Galluzzo v Campbelltown City Council

[2009] NSWLEC 1425

Land and Environment Court

of New South Wales

CITATION:

Galluzzo v Campbelltown City Council [2009] NSWLEC 1425

PARTIES:

APPLICANT
John Galluzzo

RESPONDENT
Campbelltown City Council

FILE NUMBER(S):

11218 of 2008

CORAM:

Bly C

KEY ISSUES:

DEVELOPMENT APPLICATION :- extension of existing child care centre, road widening, rural residential character.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979,
Campbelltown (Urban Area) Local Environmental Plan, 2002,
Campbelltown Development Control Plan No 49 Rural Environmental Subdivision Dwelling Policy,
Campbelltown (Sustainable City) Development Control Plan 2009

DATES OF HEARING:

14 and 15 September and 19 November 2009

 
DATE OF JUDGMENT: 

18 December 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms K Leotta Barrister
SOLICITORS
Alis Lawyers

RESPONDENT
Mr A Seton Solicitor
SOLICITORS
Marsdens Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

18 December 2009

11218 of 2008 Galluzzo v Campbelltown City Council

JUDGMENT

Introduction

1 Situated on land at the corner of Campbelltown Road and Blomfield Road in Denham Court is the "Leaping Learners Child-Care Centre" that can, within two single-storey buildings, accommodate 74 children. It has 10 staff and parking for 23 cars with separate access and egress off Blomfield Road. There is an existing two-storey dwelling house towards the northern end of the site with access off Campbelltown Road.

2 It is now proposed that the centre be extended with the construction of a new single storey building that will accommodate an additional 57 children and five staff. An additional car park will provide car parking for 19 cars.

3 The "L" shaped site, being 1 Blomfield Road, Denham Court (Pt Lot 101 DP 602622) has frontages of 48.6 m and 60.4 m and an area of 1 ha.

4 According to the Statement of Facts and Contentions, surrounding development is generally characterised by detached dwellings on larger rural allotments. There is some commercial development along Campbelltown Road including opposite the site (within the Liverpool City Council area). Blomfield Road is a cul-de-sac serving 13 x 1 ha rural residential properties.

Planning controls

5 Pursuant to the Campbelltown (Urban Area) Local Environmental Plan, 2002 the site is mainly within Zone 7(d5) - Environmental Protection (1 ha minimum) and partly within Zone 5(c) - Special Uses Sub-Arterial Roads. Child-care centres are permissible with development consent in the 7(d5) zone and prohibited in the 5(c) zone.

6 Clause 25 of the LEP identifies the objectives of the 7(d5) zone including the conservation of the rural residential character of the land whilst allowing some diversity of development that does not have a detrimental effect on the quality and character of the locality. Development consent cannot be granted unless the proposed development would be consistent with one or more of these objectives.

7 A further objective seeks a high quality standard of development that is aesthetically pleasing and relates sympathetically to nearby and adjoining development.

8 The 5(c) zone extends along the site's entire 60 m Campbelltown Road frontage to a variable extent, that being between 9 m and 17 m. The majority of the proposed car park and some parts of the proposed building (including its veranda and play areas) are situated within this zone.

9 Clause 17 of the LEP sets out the objectives of the 5(c) zone they being to: identify land required for sub-arterial roads; to control vehicular access to and from sub-arterial roads; and to allow for the development and use of such land prior to its acquisition for road purposes. Development consent cannot be granted for development within this zone unless the proposed development would be consistent with one or more of these objectives. A further objective seeks a high quality standard of development that is aesthetically pleasing and relates sympathetically to nearby and adjoining development.

10 Relevantly, cl 52 of the LEP deals with acquisition of certain land and enables the owner of land affected by the 5(c) zone to seek, pursuant to subclause (1)(c) "by notice in writing" to have the relevant public authority, in this case the council, acquire such land. I do not understand that any such notice has been provided.

