FGNR Pty Ltd v City of Canada Bay Council

[2013] NSWLEC 1189

Land and Environment Court

New South Wales

Medium Neutral Citation:	FGNR Pty Ltd v City of Canada Bay Council [2013] NSWLEC 1189
Hearing dates:	30 & 31 July 2013
Decision date:	30 August 2013
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	See paragraphs 50 and 51
Catchwords:	DEVELOPMENT APPLICATION - Child care centre. Impact and compatibility with the residential area through parking, traffic and landscaping.
Legislation Cited:	Canada Bay Local Environmental Plan 2008 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	FGNR Pty Ltd (Applicant) City of Canada Bay Council (Respondent)
Representation:	Solicitors Mr J Cole of HWL Ebsworth Lawyers (Applicant) Mr P Jackson of Pikes & Verekers Lawyers (Respondent)
File Number(s):	10216 of 2013

Judgment

1. This is an appeal against the deemed refusal of a development application (431/2012) under the Environmental Planning and Assessment Act 1979 (EPA Act) for alterations and additions to an existing factory building and change of use to a childcare centre at 86 Nirranda Street and 61-63 Mepunga Street Concord (site).

1. The key issues in dispute between the parties are whether the proposal is compatible with the area and has an acceptable impact on residential amenity. In particular, whether adequate landscaping and parking are provided.

The site and locality

1. The site comprises Lot B DP 361656 and Lots 77 and 78 Section B DP 11996. It has a frontage to Nirranda Street of 23.495m and a secondary frontage to Mepunga Street of 29.815m. It is rectangular in shape with an area of 2222 sq m. A single storey factory/warehouse building is located on the site, setback about 5m from Nirranda Street and 24m from Mepunga Street. A hardstand parking area is provided in the Mepunga Street frontage.

1. To the west, the site adjoins a two storey dwelling (65 Mepunga Street) and a single storey dwelling (88 Nirranda Street). To the east, it adjoins two single storey dwellings (59 Mepunga Street and 84 Nirranda Street). The predominant development in the locality is one and two storey detached dwellings. A KFC outlet is on the opposite corner of Nirranda Street and Concord Road, at the southern end of a neighbourhood centre.

The proposal

1. The development application is for alterations and additions to the existing building and change of use to a 100 place child care centre for children between the age of 0-5 years comprising 26 x 0-2 year old, 24 x 2-3 year olds and 50 x 3-5 year olds. The centre will employ 16 staff and will operate from 7.00am to 6.00pm Mondays to Fridays.

1. The application, as amended, will provide surface car parking for twelve visitors and eight staff, including two stacked spaces (S3 and S4) accessed off Mepunga Street. An additional two staff spaces (S1 and S2) will be provided off Nirranda Street.

1. The alterations to the existing building include the removal of part of the roof to provide children's play areas with the playrooms, administration and staff facilities arranged around the existing perimeter walls of the building. An outdoor area for quiet educational play is located to the west of the building, off playroom 2.

Planning controls

1. The site is zoned R2 Low Densiy Residential under Canada Bay Local Environmental Plan 2008 (LEP) which permits Child Care Centres with consent.

1. Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The R2 Low Density Residential zone objectives are:

· To provide for the housing needs of the community within a low density residential environment.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

· To ensure that landscaping is maintained and enhanced as a major element in the residential environment.

1. Canada Bay Development Control Plan 2008 (DCP) applies to the site which is within the Concord West Character Area. The Desired Future Character outlines the specific locality objectives. It provides:

New development should relate to the dominant Inter-War character of this area. Two storey development should be carefully designed to retain the open quality of the streetscape by continuing the low scale and horizontal emphasis of the existing housing. Space between houses should also be retained. Fencing should be kept low allowing views into the front gardens. The landscaped area of the front yard should not be dominated by driveways.

1. Part 10 of the DCP applies to Child Care Centres. The General Objectives for childcare centres include:

O1 To encourage the provision of high quality child care which

meets the needs of the community, including users of the

facility and owners and users of surrounding land uses.

O2 To encourage best practice in the planning and design of

Child Care Centres.

O3 To ensure that Child Care Centres are compatible with

neighbouring land uses.

O4 To ensure the amenity of adjoining neighbours is retained

(including protection of privacy, access to property, etc) and is

not detrimentally affected by noise emissions from the site.

O5 To ensure child care centres are located with adequate,

convenient and safe parking for visitors that do not impose on

any residential neighbourhoods or commercial areas.

O6 To ensure that child care centres integrate into existing

residential environments that are unobtrusive in terms of size,

bulk, height and the amount of landscaped area provided.

