Design 23 Pty Ltd v Randwick City Council

[2013] NSWLEC 1112

Land and Environment Court

New South Wales

Medium Neutral Citation:

Design 23 Pty Ltd v Randwick City Council [2013] NSWLEC 1112

Hearing dates:

27 June 2013

Decision date:

28 June 2013

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

By consent of the parties, the Court orders that:

1.The appeal be upheld.

2.Development Application No. DA/584/2012 for alterations and additions to the existing dwelling on the land at 158 Moverly Road, South Coogee and to change the use of the said dwelling to a childcare centre with the capacity for 46 children operating between the hours of 8.30am to 5pm on weekdays is determined by granting consent to the Application, subject to the conditions in Annexure "A".

3.The exhibits, except Exhibits 1, 3, 4, A and B, may be returned.

Catchwords:

DEVELOPMENT APPLICATION - childcare centre. Consent orders. Traffic and pedestrian safety

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Randwick Local Environmental Plan (Consolidation) 1998
Randwick Local Environmental Plan 2012

Category:

Principal judgment

Parties:

Design 23 Pty Ltd (Applicant)

Randwick City Council (Respondent)

Representation:

Mr A Seton of Marsdens Law Group (Respondent)

File Number(s):

10282 of 2013

Judgment

1. This is an appeal against the refusal by Randwick City Council (council) of a development application (DA/584/2012) for alterations and additions to an existing dwelling at 158 Moverly Road, South Coogee (site), and to change the use of the dwelling to a childcare centre for 46 children with parking for seven cars.

1. The parties are seeking consent orders from the Court as the traffic experts agree that the amended plans and conditions address the traffic and pedestrian safety issues that were in dispute. The parties agree that the intent of the Court's Practice Note for notification of consent orders has been satisfied.

The site and its locality

1. The site is located on the northern side of Moverly Road, opposite its intersection with Coldstream Street. It has an area of 663.9sqm and is developed with a detached dwelling with a garage.

1. The site adjoins a two storey dwelling (156 Moverly Road) to the east and a crown reserve with council car parking to the west. The rear of the site adjoins vacant land near a Department of Housing development and Randwick General Cemetery. The opposite side of Moverly Road is detached dwellings with South Coogee Public School to the west and neighbourhood shops in Malabar Road.

Planning framework

1. The site is within Zone No 2A (Residential A Zone) under Randwick Local Environmental Plan (Consolidation) 1998 (RLEP 1998). The proposed development is permissible with consent.

1. Local Environmental Plan 2012 (RLEP 2012) commenced after the development application was lodged. It includes a savings provision (cl 1.8A) which requires the application to be considered as if RLEP 2012 had not commenced. The site is within the R2 Low Density Residential zone and the development would remain permissible with consent under RLEP 2012.

1. Randwick Development Control Plan- Parking (DCP) and Randwick Child Care Centres Policy apply to the development.

Evidence

1. The Court visited the site and surrounding area. The objectors were informed at the commencement of the hearing of the council's agreement to enter into consent orders and the proposed conditions. The objectors were given the opportunity to comment on the development and amendments to the car park, driveway and pedestrian access.

1. The oral objections on site and the written objections made in response to the notification of the application generally reflect the contentions originally raised in the Statement of Facts and Contentions filed by the council on 15 May 2013. The key concern is that the site is not a safe location for a childcare centre. The objectors pointed out that Moverly Road is a main collector road and that, in the vicinity of the site, Moverly Road slopes, is narrow and curved with a raised verge and vegetation. In their opinion, this results in insufficient sight distance for cars leaving or approaching the site and is dangerous for both cars and pedestrians. Furthermore, the site is directly opposite the intersection with Coldstream Street, which is a confusing and dangerous intersection due to the island which divides the road. The footpath adjoining and near the site is inadequate and unsafe for pedestrians due to its narrow width.

1. The objectors considered that there is inadequate parking provided on site and that people parking nearby would need to cross the road to access the centre. Furthermore, they were concerned that the car park on site could not accommodate cars in the peak drop off and collection periods and that cars would need to queue in the driveway or reverse into the street. The objectors were principally concerned that characteristics of the street, the footpath, the design of the car park and the nature of a childcare centre would result in an unsafe environment for children and traffic.

1. The Court heard traffic evidence from Mr G Kennedy, for the council and Mr M Logan, for the applicant. These experts had prepared a joint report which addressed the contentions raised by council. They agreed:

the required (50m) and desirable (74m) sight distance under AS 2890.1.2004 was achieved;

the provision of 7 off street parking spaces is acceptable for the childcare centre and that there is spare on street parking capacity within close proximity of the site;

the car park and driveway layout allows two way traffic and will avoid the potential for queuing on Moverly Road;

the car park complies with AS 2890.1.2004;

the footpath within the car park is separated by bollards from the cars and provides safe and acceptable pedestrian access to the centre.

1. The experts recommended that the pinch point in the driveway be widened so that it has a minimum width of 5.5m. They also recommended that to improve pedestrian connectivity, a concrete footpath be provided between the pedestrian entry of the site and the bus stop near Malabar Road. The applicant has agreed to the imposition of conditions to this effect.

1. There were no matters on which the experts disagreed and the matters raised by the objectors did not alter their opinion regarding traffic and pedestrian safety of the proposal. In particular, they addressed the potential for cars to reverse into the street if the car park was full. In their opinion, this is unlikely to occur given the number of spaces provided, the number of children, the turnover time for car spaces and the area available for queuing on site. In the unlikely event that a car did choose to reverse, Mr Kennedy stated that the sight distance requirements would still be met and it would be a similar movement to that undertaken by previous occupants of the site and from houses in the street.

Findings

1. The traffic experts agree that the proposal in the amended plans complies with the parking requirement of the DCP and that safe access can be provided to and from the site for both cars and pedestrians. They agree that the contentions raised by council have been addressed by the amended plans and the proposed conditions, which have been agreed to by the applicant.

1. Furthermore, council staff reviewed the concerns of the objectors and their supporting information, including expert reports made in response to the original application and were satisfied with the traffic safety issues and recommended approval of the application.

1. I accept the evidence of the experts and am satisfied that the potential safety issues for traffic and pedestrians resulting from the application have been adequately considered and addressed through amendments to the plans and conditions. The contentions in dispute between the parties have been resolved and the consent orders may therefore be granted.

Orders

By consent of the parties, the Court orders that:

1. The appeal be upheld.

2. Development Application No. DA/584/2012 for alterations and additions to the existing dwelling on the land at 158 Moverly Road, South Coogee and to change the use of the said dwelling to a childcare centre with the capacity for 46 children operating between the hours of 8.30am to 5pm on weekdays is determined by granting consent to the Application, subject to the conditions in Annexure "A".

3. The exhibits, except Exhibits 1, 3, 4, A and B, may be returned.

Annelise Tuor

Commissioner of the Court

Annexure "A"

Decision last updated: 28 June 2013