Bechara v Parramatta City Council

[2006] NSWLEC 177

Land and Environment Court

of New South Wales

CITATION:	Bechara v Parramatta City Council [2006] NSWLEC 177
PARTIES:	APPLICANT Joseph Bechara RESPONDENT Parramatta City Council
FILE NUMBER(S):	11262 of 2005
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of an existing dwelling and associated structures and the construction of a child-care centre - traffic/ access - streetscape/ character - solar access - noise
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2001
DATES OF HEARING:	14/03/2006
DATE OF JUDGMENT:	04/13/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr J Maston, barrister SOLICITORS Greenaway & Tohme RESPONDENTS Mr P Marincowitz, solicitor SOLICITORS Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

13 April 2006

11262 of 2005 Joseph Bechara v Parramatta City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA 468/2005 by Parramatta City Council (the council) for the demolition of an existing dwelling and associated structures 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.

The proposal

4 The proposal is to demolish all existing structures on the site and erect a two-storey building for a child-care centre. Childrens play areas are provided at the front and rear of the building with a basement car park for 19 vehicles provided off Bettington Rd.

5 The Plan of Management provides the following details for the operation of the centre:

• the enrolment will be 70-75 children, 30 of which may be under 2 years old,
• hours of operation are 7 a.m. to 6 p.m. Monday to Friday,
• a minimum of two staff will open the centre and a further two staff to close the centre,
• 10-12 primary staff, mostly working between 8.30 am and 5:30 p.m.
  
Relevant planning controls

6 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.

7 Parramatta Development Control Plan 2001 (DCP 2001) applies however the controls are limited to the provision of off street car parking. Part 4.3 (Amenity Issues), Part 4.4 (Design Elements) and Part 5.3 (Single Dwellings) relate to single dwellings and are used to consider the proposal against the likely character created by single dwellings.

The issues

8 The council filed a Statement of Issues containing 17 issues although following the submission of amended plans and additional conditions, the council did not press the issues relating to the south western boundary setback (Issues 4 and 5), noise (Issue 7), visual privacy (Issue 8), internal layout (Issue 14) and landscaping (Issues 15 and 16). The remaining issues can be grouped into following main areas:

1) whether the proposed development provides adequate car parking, safe entry and exit to the car park and the impact on traffic flows on Bettington Rd. (Issues 9 to 13),
2) whether the proposed development creates unacceptable loss of solar access to 90 Bettington Rd (Issue 6),
3) whether the proposed development is inconsistent with the existing character of the area (Issues 1 to 3), and
4) whether any matter raised by resident objectors warrant the refusal of the application (Issue 17).
The evidence

9 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.

10 Mr Craig Hazell provided additional traffic expert evidence for the applicant.

11 The following local residents provided evidence on site:

• Mr Gary Weir of 90 Bettington Road,
• Ms Sheila McGibbon of 13 Niblick Crescent,
• Ms Theresa Flockhart of 25 Niblick Crescent,
• Mr Peter Flockhart of 25 Niblick Crescent,
• Mr Robert Shackleton of 31 Niblick Crescent,
• Mr Brian Moses of 33 Niblick Crescent,
• Mr Ken Jones of 95 Bettington Road,
• Ms Kerry Small of 86 Bettington Road, and
• Ms Virginia Brown of 43 Niblick Crescent.
  

12 The main issues, not raised by the council, relate to:

• noise, and

• need for a further child-care centre.

Car parking and traffic

13 The issue of car parking and traffic was the principle issues raised by the council and the local residents in the proceedings. The specific concerns relate to adequacy of the off-street car parking, ingress and egress to the carpark, and the impact on traffic along Bettington Road.

Adequacy of off-street carparking

14 The proposal provides for a total of 19 car parking spaces within the basement area. All but one space are in a stacked pair configuration. Mr Hallam and Mr Hazell agreed that the provision of 19 car parking spaces was adequate for the number of children attending the centre but they disagreed on the adequacy of the stacked parking arrangement.

15 Mr Hallam states 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. With almost half the spaces in a stacked configuration and accepting that some staff parking might be arguably provided at the rear of the stacked pairs, the extent of stacked parking is still too great for the location.

