Anibal 21 Pty Ltd v Waverley Council
[2004] NSWLEC 708
•12/10/2004
Land and Environment Court
of New South Wales
CITATION: Anibal 21 Pty Ltd v Waverley Council [2004] NSWLEC 708 PARTIES: APPLICANT
Anibal 21 Pty LtdRESPONDENT
Waverley CouncilFILE NUMBER(S): 11017 of 2004 CORAM: Nott C KEY ISSUES: Development Application :- Existing childcare centre - proposed increase from 13 to 28 children - no on-site parking or drop off for parents' cars - existng demand for on-street parking - narrow street - traffic saftey - noise from children's activities - objective of zone to allow non-residential uses of "low intensity" - application of Court's practice direction "An expert witness is not an advocate for a party"
LEGISLATION CITED: Environmental Planning and Assessment Act, s 97
Waverley Local Environmental PlanCASES CITED: Rupert v Manly Council [2004] NSWLEC 276 DATES OF HEARING: 24/11/2004 and 10/12/2004 EX TEMPORE
JUDGMENT DATE :12/10/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mrs J Zarfati, director of applicant
Mr G Newport, barrister
SOLICITORS
Staunton Beattie
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Nott C
10 December 2004
JUDGMENT11017 of 2004: Anibal 21 Pty Ltd v Waverley Council
1 This is an appeal against the council’s deemed refusal of a development application to increase the number of children at a childcare centre at 7 Lancaster Road, Dover Heights. Commissioner Bly approved the existing childcare centre in 1997 and one of the conditions of consent was that there would be a maximum of 10 children. The development consent was subsequently modified to permit 13 children. The indoor activities for the childcare centre occur in the front part of what was formerly a dwelling house. The rear part of the building is used as a dwelling by Mr and Mrs Zarfati, who are the directors of the applicant company.
2 The proposal is to increase the number of children from the approved number of 13 to 28 children. The increased number of children would require additional indoor area for the childcare centre, and it is proposed to carry out internal alterations to the building so that the whole of the building will be used as a childcare centre, and the residential use of the rear part of the building will cease.
3 The hearing commenced on the site, and the applicant was originally represented by Mr B O’Dowd, a town planner, who had also prepared an expert report in the proceedings. Objection was taken to Mr O’Dowd being both the authorised agent and giving expert evidence, having regard to the expert witness Code of Conduct in cl 4 of Sch 1 of the Court’s Expert Witness Practice Direction 2003 that states: “An expert witness is not an advocate for a party.” In view of the objection, Mr O’Dowd elected only to give evidence, and the applicant was thereafter represented by Mrs J Zarfati, who is a director of the applicant company and who operates the childcare centre through another company.
4 I heard factual evidence on behalf of the applicant concerning the present and proposed operations of the childcare centre. Besides the written evidence about the operations of the centre which was given by Mrs Zarfati, there was expert town-planning and traffic-engineering evidence, as well as evidence from Mr C Kopsiaftis who owns and lives at 9 Lancaster Road, which adjoins the eastern side boundary of the subject site. Mr Kopsiaftis is a shift worker and he said that his bedroom is adjacent to the side walkway to the main entrance of the childcare centre. He said that he sleeps in the morning until 10 am or 11 am and generally was not disturbed by the present operation of the childcare centre and he had no complaint against its present operation. He was not able to say, however, whether the proposed childcare centre with 28 children would be of concern to him.
5 The council in its evidence presented a bundle of letters of objection from other neighbours whose properties adjoin the subject site or are in the immediate vicinity of it. As well, I heard oral evidence from some of these objectors.
6 Dr D Brieger lives with his wife at 10 Northcote Street which adjoins the rear boundary of the subject site. He is a cardiologist and his wife is an emergency physician who works on a Monday evening. On a Tuesday, he said that his wife's sleep is disturbed because of the noise from children in the afternoon when they are in the rear yard. On occasions when he has been on call himself at night, his sleep has also been disturbed during the day. He said that while the present situation could be accepted, he objected to an increase in the number of children which would increase, he thought, the volume of noise from the rear yard.
