Doodha v Parramatta City Council - [2008] NSWLEC 1482

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Doodha v Parramatta City Council [2008] NSWLEC 1482

PARTIES:
APPLICANT
Jahangir & Kashmira Doodha
RESPONDENT
Parramatta City Council

FILE NUMBER(S): 10761 of 2008

CORAM: Hoffman C

KEY ISSUES: Development Application :- Child Care Centre, locational requirements, parking & traffic, streetscape character, building form & massing, number of children, outdoor recreation space

LEGISLATION CITED: Environmental Planning & Assessment Act 1979
Parramatta Local Environmental Plan 2001
(Amendment No.13)

CASES CITED: Zhang v Canterbury City Council [2001] 115 LGERA 373
Stockland Developments Pty Ltd v Manly Council [2005] 136 LGERA 254

DATES OF HEARING: 13/11/2008

DATE OF JUDGMENT:
5 December 2008

LEGAL REPRESENTATIVES:
APPLICANT
Dr Berveling, Barrister
RESPONDENT
Mr Marincowitz, solicitor
of DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

5 December 2008

10761 of 2008

DOODHA, JAHANGIR AND ANOR v PARRAMATTA CITY COUNCIL
JUDGMENT

1 Commissioner: This is Class 1 appeal dealt with by a s34 conciliation conference under the Land & Environment Court Act 1979. The conference was held on site and in Court on 16 October and 13 November 2008. On 13 November the parties terminated conciliation and asked me to Hear the matter forthwith under s 34(4)(b)(i), the matters discussed during the conference being admissible in the Hearing.

The proposal

2 The proposal is for the demolition of the existing dwelling and associated structures, tree removal and construction of a childcare centre for 41 children (during conference reduced to 39). Vehicular access is proposed off both Midson Road and Francis Street with 10 on-site car parking spaces (eight off Francis Street to the drop-off/pick-up car-park, and two staff spaces to a garage off Midson Road).

3 During the conciliation a number of issues were resolved to the respondent’s satisfaction. I will refer to the changes that led to deletion of issues in The Evidence.

The site

4 The site is legally described as Lot 30 in DP 6485 and is known as 11 Francis Street, Epping. The site is located on the north-eastern corner of Midson Road and Francis Street. The site is 24.55 m in width and 41.23 m in depth with an overall site area of 1012 sq m.

5 The site has a north to south orientation with an average fall of approximately 2 m from the Francis Street frontage to the northern boundary. The site currently contains a single storey dwelling house adjacent to the western (Midson Road) boundary and two free standing single car garages and a fibro shed within the rear yard, one with drive entry off Midson Road, the other with drive entry off Francis Street. The latter garage is almost central on the lot so there exists a wide side garden on the east adjacent No 9 Francis Street.

6 The site is generally level across its width, and level with Francis Street where the existing house and Francis Street garage stand. On the north of this garage there is a retaining wall that steps the site down the slope. The other garage is at the lower level adjoining the north boundary of the site.

The Locality

7 The surrounding area is predominantly characterised by low density detached residential dwellings mostly of the 1920’s Californian bungalow period.

8 Midson Road is a collector road between Caringbah Road, Epping and Eastwood. It is a bus route and there is a bus stop outside the site near the Francis Street corner. Downhill of the bus stop there is enough kerb length to the site’s Midson drive entry for 2 on-street car-spaces.

9 The Francis Street extension on the west side of Midson is a cul-de-sac. The houses on the west side of Midson front that street, and so in the Francis Street extension there are long, high side boundary fences for a distance of about 30 m from the corner.

10 Midson Road appears to be the dividing line between two old subdivisions in Epping. All or most of the houses on its east side, near the site, only have side boundaries to it, and front minor cross streets such as Francis Street. All or most of the houses on the west of Midson actually face Midson.

11 On the east of Midson where the subject site is located, Francis Street is a tree lined road, but only two blocks long. The first intersection is with Melrose Street that T-intersects with Francis and is itself only two blocks long. The next intersection is the east end of Francis Street where it T-intersects with The Boulevarde.

