Furia Pty Ltd v Sutherland Shire Council

[2019] NSWLEC 1409

Land and Environment Court

New South Wales

Medium Neutral Citation:

Furia Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1409

Hearing dates:

6-7 August 2019

Date of orders:

02 September 2019

Decision date:

02 September 2019

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

 

(1) The appeal is upheld.

 

(2) The application MA17/0558 to modify the development consent DA12/0673 granted by the Land and Environment Court on 2 July 2013 in proceedings 10227 of 2013 for a child care facility at 168 National Avenue, Loftus, by increasing the number of children from 36 to 48, is granted.

 

(3) As a consequence of order (2), development consent DA12/0673 for a child care facility at 168 National Avenue, Loftus, is now subject to the consolidated, modified conditions of development consent set out in Annexure A.

 (4) The exhibits are returned, except for Exhibits B, C, D, E, G, J, 9 and 10.

Catchwords:

APPEAL – child care centre – modification of consent granted by the Court – increase in number of children – reliance on on-street parking – whether on-street parking causes adverse amenity impacts to neighbouring residents

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017
Sutherland Shire Local Environmental Plan 2015

Cases Cited:

Dram Pty Ltd v Sutherland Shire Council [2017] NSWLEC 1445
Maguire v Sutherland Shire Council; Furia Pty Ltd v Sutherland Shire Council [2013] NSWLEC 1115

Texts Cited:

Child Care Planning Guideline
RMS Guide to Traffic Generating Developments (2002)
Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Furia Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
M Astill (Applicant)
M Seymour (Respondent)

  Solicitors:
McCartney Young Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2018/372768

Publication restriction:

No

Judgment

1. COMMISSIONER: Loftus is a residential suburb characterised by natural landscaping, largely owing to its location between the Royal National Park to the east and dense bushland around Loftus Creek to the west. At 168 National Avenue, Loftus, a 36 place childcare centre known as “Freckles Early Education Centre” operates pursuant to development consent granted by the Land and Environment Court on 2 July 2013. Furia Pty Ltd (“Furia”) seeks to modify that consent to increase the number of children to 48 and to provide an additional car parking space in the front setback. Sutherland Shire Council (“the Council”) refused a modification application seeking the same on 28 September 2018. These proceedings are an appeal against that decision, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (“EPA Act”).

2. The modification application also seeks to carry out landscaping in two areas between the car parking spaces and the front boundary. On the north-eastern side of the front setback, there is a total distance of 12.22m available for car parking and landscaping. Currently, there are 3 car parking spaces in that part of the setback, with a fourth space proposed to be located immediately adjacent to the landscaping abutting the front boundary. The total car parking to be provided on site through the proposed modified development is 8 spaces. The landscape plan, which also demonstrates the proposed modified car park layout, is at Figure 1.

3. It is agreed that the provision of 8 spaces will not account for the parking demand of the centre, but that between 1 and 4 spaces will be required on the street.

4. The modification application is also accompanied by a proposed addendum to the Plan of Management that seeks to put in place measures to reduce the length of stay for parents to 5 minutes. As set out below, this is to ensure that the proposed modified development can operate with parents using only 5 of the on-site parking spaces. This means that the 3 remaining spaces are for staff only, and any parking on the street is by staff of the centre.

5. The Council opposes the grant of the application on the basis that the reliance on on-street parking causes an adverse amenity impact on neighbouring residents. As set out in the reasons expressed below, I consider that this does not warrant refusal of the application given the extensive availability of on-street parking in the immediate locality.

The site and its locality

6. The site of the proposed modified development is legally described as Lot 3 DP 364503 and has a street address of 168 National Avenue, Loftus. It is located on the south eastern side of National Avenue in between Orchid Street and Ardisia Place, and contains an existing childcare centre catering for 36 children. The front of the site is largely comprised of concrete hard stand car parking and driveway area, with two driveway crossovers and car parking for 7 cars. There are three areas located in the front setback with landscape planting.

7. The site has a site area of 1011.7m2 and frontage of 20.1m. It falls approximately 1.4 metres from west to east. The site sits at the top of a crest and across from the intersection with Ardisia Place. An aerial view of the subject site is shown at Figure 2.

8. The surrounding locality is characterised by low density development comprising primarily single dwelling houses with varying architectural style. The streetscape is also dominated by trees and landscaped front setbacks. Pendlebury Park is a public reserve that is located on Orchid Street around 230m walking distance from the site.