11 Notwithstanding the above-described prohibition, cl 52(3) of the LEP provides that, until land within zone 5(c) is acquired: "development may be carried out for any purpose on that land with development consent". Subclause (4) requires that in determining whether to grant consent under subclause (3) certain matters including the following must be taken into consideration: the effect of the proposed development on acquisition costs; the imminence of acquisition; and the cost of reinstating the land for the purpose for which the land is zoned. Subclause (5) provides that in granting such consent, conditions dealing with the following may be imposed: the removal of the buildings the subject of the consent; the reinstatement of the land; and compliance with any other condition that might be imposed by the consent authority.

12 Whilst not strictly applicable to child-care centres the Campbelltown Development Control Plan No 49 Rural Environmental Subdivision Dwelling Policy is nevertheless an important policy document that, in conjunction with the LEP, can be used to understand the likely future character of this area. As stated in the DCP's objectives, it aims to retain the rural residential character of Campbelltown's scenic protection, rural environmental protection, rural and non-urban areas. Clause 24 sets a building line of 35 m for single storey dwelling houses and 50 m for two-storey houses. A minimum setback of 10 m from side or rear boundaries is also required. Outbuildings are required to be set back 70 m.

13 Similarly, Part 7 of the Campbelltown (Sustainable City) Development Control Plan 2009 that deals with child-care centres is also of some relevance in understanding likely future character, even though section 1.1.9(c) specifically excludes development applications made before 25 June 2008 (as is the case here) and such applications must be determined as if this DCP had not commenced.

14 The locality requirements in section 7.3.1 of the Sustainable City DCP exclude child-care centres on allotments within 100 m of the intersection of a state road or within a no through road. In addition child-care centres cannot be permitted on a local street unless the centre will not impact negatively on the local traffic network, has adequate on-site parking manoeuvring and the amenity of surrounding properties is maintained. Section 7.3 .3 contains design requirements for streetscape including the need for new buildings to compliment the scale of surrounding development and streetscape character. Buildings on the corner sites should have positive articulation and address both street frontages.

15 The application was advertised and three objections were received from residents in Blomfield Road. Matters of concern to these residents include:

impacts associated with increased traffic volumes including noise and safety,
insufficient on-site car parking resulting in on street parking,
over development of the site and visually intrusive,
intensive land use out of character with surrounding low-density rural/residential,
unauthorised building works

16 Following its consideration of an officer's report recommending that the development application be refused the council decided that the application should be refused for eight reasons involving contaminated land, inconsistency with applicable objectives, insufficient car parking, acoustic impacts, unsuitability of the site, stormwater disposal and undesirable precedent.

Expert evidence

17 Mr C. Weston (applicant) and Mr C. Hammersley (respondent) provided expert town planning evidence in the form of a joint report and supplementary oral evidence. Also provided was expert wastewater and acoustic evidence.

18 On 11 September 2009 the Roads and Traffic Authority advised that it had undertaken a further review of the Campbelltown Road corridor in terms of future road requirements taking into account significant growth within the South-West sector of Sydney. This examination concluded that:

"... Campbelltown Road will be upgraded to a four-lane divided carriageway in the medium term."

19 In this regard it is to be noted that:

"... the Growth Centres Road Framework identifies Campbelltown Road as a Principle Arterial Road corridor and in the long term is expected to have a corridor width up to 47 m (assuming no substantial earthworks).

"As a result of this examination for the Campbelltown Road corridor, the RTA retract all its previous correspondence with regard to the issue of the road reservation concerning this subject development and fully endorses the affectation as shown on council's LEP 2002. The RTA does not support the construction of any new building or structures within the road affectation as shown in council's LEP 2002."

It is the RTA's intention (upon detailed investigation) to further increase the road affectation than is shown in council's LEP 2002 due to current road design requirements."

20 With regards to the 5(c) zone, the requirements of clause 52 of the LEP and its previous advice, the RTA further advised on 30 October 2009 that:

"Generally, ‘medium-term’ means a period of 5 to 10 years however it is not uncommon for this period to be in the range of 5 to 15 years."