12 The Boulevarde is a U-shaped road that goes around a single block containing about 20 detached houses. On the out-side of The Boulevarde there are about another 26 houses. At both ends of the U, The Boulevarde T-intersects with Kent Street.

The statutory controls:

Parramatta Local Environmental Plan (LEP) 2001

13 The site is zoned 2(A) Residential under Parramatta Local Environmental Plan 2001. Relevant sections of LEP 2001 are:

Clause 16 - Permissibility and Zone Objectives

Parramatta Development Control Plan 2005

14 The relevant sections of DCP 2005 are:

Section 3 - Preliminary Building Envelope
Section 4.1.10 - Landscaping
Section 4.2.1 - Streetscape
Section 4.2.3 - Building Form and Massing
Section 4.2.4 - Building Façade and Articulation
Section 4.3.5 - Waste Management
Section 4.5.1 - Parking and Vehicular Access

Parramatta Child Care Centres Development Control Plan

1 Location

Child Care Centre DCP

Adjacent to a school;
Adjacent to a shopping or neighbourhood centre; or
Within 300 m radius of a railway station.

Particulars:

Child Care Centres DCP.

2 Streetscape/Building Form and Massing

Not appear as a dwelling house when viewed from Francis Street or Midson Road:
Not sensitively relate to the broader urban context;
Not be in harmony with the form, mass and properties of the streetscape; and
Be inconsistent with the existing and future character of the surrounding area.

Particulars:

Child Care Centres DCP

DCP 2005

3 Setback to Midson Road

Particulars:

Child Care Centres DCP

DCP 2005

4 Site size

Child Care Centres

DCP

Particulars:

Child Care Centres DCP

5 Number of children and Indoor/Outdoor Areas

Child Care Centres DCP

3.5 sq m of unencumbered indoor space and 7 sq m of unencumbered outdoor space for 15 children aged zero to two
3.3 sq m of unencumbered indoor space and 7 sq m of unencumbered outdoor space for 16 children aged two to three; and
3.6 sq m of unencumbered indoor space and 7 sq m of unencumbered outdoor space for 10 children aged three to five.

6 Objectives of

LEP 2001

and

Child Care Centres DCP

LEP 2001

Child Care Centres DCP

Child Care Centres DCP.

7 Car parking/Bicycle spaces

The Child Care Centres DCP

Particulars:

Child Care Centres DCP

8 Insufficent information

Particulars:

DCP 2005

9 Objectors

Issues raised by the objectors are summarised in the statement of facts. The Respondent contends that insofar as those issues coincide with the contentions in paragraphs one to six above, they are matters warranting refusal of the application.

Contentions capable of being resolved by conditions of consent

15 Evidence was heard on-site from objectors:

J Buchan of 9 Francis St, Epping.
S Bahrdwaj of 22 Francis St
Mr & Mrs Pekic of 8 The Boulevarde
Dr M Phelps of 24 The Boulevarde
C Day of 8 Dunlop St
S Player of 7 Francis St
J Horslin of 11 The Boulevarde
P Sindel of 9 Francis St
F Dwyer of 8 Francis St.
Mr Kim the council town planner also gave evidence.

16 The applicants evidence came from Mr Goldsmith consultant town planner.

17 The child care workers said they were not concerned about the competition the proposal might create. They said their centre has 14 staff of whom 10 to 12 require parking. They have 50 children at their centre. They presume the proposal would have about the same staffing numbers and drew attention to government regulations currently under review that may require even more staff. From their own experiences at their centre they sympathized with the objector residents concerns about on-street parking by staff and parents doing drop-off/pick-up. Being in a similar location on a corner of busy Midson Rd and having turning movements in and out of Chesterfield and children being taken to and from cars they have a concern about child safety at the proposed new centre.

