Land and Environment Court of New South Wales CITATION : Smith v Sutherland Shire Council [2008] NSWLEC 92 APPLICANT Sarah Smith PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 11182 of 2007 CORAM: Tuor C KEY ISSUES: Development Application :- Alterations and additions to a house for use as a child care centre. Adequacy of parking, traffic and noise impacts. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2000 Sutherland Shire Local Environmental Plan 2006 DATES OF HEARING: 22/02/2008 EX TEMPORE JUDGMENT DATE : 22 February 2008 APPLICANT Mr B O'Dowd, town planner LEGAL REPRESENTATIVES: RESPONDENT Ms J. Amy, solicitor of Sutherland Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 22 February 2008 11182 of 2007 Sarah Smith v Sutherland Shire Council JUDGMENT 1 This is an appeal against the refusal by Sutherland Shire Council (the council) of a development application for alterations and additions to an existing house for use as a 20 place childcare centre with four parking spaces at 219 Gymea Bay Road, Gymea Bay (the site). 2 The site, its context, the history of the application and the planning controls are in the Amended Statement of Facts and Contentions. 3 The only issue in dispute between the parties is stated as: 1. Traffic and Parking There are insufficient off street car parking spaces and the use of on street parking will have unacceptable impacts on the surrounding neighbourhood. Particulars i. Clause 14 of the Development Control Plan for Child Care Centres (Edition 3) ("the DCP") requires one off-street space for every four children. The application seeks approval for 20, therefore a total of 5 off-street spaces is required. The application provided 4 off-street spaces, according to the report by Transport and Urban Planning dated 18 October 2007 ii. The proposal will have unacceptable impacts on the amenity of the surrounding residential area and create unacceptable safety issues in the surrounding residential area, having regard to the increase in traffic volume above and beyond what is currently experienced within the locality, and the use of on-street car parking, particularly having regard to the close proximity of Gymea Bay Public School and the potential for traffic conflict (special consideration (a) of Clause 31 of the Sutherland Shire Local Environmental Plan 2000 ("SSLEP 2000", objective 1(e) or Zone 4 - Local Housing in Clause 11 of C ("SSLEP 2006", head of consideration (c) in clause 50(2) of the SSLEP 2006, objectives (b) and (c) in clause 3 of the DCP, objectives (a) and (b) in clause 14 of the DCP,). 4 Mr M Bridgman, the traffic consultant for the applicant, provided evidence in relation to the traffic and parking issue. Council did not provide traffic evidence. The assessment of the proposal by council's staff found the proposal was acceptable given the likely traffic generation and parking availability. 5 Ms Amy, for the council, submits that the proposal does not meet objective (d) for the Zone 2(a1) Residential in the Sutherland Local Environmental Plan 2000 (SLEP 2000) which was the planning instrument in force at the time the application was lodged. This provides that: Objective of the zone A residential environment: …… (d) where non-residential uses provide necessary services to the local neighbourhood without adversely affecting residential amenity. 6 Further Ms Amy submits that the proposal does not adequately address cl 31(a) of SLEP 2000. This provides: When assessing the impact of non-residential land uses proposed in the residential zones by development applications, the consent authority must consider whether the proposal adequately addresses the following: (a) the amount of traffic that will be generated by the proposed development and whether or not there will be a significant change to the traffic volumes currently experienced within the locality as a result of the development. 7 Sutherland Local Environmental Plan 2006 (LEP 2006) is the current planning instrument, however, the proposal is subject to a savings provision. This requires consideration of LEP 2006 as if it were a draft planning instrument. LEP 2006 provides similar zone objectives and considerations as LEP 2000. 8 Clause 14 of Sutherland Development Control Plan-Child Care Centres (the DCP) provides: Adequate car parking must be available so as to accommodate the peak parking demand of the Centre. All parking must afford safe access to the centre and should be provided on-site…. Objectives: a) Adequate car parking on-site so as to avoid inconvenience to nearby residents or congestion in the roadway. …… Standards: a) Off-street parking must be provided at the rate of one space for every four children in attendance. b) Consideration could be given to reducing the parking required if convenient and safe on-street parking is available provided that the use of such parking does not adversely affect the amenity of the adjacent area . 