16 Mr Hazell relies on surveys undertaken at child-care centres at Kellyville, Glenmore Park and Regentville. These surveys provided the number of parents that drop-off/pickup in the car park and on street and the duration of stay. The number of vehicles parked on site was recorded at 10 or 15 minute intervals. The Kellyville site is the most relevant site as it provides for 76 children and 11 staff. This site recorded the following relevant statistics:

• the peak morning parking demand (including on street parking) was 15 vehicles between 9.05 a.m. and 9.20 a.m.
• the peak afternoon parking demand (including on street parking) was 13 vehicles at 3.20 p.m.
• the peak morning car parking on site was 13 vehicles at 9.20 a.m.
• the peak afternoon car parking on site was 13 vehicles at 3.10 a.m.
• the average vehicle stay was 7.4 minutes in the morning and 9.5 minutes in the afternoon.
  

17 In considering the proposed development, and assuming a length of stay of 10 minutes, Mr Hazell calculates each car space has the ability to cater for six vehicles per hour. Therefore the 10 car spaces that are available have the potential to cater for approximately 60 cars per hour or 120 trips per hour. This level of traffic is approximately twice the peak hour traffic generation suggested by Mr Hallam.

18 Mr Hazell further states that if the Court was to approve the application additional conditions could be imposed to assist with the management of the car parking arrangements. These are:

• a restriction on staff vehicles entering and leaving the basement car park during peak drop-off and pickup times,
• staggered drop-off and pickup times for children, and
• a condition of enrolment that dropping off and picking up of children is to be done as quickly as possible.
  

19 In considering the competing evidence of Mr Hallam and Mr Hazell, I am more persuaded by the evidence of Mr Hallam for a number of reasons.

20 Even though the car park may theoretically accommodate the dropping off and picking up of children based on Mr Hazell’s analysis, I do not accept that this approach can be relied upon in this case because of the particular site characteristics. To rely on a consistent pattern of dropping off and picking up children over the peak times is fundamentally unsound (even accepting some additional capacity) when it is based on a number of unrelated and independent traffic movements to and from the site in the morning and in the afternoon. It is likely that there will be times when the car park is at capacity and with no on street parking facilities, unacceptable and unsafe vehicle movements could easily occur. This risk is exacerbated, as persons attending the site would not be aware that the car park was at capacity until they had entered the basement car park. There is also a heightened level of caution when young children are involved.

21 The width and double centreline of Bettington Road precludes parking and while Lind Avenue could be used, Mr Hallam states that this would be unacceptable because of the volume of traffic that parents with young children would need to cross. I did not understand Mr Hazell to disagree with this conclusion. .

22 I also note that the Plan of Management states that two employees would open and close the centre. While these two employees could comfortably use the stacked car parking spaces, the remaining employees would presumably arrive during the peak drop-off and pickup times and access to the remaining stacked car parking spaces would only occur when the accessible car space is not being used for dropping off and picking up children. Again, the potential conflicts within the basement car park and access driveway have an unacceptably high potential to create unacceptable traffic movements considering the inability to address this conflict outside the site. Optimally, the spaces set aside for staff should have independent access to those spaces used for dropping off and picking up children.

23 While not raised by Mr Hallam, I am not convinced that adequate safety is provided in the basement carpark because of the relatively blind entry and the need to manoeuvre in the carpark. Again, this concern is heightened when young children are involved and particularly when it is to be used as the only drop-off and pickup point for the centre.

24 Even though Mr Hazell indicated that the three conditions designed to assist with the management of the car parking arrangements were not necessary for the approval of the application, I do not accept that they could be reasonably imposed as conditions of consent. Compliance with the conditions clearly relies on parties that cannot be controlled by applicant.

25 The potential impacts of the car parking layout are significant and warrant the refusal of the application for this reason alone. For completeness I will briefly deal with the remaining issues.

Ingress/egress to carpark

26 Mr Hallam states that the critical sight line is 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 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 below the crest. Taking into account the high traffic flows and width of the road, Mr Hallam recommends that a speed reduction device, such as a speed platform, be installed in Bettington Road in a location to be determined by the council but in the general vicinity of the golf club parking area. On this basis, ingress and egress to the car park is acceptable and is not a matter that would support the refusal of the application.

27 With general compliance with Australian Standard AS 2890.1-2004 and the installation of a speed reduction device, I accept that the development adequately addresses ingress and egress to the car park.

