Eskander v Parramatta City Council

[2008] NSWLEC 1411

Land and Environment Court

of New South Wales

CITATION:

Eskander v Parramatta City Council [2008] NSWLEC 1411

PARTIES:

APPLICANT
Samir Eskander

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10539 of 2008

CORAM:

Tuor C

KEY ISSUES:

Section 96 Modification :- modify development consent 98/1432 to increase the number of children from 53 to 69 at a child care centre

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

30/09/08

EX TEMPORE JUDGMENT DATE:

30 September 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr B. Dennis, solicitor
of Dennis & Co

RESPONDENT
Mr P. Marincowitz, solicitor
of DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

30 September 2008

10539 of 2008 Samir Eskander v Parramatta City Council

JUDGMENT

1 This is an appeal against the refusal by Parramatta City Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify a development consent (98/1432) for a childcare centre to increase the number of children from 53 to 69 at 23 Crossland Street, Merrylands (the site).

2 In January 1996, the council approved a development application (95/125) for a child care centre with 29 children and three parking spaces on the site.

3 In September 2000 the council approved a further development application (98/1432) on both 23 and 25 Crossland Street for an additional 24 children and parking for 8 cars.

4 As I understand, a subsequent development application approved subdivision of the rear of 25 Crossland Street, which was incorporated into 23 Crossland Street for use as a play area by the child care centre.

5 The site, its context, the history of the application and the planning controls are in the statement of facts and contentions.

The issues and evidence

6 The key issue between the parties is whether safe and convenient on street parking is available to meet the needs of the development.

7 The Court visited the site and three other child care centres in the vicinity. Residents gave evidence on site who were principally concerned that the current operation of the centre caused adverse amenity impacts as a result of traffic and parking in the street. They considered that an increase in the number of children would further impact on their amenity.

8 The Court heard expert traffic evidence from Mr C Hazell, for the applicant, and Mr C McLaren, for the council. The experts agreed that the existing parking arrangements for the centre had not been implemented in accordance with the development consent. In particular, pedestrian entry to the centre through the three approved stacked parking spaces limited their use for teacher parking. Also, the metal posts at the end of the parents’ car spaces constrained the use of the car park and therefore parents parked in the street during peak periods.

9 Both Mr Hazell and Mr McLaren considered that the approved car park arrangement should be implemented and that this would provide parking for nine spaces (three staff stacked spaces, five parent drop off spaces and one car park space in the driveway for parents).

10 Under s 4.5.1 of Parramatta Development Control Plan 2005 (DCP 2005) car parking is to be provided at the rate of one space per four children. This rate is estimated to meet the likely demand generated by both children and staff and is consistent with the Roads and Traffic Authority (RTA) rate. An application of DCP 2005 would require 18 spaces for 69 children or four spaces for the additional 16 children. No additional car spaces are proposed as part of the application.

11 Based on surveys of the current operation of the centre, both Mr Hazell and Mr McLaren agreed that parking demand generated by parents would be one space per eight children, ie, nine spaces, whereas only six spaces for parent parking are provided on site. They agreed that the existing three stacked spaces are likely to be adequate to meet the demand generated by staff.

12 The key disagreement between the experts was whether the shortfall of two to three parent spaces could be provided on street given that Crossland Street is only 7.3 metres wide.

13 Mr Hazell considered that there is safe and convenient on street parking available for short term parking in Crossland Street, which has low traffic flow and traffic speeds. There is sufficient width for two vehicles to park on both sides of Crossland Street and a vehicle to pass between them. He referred to child care centres at 94 Guildford Road, 39 Wright Road and at Ostend Street where parking had also been provided at the rate of one car space per eight children.

14 Mr McLaren considered that the width of Crossland Street is insufficient for a vehicle to safely pass while maintaining two-way flow. He noted that Guildford Street and Wright Road are on roads, which are at least 11 metres wide and that Ostend Street, although 7 metres wide, is a cul de sac. Mr McLaren also stated that he would not support on street parking in Ostend Street. In Mr McLaren’s opinion the use of on street parking in Crossland Street is not safe and convenient for short term parking associated with the child care centre where the safety of children is paramount.

Findings

15 The existing on site parking of the child care centre does not comply with the requirements of DCP 2005 and its development consent. This results in parents regularly using the street for short term parking, which impacts on the amenity of residents.

16 Mr McLaren and Mr Hazell agree that the approved layout should be implemented and, if this were done, the parking on site would be adequate to meet the demands of the existing 53 children. An increase of 16 children will create a demand for two to three car spaces. There is no alternative but to park on the street to accommodate the additional parking demand.

17 Crossland Street is narrow and I accept Mr McLaren’s evidence that it is not appropriate to rely on its use for short term parking during peak periods. A situation where there is insufficient road width for two vehicles to pass a parked car is obviously not as safe or convenient as if cars are parked on site.

18 It is also a situation that impacts on the amenity of residents. While residents can park in their own properties it is still inconvenient for two cars not to be able to pass if a car is parked in the street. The evidence of the residents is that the existing reliance of on street parking by the centre has caused them inconvenience. They attribute this to the non-compliance with the existing consent.

19 I therefore do not accept that reliance on parking in the street to meet the demands of the child care centre in the circumstances of this case is acceptable. I note that while currently staff are not travelling to the centre by car that they have in the past and may do so in the future resulting in further use of the street for parking. While this does not pose the same safety issues as use of the street by parents and children, it is a further demand for parking that may not be met by the child care centre on the site.

20 Further, the additional play area required to accommodate the extra 16 children is to be located on 25 Crossland Street, however, this property does not appear to be part of the application. If it were, there would be ample opportunity to provide the required car parking and landscaping to meet the objectives for car parking in s 4.5.1 of DCP 2005.

21 For the above reasons the application must fail.

22 The orders of the Court are:

1 The appeal is dismissed.
2 The application under s 96 of the Environmental Planning and Assessment Act 1979 to increase the number of children from 53 to 69 at the child care centre at 23 Crossland Street, Merrylands is refused.
3 The exhibits, except Exhibit 1, may be returned.

___________________

Annelise Tuor
Commissioner of the Court
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