Elassal v Marrickville Council

[2013] NSWLEC 1131

Land and Environment Court

New South Wales

Medium Neutral Citation:	Elassal v Marrickville Council [2013] NSWLEC 1131
Hearing dates:	5 July 2013
Decision date:	05 July 2013
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	CONSENT ORDERS: Modification of consent, traffic, access, parking
Category:	Principal judgment
Parties:	Ray Elassal (Applicant) Marrickville Council (Respondent)
Representation:	Mr A Gough Storey & Gough Lawyers Mr J Strati Marrickville Council
File Number(s):	10321 of 2013

Judgment

This determination was given extemporaneously and has been edited prior to publication.

1. This appeal was lodged under the provisions of s96(8) of the EP&A Act 1979 seeking modification of consent DA201200224 granted by this Court under a s34 agreement made in proceedings 10977 of 2012. That consent was granted on a deferred commencement basis and authorised the construction of alterations and additions to an existing building and use of the premises as a child care centre for 90 children with off street parking for 18 vehicles at 16-20 Holbeach Avenue, Tempe.

1. The applicant attempted to resolve part of the deferred commencement conditions however, its application for the installation of No Stopping zones in Bay Street, to the rear of the premises was rejected by Marrickville Council. Accordingly, the applicant has prepared amended plans that delete vehicle access from the site onto Bay Street and provide additional on-site parking spaces.

1. The council has considered the amended proposal and resolved to seek Consent Orders from the Court.

Issues

1. The applicant is seeking to modify the consent by the deletion of those deferred commencement conditions that required the installation of the No Stopping Zone and time restricted parking spaces in Bay Street (Condition 1 of Part A) and approval of the amended plans so as to adopt the amended parking layout (condition 1 of Part B), increase the number of parking spaces to 23 (condition 3 of Part B), delete a condition relating to vehicle movements in Bay Street (condition 38 of Part B) and modify condition 56 Part B by deleting the associated requirement to install traffic signage within public roads.

1. The original plans approved by the Court provided for cars to access the site from Holbeach Avenue and exit to Bay Street with a right turn only restriction imposed. The plans now before the Court provide all vehicle access to the main carpark to be from and to Holbeach Avenue with a fence erected to ensure no vehicle access to the site from Bay Street with the exception of the three staff parking spaces approved in the north-eastern corner of the site. The effect of those changes would be to provide an additional on street parking space in Bay Street for general use by the removal of the existing driveway. The plans also increase by 5 the number of on-site parking spaces provided which exceeds the 19 required under the council's planning controls.

1. The issues before the Court are whether the amended plans are satisfactory in terms of traffic and parking.

1. Marrickville Council considered the amended plans at its Development Assessment Committee Meeting of 11 June 2013 and resolved to enter into consent orders. Its staff had assessed the additional traffic reports that had been lodged by the applicant and deemed the impacts of the amended traffic flow to be acceptable and warrant approval of the application as lodged with the Court. The council, in considering the modification application, had regard to further submissions from residents made in response to the proposal.

Evidence

1. In accordance with the practice directions of this Court, the council advised the objectors of its intention to enter into consent orders. The hearing commenced on site and evidence was heard from three persons, one a resident of Bay Street and the other two, representatives of the adjoining Tempe Motor Boat Association (Association). The issues raised by objectors are summarised as follows:

• Concern in relation to additional traffic generated by the development, in particular its impact on the performance of the two intersections which provide access to the Princes Highway, those being at Holbeach Avenue and Smith Street;
• The likely use of nearby residential streets as a "rat-run" by persons using the centre;
• Impact on traffic flow when persons associated with the Motor Boat Association and the general public are using the public boat ramp opposite the site;
• Noise and amenity issues;
• Flooding issues;

1. The resident of Bay Street supports the amended plans in terms of the deletion of the driveway access to that road however maintains her concerns in relation to noise, amenity and flooding.

1. Mr Winning, the traffic consultant for the applicant, explained the changes made to the design of the development and also the relocation of the pedestrian pathway within the site, which, as an accredited road safety officer, he says, is safe, practical and appropriate.