18 The resident objectors, in summary, are concerned about:

The problems experienced at the Chesterfield Road child care re-occurring at the subject proposal.
Francis Street is a narrow carriageway and with cars parked both sides of the street there is only a single traveling lane available.
Cars turning into Francis off Midson Rooad would be baulked, or have to stand in busy Midson Road if a car was exiting Francis between cars parked on both sides of the carriageway in Francis. That would be dangerous.
Cars traveling north on Midson Road there is a rise just south of the intersection with Francis. The residents experience shows tail-end collisions are a safety concern if a car is stopped in Midson Road in peak hour traffic trying to make a right turn into Francis, and north-bound through traffic comes over the rise behind.
Turning out of Francis in peak hour to go north on Midson is also dangerous due to north-bound through traffic coming fast over the rise. To get a break in traffic to make the turn safely can cause an exiting car to wait for some time, and that increases the obstruction of cars wanting to turn in off Midson from either direction.
With drivers having to pay extra attention at the intersection and with parents parking in Francis Street for pick-up/drop-off, the congestion and the danger will be increased.
The 10 on-site car-parks proposed will not be enough for staff and parents in peak hour and on-street parking will occur.
If there are extra cars parking in Francis Street, they will park close up to near by residents’ driveways. They all have to reverse out of their driveways and it will be dangerous with cars parked close.
There will be the noise and fumes of the extra cars coming and going.
There are already four other child care centres close to this site, why would any more be needed here. Any new centres should be where there are none now.
The council is approving new residential developments on large disused industrial/commercial land. New residents will go there so put any new child care centres on those sites.
The residential area east of Midson Road is a sort of conservation zone. The council has declared it a “non dual occupancy area” so that the predominantly detached house character with many streets of the Californian Bungalow period will remain that way. We don’t want that character to be changed by new development that impacts on the streetscape and the quiet amenity.
The residents next door to the site at 9 Francis St said that having the children next door did not concern them. It was all the associated activity and buildings that would impact them. They agreed with the objections of the other residents. In regard to impacts on their property they did not want the buildings on the site to be any longer than their own house as that could create shadow impacts. Also they did not want any air-conditioning or other equipment of the proposal located on the east side adjacent their house.

19 The applicant asked that the hearing take a view of the Midson Centre. We walked along to it and the witnesses were asked how many children were there that day. We were told 52. It was noted that the Midson Centre, having been approved some years ago had only four car spaces on site for staff and parents drop-off/pick-up.

20 Mr Goldsmith observed that it was no wonder the Chesterfield Road child care had concerns over on-street parking and congestion and safety. It could not be compared to the subject proposal that the applicant had amended to be for 39 children only, and with 10 on-site car spaces. Also, at the subject proposal, to avoid staff parking in the east end of Francis Street, the applicant would accept a condition that staff be directed to park across Midson Road in the west end of Francis Street. There is ample parking space adjacent the long side boundary fences of the houses fronting the western side of Midson Road. On the day of the Hearing there were no cars parked in that location, and use of the space would create no unacceptable impact for residents of either part of Francis Street.

21 Mr Goldsmith said that the council’s child care development control plan (DCP) asked for 1 car space per 4 children, so the proposal could have 40 children and only proposed 39. The council traffic engineers said with appropriate conditions the traffic and parking situation would be acceptable. The conditions include "No Parking" signs on the Francis Street frontage of the proposal so that cars turning in or out of Francis Street would have a 2-way carriageway even if a car was parked opposite the site.

22 In Midson Road there is a bus stop outside the site just before the corner with Francis Street. So there would normally be good driver safety sight lines to Midson Road traffic in both directions. There are also 2 on-street car-spaces between the bus stop and the Midson Road drive entry to the staff car-spaces at the north end of the site. They may be used by staff as well to keep staff cars out of Francis Street.