7 In relation to outdoor activities, Mrs Zarfati in response to the evidence of Dr Brieger said that in the morning there would be only a half an hour increase in the time of outdoor activities: one group of 13 children would be outside in the morning for a half an hour, after which the other group of 15 children would be outside for a half an hour. In the afternoon, the present situation is that children are outdoors for one hour. Mrs Zarfati said that it was proposed that the children would be taken into the rear yard for supervised activities for a total period of one and a half hours (that is, there would be two separate groups of children, each group being in the rear yard for only forty-five minutes). Conditions of consent could be imposed to this effect.
8 Other residents who objected were also concerned about the increased noise that would result from the proposal and about increased traffic and parking in Lancaster Road.
9 Mrs T Gilerman and her husband live next door on the western side of the subject site at No. 5. She is a chartered accountant who works from home on one or two days a week. Her office/bedroom is at the upper level at the rear of her house and overlooks the rear extension of the building on the subject site. At the present time, this extension is where the dwelling is but it will be converted, if consent is granted, for use as part of the childcare centre for the additional children. Mrs Gilerman also overlooks the rear yard of the childcare centre where the outdoor activities occur. She said that when she is working from home she has to have her windows closed in order to concentrate. She also said that noise from within the two rooms of the childcare centre that face her boundary is heard in her kitchen and also in one of her front rooms where her young child plays or occasionally sleeps during the day. She had not complained to Mrs Zarfati about the noise because when she and her husband moved to No. 5 in 1999, they were aware of the approval of the childcare centre. However, she and her husband were opposed to an intensification of the use involving 28 children at the centre.
10 Mr & Mrs Kuo of 3 Lancaster Road also gave evidence opposing the proposed intensification of the childcare centre operations. The rear part of their house extends further to the rear than the adjoining house of Mr & Mrs Gilerman, so that there is a direct line of sight to the rear part of the applicant’s building from the Kuos’ lounge room (which is at the rear of their house) and from their rear balcony. They sometimes hear noise from the childcare centre when they are on their rear balcony or down at their swimming pool level. They accept the childcare centre with its present operations but are opposed to the increased number of children. They referred to the difficulty sometimes of driving out of their garage because of the cars parked on the street and they were of the view that the increased number of children will result in increased traffic and parking.
11 I also heard brief oral evidence from Mr J Boyd, Mr P McGrath and Mrs Hammer who live respectively at 6, 12 and 22 Lancaster Road.
12 In his written objection Mr Boyd said that his house does not have a garage or car space. His house and many of the dwellings on the northern side of Lancaster Road are built on a raised embankment above the road. He said that at least twice a week when he goes to his daughter’s place to baby sit her children, he has been unable to find a parking space near his home when he returns. In the afternoon between 4 pm and 5 pm when children are being collected from the childcare centre, a four-wheel drive vehicle has often doubled parked, he said.
13 Mr Gilerman said that when dropping off their children at the childcare centre, parents often park both sides of his garage entrance, which affects visibility. He said that at least once a week parents park across or halfway across his driveway blocking his entrance.
14 Likewise, Mrs Kuo said that often a car is parked partly across her driveway while a child is being dropped off at the childcare centre. She observed that between Old South Head Road and Gilbert Street there are 29 dwellings in Lancaster Road (including 4 units) and of these 16 dwellings do not have on-site parking but have to find space for parking on the street and some households have not only one car but two cars.
15 The evidence of the traffic engineers was that in the stretch between Gilbert Street and Old South Head Road, there were 29 dwellings including 4 units of which 11 do not have carparking spaces.
16 At this point of my judgment I should refer to Waverley Local Environmental Plan, in particular to cl 10(2) and to the objectives of the 2(b) Residential – Low Density zone within which the subject site is located:
10(2) The Council shall not grant consent to the carrying out of any development within a zone unless the Council is satisfied that the development meets one or more of the objectives of the zone.
- Zone No 2(a) Residential — Low Density
Objectives of zone
The objectives of this zone are:
(a) to allow for housing only in the form of dwelling-houses and boarding houses,
(b) to maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling-houses, and
(c) to allow certain non-residential uses of low intensity which are compatible with the character and scale of low density housing.
17 Reference was also made in the evidence to council’s development control plan that envisaged a drop-off and pick-up area on the site for a childcare centre.