O7 To provide child care centres that are located or designed so

as not to pose a heath risk to children using the centre.

O8 To retain and protect significant existing vegetation in the City

of Canada Bay.

O9 To ensure the health, safety and wellbeing of children and

staff in childcare centres.

1. Part 10 includes controls for Building design appearance and neighbourhood character (10.5), traffic, parking and accesss (10.6), visual and acoustic privacy (10.9) and Landscaping (10.10).

The evidence

1. The Court visited the site and heard from objectors whose principal concern was the unsuitability of the site for a child care centre, particularly a centre which would accommodate 100 children. The objectors stated that there is already a shortage of parking in Mepunga Street and that if cars are parked on both sides of the street it is difficult to pass due to the narrow width of the street. It is also difficult at times to turn onto Concord Road. They considered that the proposal would exacerbate the existing unacceptable traffic conditions and result in safety issues, particularly for children and pedestrians. They also considered that the proposal would result in unacceptable noise impacts and that it was incompatible with a low density residential area.

1. Mr T Taylor, for the council and Mr G Atkins, for the applicant provided acoustic evidence. They agreed that with the imposition of conditions, including the restriction of the use of car spaces S3 and S4 before 7am, the proposed childcare use would have acceptable noise impacts.

1. Mr A Caladine, for the applicant, and Mr S Ardlie, for the council, provided planning evidence. Mr J Coady, for the applicant, and Mr C McLaren, for the council, provided traffic and parking evidence.

Parking and traffic

1. Mr Coady and Mr McLaren agree that Control C1 in Part 10.6 of the DCP requires one parking space for every four licensed places which equates to 25 spaces for the proposed childcare centre. Neither the DCP nor the Roads and Traffic Authority Guide to Traffic Generating Developments (RTA Guidelines) specify the proportion of car parking to be allocated to staff and to parents/carers.

1. Mr Coady and Mr McLaren agree the staff parking space allocation can be less than the actual staff parking demand because the peak staff parking demand potential typically occurs between 9am and 4pm, and does not coincide with the peak parent/carer parking demands which typically occur between 7.00am - 9.00am and 4.00pm - 6.00pm. In these circumstances, some of the parking spaces allocated to parent/carers can also be used for staff parking between 9.00am and 4.00pm. They agree that an allocation of 9 staff spaces is adequate to satisfy a demand of ten staff parking vehicles for the centre. They also agree that the stacked arrangement of car spaces S3 and S4 is acceptable provided they are not accessed between 7am and 9am or between 4pm and 6pm.

1. Mr Coady and Mr McLaren disagree on the peak demand for parent/carer parking likely to be generated by the centre. They both referred to a three day survey of a 90 place childcare centre in Roseville (Kids Academy) but drew different conclusions from extrapolating the results of the survey. Mr McLaren observation of the survey data results in an estimated demand peak of 15 parent/carer spaces. Mr Coady disputed the methodology employed by Mr McLaren, and estimated the maximum peak parent/care parking demand to be 11 spaces with a demand of 7 vehicles or less for the majority of the peak period. He stated that the parent/carer parking demand can be accommodated in the 12 parking spaces allocated to parent/carers at the proposed centre.

1. The experts also disagree on whether the three on street spaces along the frontage of the site could be included in the provision of parent/carer carpark spaces for the centre. In Mr Coady's opinion, child care centres can rely on some level of on street parking and he noted that Mr McLaren had accepted this approach in other appeals.

1. Mr McLaren considered that childcare centres could only rely upon on street parking where it is "safe and convenient" in accordance with the RTA Guidelines. In his opinion, Mepunga Street is too narrow (9.15m) to accommodate two way traffic plus kerb side parking on both sides of the street. Parking outside the centre should be restricted with "no stopping" signage to limit adverse traffic flow efficiency and road safety resulting from the increased traffic generated by the development. He also considered that a "No Left Turn" sign should be provided at the exit of the centre to limit cars travelling east along Mepunga Street, although during cross examination, he accepted that such a restriction was not essential.

1. Mr Coady considered that Mepunga Street is wide enough for vehicles to generally pass even if cars are parked on both sides and that there are also passing opportunities at driveways on either side of the street at regular intervals. There is also only a minor demand for on street parking during the peak set down/pick up periods which facilitates passing opportunities. The experts agreed that the increase in cars travelling to and from the east end of Mepunga Street would be about 13 in the AM peak and 12 in the PM peak. Mr Coady considered that this increase was well within the environmental capacity of the street and that it would not impact on the amenity of the residential street or result in unacceptable traffic impacts. While cars may need to slow down and wait to pass, this is not unusual or unacceptable in a residential street. In his opinion, there is no need to restrict cars leaving the site from turning left or to prevent parking outside the site.