The development consent

9. The development consent to which the modification application relates was for a 36 place centre with 7 car parking spaces and landscaping in the front setback. It was granted by Commissioner Morris in Maguire v Sutherland Shire Council;Furia Pty Ltd v Sutherland Shire Council [2013] NSWLEC 1115 (“Maguire and Furia”). At [77] of her judgment, the Commissioner considered that the proposed building integrated with the existing character of the streetscape as follows:

“I do not consider that any changes to the design of the building are required. The setbacks along National Avenue and the housing types are varied with no consistent architectural character. The proposed building is of similar size and scale to the dwelling houses in the locality and not inconsistent with the desired future character of the area. The retention of the existing established trees within the setback will integrate the development with the streetscape and assist in ameliorating the impact of the carpark.”

10. The development application before the Court, at that time, sought consent for 44 children. At [82] of the judgment, Commissioner Morris determined to reduce the permitted numbers to 36 so that only 2 on-street parking spaces were required, which could be provided for on the street immediately in front of the building. She stated the following:

“82 For this reason, I consider that the size of the centre should be reduced to 36 places. This would ensure that the peak parking demands for the centre could be met on site and through the use of the two parking spaces immediately in front of the site. I am satisfied that, whilst this is contrary to the requirements of the DCP, the spaces can be provided in a safe and convenient manner without impacting on the amenity of adjoining residents and therefore achieve the objectives of the control. Provided the enrolments are limited, I consider, based on the evidence, the site is suitable for use as a childcare centre.”

11. In dealing with the concerns raised with respect to the acoustic impact of the proposal, at [83] she noted that the acoustic evidence addressed the amenity impacts of the proposed use.

12. Following the grant of development consent and during construction, three established trees within the front setback were damaged and were the subject of an order from the Council for their removal. Subsequently, replacement planting was provided at the site.

13. Further, the construction of the development was such that the driveways in and out of the car parking area have been sized and located so that the space immediately at the front of the site is not sufficiently wide to accommodate the two vehicles, contrary to the plans considered by Commissioner Morris in Maguire and Furia.

14. Upon the completion of the work, including the landscaping, the Council issued an Occupation Certificate. Pursuant to s 6.4(c) of the EPA Act, the Occupation Certificate is taken to be part of the development consent to which it relates.

15. Accordingly, the development consent to which modification is sought includes the development as referred to in the Occupation Certificate. The evidence is that the site, as it is now, is in substantially in the same condition as it was at the date of the issue of the Occupation Certificate.

The statutory and planning framework

16. In considering the appeal, the role of the Court is to exercise the functions of the consent authority, the Council, in determining the modification application pursuant to s 4.56 of the EPA Act (see s 39 of the Land and Environment Court Act 1979). Sub-section (1) provides as follows:

(1)  A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if:

(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)  it has notified the application in accordance with:

(i)  the regulations, if the regulations so require, and

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(c)  it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and

(d)  it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

17. Section 4.56(1) requires the Court, in exercising the functions of the consent authority, to be first satisfied that “the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted”. The Council does not maintain its initial position that it is not substantially the same, and I am satisfied that the proposed modified development is substantially the same as that for which consent is granted.

18. Upon reaching the satisfaction that “the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted” and that the other matters in subs 4.56(1) are satisfied, subs (1A) provides that:

“In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.”

19. Sub-section (1A) makes it clear that in considering the modification application, the Court is required to take into account the relevant matters referred to in s 4.15(1) and the reasons given by the Court in Maguire and Furia.

20. Section 4.15(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, certain draft instruments and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

21. The site is zoned R2 Low Density Residential pursuant to the provisions of the Sutherland Shire Local Environmental Plan 2015 (“SLEP 2015”). Centre-based child care facilities are a nominated permissible use in the R2 zone. The objectives of the R2 zone are as follows:

• 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 protect and enhance existing vegetation and other natural features and encourage appropriate bushland restoration particularly along ridgelines and in areas of high visual significance.

• To allow the subdivision of land only if the size of the resulting lots retains natural features and allows a sufficient area for development.

• To ensure the single dwelling character, landscaped character, neighbourhood character and streetscapes of the zone are maintained over time and not diminished by the cumulative impact of multi dwelling housing or seniors housing.