18 The expert traffic engineering evidence was given by Mr C McLaren retained by the council and by Mr D Van den Dool retained by the applicant. They prepared a joint statement of the evidence which I incorporate in my judgment:
Both Messrs McLaren and Van den Dool agree that:
1. The road widths as measured by Mr McLaren in his statement of evidence are correct.
2. The spare kerbside capacity in Lancaster Road is at least 2 to 3 spaces.
3. The increased on-street parking demand will be for at least 2 spaces, subject to the garage accommodating 2 staff cars. Mr McLaren does not accept that the spare capacity should be fully absorbed by the proposed development. Given the early end time of 5 pm compared to later end times of child care centres, the kerbside demand could be higher at times. If spaces are not available in a convenient location, then it is expected that cars associated with the proposal will park across driveways and double park, thereby increasing safety risks. These activities have been observed to occur currently. Mr Van den Dool believes that the spare capacity can be fully utilised by the proposed development. The agreed spare capacity of 2-3 spaces is at the lower end of the range and at his observations indicate that at times many more spaces are available. Also, the typical demand for parking spaces is for short periods of time and typically only occur when many residents have not yet returned home from work and other daytime activities.
19 The joint statement as can be seen is quite short. It is necessary to refer to other particulars concerning the parking and traffic situation. As mentioned in the joint statement, the engineers now agree that the measurements of Lancaster Road are as set out in the statement of Mr McLaren at p 2 of exhibit 3, which reads:
…the measured widths of Lancaster Road for the segment between Old South Head Road and Gilbert Street are as follows:
(a) 7.3 m (kerb to kerb) for the segment from Old South Head Road to the end of House # 1 Lancaster Road (i.e. approx. 40 metres from Old South Head Road). "No Standing" restrictions apply along the southern kerb line of this segment, hence parking only available along northern kerb line.
(c) 7.4 m (kerb to kerb) for the segment from House # 9 to Gilbert Street (i.e. approx. 30 metres). Although "No Standing" restrictions do not apply along the southern kerb line of this segment, Council should install it for traffic consistency, to prevent parking in the same manner that exists at the western end of Lancaster Road. It should also be installed for traffic flow efficiency and road safety reasons.(b) 10.15 m (kerb to kerb) for the segment from House # 1 to end of House # 7 Lancaster Road (i.e. approx. 44 metres). This segment allows parking on both sides of the road, however, there are three driveways in the widened segment on the south side of the road and a further two driveways (one each end) on the transitional kerb line segments where the road changes from a 7.3 m to a 10.1 5 m carriageway.
20 The volume of traffic passing along Lancaster Road is also of significance when examining the joint expert report. Mr McLaren said:
- The only instance where a single traffic lane is acceptable between two kerbside parking lanes occurs when peak hourly flows are less than 30 vehicles per hour. This is a typical rule of thumb accepted by transport planning professionals and is contained in cl 3.2.2 of AS2890.1-2004. The traffic report [of Mr Van den Dool] quotes a recorded peak hour volume of 111 vehicles per hour from 7.45 am to 8.45 am.
21 As appears from the joint statement, there was a difference of opinion as to whether the proposed development would be acceptable in not providing any off-street parking for the parents and guardians of the children. It has to be taken into account that at the present time, there is a garage which is available for use by the residents who live in the rear part of the building on the site. The proposal is that that garage, if consent is granted, would be used solely for parking by two staff members.
22 There will be a total of four staff members for the 28 children. It would be possible for a condition of consent to require the owner of the subject site to make available the parking space across the frontage of the garage after staff had parked their cars in the garage. This would then enable two cars of parents to park outside the frontage of the subject site, which is fairly narrow at 12.1 m. A third car could park across part of the frontage of the garage on the subject site and, depending on where the other two cars are parked, the third car might also extend across part of the frontage of the adjoining property at No. 5 but would not block any access to a garage at that site. These three carparking spaces would be in the indented part or wider part of Lancaster Road referred to at par (b) of the passage I quoted from Mr McLaren. However, there is a big demand for on-street parking, and it could be that at different times there would be a space or two free on the northern side towards Gilbert Street. But having regard to the evidence of the neighbours, there would appear to be problems occurring at different times because parents (perhaps rushing to go elsewhere) seek to park closer to the subject site than in spaces that might be available near the Gilbert Street intersection.
23 With an increased number of children and notwithstanding the availability of two spaces for staff in the garage of the subject site, it seems to me that there will be an exacerbation of some of the problems that are experienced by the neighbours at the present time.
