Land and Environment Court New South Wales Medium Neutral Citation: Morrison Design Partnership Pty Limited v Holroyd City Council [2012] NSWLEC 1282 Hearing dates: 24 September 2012 Decision date: 25 September 2012 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. Development Application DA 2011/532/1 for alterations and additions to an existing rehabilitation facility at 7 Coleman Street South Wentworthville is approved subject to the conditions in Annexure "A". 3. The exhibits are returned with the exception of exhibits 1 and C. Catchwords: DEVELOPMENT APPLICATION: internal alterations and additions to create five additional patient rooms on the ground level and associated staff facilities on basement level of existing rehabilitation facility - insufficient onstreet car parking Legislation Cited: Environmental Planning and Assessment Act 1979 Holroyd Local Environmental Plan 1991 Category: Principal judgment Parties: Morrison Design Partnership Pty Limited (Applicant) Holroyd City Council (Respondent) Representation: Mr P Larkin SC (Applicant) Mr A Seton, solicitor (Respondent) Solicitors Woolf & Associates (Applicant) Marsdens Law Group (Respondent) File Number(s): 10583 of 2012 Judgment 1COMMISSIONER: This is an appeal against a refusal of Development Application 2011/532 by Holroyd City Council that seeks consent for "Refurbishment of existing Westmead Rehabilitation Hospital to allow for new offices, boardroom and five new beds" at 7 Coleman Street, Wentworthville (the site). 2The development application proposes: 1. internal alterations and additions to create five additional patient rooms on the ground level and associated staff facilities on basement level, 2. decommissioning the existing laundry room and converting them to workstations on the basement level, 3. upgrade existing stairwell to be compliant with AS1428 on the basement level, 4. new additional floor area to accommodate five extra bedrooms on the ground level to increase the capacity from sixty beds to sixty-five beds, 5. reconfiguration of existing uses on the ground floor including staff administration facilities, clean/medical utility room, waiting/reception room, ambulance bay and dining room, and 6. The proposed new floor space is 95 sq m that comprises the patient care extension areas and a dining extension on the ground floor. All other proposed works are within the existing floor space of the hospital. 3The principle contested issue relates to the insufficient onsite car parking. The council also raised the absence of a Social Impact Assessment (SIA) although it was not seen as being a reason, by itself, to refuse the application. Relevant planning controls 4The site is zoned part Residential 2(a) and part unzoned under Holroyd Local Environmental Plan 1991 (LEP 1991). The proposed development is permissible in the 2(a) zone and the unzoned land, subject to cl 17. Clause 9(3) provides that consent shall not be granted unless the development application is consistent with the zone objectives. The council raised no issue in relation to cl 9(3). 5Draft Local Environmental Plan 2011 also applies to the site but the council raised no issue in relation to this draft plan. 6Holroyd Development Control Plan 2007 (the DCP) applies. Part A cl 4.0 provides requirements for car parking. The relevant objective in cl 4.1 states " (a) To ensure that adequate and convenient off-street parking facilities are provided for all vehicles generated by the various types of development. 7Clause 4.2.1 specifically addresses alterations and additions and states: Where the application involves alterations and additions to existing premises for the purposes of its existing use, the additional car parking requirement shall be based on the net increase in gross floor area, number of seats, beds or whatever the specific requirement is for that type of development in addition to the original parking requirement. However, if the council is of the opinion that the application involves the virtual reconstruction of the building it may require the provision of car parking based on the total requirement of the development, existing plus proposed. 8Clause 4.2.7 addresses departures from the requirements of the DCP and states: Where circumstances warrant council may seek higher standards, however if applicants are of the opinion that the full car parking requirement is not necessary in the circumstances or not be required when the use of the building commences, council may reduce the requirement for parking or may defer the provision of some of the parking. In the latter case council may permit a portion of the car parking area to be used for an alternative purpose or may require the area to be landscaped. 