22. Clause 6.18, which does not strictly apply to modification applications, concerns the urban design of non-residential development in residential areas. It provides as follows:

6.18 Urban design—non-residential development in residential areas

(1) This clause applies to development, other than development for the purposes of residential accommodation and places of public worship, on land in the following zones:

(a) Zone R2 Low Density Residential,

…

(2) Development consent must not be granted for development to which this clause applies unless the consent authority has considered the following:

(a) the extent to which any proposed non-residential accommodation and its design will integrate into the locality,

(b) the extent to which any such accommodation will respond to the local character, and relate to the scale, streetscape, setbacks and use of materials of other accommodation in the locality,

(c) the extent to which the residential amenity of the locality will be protected from detrimental traffic-related impacts and noise associated with the development.

23. The State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (“SEPP EE”) applies to the proposed development. Clauses 23 and 26 provide as follows:

23   Centre-based child care facility—matters for consideration by consent authorities

Before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development.

…   

26   Centre-based child care facility—development control plans

(1)  A provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like, of children) does not apply to development for the purpose of a centre-based child care facility:

(a)  operational or management plans or arrangements (including hours of operation),

(b)  demonstrated need or demand for child care services,

(c)  proximity of facility to other early education and care facilities,

(d)  any matter relating to development for the purpose of a centre-based child care facility contained in:

(i)  the design principles set out in Part 2 of the Child Care Planning Guideline, or

(ii)  the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates).

(2)  This clause applies regardless of when the development control plan was made.

24. The provisions of the Child Care Planning Guideline (“CCPG”) concerning traffic, parking and pedestrian circulation are in Part 3.8. The objective is to “provide parking that satisfies the needs of users and demand generated by the centre.” At C31 and C33 the CCPG provides:

“C31

Off street car parking should be provided at the rates for child care facilities specified in a Development Control Plan that applies to the land.

…

A reduction in car parking rates may be considered where:

• the proposal is an adaptive re-use of a heritage item

• the site is in a B8 Metropolitan Zone or other high density business or residential zone

• the site is in proximity to high frequency and well connected public transport

• the site is co-located or in proximity to other uses where parking is appropriately provided (for example business centres, schools, public open space, car parks)

• there is sufficient on street parking available at appropriate times within proximity of the site.

C33

A Traffic and Parking Study should be prepared to support the proposal to quantify potential impacts on the surrounding land uses and demonstrate how impacts on amenity will be minimised. The study should also address any proposed variations to parking rates and demonstrate that:

• the amenity of the surrounding area will not be affected

• there will be no impacts on the safe operation of the surrounding road network”

25. The Sutherland Shire Development Control Plan 2015 (“SDCP 2015”) applies to the proposed modified development, and Chapter 35 deals with uses including child care centres. In the introduction to Chapter 35, it states that:

“The uses covered by this chapter (including alterations and additions to such uses) must be consistent with the predominant built form and design elements of the surrounding locality and streetscape. The objectives of the controls relating to each design element (streetscape, building form, building setbacks, landform, landscaping, building layout, solar access, visual and acoustic privacy, vehicular access, parking and circulation) seek to ensure that any use that is permissible within a zone is developed in a manner that is consistent with the zone objectives and contribute to a harmonious local environment.”

26. The general controls require, at 1.2(2), that “parking and access shall comply with the requirements of Chapter 36 Vehicular Access… in addition to any requirements applying to a specific land use…”. The objective that is relevant to this control is, at objective 8, to “Provide adequate, safe and efficient parking, vehicular access and pedestrian access.”

27. Part 3 of Chapter 35 concerns child care centres, and requires that on-site parking be provided at the rate of 1 space for 4 children. However, the controls allow some flexibility by providing the following (at 3.2):

“3. Subject to a merit assessment, reduced parking rates may also be considered for:

a. child care centres located on corner blocks.

b. child care centres that provide safe drop off zones on the street.

c. child care centres with a street frontage greater than 15 metres.

4. It is the responsibility of the applicant through the development assessment process to demonstrate that the proposed level of parking provision is adequate, or that the overall planning benefits of the proposed development outweigh the deficiencies.

5. Any variation to the parking rates must address the following issues (as relevant to the particular development):

a. Type and scale of the development and its potential impact on local traffic and parking conditions.

b. Existing parking facilities already provided prior to further development.

c. Site and building constraints.

d. Heritage and urban design considerations including significant streetscape elements such as sandstone retaining walls, significant mature trees etc

e. On street and public parking in the area, as well as proximity and access to public transport.

f. Location of local services, employment, retail and recreational facilities.

g. Safety of vehicles, pedestrians and cyclists.

h. Provision of any integrated, sustainable transport options benefiting the site.”