"With regard to the determination of the subject development, the RTA has considered its position and advises that it has no intention of acquiring the affected land at present and advises that there are no plans in the current five-year programme to upgrade this section of Campbelltown Road. Notwithstanding, Campbelltown Road is intended to be upgraded to a four-lane divided carriageway with the timing of this been triggered by the advancement of residential development in South West Growth Centres."

"... the RTA desires any future building or development remains clear of the areas zoned 5(b) - Special Uses Arterial Roads Zone, as the RTA would be exposed to significant claims for disturbance costs under s 55(d) of the Land Acquisition (Just Terms Compensation) Act 1991 when those buildings have to be demolished or adjusted to make way for the road upgrade"

21 The Statement of Facts and Contentions raises the following essential contentions that form the basis of why the council says that the development application should be refused:

The proposed development would be inconsistent with the objectives of DCP 49, particularly in relation to rural residential character and setbacks.
The scale, density and capacity of the proposed development is inconsistent with the adjoining and surrounding development in the 7(d 5) Environmental Protection zone taking into account the predominance of single detached dwellings in the locality and the essential commercial nature of the development.
The proposal is inconsistent with the sustainable city DCP having a capacity well in excess of 50 children.

22 Although not identified in the contentions it is in the public interest that the concerns of the RTA must be taken into account, notwithstanding that their concerns have only recently become known and particularised.

Rural residential character

23 Having inspected the site's environs I accept that the locality is generally characterised by detached dwellings on larger rural allotments with substantial setbacks. Notwithstanding that there is some commercial development along Campbelltown Road including opposite the site, the objectives of the 7(d5) zone and DCP 49 seek to retain the existing rural residential character. Similarly the Sustainable City DCP requires that new buildings should compliment the scale of surrounding development and streetscape character. In this context the 35 m building line and the 10 m side boundary set back requirement for single storey dwelling houses in DCP 49 can be considered to be useful benchmark standards absent specific standards for child-care centres, particularly as the scale, form and materials of the existing and proposed buildings are generally consistent with those of the existing dwellings in the locality.

24 The proposed building is set back a little more than 35m from Blomfield Road and between 10 m and almost 12 m from Campbelltown Road. Whilst Mr Weston acknowledged the setback requirements for single storey dwelling houses Mr Hammersley said that the 70 m building line requirement for outbuildings should be applied. In my opinion it is clear that the proposed building is not an outbuilding having a character more like a dwelling house hence the dwelling house standards provide a better guide for this development.

25 Mr Hammersley also argued that because the site has frontages to both Campbelltown Road and Blomfield Road the building line requirement (irrespective of whether it be 70 m or 35 m) should be applied to both frontages. The Campbelltown Road frontage should not, as argued by Mr Weston, be treated as a side boundary that would instead attract a 10 m setback requirement. In this regard and despite the lack of clarity of the setback requirements in relation to corner lots I agree with Mr Hammersley and do not accept that the site's Campbelltown Road frontage should, for the purposes of setbacks, be treated as a side or rear boundary. To do otherwise would also be inconsistent with the Sustainable City DCP's recommendation that buildings on corner sites should address both street frontages.

26 There are in this locality a number of existing dwelling houses on sites that have frontages to Campbelltown Road and where those houses are positioned behind building lines well in excess of 35 m. These include neighbouring properties to the north of the site and the property opposite the site on the southern corner of Campbelltown Road and Blomfield Road. In these circumstances the position of the proposed building with a setback of 10 m to 12 m from Campbelltown Road would not be responsive to this requirement that I accept is an important indicator of the rural residential character sought for this locality. This deficiency is not one that could be rectified by dense screening landscaping that would of itself be uncharacteristic of this locality. Conversely the proposed building's position on the site beyond its 35 m Blomfield Road building line would plainly be satisfactory.