1. Mr McLaren was principally concerned about the proximity of the child care centre to the intersection of Mepunga Road and Concord Road. Both experts undertook SIDRA analyses to examine the effects of additional traffic generated by the child care centre on the operating performance of the intersection. The key concern related to the right hand turn into Concord Road and the increase in delays and the extent of queuing that would result in Mepunga Street and consequently the ability of cars to pass near the intersection, if cars are parked outside the centre. Based on his assumptions, Mr McLaren concluded that the queue length would increase from about 5m existing to 23m or greater with the additional traffic. This reinforced his opinion that parking should be restricted outside the site. He noted that if the number of children were reduced to 70, the development would not adversely impact on amenity (localised congestion) and intersection performance.

1. Mr Coady undertook further SIDRA analyses to identify the different assumptions and conclusions between his earlier SIDRA analysis (Annexure J in Exhibit 6) and those of Mr McLaren (Annexure I in Exhibit 6). Mr Coady concluded that the different assumptions used by Mr McLaren that have a major detrimental effect on the intersection are:

i) assignment of additional traffic demand generated by the proposed childcare centre to turning movements through the intersection. Mr McLaren used a 50%/50% split to left turn and right turn movements from Mepunga Street into Concord Road. Whereas, Mr Coady used a split based on existing traffic movements through the intersection, which included 70% turning left and 30% turning right in the AM peak and 25% turning left and 75% turning right in the PM Peak.

ii) modification of the "TWSC (Two Way Sign Control) Calibration" within the SIDRA model by changing the default setting. The TWSC models driver behaviour based on the gaps between cars. The default setting used by Mr Coady is based on RMS data whereas the data input by Mr McLaren is based on AUSROADS.

1. Mr Coady prepared the following table, which summarised the Level of Service (LOS) and Average Vehicle Delay (AVD) under different assumptions.

Level of Service (LOS) (Mepunga St Approach)				Average Vehicle Delay in sec (Mepunga St Approach)
AM (7.15-8.15am)		PM (4.00-5.00pm)		AM (7.15-8.15am)		PM (4.00-5.00pm)
Existing	Post	Existing	Post	Existing	Post	Existing	Post
El-2	LOSB	LOSB	LOSB	LOSC	22.0	28.0	22.0	31.0
Fl-2	LOSB	LOSC	LOSB	LOSE	22.0	34.9	22.0	60.1
GI-2	LOSB	LOSC	LOSB	LOSC	24.4	31.5	26.8	37.7
HI-2	LOSD	LOSF	LOSC	LOSF	43.6	86.7	40.8	106.6

1. Mr Coady concluded that the change to the TWSC calibration parameter within the SIDRA model H1-2 has a significant detrimental effect on the intersection performance and is an unreasonable assumption. The LOS under the existing AM peak is predicted to be LOS D deteriorating under the post development to LOS F. During the PM peak the existing LOS C deteriorates to LOS F. This model contrasts to the LOS B for the AM and PM peaks in the other models (E1-2, F1-2 and G1-2). In his opinion, the intersection performance, resultant queuing and localised congestion would be acceptable and there is no need to restrict car parking outside the childcare centre or to limit the number of children. He noted that there is already no kerbside parking in Mepunga Street for a distance of about 21m from the Concord Road intersection.

1. The experts agreed that the location of the pedestrian path into the centre should be amended which would reduce the car parking numbers to 21, with one space shared by parents/carers and staff between 9am and 4pm. Mr McLaren preferred the path to be located on the western side (Annexure O in Exhibit 6) as this is closer to public transport on Concord Road. Whereas Mr Coady preferred the footpath to be located on the eastern side (Annexure M in Exhibit 6) as this is closer to the residential catchment for people walking to the centre.

Compatibility

1. The main disagreement between Mr Caladine and Mr Ardlie centred on whether the proposed use was compatible with the locality due to the adequacy of the landscaping, parking provision and traffic impacts.

1. Both experts relied on the positions of the respective traffic experts in relation to the adequacy of the parking and traffic impacts.

1. Mr Ardlie and Mr Caladine held different opinion on whether the landscape treatment in the front setback area and the western boundary was adequate. Mr Caladine considered that the previous industrial/warehouse use of the site had an adverse impact on the residential character of the area. The proposal would improve the existing appearance of the building and the surface car parking area off Mepunga Street. He considered that although the proposal did not comply with the numerical requirement in the DCP for a 1.5m wide landscaping strip along the boundary, the purpose of the control is to 'help with noise abatement and privacy' which is achieved. In Mr Caladine's opinion, the proposal would be compatible with the special character area.