28. Chapter 36 of the SDCP 2015 sets out the parking requirements, with the objectives as follows:

“1. Ensure all land uses and/or combination of activities provide sufficient parking on site to satisfy the demand for parking by different vehicle types generated by the development

2. Minimise reliance on street parking”

29. The car parking requirements for a child care centre is then given as 1 space per 4 children in attendance. However, there is provision for flexibility if:

“- centre is near a public reserve

- centre is located on a corner block

- centre provides a safe drop off zone on the street

- the centres has a street frontage greater than 15m, or

- if the centre operates as a long day care centre.”

30. Part 2 of Chapter 36 concerns the design of car parking areas, and requires that the dimensions of on-site car parking spaces comply with the Australian Standard AS 2890.1 (as amended) and AS 2890.6.

The evidence

Resident objector evidence

31. The hearing commenced on site with evidence from two local residents who are objectors to the proposal. A number of written submissions from resident objectors also formed part of the evidence. The following is a summary of the issues raised concerning the proposed development in the evidence given on site and in the written submissions:

• The increased potential for traffic conflicts occurring in National Avenue in circumstances where there are cars parked on National Avenue and where it forms part of the bus route, and where there are poor sightlines to oncoming traffic as a result of the hill.

• The inconvenience of having a car parked on the street in front of private dwellings.

• The noise from the additional children.

• Concerns about the current management of waste on the premises.

32. One of the objectors asked that the Court reconsider the original grant of development consent. However, the role of the Court, in exercising the functions of the consent authority, is to consider the modification application and does not extend to a review of the grant of development consent. The remainder of the concerns are considered further below.

Expert evidence

33. Mr Damon Kenny, a town planner employed by the Council, and Mr Jeff Mead, a consultant town planner engaged by Furia, prepared a joint report and gave evidence with respect to the town planning issues. They agreed that if the landscaping proposed in the landscape plan can be achieved, and that the low level planting in the eastern bank can be in the form of a species that would grow to 1m in height, the proposal would be acceptable in terms of landscape and streetscape character. However, they disagreed on the amenity impacts of on-street parking in the R2 low density residential zone, which is considered further below.

34. Mr Chris Palmer, a traffic engineer engaged by the Council, and Mr Matthew McCarthy, a traffic engineer engaged by Furia, prepared a joint report and gave evidence with respect to the demand for parking and the anticipated on-street parking required. Their evidence is considered below.

35. Mr James Van Breda, an ecologist and arborist employed by the Council, and Ms Megan Geddes, a consultant ecologist engaged by Furia, prepared a joint report containing their expert opinion with respect to landscaping. In that joint report, Ms Geddes relied on the advice of Mr Sam Allouche, an arborist engaged by Furia. As a consequence of doing so, Mr Allouche prepared a single expert report and leave was granted for that to be tendered at the hearing. Mr Allouche subsequently participated in a joint conference with Mr Van Breda and Ms Geddes, at which they all agreed that the landscaping could be achieved with the proposed tree (on the north eastern side of the front boundary) as long as alternative construction methods, such as a suspended slab or structural soil with pavers, were used for the proposed new car space.

Is there adequate off-street parking?

36. A strict application of the parking controls in the SDCP 2015 requires an additional 3 car parking spaces to be provided for the additional 12 children sought by the modification application. However, to understand the actual demand, Mr McCarthy undertook queuing analysis based on average length of stay from the RMS Guide to Traffic Generating Developments (2002) and Mr Palmer engaged a traffic surveyor to undertake a two-day survey at the existing centre in order to determine the current traffic and parking characteristics of the centre.

37. As a result of the survey data and the queuing analysis, Mr McCarthy and Mr Palmer agree that the proposed 48 place child care centre can operate with 5 parent spaces and a parking demand of 6 staff spaces, resulting in a maximum of 3 staff parking on the street. They agree that this can be achieved if the on-site car park is managed to ensure that parents stay less than 7.5 minutes within the on-site car parking. In order to do so, they agree that a restriction to 5 minutes parking would be appropriate to manage the time taken by parents and carers to drop off and pick up their children. They agree that with careful management, the on-street overflow demand for staff parking could be reduced to 1 space, although this would require staff to move their vehicle during the day which could create internal management issues. Instead, they agree that it is likely that only one peak (either AM or PM) could operate with an overflow of 0-1 staff parking spaces, while the other peak would have a staff overflow of up to three spaces.