9 Under cl 14 of the DCP the proposal would generate a requirement for 5 car parking spaces. The proposal provides four spaces. 10 In Ms Amy's submission the proposal by providing an extra driveway removes one existing on-street car space. The proposal also creates an additional demand on for one on-street space as it does not meet the requirements of cl 14 of the DCP. 11 Further, the non compliance with the parking standard would adversely impact on residential amenity by generating conflict between Gymea Bay Public School by increasing the demand for and reducing the number of on street parking spaces. 12 Mr Bridgman stated that the proposed increase in traffic generated by the proposal was minimal and would not adversely impact on the existing traffic conditions. In relation to parking, he stated that based on the surveys undertaken by McLaren Traffic Engineering and his own observations there is adequate on-street parking in the street. He acknowledged that during the peak morning and afternoon periods, in particular between 9 to 9.10 am and 2.55 to 3.20 pm, parking may not be available outside the property but would be available in close proximity. Mr Bridgman did not consider people parking on the northern side of the street would pose any safety impacts and the loss of one on-street parking space to be acceptable. 13 Further, the proposed driveway arrangement enabled cars to enter and leave the site in a forward direction, which Mr Bridgman considered to be an improvement over the current situation. I accept Mr Bridgman's evidence. 14 I note the objection of Mr Phil Blight, Councillor, which provides his observation of the traffic and parking in the area. However, in the absence of expert evidence to the contrary, I am satisfied that the proposal will meet the objectives of cl 14 of the DCP. While four spaces are provided instead of five the proposal is acceptable as convenient and safe and on-street parking is available and the use of such parking will not adversely affect the amenity of the adjacent area. The proposal therefore also meets the objectives and requirements of LEP 2000 and LEP 2006. 15 Mrs C. McPherson of 219A Gymea Bay Road raised concerns about the noise impacts likely to be generated by the proposal. Council did not raise noise as an issue and accepted the recommendations in the Acoustic Report prepared for the applicant by Day Design Pty Ltd. This report concluded the council's noise criteria of background plus 5dBA could be achieved with a 2.4 m high masonry fence. It is also stated that the criteria could be achieved with a 2.1 m high masonry fence if only 8 children aged 0 to 3 played outside at any one time. 16 Mrs McPherson was concerned about the bulk and overshadowing impacts of a 2.4m high fence. Through discussions between Mrs McPherson, council and the applicant it has been agreed that a 2.1 m masonry fence be provided and that the outdoor play be limited to two play periods (8.30 am to 9.30 am and 3.30pm to 4.30pm) with a maximum of 10 children playing outside at any one time. It is recognised that during a one hour period when the older children (3-5 year olds) play outside the criteria of background plus 5dBA may not be achieved. The criterion for this one hour period is background plus 10dBA. 17 A condition has been imposed which requires monitoring of the noise impacts once the centre is operational. I am satisfied that the proposal will not generate an unreasonable noise impacts and that the 2.1 m high masonry fence will not result in unacceptable overshadowing or bulk impacts. 18 The proposal requires an objection under State Environmental Policy No 1 - Development Standards (SEPP 1) in relation to the landscape area requirement of LEP 2000. Council did not raise this as an issue and I accept the council officer's report that the SEPP 1 objection is well founded. Orders 19 The orders of the Court are: 1. The appeal is upheld. 2. Development application (DA 06/1094) for alterations and additions to an existing house for use as a childcare centre for 20 children and parking for 4 cars at 219 Gymea Bay Road, Gymea Bay is approved subject to the conditions in Annexure 'A'. 3. The exhibits, except exhibits A, B, 6 and 7 may be returned. ___________________ 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.