Land and Environment Court of New South Wales CITATION : Universal Childcare Pty Ltd v North Sydney Council [2008] NSWLEC 1430 APPLICANT Universal Childcare Pty Ltd PARTIES : RESPONDENT North Sydney Council FILE NUMBER(S) : 10989 of 2007 CORAM: Murrell C KEY ISSUES: Development Application :- 84 place childcare centre, traffic and parking, noise impact on adjoining residential properties Environmental Planning and Assessment Act 1979 LEGISLATION CITED: North Sydney Local Environmental Plan 2001 North Sydney Development Control Plan 2002 State Environmental Planning Policy No. 1 DATES OF HEARING: 14 and 15/04/2008 and 30/06/2008 DATE OF JUDGMENT: 29 October 2008 APPLICANT Ms S. Duggan, barrister and Mr A. Galasso, barrister Instructed by Ms E. Hillier LEGAL REPRESENTATIVES: of Gadens RESPONDENT Ms K. Gerathy, solicitor of Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 29 October 2008 10989 of 2007 Universal Childcare Pty Ltd v North Sydney Council JUDGMENT 1 The applicant in these proceedings appealed against the deemed refusal of a development application for an 84 place child-care centre on the site known as No. 11 Lindsay Street Neutral Bay. 2 The subject site is located on the southern side of Lindsay Street between Raymond and Westleigh Streets. The site is rectangular in shape with a total area of 1,394 square metres with a western boundary of 42 and an eastern boundary of 46 m. The frontage of 30.5 m is to Lindsay Street with a rear boundary adjoining Westleigh Lane of 30.5 m. 3 To the west of the subject site there is a single storey dwelling and located opposite the site on the corner of Lindsay Street and Bydown Street St Joseph's Church and associated facilities including car parking. The site is located in close proximity to neutral Bay public school and the neutral Bay retail commercial precinct and is within walking distance of public trance port. 4 To the east of the subject site at No. 15 Lindsay St a game multi-units development containing four attached dwellings with basement parking and strata subdivision was approved by the council. The plans show on the western elevation numerous windows facing the subject site for units 2, 3 and 4. The lower ground floor level contains living areas for the units and the first floor contains bedrooms and bathrooms. The second level contains an attic in the roof. 5 The previous use of the subject site was for a preschool kindergarten with 38 children aged three to five years. This operated between 9 a.m. and 3 p.m. during school terms. A consent was issued in 1988 for 41 children and for car parking it was stated that sufficient spaces are available in the church grounds opposite for both staff and visitors with a total of eight spaces. The proposal 6 The proposal is for alterations and additions to the existing school building and reconfiguration of car parking and landscaped areas for use as a child-care centre. 7 It is proposed that the Centre will accommodate 84 children with the hours of operation five days a week Monday to Friday from 7 a.m. to 7 p.m. The rear portion of the existing building on site will be demolished as will the amenities block to the rear. Some internal walls will also be demolished to accommodate the reconfiguration of the child-care centre. The main entry to the building will be located closer to the Lindsay Street frontage. 8 The existing driveway access will be retained to the site and four drop-off/ pick-up parking spaces provided, including one disabled car space. Staff parking is to be provided by way of a lease arrangement with the Catholic Church opposite the site in the parking area located at No. 7 Lindsay St between St Joseph's Hall and the Church. Contentions 9 The Respondent submitted the following matters in the Statement of Facts and Contentions: 1. The Respondent contends that the application should be refused as the proposal does not satisfy the development controls with regard to landscape area under Clause 34 of NSLEP 2001. Particulars (a) Clause 34(3)(b) of NSLEP 2001 , "building controls applicable to buildings in the special uses zone", indicates that the building must comply with the development standards that apply to adjoining land. (b) The site is adjoined by residential development. Clause 20 of NSLEP 2001 contains the landscape area controls for residential development. Clause 20(2) indicates that the percentage of site area that must be landscaped for sites greater than 900 square metres is 60%. 2 . The Respondent contends that the application should be refused as the traffic generation from the number of children proposed is excessive and would cause traffic and safety conflicts in surrounding residential streets. Particulars (a) The increase in traffic generation from the current use will be in the order of 180%. The proposal will generate additional traffic, particularly in the morning peak period. (b) The net traffic generation increase will have an effect on the immediate streets, particularly Lindsay Street, which effectively has its street parking fully utilised as a result of the proximity of Neutral Bay Public School and commuters (c) The use of Westleigh Lane would cause traffic conflicts with surrounding residents that use the lane as access to their properties. (d) The width of Westleigh Lane is inadequate for the traffic generated from an 84 place child care centre and the number of places must be reduced to reduce traffic generation. 