1. Mr Ardlie acknowledged that the proposal would have acceptable noise and privacy impacts. However, he considered that landscaping to be inadequate as it did not provide an appropriate visual buffer for the building. In his opinion, the proposal did not achieve the objective for the R2 zone to maintain and enhance landscaping or the objectives for landscaping in Part 10.10 of the DCP. In his opinion, the proposal was not compatible with the low density residential character of the area.

Findings

1. The proposal is to convert an existing factory building for use as 100 space childcare centre. The parties agree that at least until 15 February 2011 the building enjoyed existing use rights for general warehouse, office showroom use. They disagree as to whether the existing use rights still remain but that it is not necessary to address this question, as the proposed childcare centre is permissible within the zone.

1. Mr Cole, for the applicant, submits that the retention and reuse of the existing building is consistent with the desired future character sought for the Concord West Character Area. The proposal, by internalising the play areas, achieves best practice set out in the Association of Australian Acoustic Consultants Guideline for Child Care Centre Acoustic Assessment (Acoustic Guidelines) and does not result in adverse noise or amenity impacts. Furthermore, the proposal meets a clear demand for childcare centres in the area.

1. Mr Jackson, for the council, acknowledges that no issues are raised in relation to the retention of the existing building, the need for the facility or its impacts and compatibility with the residential area, other than the adequacy of the landscaping, provision of on site parking and traffic which results from the 100 children who will attend the centre.

1. The objectives for the R2 zone include:

· To ensure that landscaping is maintained and enhanced as a major element in the residential environment.

1. The character objectives for the Concord West Character area include:

The landscaped area of the front yard should not be dominated by driveways.

1. The objectives and controls for parking in Part 10.6 of the DCP include:

Objectives

O1 To ensure a safe environment for pedestrians, particularly

children, motorists and cyclists around Child Care Centres.

O2 To ensure that vehicular access and parking provisions of

Child Care Centres do not detrimentally affect the traffic

safety of surrounding areas.

O3 To ensure the adequate provision of car parking.

Controls

C1 One (1) car parking space is to be provided for every four (4)

licensed places at the Child Care Centre.

C2 All on-site parking arrangements should ensure the visual

attributes of the streetscape are maintained, particularly

having regard to the built form, existing landscaping, tree

removal and number of vehicle crossings.

1. Part 10.10 of the DCP relevantly includes objectives and controls for landscaping:

Objectives

O1 To improve the overall visual amenity of Canada Bay.

O2 To protect existing significant vegetation.

O3 To protect the privacy of any adjoining residences.

Controls

C2 Landscaping and fencing should be designed to provide a

noise barrier and privacy screen for adjoining residents. In

residential zones or on land adjoining residential zones, a

1.5 metre wide landscaping strip is to be provided on all

boundaries to help with noise abatement and privacy.

1. Control C1 of the DCP requires one car parking space for every four licensed places which reflects the requirements in the RTA Guidelines. The proposal does not provide the 25 on site spaces required and the experts disagree on whether this is acceptable.

1. In reviewing the competing evidence of the experts, I accept Mr McLaren's opinion. I am not satisfied that the number of spaces provided on site is adequate to meet the demand for parking likely to be generated by the centre. I am also not satisfied that the centre can rely on the three on street spaces to meet the shortfall. The use of on street spaces is recognised by the RTA Guidelines in circumstances where the parking is safe and convenient.

1. Mepunga Street is a narrow road in close proximity to the intersection of Concord Road, which is an arterial road. The centre is large with 100 places, which will result in a number of children arriving and departing in the AM and PM peak periods. In these circumstances, the provision of car parking should comply with the requirements of the DCP and the RTA Guidelines. There is not adequate justification for fewer spaces to be provided nor is it acceptable to rely on the three on street spaces in front of the site. I do not accept that the restriction on left turns from the site is required due to the limited increase in cars travelling east along Mepunga Street. However, there is the potential for congestion and conflict arising from queuing at the intersection from cars travelling to and from the site from the west.

1. The SIDRA analyses undertaken by the experts indicate different results depending upon the assumptions that are used. Even the analysis of the existing situation indicates vastly different LOS for the intersection ranging from LOS D in Model H1-2 whereas the other Models have a LOS B. I acknowledge that the proposal and the future situation may be hard to predict, however, there should be greater certainty in measuring and assessing the existing situation.

