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. 18 The other key issue relating to traffic is the sight line for a driver of a car leaving the site and seeing another car travelling southbound on Bettington Road. Using Australian Standard AS 2890.1-2004 (the Standard) and a speed of 65 kph (the 85th percentile speed) the minimum site distance is 75 metres and the desirable site distance is 90 metres. At the point where southbound drivers would see a car emerging from the site driveway, that is 90 metres north of the site driveway, the southbound car is just before the crest. Taking into account the high traffic flows and width of the road, Mr Hallam stated that the sight distance is "just satisfactory " and recommends that a speed reduction device, such as a speed platform, be installed in Bettington Road. 19 Bettington Road is the boundary between Parramatta and Baulkham Hills local government areas. Both councils prefer a roundabout at the corner of Ellis Road as it would meet an existing need for a traffic calming device regardless of the proposed child care centre. The applicant has agreed to enter into a developer agreement to contribute to the provision of the roundabout. This requirement has been placed as a deferred commencement condition of consent which the applicant has accepted. 20 Mr Hallam stated that the roundabout would reduce the speed of traffic and that under the Standard the desirable sight line would be 69m. The available distance of 90m therefore more than met the Standard and provided more than satisfactory sight lines to and from the driveway of the site. 21 I accept the evidence of Mr Hallam. While the issues of safety are heightened when young children are involved I am satisfied that the number and layout of car parking spaces will adequately meet the demands of the development and will not result in queuing, congestion, or a demand for on street parking in the vicinity of the site. The proposed roundabout will more than satisfy the sight lines necessary to ensure safe entry to and from the site. In this regard the application is significantly different to that previously refused by the Court and it acceptable. Solar Access 22 Clause 4.3.4 of a DCP 2005 provides that dwellings "are to receive a minimum of three hours sunlight in habitable rooms and in at least 50% of the private open space between 9 a.m. and 3 p.m. on 21 June". 23 Mr Moody stated that the overshadowing of the rear garden of 90 Bettington Road complied with the requirements of the DCP although, if assessed individually the rear patio would not receive 3 hours. However, Mr Moody considered this to be part of the outdoor area which should be assessed as a whole and which therefore complies. 24 The north facing windows of 90 Bettington Road, particularly the ground floor kitchen and the upstairs study would not comply with the DCP control. Mr Moody considered this to be of concern but not unreasonable given the location of the windows on a side boundary, that the rooms had other windows which would also receive some sunlight, the setback of the proposed development from the boundary, its height and floor space ratio comply with the planning controls and a similar impact would result from a two storey house developed on the site. 25 I accept Mr Moody's evidence, as did Commissioner Brown who also found overshadowing to be acceptable and not a reason to refuse the application. Matters raised by objectors Noise 26 In relation to noise Commissioner Brown stated: The applicant provided a noise assessment by RSA Acoustics that recommended certain actions, such as closing of windows and doors at certain times, to control internal noise. External play activity is to be controlled through a "Noise Management Strategy" to ensure noise in the play areas is addressed. I do not totally accept that this is an appropriate method to address noise, particularly considering the proximity to the residential dwelling at 90 Bettington Ave. I agree with Mr Moody that these measures should be included in overall plan of management however I am not convinced that some form of physical barrier should not be provided because of the spontaneous and excessive noise that can be generated from the external play areas notwithstanding the best intentions of the childcare staff and the existence of noise management strategies. At this stage, I would not be prepared to accept the conclusions in the RSA Acoustics report without further assessment of the noise impacts, particularly from the external play areas. 27 Despite these comments no further noise assessment was submitted as part of the application nor did council raise it as an issue in the case. However, in response to concerns raised by residents and Mr Moody during the hearing, the applicant submitted a supplementary noise assessment report by RSA Acoustics. This report confirms that the appropriate criteria to be met is background plus 5dB(A), being a level of LAeq of 50dB(A). The report confirms that this standard will be achieved at the adjoining property, 90 Bettington Road, at both ground and first floor level, through the provision of a lapped and capped fence as well as management procedures such as limiting the number of children in outdoor play areas and close supervision of children. Mr Marinkowitz, council's solicitor, raised issues with this report but council did not provide any expert evidence to refute the conclusions of the applicant's acoustic reports. 