3. The Respondent contends that the application should be refused as the proposed on site parking is inadequate. Particulars (a) The number of children proposed to be accommodated is such that a minimum of 8 car spaces would be required on site. No staff parking is proposed on site and the 6 spaces proposed on site would not accommodate the number of vehicle movements within the morning peak. (b) On site parking should be provided for at the rate of one space per 10 children. If parking cannot be provided then the capacity of the centre should be restricted. It is unsatisfactory to rely on on-street parking for parent drop off and pick up. 4. Public interest Particulars (a) A number of issues were raised by objectors. Such concerns related to: (i) The additional traffic generated by the proposal and the safety of pedestrians and school children. (ii) The suitability of using the church parking lot opposite the site for staff parking. (iii) The adequacy of the drop off places to address the parking demands. (iv) The number of children was considered to be excessive. (v) The bulk and scale of the proposal. (vi) Noise and amenity impacts. (iv) Lack of outdoor space. (v) Lane is too narrow and does not allow for safe passing of two vehicles 5. Amenity and Noise Impacts Whether the noise impacts of the proposal will have an unacceptable impact upon amenity and whether suitable and effective noise attenuation methods can be imposed. Particulars a) The amended noise report ( RSA March 2008 ) refers to a double storey residence at 15 Lindsay Street. The dwelling was demolished in December 2007 and the site is being redeveloped with a three (3) storey residential apartment building (Works commenced Jan 2008). The main bedroom windows in the development overlook the outdoor play areas and the drop­-off driveway. RSA makes no assessment of impacts on the proposal. b) RSA assesses noise impacts to the ground level of the adjoining residential properties. No assessment is provided to the elevated levels (levels 2 and 3) of the residential developments to the south. c) RSA relies on background noise measurement recorded over a one-hour period on Wednesday 10 January 2007 (1400-1500hrs). A one hour period is not adequate for the purpose of establishing noise criteria for activities that would occur from 0700-1900 hours. d) The proposed 1.8m high ground level lapped and capped fence (noise control) will provide inadequate noise attenuation. e) The proposed 1.5m high first floor solid balustrade (with no gaps) around the elevated play area, will provide inadequate noise attenuation to the elevated floor levels in the residential buildings to the east and south. f) The outdoor source noise of 55-58dB(A) significantly under predicts the level of noise from the outdoor activities. g) To control noise from internal activities requires doors and windows to be closed. The applicant will need to demonstrate that this requirement is practical. h) Reliance on active management as opposed to passive design elements is an unsatisfactory method of noise control. 6. Arborist Report Council is not satisfied the report provides sufficient information on the proposed driveway through the site and its impacts on the trees along the boundary. Specifications should be provided for the driveway to ensure minimal impact. Statutory planning framework 10 The North Sydney Local Environmental Plan 2001 (LEP2001) contains a number of specific aims and more relevantly these include: (a) In relation to character of North Sydney's neighbourhoods, to: (i) maintained a diverse city of activities while protecting residential accommodation and local amenity (b) In relation to non-residential development to: (i) ensure that non-residential development does not adversely affect the amenity of residential properties and public places, including adverse affectation by reason of the use, design, bulk, scale or appearance of the development, or the traffic generation and parking associated with the development (c) In relation to environmental quality to: (i) minimise noise emissions and other adverse effects 11 Clause 14 requires the consent authority to take into account the aims and objectives of the plan and consent must not be granted we are in the opinion of the consent authority it is inconsistent with the specific aims of the plan and the objectives of the zone or the objectives of controls. 12 The subject site is in the Special Use Zone and the objectives of the zone are: a. Identify land on which special land uses are carried out and b. Minimise the impact of the use of that land on adjoining land. 13 Clause 37 the first two buildings in the special use zone and the specific objective is includes to minimise the adverse effects of development on surrounding residential development 14 The North Sydney Development Control Plan 2002 is also a relevant document for the assessment of the development application. This DCP states that council continues to use its powers under the protection of the environment operations act 1997 to enforce nor noise controls in the community. In addition Council utilises NSW industrial noise policy in regulation and planning matters. The policy covers noise from a range of sources including industrial and commercial premises and is used in the assessment of new developments, modifications to existing developments and noise associated with existing development. The DCP provides outcomes and minimum standards expected by council. 15 Section 9 of the DCP is for car parking requirements and relevantly it states Parking is adequate and managed in a way that maintains pedestrian safety and quality of the public domain and minimises traffic generation 16 For child-care centres the DCP requires One space per two staff to maximum of three spaces plus set down area Two spaces where less than 24 children and three spaces for 24 children and above 17 As such based on the DCP there is a requirement for three staff spaces and three parent parking spaces. 