23 The council planner Mr Kim was cross-examined about his evidence that the proposal would increase substantially the traffic in Francis Street and potentially The Boulevarde. He said the existing traffic in east Francis Street is currently 6 vehicle trips in morning peak hour and 12 trips in the evening peak hour and the proposal would increase them to 37.2 trips in the morning peak hour and 40.7 in the evening peak hour.

24 The cross-examination showed he had read for east Francis Street, the Traffic and Parking Assessment report for the west end of Francis Street, the cul-de-sac. Due to the small number of houses in the west end and its being a dead end street it has very low traffic rates. In fact the existing trips for the east end of Francis Street are 17 in the morning peak hour and 23 in the evening peak hour. The proposal will add only 1 trip every 2 minutes in peak, and bearing in mind a “trip” is a single movement (that is a car coming and later going is 2 trips), the residents fears of large traffic numbers are erroneous. Mr Kim agreed he is not a traffic engineer.

25 The council traffic engineer had concluded there would be no significant traffic or parking impact from the proposal given the proposed conditions. And the calculations had been done when the proposal was for 41 children so the impacts would actually be slightly less than the above.

26 Mr Kim was asked about consistency in applying the DCP control on location of child care centres. He had checked consistency by asking another council officer who normally deals with any child care DA’s. There were 4 applications told to him of refusals since 6 June 2007 due to non-compliance with location criteria. One of these had not actually been a DA because the potential applicants were put off at the pre-lodgment meeting. Mr Kim had not checked all child-care centre DA’s for approvals and refusals, he had relied on the other person’s advice.

27 Mr Goldsmith said he had been involved in site selection for the applicant over a 2 year period. He had looked at many sites as they came up for sale. The council’s plans for expansion of the Epping commercial area had pushed house prices up as owners speculated on rezoning to commercial. He had not found any suitable sites within 300 m of a rail station, a shopping centre or a school in Epping.

28 The subject site is suitable in his opinion due to its:

large area and north orientation enabling good design of a child-care centre,
access to an arterial road and bus stop for ease of transport,
being a corner site it has few neighbours
proximity to the large ex-industrial/commercial sites that the council is intending for major residential development, so there will be new families moving in nearby who will need child-care services
enabling safe/convenient pedestrian and vehicle drop-off/pick-up
not being close to other more intense uses that would add more activity
being a child-care centre that is permissible with consent in the residential zone. Obviously therefore child-care centres are seen in a planning sense as providing facilities and services that need to be part of housing neighbourhoods.

29 The large ex-industrial/commercial sites referred to are not contested by the respondent. One site is a former TV Channel 7 site and the other is a former brickyard, both are within 2 to 3 city blocks from the subject property and will eventually hold about 1000 new dwellings. Concept plans refer to a child care centre for those sites, but there is no firm proposal yet said Mr Goldsmith.

30 In cross-examination Mr Goldsmith agreed the subject centre would increase activity for the neighbours, but he believed it would not amount to an unacceptable nuisance. It would cause less activity than other uses that are permissible in the Residential 2(a) zone. Such uses include community facilities, educational establishments, hospitals, housing for older people (retirement villages under SEPP Seniors Living 2004), local shops, places of public worship, public buildings, public transport facilities, recreation facilities. The centre will only operate on week days and not on weekends or public holidays and will close for 2 weeks over the Christmas/New Year. The “quiet times” of residential amenity viz. evenings and nights and week ends and public holidays will remain quiet, in fact more quiet than a dwelling house that is usually occupied at those times. Only eight nights per year are allowed for functions such as parent/teacher interviews, guest speakers and concerts not beyond 8pm.

31 Mr Kim said that the DCP control on being within 300 m of a rail station, a shopping centre or a school is intended to enable multi-purpose trips combining the child-care drop-off/pick-up with other trips, and therefore make them more convenient for parents. The one bus stop and bus route next to the site does not make it near a transport hub, it is 1 km from the station, and nowhere near shops or a school.

32 I note on Exhibit 5 the LEP map there is a zoned Neighborhood Business area 3 city blocks (about 300 m) from the subject site along Midson Road, but I was not taken to that, so I presume it is of no consequence in this appeal.