Impact on Bettington Road

28 Mr Hallam considered this issue through an analysis of the driveway junction with Bettington Road using traffic count data from Bettington Road and site traffic generation based on the rates in the Roads and Traffic Authority document Guide to Traffic Generating Developments. Using the INTANAL program to model the data, Mr Hallam concludes that, subject to the provision of a speed reduction device in Bettington Road just north of the site to reduce traffic speeds, the level of service at the access point is satisfactory and the issue is not a valid reason to refuse consent.

29 I accept this conclusion based on the assessment carried out by Mr Hallam.

Solar access to 90 Bettington Rd

30 Clause 4.1.1 of a DCP 2001 provides that dwellings "must 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".

31 Mr Moody addresses the question of solar access to the adjoining property and concludes that solar access to the private open space area satisfies the requirements in DCP 2001.

32 In relation to the impacts of overshadowing on the north facing windows, Mr Moody notes that these windows comprise a laundry, garage, first floor bedroom window and ground floor kitchen. He states that the loss of solar access to the kitchen window is of concern however it was not sufficient to warrant the rejection of the application as the proposed side boundary setback is equal to or much greater than the requirements in DCP 2001. When advised that the first floor bedroom window was used as a part-time office for the owners of the property, Mr Moody did not resile from his overall conclusions that the proposed building did not create unacceptable levels of solar access to the adjoining dwelling.

33 In his assessment concern was raised over the impact on the rear patio however with the submission of amended plans Mr Moody notes that this area will achieve some sun between 10 am and midday whereas the previous proposal resulted in no sun to this area. He states that this is acceptable considering the setbacks that are either equal or much greater than council's DCP 2001 requirements.

34 I agree with conclusions reached by Mr Moody. Even though the proposed use is not residential, the building form takes its design parameters from the development standards for residential buildings in DCP 2001. The proposal satisfies the height and setback standards and the degree of overshadowing is largely the result of the poor orientation of lots rather than any specific design feature. I accept that reasonable attempts have been made, including amendments to the upper level of the building adjoining the common boundary, to maintain a reasonable solar access to the adjoining property.

Existing character of the area

35 Clause 16(3) of 2001 states that consent must not be granted unless "the development is consistent with the objectives of the zone". The relevant objectives are:

(a) to enhance the amenity and characteristics of established residential area, and
(b) to encourage redevelopment of low density housing forms, including dual occupancy development, where such redevelopment does not compromise the amenity of the surrounding residential areas, or the natural and cultural heritage of the area, and
(c) to ensure that building form, including that of alterations and additions, is in character with the surrounding built environment, and

36 Clause 4.4 of DCP 2001 provides requirements for streetscape, building form, building design and appearance and materials and colours.

37 Mr Moody was initially concerned over the floor space ratio and the height and bulk and scale of the south western wall of the proposed building however with the submission of further plans he states that his concerns have been adequately addressed. The amended proposal now provides for a floor space ratio of 0.5:1 that is in compliance with the floor space ratio for dwelling houses under DCP 2001. The amended plans also significantly increase the setback, articulation and modulation of the south western wall thereby reducing its overbearing nature.

38 Mr Moody also notes that the council officers assessment states that the proposed building complies with the LEP 2001 and DCP 2001 requirements for single dwellings in relation to front, side and rear setbacks, soft soil zone, private open space, and number of storeys.

39 I accept the conclusions of Mr Moody. While the proposed development is designed to cater for a form of development that is not residential, the proposed use is nonetheless a permissible use within the zone. I acknowledge that reasonable attempts have been made to provide a development that is consistent with the character of the existing and proposed residential area and as such is consistent with the objectives of the zone pursuant to cl 16(3) of LEP 2001 and the relevant requirements in cl 4.4 of DCP 2001.

Matters raised by objectors
Noise

40 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.

41 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.

42 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.

Need for a further child-care centre

43 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.

Orders

44 The Orders of the Court are:

1) The appeal is dismissed.
2) DA 468/2005 for the demolition of an existing dwelling and associated structures and the construction of a child-care centre at 92 Bettington Rd., Oatlands is refused.
3) The exhibits are returned.
_____________
G T Brown
Commissioner of the Court