18 The DCP also contains provisions in section 12 for child-care centres. It is noted that "child-care centres can have an adverse impact, especially in residential areas, such as noise of traffic and parking, and these need to be considered in any development proposal". What is sought to be achieved is "child-care centres that operate without adverse impacts on the local area and provide affordable, high quality childcare, in convenient locations, that meet the needs of the residents and working population". 19 In this section there is provision for the drop off and pick up of children to facilitate the safe and efficient transfer of children to and from the child-care centre. The provisions include: (i) iii. provide two set down spaces for less than 24 children, three spaces for more than 24 children 20 For visual and acoustic privacy the DCP states Good management of privacy issues insures the child-care centres are well integrated within the local context While child-care centres are beneficial within a community, there can be noise issues arising from the operation of the centre, which can be addressed by considering the location and orientation of outdoor space, driveways, parking and access. In residential areas the location of windows and doors can influence noise impacts on nearby homes. 21 The acoustic provisions in the DCP state: Noise levels(measured at any point on the boundary of the site between the proposed centre and adjoining property) do not exceed 5dB(A) above the L90 background level during the hours of operation: i. Locate nor is the areas such as outdoor space, vehicle access and pathways away from windows of to winning dwellings ii. appropriate noise reduction measures are utilised iii. demonstrate compliance with operating noise levels by providing a report on noise levels prepared by a suitably qualified consultant. 22 The first morning of the proceedings the Court met on site with the parties and heard from a number of resident objectors including the following. 23 Ms Elizabeth Hall of Bydown Street expressed concern to the Court on behalf of the ballet school that operates from the church premises. She said that there is a significant difference between the previous preschool in the proposed child-care centre in terms of the amount of traffic that would be generated and the hours of operation. She expressed concern about the loss of parking in the church grounds to be devoted for staff parking of the proposed preschool. 24 Mr and Mrs McHale of 15 Lindsay St, expressed concern in that the living areas and bedrooms of units1, 2 and 4 all face the child-care centre on the western boundary. They expressed concern about the noise impacts on the property in terms of the drop off and pick up children in care. They also has expressed concern about key exit from the child-care centre on two Westleigh Lane and the potential conflicts with the underground parking to the new multiunit development at No. 15. 25 Ms K Bowel represented the residence of No. 24 Barry St. This is a block of units at the rear of the subject site. She expressed concern about the adverse impact of noise and traffic to Westleigh Lane which is a narrow laneway serving six houses and six blocks of units. She said that vehicles often have to reverse back to allow vehicles coming out of properties and using the laneway to pass. In her opinion Westleigh Street and Barry St already congested due to the number of commuters and residents and the neutral Bay club. 26 Mr A Hind of Raymond Road who resides in the residential flat building opposite the subject site to the rear said that he was concerned about the impact of traffic and noise and the hours of operation being 7 till 7 p.m. he considered his peace and quiet would be disturbed. 27 Mr P Fraser of Phillip Street spoke on the half of the P&C of the nearby primary school said that he recognized the need for a child-care centre but considered the proposal to large because there is no off-street parking in the area and the increase in traffic congestion in the area. 28 On behalf of the applicant Mr Brian Mars ton and an acoustic engineer, Mr Graham Pindar, a traffic consultant and Mr Andrew Darroch, a town planning consultant all gave evidence to the Court and prepared reports. 29 Evidence was given to the Court by Mr Geoff Mossemenear, Council's executive assessment planner, and Mr Graham Atkins a consultant acoustics engineer for the respondent. 30 Following an adjournment Mr Neil Gross provided a single experts report on acoustics. 31 It became apparent that the noise assessment carried out by the applicant's expert was inadequate and the applicant requested an adjournment to seek a further acoustic report by way of a single expert. Following the receipt of Mr Gross's acoustic report the applicant also sought to amend the plans and reduce the child-care facility from 84 places to 66 places. 32 The first acoustic report prepared by Mr Marston was based on a survey to determine that the existing acoustic environment of the area on Wednesday the 10th of January 2007 between 1400 and 1500 hrs. He stated that: " because environmental noise levels vary with time, it is not adequate to use a single number to describe the acoustic environment stop noise measurements are made on statistical and energy averaged approaches." He concluded that the Laq15 minute environmental noise level was taken as 51 d(B)A from the general area and the LA90 15 minutes in via mental act ground noise level was taken as 43 d(B)A. Mr Marston states that during the external educational play activities, the supervisors are required to keep the children occupied in educational and instructive play, that is to keep them occupied and learning under these conditions the vocal strengths should correspond to either casual or normal speech. 