24 I have considered the community need for such a facility, and certainly that has to be taken into account. However, where there is a substantial increase (in this case, over double) the number of existing children, the whole of the proposed operation of the childcare centre needs to be looked at. In other circumstances where the road width might be wider for a longer stretch and where there might not be such a demand for on-street parking, then on-street parking could more readily be tolerated.
25 There is also the question of child safety to be considered. Instances have been observed by the residents where mothers (rushing perhaps to deliver their children) park in ways that are not safe. Having regard to the volume of traffic that passes along the street, it seems to me that the proposed number of 28 children would be unacceptable because there is not available sufficiently convenient and safe parking on the site and the on-street parking availability is at times limited. Admittedly, there are also times (which it seems occur more so in the morning than at the afternoon pickup time) where there might for example be 8 spaces available in the street, and I have taken that into account.
26 The likely need for parking spaces for 28 children is one space per four children, so that a total number of seven spaces would be required according to the Guidelines of the Roads and Traffic Authority and that includes staff parking. In the circumstances of this case, I am of the opinion that seven parking spaces would be required, and in general those spaces cannot be conveniently and safely provided on the street, although at times there may be some spaces available. The present application is different from Rupert v Manly Council [2004] NSWLEC 276. In that case, I found that there was likely to be no increased adverse impact in approving an increase of an additional four children over the existing 15 children at the centre because, among other things, a turntable was to be provided on the site to assist the parking situation, and some parking for parents would occur on the site.
27 In his written statement Mr O’Dowd said in several places that in his view there would be a reduction in the intensity of the use of the site if consent was granted, because the proposed use would only operate from 8.30 am to 5 pm Monday to Friday and the centre would be closed for the four week period over Christmas, and there would be no residential use of the site. However, it is not a residential use of the subject site that is having some impact on residential amenity at the present time. In my opinion, the impact from the childcare centre as presently existing, together with the proposed increased numbers of children, would be overall a much more intensive use of the site than the present partial use of the site for the childcare centre for 13 children and the partial use for the residence.
28 From my limited observation, I have found that the present operation of the childcare centre is well run. In the circumstances where a low-intensity non-residential use of the site is permissible with consent, the noise generated by 13 children in the rear yard or from within the dwelling would not appear to be unreasonable.
29 I would have concerns, though, about the increased noise if consent were granted for the proposed number of 28 children. However, a conditional consent could limit the times during which the children would be in the rear yard.
30 I am not altogether certain whether the development as proposed would be prohibited by the objectives of the Residential 2(a) zone. Objective (a) is not relevant. Objective (b) refers to amenity and existing characteristics of localities predominantly characterised by dwelling houses. I do not think that this objective should be limited merely to the physical form of buildings in the locality but would extend to wider matters such as the use of those buildings.
31 The proposed development would not overall improve the amenity for immediately adjoining neighbours if they were 28 children at the premises, mainly because of the parking and traffic situation.
32 In relation to zone objective (c), in the circumstances of this case at least as a matter of merit it seems to me that the proposal would not be compatible with the character and scale of low-density housing in this particular stretch of Lancaster Road, which has two relatively narrow sections of carriageway each side at the subject site.
33 Towards the end of the hearing, the applicant submitted that the development application could be amended to apply for 21 children. However, there was no canvassing in the lay or expert evidence of any different number of children than 28. I would not like to express any opinion about whether there could be an acceptable increase over the currently approved numbers, in view of the fact that there were so many persons who were interested in the application and who made submissions and who would have to be notified of such an amended application for a substantially increased number of children over and above the approved 13 children, even though 21 children would be substantially less than the presently proposed 28. While the Court has had a recent practice of more readily accepting amended applications, in this particular case it might be better (if the applicant so decides) to lodge a fresh application with the council that could be advertised and dealt with at council level in the first instance.
34 Accordingly, I am of the opinion that this appeal should be dismissed. The orders of the Court are:
1. The appeal be dismissed.
2. Costs reserved. (The Court notes the undertaking of the Council to pay the applicant's costs thrown away by the adjournment to enable the applicant's expert to respond to the late service of the council's traffic engineer's report.)
2, The exhibits, other than the expert reports, may be returned.
- ___________
A J Nott
Commissioner of the Court
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