Childcare Developments Australia Pty Ltd v Camden Council
[2014] NSWLEC 1016
•21 January 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Childcare Developments Australia Pty Ltd v Camden Council [2014] NSWLEC 1016 Hearing dates: 21 January 2014 Decision date: 21 January 2014 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld
Catchwords: DEVELOPMENT MODIFICATION - Child care centre - Increase in number of children - Required number of off street parking spaces Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Children's Services Regulation 2004
Children (Education and Care Services) Supplementary Provisions Regulation 2004Category: Principal judgment Parties: Childcare Developments Australia Pty Ltd (Applicant)
Camden Council (Respondent)Representation: Mr P Rigg, Norton Rose Fulbright Australia (Applicant)
Mr C McFadzean, Shaw Reynolds (Respondent)
File Number(s): 10906 of 2013
EX TEMPORE Judgment
This is an application made under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) in relation to the deemed refusal of an application made under s 96 of the Act to modify a development consent for a child care centre at 17 - 43 Seton Street, Oran Park. Development Application No 703/2012 approved the construction of a single storey child care centre for 120 children with car parking, landscaping, signage and associated works on 20 March 2013. This application to modify that consent was lodged on 27 September 2013. The modification sought was to increase the number of children from 120 to 130, and to delete three parking spaces from the 39 parking spaces approved in the original development consent.
The Council initially contended that insufficient off street car parking was proposed, based on the requirements of the Camden Development Control Plan 2011 (the DCP), which requires 42 off street parking spaces instead of the 36 proposed in the modification application. The parties have now reached agreement that the modification can be approved and are seeking orders by consent. The issue for the Court is whether it is both lawful and appropriate to make the orders sought by the parties.
The site has an area of 3,165 square metres and is generally rectangular in shape. It occupies an entire block with frontages to Peter Brock Drive, Moffat Street, Seton Street and Central Avenue. The surrounding development comprises a residential exhibition village to the west, detached dwellings to the south, a school and recreation area to the east, and the future Oran Park Town Centre to the north of the site.
There is no dispute that the development for the purposes of a child care centre is permissible with consent under State Environmental Planning Policy (Sydney Region Growth Centres) 2006 or that the proposed modification is substantially the same as the consent as originally granted by the council. The relevant provisions of the DCP are in Part B5 Access and Parking, and the relevant objectives include:
3. Ensure a balance is achieved between the needs of proposed development and the needs of vehicular and pedestrian traffic
...
7. Ensure that adequate provision is made for off-street parking of passenger and service vehicles generated by new developments and redevelopments.
The numerical controls provided under the DCP for a child care centre are that there be one car parking space for employee plus one car parking space per six children; one of the car parking spaces must be designed for people with a disability; and for the for the purposes of the calculation the number of employees is based on the staffing requirements of the Children's Services Regulation 2004.
Clause 53 of the Children (Education and Care Services) Supplementary Provisions Regulation 2004 provides the staff to child ratios. Those ratios applied to the development as now proposed would be to require for the 40 children aged under 2 years, 10 employees, for 40 children aged between 2 and 3 years, five employees, and for 50 children aged between 3 and 6 years, 5 employees. That calculation results in a total of 20 car parking spaces required for staff and 22 for the children of the relevant ages proposed by the development, leading to a total of 42 spaces, in contrast with the 36 proposed as a consequence of this modification.
The issue is whether it is appropriate to approve the modification notwithstanding the non compliance with the numeral requirements of the DCP. The evidence as to the adequacy of the parking provision comes in the form of a report dated 19 September 2013 prepared by Mr Craig McLaren, traffic engineer, provided to the Council with the modification application (exhibit B). In that report Mr McLaren addressed the requirements of the DCP and also analysed the requirements of Roads and Maritime Services (RMS) for car parking for child care centres.
In considering the requirements relevant to child care centre developments, Mr McLaren noted that in his opinion the reduction of three spaces could be justified given the proximity to expected future public transport corridor on Peter Brock Drive. That would reduce the car parking requirement if calculated under the RMS requirements to 30 spaces. In addition, Mr McLaren noted that the site is located in the southwest growth centre which will see a rapid provision of public transport infrastructure as well as other facilities.
Mr McLaren analysed the employee requirements over the period of the day when it is expected that the child care centre will be operating, and on his calculations determined that the peak of 20 staff members would be during the middle of the day as opposed to the peak morning and afternoon drop off and pick up requirements. Based on his calculations of the employee breakdown over the day, during the morning 29 spaces would be required including 22 for parents and 7 for staff, while in the afternoon it would be 36, 22 for parents and 14 for staff.
Mr McLaren gave oral evidence, in which he pointed to the proximity of the site to the town centre where it could be expected that employees would use public transport or users of the child care centre could well have employee parking elsewhere. In addition, the child care centre the subject of these proceedings occupies the entire block, with a 94.6m street frontage to Moffat Street. In Mr McLaren's opinion it is significant that this is the only development that would be attracting demand for on street parking in this area, and there is the additional flexibility in street parking that is proposed to be achieved through the addition of condition 5(12) which would require, before the release of the Occupation Certificate, that the applicant submit engineering plans to provide appropriate parking restriction signage, including three hour parking for curb side parking on Moffat Street between 8am and 6pm, Monday to Friday.
Having regard to Mr McLaren's evidence as to the likely demand for car parking generated by this development, and its proximity to the town centre and location, I am satisfied that it is appropriate in the circumstances of this case not to require compliance with the numerical control specified in the DCP, and that adequate provision is made for off street parking as required by the objectives in Part B5 of the DCP.
Accordingly I am satisfied that it is both lawful and appropriate to make the orders sought by the parties. By consent:
1. The appeal is upheld;
2. Modification Application No 703/2012/2 to modify Development Consent No 703/2012 for the purpose of a child care centre at 17-43 Seton Street, Oran Park, is determined by approving the modifications set out in Annexure A;
3. As a consequence of order 2, Development Consent No 703/2012 is now subject to the consolidated modified conditions of Development Consent set out in Annexure B; and
4. The exhibits, other than exhibits A, B and 1, are returned.
Linda Pearson
Commissioner of the Court
Decision last updated: 04 February 2014
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