28 In the absence of further expert evidence I accept the conclusions of RSA Acoustics that the proposal can maintain an acceptable level of acoustic amenity to adjoining residential properties. However, it is not clear from the report whether the number of children in each play area need to be limited to a total number of 10 children at any one time. Given that there are two play areas in the rear garden and one in the front garden the number of children that can use these areas at any one time and achieve the noise criteria needs to be clarified and conditioned. Further a condition of consent should be included which requires compliance with the noise criteria and independent monitoring of the fully operating centre to ensure that the criteria is met at the adjoining residential property in both the upstairs study, downstairs and the out door areas or whether further mitigation measures are required. The independent monitoring should also confirm that the recommended noise criteria for the front play area of LAeq of 55dB(A) is achieved. Drainage 29 Mr Flockhart was concerned that the proposal would increase runoff from the site to the open drain in the golf course that adjoins his property and the existing easement. Council considered the proposed drainage to be acceptable but has imposed a deferred commencement condition which requires an easement to be created in favour of the site. Mr Maston, barrister for the applicant, submitted that an easement is not required as the concept drainage scheme proposes no increase in the post development flows over those which currently exist. Although the applicant accepts a condition to this effect. 30 To ensure the retention of the existing Lebanese Cedar tree, the proposed conditions of approval require a four metre tree protection zone in which no excavation or fill can occur and alteration of the proposed retaining wall (conditions 30 (a) and (b)). As I understand it the retaining wall and increase in level are part of the drainage concept plan. The implications for the drainage concept plan of compliance with condition 30 (a) and (b) need to be addressed to ensure that the drainage from the site is acceptable. In relation to the easement, on the evidence before me I accept the imposition of the deferred commencement condition. Need for a further child-care centre 31 The need for a further child care centre was dealt with by Commissioner Brown who stated that: The need for a further childcare centre was raised by number of residents on the basis that there are already existing centres in the area with vacancies. The potential oversupply of childcare centres is not a normal consideration in the assessment of development applications. The planning process is to identify opportunities, through the zoning land, to facilitate development. Even accepting that there are other childcare centres in the vicinity of the site, is not appropriate for the Court or council to make judgements on the suitability or otherwise of competing applications. 32 I accept the conclusions of Commissioner Brown. There is no evidence or circumstances of this case that would cause me to reach a different conclusion to Commissioner Brown. Plan of Management 33 The applicant prepared a Plan of Management. Both Mr Moody and Mr Hallam made recommendations for amendments to the Plan of management. These amendments and the recommendations of RSA Acoustics need to be made prior to any approval of the application. Directions 34 The Court Directs that: 1. The applicant is to file and serve the following information by 2 February 2007: i. amended plan of management which incorporates the changes suggested by Mr Hallam, Mr Moody and RSA Acoustics, including the maximum number of children that can use each outdoor play area at the one time. The Plan of Management shall be reviewed by Mr Moody, at the applicants expense, prior to it being finalised. ii. any further drainage information to address the changes required by draft conditions 30 (a) and (b). 2. The parties are to file agreed conditions by 9 February 2007, which include noise criteria for adjoining residential property (90 Bettington Road upstairs study, downstairs and outdoor area) and for the children's play area in the front garden. The condition shall require independent monitoring to certify that the noise levels are complied with once the centre is fully operational. 3. If conditions are not agreed or parties require a further hearing they are to approach the Registrar prior to 9 February 2007. Upon receipt of the satisfactory information the final orders will be issued in chambers. _____________ Annelise Tuor 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.