1. Mr Winning also prepared the traffic impact report that accompanied the application and a subsequent expert report, exhibit C in these proceedings and addresses the issues raised by objectors. That report addresses road capacity, intersection performance, queuing lengths, the need to restrict egress movements from the site and the impacts of additional traffic controls within Holbeach Avenue and also has regard to submissions in relation to traffic prepared on behalf of the Association.

1. Importantly the initial report was reviewed by the council's development engineer who concluded that "the proposed changes are an improvement on the original scheme as they increase the on site parking and they remove most of the traffic from Bay Street which is narrow and includes residential properties. The increased traffic generated by the site will be mostly confined to Holbeach Avenue which is of suitable width, is signalised at its intersection with the Princes Highway and has a roundabout at its intersection with the Tempe Reserve access road. In my opinion Holbeach Avenue is easily able to cope with an additional 36 vehicles entering and leaving the site per hour. This equates to 1.2 additional vehicles queuing in Holbeach Avenue at the Princes Highway intersection during the morning peak every 2 minutes which I consider negligible." He goes on to conclude "I find the proposal satisfactory in terms of pedestrian and traffic safety and an improvement on the previous proposal."

Findings

1. There are a number of considerations that must be satisfied to allow the modification proposed. The first is that the proposal must be substantially the same as that approved under the consent. Having reviewed those plans, the associated supporting documents and the council's assessment reports, I am satisfied that the development is substantially the same as that approved under the original consent.

1. The second is that the development must be permissible. A child care centre is permissible with consent in the IN2 Light Industrial Zone under Marrickville Local Environmental Plan 2011. I am satisfied that the development is consistent with the zone objectives, in particular objectives 2 and 4. I am also satisfied that the development is consistent with the council's planning controls contained within the relevant sections of Marrickville Council Development Control Plan (DCP) Section 2.10. Of particular merit is the additional on-site parking that is proposed and the view expressed by the council that the proposal is an improvement to the plans originally agreed by the council and reflected in the s34 agreement and subsequent orders of the Court.

1. I have also taken into consideration the issues raised by objectors to the application. Having regard to the evidence, it is apparent that the traffic generated by the development would be within the environmental capacity of the road system. Having considered the issues raised by the representatives of the Association, it is apparent that at high tide, two boats may be slipped from the adjoining boat ramp to their premises to the immediate east of the site. Their evidence is that they have persons on site to control traffic on those occasions. That does not occur when members of the public use the ramp. Having regard to the traffic generation describe above, I am satisfied that when such activity is occurring, sufficient queuing capacity exists within the site and the road.

1. The other issues regarding flooding, amenity and noise, whilst not relevant to the issues currently before the Court, were addressed by the council through conditions of consent when it entered into the s34 agreement.

1. I accept the evidence of Mr Winning that the proposed pedestrian pathway within the carpark is safe and that it satisfies control C15 of the DCP.

1. I am also satisfied that the proposal is lawful and complies with the relevant provisions of the LEP and DCP.

1. There being no reason why the Consent Orders should not be made, by consent, the Orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Consent No. DA201200224 granted by the Court in Ray Elassal v Marrickville Council, Proceedings No 10977 of 2012 on 23 November 2012 to carry out alterations and additions to the existing premises at 16-20 Holbeach Avenue, Tempe and use of the premises as a child care centre ("the Consent"), is modified as follows:

(a)   The deletion of Deferred Commencement Condition 1 of Part A.

(b)   The modification of Condition 1 of Part B to insert the words "....except where modified by plans prepared by Artmade Architectural Pty Ltd, dated April 2013, Issue B and drawing numbers CC-313-A3 to CC-313-A8".

(c)   The modification of Condition 3 of Part B to insert the words "Twenty Three (23) off street parking spaces for staff and visitors being provided on site for the child care centre."

(d)   The deletion of Condition 38 of part B.

(e)   The deletion of the word "traffic signage (including traffic signage approved pursuant to condition 1 of Part A of this consent)" from Condition 56 of Part B.

(3)   The exhibits, other than exhibit A, may be returned.

Sue Morris

Commissioner of the Court

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Decision last updated: 22 July 2013