33 When commenting on noise from vehicles Mr Marston makes the following observations: Vehicle 'startup' would typically produce noise levels of 47 to 62 d(B)A at the residence. Vehicle movement would typically produce noise levels of 60 to 65 d(B)A at the residence these noise levels marginally exceed the transient noise levels from the street. The residence to the east is double storey and close to the boundary. With out shielding the entire face of the building, noise barrier along the eastern boundary, would only provide noise reduction to the lower level. A 1.8m high fence should be constructed along the eastern boundary. This should reduce the car park noise levels to the ground floor residences by about five to seven d(B)A will stop this fence can be lapped and capped would pay in construction profiled metal sheeting fence type construction or masonry type construction without gaps below the fence. The noise level from car doors will be 70 to 75 d(B)A at 5 m or 64 to 69 d(B)A at the nearest residence. As the driveway runs from north to south, the driver's side of door will be away from the eastern residents parents and guardians should be requested to alight and where ever practical to embark and disembark children via the driver's side doors. This will reduce car dawn war is by about 10 d(B)A two levels of 54 to 59 d(B)A. Plan Amendments Following an adjournment to allow further acoustic reports the applicant also sought leave to amend the plans. The amendments include a reduction in the length of the building on its north-south axis. The upper floor is now not to be used by the child-care centre, but under separate lease. As such the outdoor terrace area on the upper level is eliminated together with activity rooms. The sandpit has also been relocated closer to the front of the building. The site cover proposed is now 37.5% as opposed to 42.9% and the landscaped areas slightly decreased from 42.7 to 41%. A total of nine staff is now proposed as opposed to 15 and the play space area has been decreased from 588 to 462 square metres. The car parking is now shown to be: 4 in the proposed leased area across the road in the Church property at No. 7; and 6 set down spaces are proposed within the curtilage of the subject site along the driveway between Lindsay Street and Westleigh Lane. This provides a total 10 spaces. Expert Evidence and assessment 34 The respondent's acoustic expert to the proceedings Mr Atkins prepared a joint report with Mr Marston. Mr Atkins comments that the long-term method used assessing noise impacts for planning and approval stage of approach it is normally between three to seven days. The short-term method is used during complaint assessment and compliance checks the monitoring period is not in accordance with the EPA guidelines and inadequate for the purpose of assessing the impacts from a proposal that would operate 12 hours a day, five days a week. 35 The assessment report to council of September 2007 and later reports included recommendations that: the footprint of the building be reduced so that a minimum of 50% of the site is landscaped area; and reduce the capacity of the Centre to be no greater than 60 children. 36 The respondent proposed without prejudice conditions however, the applicant did not agree to a deferred commencement requiring a lease agreement or other permanent arrangement for the four car parking spaces in the Church grounds as the applicant considers that it has provided documentation. A proposed lease agreement to T & B Child-care from the Catholic Church was tendered. The draft lease provides for a non-exclusive licence to the parking of motor vehicles between 6am and 7 p.m. Mondays to Fridays and the lessee is entitled to erect a fence around the spaces and operate a boom gate subject to the spaces being unimpeded outside the 6 a.m. to 7 p.m. Monday to Friday. 37 The applicant did not agree to the condition to restrict the noise level to 5 d(B)A above background noise but rather if the Court accepted the evidence of Mr Gross then the noise levels ranging up to plus 10 d(B)A was sought by the applicant. Similarly the applicant did not accept a restriction on outdoor play between the hours of 8:30 a.m. and 5:30 p.m. but rather sought 8 a.m. to 6 p.m. and the applicant did not accept "no more than 20 children between 10 a.m. and 3 p.m. and 30 children between 10 a.m. and 3 p.m" nor that there be a maximum of two hours per day for outdoor play. 38 The applicant provided a State Environmental Planning Policy No. 1 objection to the building envelope control and the landscaped area provision. Mr Mossemenear agreed that the breach to the building height plane control is acceptable and can be supported in the circumstances of the case. Similarly the planners agreed that the landscape breach is acceptable on the basis that the building footprint is consistent with development within the surrounding residential zones. 