33 In the draft conditions there are amended plans that provide a pitched tiled roof that satisfied Mr Kim on the appearance of the proposal fitting in reasonable with the character of the locality. The carpark is to have a stamped red brick pattern and landscaping to assist in achieving acceptable streetscape. A wide landscape strip adjoining the east boundary with No.9 is intended to protect pencil pines on that side and provide additional green vegetation between the two properties.

34 A street tree in Francis St and one in Midson Rd were of concern to the council. However an arborist’s report showed that the driveway would not interfere with any root system and appropriate conditions (including for stormwater pipes nearby) would ensure the street trees would remain.

35 Also the length of the building on the east side matches the length of the house on No. 9 Francis St, and no air-conditioners or other noisy equipment is permitted on the east side of the proposal. The building is sound insulated and windows are of heavy glass to reduce noise transmission and the windows are to be closed when children are in the indoor play areas.

36 The carpark is required to have 2 bicycle racks, and pathways clear of driveways so parents can take children into and out of the centre with minimal conflict with cars. The “No Parking” zones are intended to make turning movements into and out of Francis St safer, and to encourage parents to use the on-site carpark.

37 I note security lighting is required. It needs to have added that the lights must be shaded or directed so there is no nuisance to residential amenity of adjoining or adjacent residents.

38 A Plan of Management is included in the conditions as in Exhibit D. It reinforces the draft conditions and adds matters such as outdoor play periods not exceeding 2 hours morning and 2 hours afternoon. It also requires staff parking in Midson or west Francis St, the closing of the carpark outside operating hours and garbage pick-up in business hours only.

CONCLUSIONS

39 At The end of the Hearing the respondent advised that issues 2, 3, 4, 5, 7 and 8 had been resolved by the amended plans and the evidence and draft conditions. There remained issues 1 and 6 regarding the locational requirements of the DCP that the respondent said in issue 10 could not be resolved by amendments or conditions. Issue 9 remained as a related matter of the objectors concerns on issues 1 and 6.

40 In regard to the garbage store, I note the residents of No.9 Francis St did not like its location at the front boundary adjoining their property. I can agree with that particularly since the council conditions require 6x 240 litre bins, and some of them would contain used nappies and food waste. Some of the council’s other conditions require pathways on both sides of the carpark behind the carspaces. It is my opinion the bins can be wheeled just as easily on the path adjacent the Midson boundary, and the bin enclosure is proposed as brick walled, so it could be visually presentable on that boundary in part of the proposed garden strip. A location there would avoid any potential for smells and odours adjoining the dwelling on No.9.

41 On the locational dispute, Mr Kim put and the respondent submitted that the DCP that contained the Child Care Centre controls had been the result of full consultation with the community and should be given substantial weight.

42 Mr Goldsmith said and the applicant submitted that the majority of the DCP might have that weight, but the locational controls are disputed for the following reasons:

the planning studies for the DCP and the officer reports had not included the locational controls.
The minutes of the council meetings showed that the locational controls had been inserted at the end of the process just before the adoption of the DCP by unilateral decision of the Council itself. So the controls did not have the benefit of full community consultation.
The controls inserted into the DCP are tantamount to prohibitions and a DCP cannot prohibit a use that is made permissible in the zone by the Local Environmental Plan (LEP).
Child care centres are considered by the LEP to be part and parcel of the Residential 2(a) zone, and it is a less intensive use compared to other uses also considered by the LEP to be part and parcel of the residential zone.
Being for 39 children this proposal comes into the “smaller-sized centres” category encouraged by the DCP in residential zones in cl 3.2.1
Since all of the other reasons for refusal of the proposal have now been satisfied or resolved, the locational provisions cannot of themselves be sufficient for refusal.
The LEP objectives for the Residential 2(a) zone include to allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods. The proposal will provide child care for this residential neighbourhood, including for known increased population.