38. Parking surveys carried out on behalf of Mr McCarthy demonstrate that there is sufficient available on-street parking in the vicinity of the site to accommodate 3 spaces. Those surveys show that there are a minimum of 17 car parking spaces available during the surveyed times when taking into account the southern side of National Avenue between Lilac Street and Orchid Street and the northern side between Orchid Street and Kurri Street (with a total capacity of 29 spaces). Beyond this, the surveys show a minimum of 60 car parking spaces available within 200m walking distance from the site at any one period.

39. Mr McCarthy also says that entry driveway on the eastern most driveway could be reduced by 0.4m at the road level and tapered to the existing boundary width, to allow a formal 5.4m length kerbside parking space in this location along the site frontage. This would make an additional car parking space available on the street and along the site frontage.

40. Mr McCarthy’s evidence is also that the on-street kerbside parking area along the southern side of National Avenue would be satisfactory to meet the requirement for convenient and safe parking for parents, notwithstanding that there is no footpath along the southern side of National Avenue.

41. Mr McCarthy and Mr Palmer also agree that for a 48 place child care centre to operate in a way to have ample parent parking available, the Plan of Management should contain the following (Ex 4, p.15):

“• Five (5) parent spaces are to be made available during the AM and PM peak hour period for parents and they are to be signposted as parent parking spaces;

• The five (5) parent spaces are to be signposted as 5-minute time restricted parking;

• Upon enrolment parents are to be instructed that the parent spaces are restricted to 5 minute parking. In the event that parents require longer stay lengths, parents are to organise a meeting time outside of peak pick-up and drop-off periods (between 9:00am to 4:00pm);

• Remind parents regularly by updates of the necessity of limiting drop-off and pick-up times to five (5) minutes;

• The disabled space is to operate under a Plan of Management, such that when it is required to be a disabled space for a disabled user appropriate measures are in place to ensure this space is available.

• Delivery services are to be undertaken outside of peak pick-up and drop-off periods (between 9:00am and 4:00pm)

• Of the three (3) proposed staff spaces they are to be linemarked as staff spaces and encouraged to be used by staff”

42. Mr McCarthy also opines that if parking on National Avenue in close proximity to the site is unacceptable to the Court, then the staff could park at Pendlebury Park, 230m from the centre. That is contained in Furia’s proposed addendum to the Plan of Management.

The Council’s position that the on-street parking is unacceptable

43. The Council’s position is that it is unacceptable to have 3 staff parking on the street, beyond the frontage of the site, and that the Plan of Management is not adequate to ensure that parents and carers will stay less than 7.5 minutes within the on-site car park.

44. The Council submits that the core problem with relying on on-street parking is that it relies on bringing a public space, external to the site, into the private use of the child care centre. The Council submits that, generally speaking, the spreading out of uses onto public space is not an acceptable outcome. Further, the Council submits that cl 6.18 of the SLEP 2015 requires there to be consideration of whether the residential amenity of the locality will be protected from the impacts associated with the development. The Council submits that the effect of cl 6.18 is to ensure that non-residential development subordinates itself to residential development in the R2 Low Density Residential zone, and that residential amenity is protected from a detrimental impact. The Council submits that this is consistent with the requirements of cl 3.2(4) of Ch 35 of the SDCP 2015, which requires an applicant “to demonstrate that the proposed level of parking provision is adequate, or that the overall planning benefits of the proposed development outweigh the deficiencies” in order to allow reduced parking rates to be considered. The Council submits that Furia has failed to demonstrate that the planning benefits outweigh the amenity impact on the residents.

45. With respect to the actual amenity impact on the residents, the Council relies on the evidence of Mr Kenny, who considers that adverse amenity impacts are caused to the local residents by the on-street parking for four reasons. Firstly, he opines that residents would recognise that the presence of the cars parked on a regular basis in the same location is associated with the child care centre business, which is not a residential use. Secondly, he considers that the cars parked in front of residents’ properties reduce the availability of their on-street parking. Thirdly, he considers that the noise from car doors causes an amenity impact. Fourthly, he opines that the movements in front of residents’ properties, which could be up to 9 movements a day, causes an adverse amenity impact.

46. Additionally, the Council points to the evidence of the resident objector, who gave evidence that she feels unsafe as she drives past with the parked cars opposite the centre, and says that although this is a subjective perception it is an impact nonetheless.

47. The Council submits that this is supported by the reasons given by Commissioner Morris, which are required to be considered pursuant to s 4.56(1A), and which reduced the size of the centre so as to ensure that the parking demands for the centre could be met on site and through the two parking spaces immediately in front of the site, therefore avoiding impacting on the amenity of adjoining residents.

