F S Architects Pty Limited v Liverpool City Council
[2004] NSWLEC 745
•12/17/2004
Land and Environment Court
of New South Wales
CITATION: F S Architects Pty Limited v Liverpool City Council [2004] NSWLEC 745 PARTIES: APPLICANT
RESPONDENT
F S Architects Pty Limited
Liverpool City CouncilFILE NUMBER(S): 11177 of 2004 CORAM: Hussey C KEY ISSUES: Development Application :- deemed refusal of a new child care centre - noise - streetscape - traffic - fencing - landscaping - public interest. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Liverpool Local Environmental Plan - (LEP)
Development Control Plan - (DCP)CASES CITED: DATES OF HEARING: 17/12/2004 - Interim Finding EX TEMPORE
JUDGMENT DATE :12/17/2004 LEGAL REPRESENTATIVES:
APPLICANT
Mr M Pearce
of Bowen & GerathyRESPONDENT
Mr A Seton
of Marsdens
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
17 December 2004
JUDGMENT11177 of 2004 F S Architects Pty Limited v Liverpool City Council
1 I am going to make an interim finding in this matter. The appeal was lodged against council’s deemed refusal of a development application for a new child care centre at West Hoxton. The child care centre is proposed to be licensed for 39 children, and to operate five days from 7am to 7pm. The site is situated on the corner of Chapman and Watts Place.
2 After the deemed refusal, the council identified a number of issues of which traffic considerations were the major concern, together with fencing, landscaping, and other public interest considerations.
3 Subsequently the parties agreed to Mr R West being appointed the court appointed expert to deal with the traffic matters. As a result of his assessment and conclusions, further conferencing has been undertaken by the parties leading to consent orders now being agreed.
4 Notwithstanding this, considerable opposition was expressed by various neighbours to the proposal, and those objections are contained in the council’s bundle in exhibit 4. However, then the residents were informed of the proposed consent orders and given the opportunity to express their objections, together with the opportunity of attending this morning’s site meeting at which some residents further explained their concerns. These concerns generally comprise inadequacy of the existing road system to safely service the new development, exacerbation of the existing unsatisfactory parking problem in the street, and amenity impacts in terms of noise to adjoining and neighbouring premises. There was also some dissatisfaction expressed with the form of the proposal on this site.
5 Having considered these objections, together with the traffic consultants report, I am satisfied that the site is zoned residential 2(a) under the Liverpool LEP 1997, and this form of child care centre development is permissible with consent. Furthermore, I accept the council’s submission that the proposal is consistent with the objectives of the zone and that this is a contributing factor in agreement to the consent orders.
6 I also accept that the design requirements identified in the DCP 16 are reasonably satisfied. In this regard the Court’s attention was directed to the design compliance table in the Statement of Environmental Effects which shows almost total compliance with the design control criteria, and in the absence of any challenge, I rely on this as being acceptable.
7 However, the main issue concerns the traffic matters, and I consider that the court appointed expert, Mr West, has adequately addressed in his report, (exhibit 7), these matters. He has reached his conclusions on the basis of currently accepted methodologies, and that conclusion is that the traffic aspects are satisfactory subject to a few amendments, which the applicant accepts.
8 Considering of the residents’ concerns, it seems to me that there is some misunderstanding on the overall sub-division/neighbourhood design philosophy. In this neighbourhood relatively narrow roads have been provided, which are designed to conserve resources and slow traffic, so as to provide a reasonable level of service to all users of public roads. I accept that this may cause some inconvenience at times, due to apparent congestion. But in the ultimate Mr West says that the incremental change due to the proposed child care centre is still comfortably within the environmental capacity of the road.
9 I accept his overall conclusion in this regard, but I will note his specific conclusions at 4.2 in his report, which respond to some of the neighbours’ concerns, and those conclusions are:
- The proposed development can be expected to generate as many as between 27 and 30 visitations in the 8am - 9am peak period, with each vehicle staying on average around 7 minutes. Whilst this coincides with a nearby school’s AM traffic peak, any spill over on-street parking requirements will be adequately accommodated as there is minimal parking demand generated by parents dropping off students attending the nearby Greenway Park Public School during this period of the day.
- The PM peak pick up activity for either a pre-school or long day centre will generally occur after the peak pick-up activity associated with the nearby Greenway Park Public School.
- The intensification of traffic on Chapman Street as a consequence of the proposed development will not result in the maximum (or desirable) daily traffic volumes adopted by the RTA for acceptable environmental capacity levels on local roads being exceeded. However it is noted that during the AM and PM school peak, the RTA’s hourly volume for desirable environmental capacity on local streets, 150 vph, are currently being approached. Whilst the proposed development may lead to minor exceedences in the desirable level during the am peak, its contribution to the total traffic volume during this period will be minor, and will not result in the ‘maximum’ level being achieved.
- It is inevitable that some children attending the child care centre will have siblings attending the nearby infants/primary school. This circumstance will facilitate a reduction, (albeit minor), in total traffic generation and parking activity on Chapman Street.
10 Then with respect to the site distances he concludes, “This should be satisfactory providing No Parking restrictions are imposed along Chapman Street” and I accept that this is an important condition, and satisfactory arrangements should be made to secure this.
11 In response to the other residents’ concerns about the adequacy of parking, I am satisfied that the proposal complies with the DCP provisions for 8 on-site spaces, and therefore this is not grounds for rejection of the application.
12 So that in the ultimate, I am satisfied that whilst there will be some increase in traffic movements due to the child care centre operation, nevertheless the incremental change is relatively minor and quite manageable in the context of the streets environmental capacity.
13 Notwithstanding this, I accept that at times there could be traffic congestion problems, but that really seems to be a direct function of the operation of the nearby public school, which apparently has significantly exceeded its design capacity and is contributing to the traffic problems. From the limited information presented to the Court, I consider that is a separate management problem which, in my opinion, does not result in the failure of this particular development application.
14 In any case I note that the DCP encourages appropriate child care centres near schools, presumably in part to reduce traffic if some combined family trips are made.
15 Reference to the other objectors’ concerns regarding noise impacts. I accept that these impacts will be limited to some extent, considering the internal layout of the building, and the fact that the building will be air conditioned and insulated, and I think these two factors will restrict noise emission to a reasonable level.
16 My conclusion then is that this proposal is permissible on the site within the residential 2(a) zone under the LEP, and is consistent with its requirements. I am also satisfied that the amended proposal reasonably satisfies the relevant matters for consideration so as to merit grant of the consent orders.
17 However in line with the submissions that have been made, that some of the conditions have to be fine tuned, I will decline from making the consent orders, until the parties have had the opportunity of finalising the conditions. I note that the main outstanding concern is the s 94 contributions, which may require some review.
18 Whilst I consider that the consent orders can be granted I will adjourn the matter for the parties to finalise their positions with the conditions.
_________________________
R Hussey
Commissioner of the Court
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