9For a hospital, cl 4.3 requires: One space per three beds plus one space for resident matron plus one space per two employees plus an ambulance bay. 10As the proposed development seeks an additional five beds 1.6 spaces (or two spaces rounded up as required by cl 4.3) is required given that no additional staff are proposed. On site parking 11A joint report on the on-site and off-site parking was prepared by Mr Graham Pindar for the applicant and Mr Gary Kennedy for the council. They acknowledge that the DCP relies on the traffic generation rates from the Road and Traffic Authority document, Guidelines for Traffic Generating Development, however Mr Pindar and Mr Kennedy agree that surveys of a similar site and activity is a far more appropriate method to determine the parking requirements of the proposal rather than reliance on generic parking generation rates. 12In this case Mr Pindar conducted a range of surveys at the existing facility that included: * 1. staff surveys to determine the means of access to the facility, * 2. parking surveys of the existing car park and surrounding streets, * 3. visitor surveys to determine the means of access and length of stay of visitors, and * 4. "NearMap" satellite images over numerous days. 13The results of the surveys indicated that the increase in visitor parking demand will be negligible for the additional five beds and will result in a demand for an additional 0.25 spaces. While Mr Seton for the council questioned the rigour of the surveys, I accept the agreed position of Mr Pindar and Mr Kennedy that the surveys were "very comprehensive for a relatively small expansion and the results demonstrate conclusively that the increase in visitor demands will be negligible." If rounded up, the additional five rooms would require an additional space or even if the DCP requirements are used, two additional spaces would be required. 14Given the small increase in room numbers and that no additional staff are required, I am not satisfied that even if the two additional spaces are used that the resulting increase in car parking would warrant the refusal of the application, particularly given the sensible flexibility availability in cl 4.2.7 of the DCP. In this case, the agreed evidence of Mr Pindar and Mr Kennedy was that "convenient and safe on-street parking is available and the use of these spaces would not adversely affect the amenity of the area". 15I note that the previous concerns of the residents in Lynette Crescent, that is in close proximity to the facility, and who have previously expressed concerns over parking associated with the facility in Lynette Crescent have been largely addressed through a resident parking scheme. 16For these reasons the additional parking generated by the proposed development would not be a reason to refuse the application. Social Impact Assessment 17The issue over the absence of the SIA is also not a matter that would support the refusal of the application. I accept Mr Larkin's submission that a SIA is not required by way of cl F(ii), in that the proposal is a minor or small scale project which is not likely to have social impacts". In any event, the public were advised of the proposed development through the normal consultation process with the development application. Conditions 18The conditions in dispute related the two areas. The first involved the relocation of car parking space 34, while Mr Pindar and Mr Kennedy agreed that the relocated space provided a sufficient turning area to access the space, an issue was raised over the existence of a small retaining wall within this area to ensure any surcharge of an existing drainage pit would drain to the existing adjoining drainage easement. 19The applicant proposed a condition that required the area of car parking space 34 to be regraded to allow for the natural drainage of stormwater to the easement. The council could not confirm this condition was adequate however, if considered appropriate by the Court, sought the condition to be imposed as a deferred commencement condition. The applicant sought the condition as an operational condition. Given that the issue in question is relatively simple, that is, the regrading of car parking space 34 to a maximum grade of 5%, I see no reason why a deferred commencement condition is necessary. 20The other disputed condition involves a limit on the number of staff at 40. The applicant opposes the condition as no limits on staff were proposed on the original consent for the 60-bed facility. As an alternative the applicant offered a condition that limited staff to those present on the site between the hours of 11 am and 2 pm on weekdays above current levels. In my view a condition restricting staff to forty persons is inappropriate as part of this application, given the relatively small increase in the number of beds. Consequently the condition can be deleted. Orders 21The orders of the Court are 1. The appeal is upheld. 2. Development Application DA 2011/532/1 for alterations and additions to an existing rehabilitation facility at 7 Coleman Street South Wentworthville is approved subject to the conditions in Annexure "A". 3. The exhibits are returned with the exception of exhibits 1 and C. __________ G T Brown Commissioner of the Court ANNEXURE A 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. Decision last updated: 15 October 2012