48. The Council also submits that the management of the car parking outlined in the proposed amended Plan of Management, which is required in order to limit the on-street parking to 3 cars, is not sufficient to guarantee that parents will stay less than 7.5 minutes. The Council says that this aspect of the Plan of Management does not comply with the planning principle in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 (“Renaldo”). In particular, it submits that, contrary to the principle in Renaldo, the requirements in the plan require people to act in a manner that is unlikely, by limiting the length of stay to less than what it is currently. Further, the Council submits that breaches will not be readily identified, and that there is no procedure for updating and changing the Management Plan.

49. The Council says that the current average duration of stay is longer than 7.5 minutes, and the proposed amended Plan of Management does very little above the current management to reduce that time. As such, the Council says that this is demonstrative of the centre being unable to limit the duration of the stay to less than 7.5 minutes, which will mean that additional on-site parking is required or the number of children ought to be reduced. The Council submits that this is sufficient to warrant refusal of the application.

Furia’s position that on-street parking is acceptable

50. Furia instead submits that the amenity impact occasioned by the parking of staff on the street is de minimus, or negligible. Indeed, Furia says that the impact is so negligible that it cannot be quantified and is purely philosophical.

51. In particular, Furia submits that the presence of the cars and the associated activity, including opening and closing of car doors, are of the same nature as any other residential traffic. Furia submits that this is supported by the evidence of Mr Palmer, who agreed that the impact was minimal, and Mr Kenny, who eventually agreed that there were no real amenity issues. Further, Furia points to the internal referral of the modification application to the Council’s traffic engineer, who confirmed that even with 4 parking spaces on the street, “in a suburban area with safe and convenient parking available on street the ratio of 2/3 off street and 1/3 on street is not considered unreasonable”.

52. Furia submits that in taking into consideration the reasons for the grant of development consent (as required by s 4.56(1A) of the EPA Act), it needs to be acknowledged that the circumstances have changed since the grant of the original consent, in two ways. Firstly, the SDCP 2015 allows flexibility that was not provided for in the Development Control Plan considered in the determination of Commissioner Morris. That Development Control Plan did not permit any on-street parking. The SDCP 2015, on the other hand, permits flexibility to allow on-street parking firstly for long day care centres, secondly where the site has a frontage of greater than 15m, and thirdly where it is near a public reserve. Furia points out that the development meets those criteria, which were not present in the earlier Development Control Plan. Secondly, whereas Commissioner Morris relied on evidence of predicted impacts of the construction and operation of the child care centre, that centre has now been constructed and the actual impacts are known.

53. Furia’s position is that in circumstances where the development meets the criteria for flexibility in the SDCP 2015, and where on-street parking is generally available and has negligible amenity impacts, that flexibility ought to be afforded.

54. Furia also submits that in such circumstances, contrary to the submission of the Council that the positive planning outcome must outweigh the negative amenity impacts, there are no negative impacts that could weigh against the positive impacts of the modification to the development.

55. With respect to the Plan of Management, Furia points out that the addendum to the Plan of Management and the agreed changes seek to reduce the average duration of stay to 5 minutes, but that the agreement of the traffic engineers is based on an average duration of stay of 7.5 minutes. In circumstances where the current average duration of stay, at worst, is 8 minutes and 26 seconds (in the afternoon only), and that is achieved without any management, Furia submits that introducing the steps for the management of the length of stay is bound to have an effect. Further, Furia submits that the centre has an interest in complying with the Plan of Management to reduce the duration of stay and prevent the inconvenience that would be occasioned by parents parking on the street, and as such, there is no tension between the desired behaviour and the controls in the proposed amended Plan of Management.

The on-street parking is acceptable

56. For the following reasons, I consider that it is acceptable for some of the staff parking (which the traffic engineers have calculated to be 3 cars) to be accommodated on the street.

57. Firstly, the mere presence of vehicles associated with a non-residential use is not an amenity impact, of itself. Centre-based child care facilities are a nominated permissible use in the R2 zone, and the mere presence of such a facility and of vehicles associated with that facility does not cause an adverse impact on residential amenity.

58. Secondly, I accept the submission of Furia that the activity of parking vehicles on the street and the associated activities, including the parking of the car, the closing and opening doors, and the movements to and from the vehicle, are not any different to activities that would ordinarily occur in a residential neighbourhood.