39 The application has been amended on a number of occasions, and the most recent amendments have gone a considerable way to resolving many of the respondent's issues. However, the application in its current form still does not warrant approval in my assessment. The onus is on the applicant to demonstrate that the child-care centre can operate in a manner that is consistent with the LEP. In particular, The aims in (b) i and (C) i of the LEP, above at paragraph 10, that a non-residential use does not adversely affect the amenity of residential properties and for environmental quality minimise noise impacts. Noise 40 I accept the acoustic evidence of both Mr Aitkins and Mr Gross that if the exceedence in the noise level was for a limited duration then the standard of background plus 5 d(B)A on balance for a limited period could be an acceptable outcome. However, the length of exposure to greater noise levels, that is the combination of the two hour drop-off period in the morning and the two hour collection of children in the afternoon/evening together with the outdoor play hours means that the first floor of the adjoining unit building would be exposed to a much longer duration of exceedence of the DCP noise standard of 5d(B)A than if it was limited to play times alone. 41 I accept the experts evidence that in certain circumstances strict adherence to the DCP standard is not necessary for short durations of time and involving childrens play with a 10d(B)A above background. I am satisfied, subject to fencing details, the noise criterion could generally be complied with for most residential properties in the vicinity of the subject site. 42 The previous use of the subject premises as a preschool for 40 children does not provide justification for a long day care centre for 66 children. On the other hand there should not be an expectation that the site will not be used for the purpose of special uses-school'. And because of this interface the same degree of residential amenity should not be expected, but a reasonable level of amenity and certainty should be afforded the residents of the units at no 15. The assessment process must consider what would be a reasonable outcome for both the school site and the amenity of the adjoining residential property. 43 The application before the Court does not provide sufficient details of the noise attenuation measures to allow a proper assessment. In this regard I am not satisfied that the applicant has discharged the onus of providing details of the design and location of the acoustic fences required to mitigate the noise, in particular for the eastern boundary adjoining the driveway. I accept the evidence of the acoustic experts that a 3.5 m acoustic fence is required on the eastern elevation, however, the applicant has not provided details for the design of this fence. A 3.5 m fence on the boundary can clearly have adverse visual impacts for an adjoining property and the application is absent details of how the impacts of a fence of this height could be mitigated. 44 I note that the amended plans for the proposal do not show the building that was approved in October 2006 approved for the adjoining site. For example, the location of windows for the bedrooms/ habitable rooms and the courtyards/open space areas of the units would assist in the assessment process. 45 The evidence of the experts is that a 3.5 m fence is required because of the line of sight. However, it would be inappropriate for the Court to impose a fence of this height as a condition of consent without details of its visual presentation and whether, for example, this could be ameliorated by vegetation in parts and or a varied setback to the common boundary. It is only in exceptional circumstances that an acoustic fence of this height would be allowed on the boundary for its entire length and even then details of a 3.5 m fence would need to be provided during the course of the proceedings to allow consultation and a considered assessment. The applicant was given the opportunity to respond to the Council's concerns and the plans were amended prior to and during the course of this appeal, however, details of an effective acoustic fence were not provided. 46 Nonetheless, if this was the only reason as to why the application fails an adjournment may have been appropriate, but the application also fails on traffic movements generated for a childcare centre of 66 places. Traffic 47 In these proceedings I am persuaded by the evidence of Mr Hallam, the single expert. Mr Hallam provided a more thorough assessment of the traffic generation and the capacity and use of the laneway. 48 I accept Mr Hallam's evidence that it is inappropriate and impractical to rely on the use of the parking spaces in the Church site opposite for parents and carers and that this could only be used for staff parking. 49 Mr Hallam is of the view that 60 children would be appropriate given the constraints on traffic in the Westleigh Lane. Mr Pindar on the other hand compares the number of vehicles associated with an 84 place child-care centre and that of the 60 place centre and he is of the view that the incremental change does not really matter for the functionality of the operation of the Lane. Mr Pindar said that there are several driveways that are available for passing opportunities and because the traffic from the child-care centre is travelling in the one direction south the number of conflicts is not as great as if the trips were split evenly between entries and exits. Mr Pindar is of the opinion that for this reason the 30 vehicle per hour threshold that Mr Hallam refers to in his view should be regarded as being a flexible threshold. 