Bechara v Parramatta City Council [2007] NSWLEC 516

Land and Environment Court of New South Wales

CITATION : Bechara v Parramatta City Council [2007] NSWLEC 516

APPLICANT Joe Bechara PARTIES : RESPONDENT Parramatta City Council

FILE NUMBER(S) : 10737 of 2006

CORAM: Tuor C

Development Application :- Child care centre KEY ISSUES: adequate parking, safe entry and exit and traffic impact solar access noise, drainage and demand for a child care centre

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2001

CASES CITED: Bechara v Parramatta City Council [2006] NSWLEC 177

DATES OF HEARING: 20 &22/12/2006

EX TEMPORE JUDGMENT DATE : 5 January 2007

APPLICANT Mr J Maston, Barrister SOLICITORS Greenaway & Tohme LEGAL REPRESENTATIVES:

RESPONDENT Mr P Marincowitz, solicitor of DLA Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

5 January 2007

10737 of 2006 Joseph Bechara v Parramatta City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Parramatta City Council (the council) of a development application (DA 491/2006) for the demolition of an existing dwelling and the construction of a child-care centre at 92 Bettington Rd., Oatlands (the site). The site and surrounding area 2 The site is Lot D in DP 32351 and Lot 1 in DP 22016. It is generally rectangular in shape with a street frontage of 21.3 metres, a rear boundary of 21.2 metres and side boundaries of 48.6 metres giving a total site area of 971 square metres. 3 The site has a slight slope from the front north eastern corner to the rear south eastern corner. The Oatlands golf course adjoins the rear and north eastern boundaries of the site. A residential dwelling at 90 Bettington Rd adjoins the south western boundary of the site. Development in the area consists primarily of residential dwellings of both single and two-storey construction and the Oatlands golf course. Background and the proposal 4 An application for a 64 place child care centre was lodged on 13 June 2006. It was advertised and notified to adjoining residents and 31 objections were received. The applicant lodged an appeal on 22 August 2006 against council's deemed refusal of the application. Council refused the application on 19 September 2006. In response to preliminary reports of the Court appointed experts the application was amended to reduce the number of children to 56, reduce the parking numbers and amend the layout of the carpark and contribute to the provision of a roundabout in Bettington Road. 5 The proposal before the court is to demolish all existing structures on the site and erect a two-storey building for a 56 place child-care centre. Children's play areas are provided at the front and rear of the building with a basement car park for 14 vehicles (four staff and ten parents, including one disabled space) provided off Bettington Rd. The hours of operation are 7 a.m. to 6 p.m. Monday to Friday. 6 An earlier appeal against councils refusal of a 75 place child care centre was dismissed by Brown C on 13 April 2006 (Bechara v Parramatta City Council [2006] NSWLEC 177). The main reason for refusal was the in adequacy of off street parking. Relevant planning controls 7 The site is zoned Residential 2A under Parramatta Local Environmental Plan 2001 (LEP 2001). The proposed use is permissible within this zone. Clause 16(3) states that consent must not be granted unless the development is consistent with the objectives of the zone. LEP 2001 contains no other relevant standards or requirements for the proposed use. 8 Parramatta Development Control Plan 2005 (DCP 2005) applies, however there are no specific numerical requirements or guidelines for childcare centres except for the provision of off street car parking which requires one space for every four children (Cl 4.5.1). 9 The other provisions apply to single dwelling house development but can be considered as a "benchmark" to assess the impact of the proposal given its location in a residential zone and the objectives of the zone. The relevant provisions are cl 4.3.2 - Visual and Acoustic Privacy and cl 4.3.4 - Solar Access and Cross Ventilation. The issues 10 The council filed a Statement of Issues containing 21 issues. A number of issues were dealt with by conditions or not pressed by council. The remaining key issues are: 1) whether the proposed development provides adequate car parking, safe entry and exit to the car park and the impact on Bettington Rd. 2) whether the proposed development creates unacceptable loss of solar access to 90 Bettington Rd. 3) whether any matter raised by resident objectors warrant the refusal of the application. The evidence 11 The parties agreed to the appointment of Mr Tony Moody as the Court appointed town planning expert and Mr Chris Hallam as the Court appointed traffic expert. These experts were the same court appointed experts as in the previous appeal. 12 The following local residents provided evidence on site: · Mr and Mrs Weir, 90 Bettington Road, · Mr and Mrs Flockhart, 25 Niblick Crescent, · Mr R Shackleton, 31 Niblick Crescent, · Mrs M Matheson, 3 York Street, · Mr K Jones, 95 Bettington Road, · Ms K Small, 86 Bettington Road, · Mr T Burke, 27 Niblick Cresent, · Mr P Maloney, on behalf of Mrs L Baxter, 23 Niblick Crescent · Ms B Jones, 4 Prince Street, · Mr H Knapp, 38 Holmes Avenue · Mr B Smith, 91 Bettington Road 13 The main issues, not raised by the council, relate to: · noise, · drainage, and · need for a further child-care centre. Car parking and traffic 14 The issue of car parking and traffic was the principle issue raised by the council and the local residents in these and the previous proceedings. The key difference between this proposal and the previous proposal is the reduction in the number of children and the subsequent reduction in the number and configuration of car spaces required to meet the demand of the development. The 14 spaces provided complies with the requirements of DCP 2005, no stack spaces are provided for parent parking and while staff parking is a stacked arrangement, it is located separately from parent parking. 15 Mr Hallam maintained his opinion from the previous appeal that the site location characteristics are critical in the assessment of car parking. Being located on a narrow road with high traffic flows for a collector road, there is no ability to safely use on street parking. Consequently all parking demands must be met on site. In the previous appeal Mr Hallam did not consider that this had been achieved, particularly due to the stack parking arrangement, and the application ultimately failed on this basis. 16 In this appeal Mr Hallam considered that the number and layout of car spaces would more than adequately meet the demands for parking of the centre. Based on his recent surveys Mr Hallam concluded that the rate of one space for four children to be "conservative" which would provide "spare capacity". 17 Mr Hallam acknowledged that it is a possibility that all users of the centre could arrive at the same time and that there would be insufficient parking. However, he considered this not to be a probability nor to be supported by his surveys or the parking rate in DCP 2005 which is based on Roads and Traffic Authority criteria. He raised no opposition to a proposed condition which stipulated arrival and departure time of children, however, he did not consider this to be necessary. He stated that the parking would meet the needs of the development and that it would be unlikely that there would be queuing for spaces, congestion near the driveway or the need for traffic to reverse onto Bettington Road. He also considered that there would not be a demand for on street parking in the vicinity of the site.