59. Third, the evidence establishes that there is an abundance of parking available on the street. There are a minimum of 17 car parking spaces available taking into account the southern side of National Avenue between Lilac Street and Orchid Street and the northern side between Orchid Street and Kurri Street, and a minimum of 60 car parking spaces available within 200m walking distance of the site. Pursuant to C3 of the CCPG, the availability of this on-street parking forms a basis for considering a reduction in the car parking rates required by the SDCP 2015. Further, the extent of the available on-street parking demonstrates that reliance by the centre on parking that is on the street will not affect the availability of on-street parking for residents.

60. At worst, an inconvenience is caused to residents who rely on on-street parking, who may have to park their vehicles further away from their residences if parking occurs on their curb frontage. In this respect I accept the evidence of Mr McCarthy, who notes that the only impact to residents if staff park beside neighbouring properties would be the displacement of residential parking, if that particular resident required the use of their frontage of parking. Given the abundant available parking on the street and that displacement would occur only during the operating hours of the centre and only for a short distance, that impact is, in my view, de minimus. Given that I consider this impact de minimus, I do not require the Plan of Management or the conditions to require the staff to park at Pendlebury Park.

61. Fourthly, that the residents have a perception of a safety risk is not, of itself, an amenity impact. Instead, there must be some objective or measurable evidence of an adverse impact. As stated by Lloyd J in New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) LGERA 303; [2003] NSWLEC 154, at 316, in speaking of concerns expressed in public submissions:

“Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area (Dixon at [53]). In Broad, de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use.”

62. Fifthly, I consider that the proposed changes to the Plan of Management are appropriate and adequate to keep the duration of stay for parents to an average of 7.5 minutes or less. Each of the management methods have not been utilised at present and the only evidence of an average duration of stay greater than this is in the afternoon period. I accept the submission of Furia and the evidence of Mr McCarthy that these management methods, including the erection of “5 minute parking” signs will reduce the average length of stay to within that 7.5 minutes. I also accept the submission of Furia that the centre has an interest in ensuring compliance as non-compliance causes inconvenience to the centre and its parents. Additionally, I consider that there is very little adverse impact in the event that there is non-compliance. In this respect, I accept the evidence of Mr McCarthy that the on-street kerbside parking area along the southern side of National Avenue would be satisfactory to meet the requirement for convenient and safe parking for parents, which could be utilised on the rare occasions where the on-site parking is full.

62. Therefore, in considering the balancing exercise contemplated by cl 3.2(4) of Ch 35 of the SDCP 2015, I accept the evidence of Mr Mead that in the absence of any significant impacts, the planning benefits of providing child care in an existing facility outweighs a strict application of the on-site parking rates in the SDCP 2015. That is, allowing the child care centre to provide child care within its capacity outweighs the de minimus impact of relying on 3 on-street parking spaces. The SDCP 2015 clearly allows flexibility in the circumstances of the present centre, which is a long day care centre with at least 15m frontage, and the exercise of that flexibility is appropriate given the availability of on-street parking. Given the small number of vehicles that will be parked on the street and that 8 spaces will be provided on site, I also accept that the proposed modified development is consistent with the objective of the SDCP 2015 in Chapter 6 to minimise reliance on street parking.

63. In considering the reasons for the grant of consent given by Commissioner Morris, I accept the submission made on behalf of Furia that the applicable development control plan has changed since that decision, and that the applicable SDCP 2015 allows flexibility to rely on street parking in specified circumstances, which was not permitted by the previous Development Control Plan.

Concerns of the residents

Potential traffic conflicts

65. Contrary to the concerns of the objectors with respect to potential traffic conflicts, the uncontradicted evidence of Mr McCarthy is that the environmental capacity of National Avenue is not exceeded under the proposed modification and the probability of two vehicles passing one another on this section of National Avenue during the afternoon peak hour period (which generates the highest traffic flow) is extremely low and within acceptable thresholds. Whilst the width of National Avenue (9.2m) would allow a B99 design vehicle to pass a B85 vehicle with cars parked on both sides of the road, he opines that this is unlikely to occur based on the appearance of a narrow road under this arrangement. His evidence, which is supported by swept path analysis, is that there are available areas where sight lines to opposing vehicles exist along National Avenue for vehicles to pull over to pass one another in the event that cars are parked on both sides of the road and two-way passing is required. On the basis of this evidence, I am satisfied that the presence of parked cars on National Avenue does not create any risk to cars passing along National Avenue.