50 The narrowest point of the Lane is 4.12 m and there were no passing opportunities in the road because of the kerb. Mr Pindar is of the view that the bend is a traffic calming device and passing would occur on the straight section. Mr Pindar said that generally speaking when you have a one-way flow there is a passing opportunity every 30 m. On cross-examination Mr Pindar agreed this is not seen to be optimal and responded if you were designing this as a new facility and new road then you would design it differently, however, to overcome this existing environment it is conducive to low speed as it will require drivers to take due caution and due care and having said this he said drivers that use this lae will be familiar and would readily adapt to the circumstances. 51 On the other hand, Mr Hallam considers that the Lane is narrower than we would like but we do have a pragmatic situation that has to be dealt with. In saying this he comments: I formed a view … that I would much prefer to see a one-way through movement than two-way directly onto Lindsay Street opposite Bydown Street. So I have been looking at ways that it might be acceptable, the question is where you draw the line, what sort of magic number do you put in to say thats the most traffic can put down beyond that you shouldn't. There is no precise number the best I could come up with is the 30 vehicles an hour from the relevant Australian standard, seeing it as a private driveway in effect. If example it was the driveway serving residential use you would have primarily tidal flow, but not entirely. You typically have two say about 85% of traffic in the peak direction, 15% counter peak, which might be people coming back after dropping kids at school or something like that. So if your starting number was 30 vehicles an hour on that 85/15 distribution you have 25 going one way and five coming back so it's not as though you've got 15 versus 15. Most driveways into developments in the peak hour tend to have certain tidal flow, with the exception of well shopping centres… But residential it's always a tidal flow type situation In this case if 30 is the number well 5 and 25 is a typical thing for residential development. The number of 30 in fact is, it does have another correlation which is the RTA's Road Design Guide. For example if you're looking at a rural road you might have up to 300 vehicle movements a day from one lane rural road. Now basically the relationship of peak hour daily is 10 to 1 so this 30 in fact is equivalent to about 300 a day. So there's some commonality there in more than one standard. That being said yes sure that the figure of 30 is not absolute and also my assessment started with the traffic count data that Mr Pindar had, there could well be day to day variations in that as well. But if I start with that data and I use the figure of 30 well 60 children seems to fit in there. I still get 36 movements in the 4 to 5 p.m. and 32 movements 5 to 6 p.m. but it seems to me a fairly pragmatic response to the constraints of the site, and in that regard I think that gives a reasonable view, and I did note that the council traffic engineer supported in principle the one way concept which gave me a little bit more confidence that it was a reasonable thing to do with the location. 52 Mr Pindar said that "the standard is flexible and has things in its favour...It is wider than 3 m and the bend has the effect of slowing traffic". On the other hand Mr Hallam is concerned with the bend in the road because "if someone is coming into the Lane along that initial section, they can't see who's coming down the other section from the subject site. So when a driver leaves the child-care centre looking down that stretch he doesn't see anyone along that section out to the street. In that regard I think it is more concern because the site distance is restricted you might suddenly find you have to make some allowance when you hit the bend. So the site circumstances make me a bit more conservative not less". 53 Mr Hallam made the comment that he did not think the DCP requirement of 1 in 10 spaces per child was practical for child-care centres of this size. The DCP also requires 1 per 2 staff. He referred to the RTA guidelines of the 1 in 4 place requirement. For a centre of 66 this would require 16.5 spaces. Mr Hallam said that taking the DCP requirement that if the Centre was reduced to 60 places this would require 8.5 staff so about four spaces and this would reduce the requirement for parking in the church to four spaces from six. This would have also the effect of reducing the number of displaced cars from the Church site to the street. 54 The experts agreed that on-street car parking is very high in the area. Mr Pindar said that the parent/carer demand is likely to be as high as eight spaces and 6 are provided on-site and the two remaining spaces to be required to be found on street. He said the surveys that have been undertaken within 50 m have shown that in fact there are least two spaces available. However, this does not have regard to the possible displaced parking from the church site to on-street with the lease of the spaces to the childcare centre. 55 If I accept that the parking for staff is provided on leased land across the road with the consent to only operate subject to providing the appropriate documentation for the leased spaces, I am still not satisfied that the site is appropriate for a 66 place centre. In my overall assessment I accept Mr Hallam's evidence that the laneway is constrained and his analysis that a child-care centre for the subject site should be limited to 60 places. 56 Accordingly the amended development application for a 66 place childcare centre is to be dismissed. ___________________ J S Murrell 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.