on weekdays and 10.00pm to 8.00am on weekends and public holidays. 52 Condition 14 related to the need to ensure that the noise of mechanical plant and equipment is brought under control. That condition reads: Mechanical plant and equipment is to be located and selected to satisfy the noise goal requirements as identified in the Acoustic Logic Consultancy report dated 6 August 2007 at the neighbouring residential receivers. If an alternative location is selected, noise emission shall be considered during the design phase to ascertain that compliance with the noise goal is achieved, including cumulative impact from outdoor play areas. Orders 53 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 10.2007.24.1 lodged with the respondent council on 29 January 2007 to alter and add to the existing dwelling on the land and for the use of the ground floor as a child care centre at Lot 1, DP 10498, being No 262 Hawthorne Parade, Haberfield, is approved subject to a deferred commencement conditions and Conditions A1 to H12 and advisory notes in Annexure A. 3. The exhibits except for Exhibits B, 1, 5, 10, 14 and 15 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.