1. From the evidence available and the competing positions of the experts, I am unable to be satisfied that the proposal, with the number of children and car spaces currently proposed, would not increase queuing and result in local congestion to an unreasonable level. The length of the queue and the degree of congestion is uncertain. However, the restriction of on street parking in front of the centre would mitigate this impact by limiting the need for cars to wait to pass if cars are parked and there is queuing at the intersection. Given the uncertainty of the evidence, I find that the number of children attending the centre should be limited to the number of on site car spaces required to be provided in accordance with the DCP, with no parking outside the centre during the AM and PM peak. However, in reaching this conclusion, I accept that the real traffic generation, demand and impacts can be monitored and assessed once the centre, with reduced numbers, is operational to establish whether on street parking could be relied upon if a further application to increase the number of children were to be made.

1. The experts agree that the pedestrian footpath should be relocated but disagree on whether this should be along the western or eastern boundary. The two options proposed are acceptable however, on balance, the path should be located along the eastern boundary as this provides more convenient and direct access to the foyer, a marginal increase in landscaping along the western boundary and is easily accessible for pedestrians from the Concord Road and the residential area.

1. The planners disagree whether the objectives of the landscape controls are achieved and whether the proposal is compatible with the residential character of the area. The proposal does not comply with the landscaping control C2, however the stated purpose of this control is "to help with noise abatement and privacy" and the experts agree that this is achieved. I accept Mr Caladine's evidence that there is adequate landscaping along the side boundaries of the site adjoining the houses. However, whilst the existing landscaping on the site is minimal, the proposal does not improve or "enhance" this situation. The retention of the existing building and the extent of parking and driveways in the front setback area provide little opportunity for landscaping to screen the hardstand parking area from the streetscape. While this is not dissimilar to the existing situation on the site, it is not consistent with the existing character of the street and what is sought as the desired future character for the area.

1. The length of the car spaces and the driveway result in the cars overhanging the landscaping proposed along the front of the site. The experts agree that only ground cover would be able to be provided along this frontage. The applicant has agreed to the imposition of a condition, which would marginally increase the depth of the landscaping along part of the frontage and may enable shrub planting to be provided (plans illustrating the amendment were filed on 16 August 2013). However, even with this amendment and the minor increase along the side boundaries resulting from the rearrangement of the footpath, the front setback would be predominantly a hardstand area with minimal landscape screening. I do not accept that the landscape treatment of the front setback is acceptable or meets the objectives for the zone, the Character Area or the landscaping control. A reduction in the number of parking spaces would provide greater opportunity for landscaping and better meet the objectives of the controls.

Conclusion

1. For the above reasons, I find that the proposal in its current form is not compatible with the character of the area, principally due to the number of childcare places and resultant car spaces. However, with the following amendments the proposal would be acceptable:

• Delete one car space along the southern frontage of the site to reduce the overall number of car spaces to 20, with one space being shared between parent/cares and staff between 9am and 4pm.

• Relocate the pedestrian footpath the eastern boundary of the site as shown in Annexure M in Exhibit 6.

• Reduce the width of the pedestrian path along the southern side of the building to 1m and increase the landscaping along the frontage as shown in plans filed on 16 August 2013.

• Provide a minimum 1.2m wide landscaping strip between the driveways and the southern parking spaces to provide shrubs and, if feasible at least one canopy tree in each strip as well as along the street frontage.

• reduce the number of children to 80 to reflect the requirements of the DCP for the number of car spaces provided on site.

1. A reduction in the number of children was raised during the hearing but not in detail. The council opposed such an amendment whereas the applicant indicated it would be accepted if the Court found it to be necessary. It is appropriate to allow the applicant time to consider the implications of this decision, particularly if it will also result in internal alterations and changes to the number of children in each age group and staff. Further, while the changes could be imposed as conditions, it is preferable that they are incorporated into a final set of plans and conditions to ensure consistency and certainty in the development consent.

1. If the applicant chooses not to incorporate the above changes, Orders will be issued in Chambers dismissing the Appeal.

1. If the applicant chooses to incorporate the above changes, Orders will be issued in Chambers upholding the Appeal once the plans and conditions, which reflect this decision are finalised.

Orders

1. The applicant is to advise the Court by ecourt on 3 Septemebr 2013, whether it intends to amend the plans to reflect this decision, if so, the applicant is to file and serve amended plans which incorporate the changes by 13 September 2013. The parties are to file agreed conditions by 20 September 2013.

1. Final Orders will be issued in Chambers

Annelise Tuor

Commissioner of the Court

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Decision last updated: 11 October 2013