43 In considering the DCP I note that cl1.5.1 says that in the event of any inconsistency between the DCP and the LEP, then the LEP prevails.

44 In the Aims of the DCP it says the Council does not support child care centres in Residential 2(a) zone but recognizes that the DCP is a DCP. In my opinion that is an admission that the DCP cannot prohibit a child care centre in the Residential 2(a) zone.

45 In cl 3.1.1 on site selection, the DCP says the council discourages child care centres except in locations with high levels of access to public transport or sites adjacent to schools or shops.

46 In cl 3.1.2 on design principles and development standards becomes stronger and says council will not allow child care centres in the Residential 2(a) except as described above: adjacent a school or shops or within 300m of a rail station.

47 I note that a DCP cannot give rise to a statutory development standard so the provision saying will not allow cannot act as a standard.

48 Apparently what had gone into the exhibition of the draft DCP were three objectives viz:

To ensure child care centres are provided in locations that will make a positive contribution to, and not prejudice the continued operation of existing surrounding uses.
To encourage the location of child care centres in locations where they are easily accessed by all forms of public transport, vehicles, bicycles and walking, and in proximity to public transport and complementary community land uses.
To encourage the provision of children’s services in and near business centres and workplaces.

49 The councilors had determined the stronger wording of the controls at the end of the draft DCP consideration process.

50 The applicant submitted that Stockland Developments Pty Ltd V Manly Council [2004]NSWLEC472 shows that minimum weight should be given to the locational requirements of the DCP. This is due to the more stringent controls, that come close to being prohibitions, were not reviewed by expert staff or consultants, nor subjected to public consultation before insertion in the adopted DCP.

51 Also the applicant submits that Zhang v Canterbury City Council [2001]115LGERA373 does not give the DCP sufficient weight on the locational matters to justify refusal. In para 74 it says:

A development control plan is not an "environmental planning instrument". (See definition in s4). Accordingly, the requirement in s80(2) that a consent authority "must refuse" an application that would "result in a contravention of" such an instrument does not apply to a development control plan. Furthermore, the proscription, by s76B, of any development prohibited by an environmental planning instrument, does not extend to a prohibition in a development control plan. Nor can such a plan contain a "non-discretionary development standard" which, if complied with, would take away a consent authority's discretion under s79C(2).

52 I agree with the applicant's submission, and due to the proven minimal and acceptable impacts on the residential amenity of its near neighbours, and the amended drawings fitting in with the streetscape character, and the feared traffic and parking impacts being shown to be minimal and acceptable, it seems to me that the proposal is a reasonable development.

53 The respondent’s final evidence and submissions show that other than the locational requirements of the DCP, the amended proposal is now acceptable to the respondent, subject to the proposed conditions being imposed.

54 I have formed the opinion that in this case, the locational requirements of the DCP are not sufficient, as the only non-compliance with the applicable statutes and controls, for refusal of the child care centre.

55 Therefore the Orders of the Court are:

___________________

K G Hoffman

Commissioner of the Court

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Doodha v Parramatta City Council [2008] NSWLEC 1482

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CITATION:	Doodha v Parramatta City Council [2008] NSWLEC 1482
PARTIES:	APPLICANT Jahangir & Kashmira Doodha RESPONDENT Parramatta City Council
FILE NUMBER(S):	10761 of 2008
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Child Care Centre, locational requirements, parking & traffic, streetscape character, building form & massing, number of children, outdoor recreation space
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 Parramatta Local Environmental Plan 2001 (Amendment No.13)
CASES CITED:	Zhang v Canterbury City Council [2001] 115 LGERA 373 Stockland Developments Pty Ltd v Manly Council [2005] 136 LGERA 254
DATES OF HEARING:	13/11/2008
DATE OF JUDGMENT:	5 December 2008
LEGAL REPRESENTATIVES:	APPLICANT Dr Berveling, Barrister RESPONDENT Mr Marincowitz, solicitor of DLA Phillips Fox