Acoustic impact

66. With respect to the residents’ concerns about the acoustic impact of increasing the number of children, the conditions of consent set out specific acoustic criteria for the outdoor play area and restrict the hours of operation of the outdoor play area. Further, the development is required to comply with the acoustic report that formed part of the original grant of consent, which includes acoustic treatment. Additionally, the conditions of consent require compliance with the applicable acoustic criteria to be validated by an acoustic engineer.

67. The addendum to the Plan of Management, which forms part of the modification application, also seeks to manage the acoustic impact by limiting the number of children in the outdoor play area to a total of 40. The addendum Plan of Management also sets out when each outdoor play area is used, and the maximum children for each play area.

68. As such, I am satisfied that there are sufficient measures in place to ensure that the centre is managed in a way that does not cause an unacceptable acoustic impact, even with the increase in children. Furthermore, I accept the submission of Furia that the occasional sound of an educator raising their voice is not sufficient to establish that there is an unreasonable acoustic impact.

Conditions of consent

69. The Council seeks a condition to be imposed on the consent, as a result of this modification, that the remaining untreated concrete carpark surface within the property is to be “coated with a long lasting and patterned surface finish in a recessive colour in a different finish to the pedestrian walkway”.

70. In support of its position with respect to this condition, the Council submits that the modification application increases the concrete area exposed to the street without landscaping sufficient to screen that concrete area. It relies on the evidence of Mr Van Breda, who opines that the site is set apart from the rest of the streetscape by the extensive, reflective and dominant driveways and carparking facilities. He then opines that minor cues and elements that characterise the Loftus streetscape could be incorporated into a sympathetic landscape design, including “the minimal use of reflective concrete surfaces”. Based on this evidence, the Council submits that the existing concrete area should be coated in a recessive colour.

71. Furia submits that, firstly, such a condition is not reasonably related to modification application, and secondly, there is no evidence in support of the benefits of, or requirement for, the coating in a recessive colour.

72. Whilst I accept that such a condition is reasonably related to the modification application for the reasons outlined by the Council, there is no evidence to support the proposition that the coating of the concrete in a patterned, recessive colour will ameliorate Mr Van Breda’s opinion with respect to the existence of uncharacteristic “extensive, reflective and dominant driveways and carparking facilities”. Instead, the evidence of Mr Mead and Mr Kenny is that the planting proposed in the landscaping plan will assist with softening the hard paved area of the front setback to an acceptable level, and minimise the visual impact of additional paving associated with the additional car space. As such, the evidence is that the concerns of Mr Van Breda are actually ameliorated by the proposed landscaping. Accordingly, there is no basis in the evidence that warrants the imposition of the condition sought by the Council for the coating of the concrete in a recessive colour.

Outcome of the appeal

73. I have determined above that the residential amenity of the locality is not unacceptably impacted by the parking, traffic or acoustic impacts of the development as proposed to be modified. Consistent with cl 6.18(2)(c) of the SLEP 2015, I consider that the residential amenity of the locality is protected from detrimental traffic-related and noise impacts associated with the increase in children. Whilst I am not necessarily of the view that cl 6.18(2)(a) and (b) concerning “accommodation” strictly apply to a child care centre, I accept the evidence that the landscaping plan allows the development to integrate into the locality. Similarly, there is no evidence from a town planning or urban design perspective that the increase in the car parking will result in a scale of development or streetscape that is not responsive to the local character. This distinguishes the present application from the decision of the Court in Dram Pty Ltd v Sutherland Shire Council [2017] NSWLEC 1445.

74. The Council raised no other contentions concerning the ability of the centre to accommodate the additional children. As such, development consent should be granted subject to conditions of consent, including conditions requiring the centre to operate in accordance with the Plan of Management and the addendum Plan of Management (Tab 8 of Ex E).

75. However, the conditions ought to reflect that the staff need not park at Pendlebury Park. I have amended the conditions accordingly, and also provided additional wording by way of clarification to proposed condition 56.

76. The Court orders that:

1. The appeal is upheld.

2. The application MA17/0558 to modify the development consent DA12/0673 granted by the Land and Environment Court on 2 July 2013 in proceedings 10227 of 2013 for a child care facility at 168 National Avenue, Loftus, by increasing the number of children from 36 to 48, is granted.

3. As a consequence of order (2), development consent DA12/0673 for a child care facility at 168 National Avenue, Loftus, is now subject to the consolidated, modified conditions of development consent set out in Annexure A.

4. The exhibits are returned, except for Exhibits B, C, D, E, G, J, 9 and 10.

……………………….

J Gray

Commissioner of the Court

Annexure A (240 KB)

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Decision last updated: 04 September 2019