27 More generally, Mr Weston pointed out that whilst the proposal has a different character to that of residential development its scale and form are not indicative of over development and taking into account existing nearby commercial and residential development the proposal would be consistent with the rural character of the 7(d5) zone. As regards streetscape the inclusion of additional landscaping together with the existing landscaping will provide an appropriate visual screen and landscape buffer.

28 Despite this, I agree with Mr Hammersley that the extent of proposed car parking provided in front of the Blomfield Road building line together with the existing car parking, even taking into account the proposed landscaping would also be contrary to the desired future character sought by the planning instruments, particularly the objectives of the 7(d5) zone. Whilst I am not convinced that the scale of the proposed and existing single storey buildings would (leaving aside setbacks) be excessive I agree with Mr Hammersley that the density and intensity that would result from this proposal would be, for this single site, excessive. In this regard it is to be noted that the expanded development would accommodate a total of 131 children with 15 staff members and a car park for 42 cars. This is no small establishment in a rural residential context.

29 Finally in relation to character I acknowledge the locality and streetscape character requirements of the Sustainable City DCP that (even though they are not strictly applicable to this proposal) provide a further indication of the inappropriateness of the proposal in its context.

The road widening

30 Whilst the RTA initially advised that it had no intention of widening Campbelltown Road in the Denham Court area it now intends to widen the road corridor to 47 m essentially in accordance with the existing 5(c) zone to enable the upgrading of the road to a four lane divided carriageway in accordance with its Growth Centres Road Framework. This is to be done in the "medium term", a period of time that could be between 5 and 15 years with the actual timing being triggered by the advancement of residential development in the South West Growth Centres. On this basis the RTA does not support the construction of new buildings or structures within the 5(c) zone.

31 Section 52 of the LEP plainly makes the proposal permissible subject to consideration of acquisition costs, imminence of acquisition and the eventual reinstatement of the land and that such matters could be the subjects of conditions of consent.

32 In response to the RTA's advices, the applicant emphasises that the proposal is permissible and that an approval could be granted subject to conditions. Such conditions could deal with building demolition, if necessary, and acquisition costs. Alternatively, the proposed building could be reduced in size so as to sit wholly within the 7(d5) zone. Also there remains some uncertainty with respect to the actual extent of the road widening and that the full, nominated width may not necessarily be required.

33 The council submits that such an approach would be inappropriate because notwithstanding any conditions of consent it cannot be assumed that this development proposal would not affect land acquisition and disturbance costs. Also it would be reasonable to expect a useful building life of around 40 years and even if the road widening were not to occur for 15 years this would still be contrary to the principle of orderly and economic development.

34 In the interests of orderly and economic development s 42 of the LEP enables what can be described as interim development of lands that are reserved for public purposes, in this case road widening. This involves a balancing exercise between ensuring that the relevant authority, in this case the RTA, is not impeded from progressing with the road widening in terms of timeliness and cost and the reasonable requirements of the landowners for the use of their land. However the applicant's proposal fails to satisfy both sides of this equation.

35 Firstly the RTA objects to any building in the 5(c) zone because it intends to upgrade Campbelltown Road within the medium term and is concerned about additional costs of acquisition should the development proceed. Also as contended by the council the proposed building and other works would have a useful economic life far beyond the medium term and this does not represent orderly and economic development. In this context I note that even if the proposed new building were to be repositioned so as to be outside the 5(c) zone, the new car park would still be almost wholly within the 7(d5) zone. The removal of this car park would mean there would be no parking spaces for the extended child-care centre and I do not know how or if this could be otherwise resolved.

36 Second, whilst in principle it is possible that the existing child-care centre could be extended what is here proposed for the reasons given above does not meet the character objectives of the 7(d5) zone and therefore cannot be considered to be a reasonable requirement of the applicant.

Conclusion

37 The 7(d5) zone allows a diversity of development including child-care centres subject to the zone objectives. For the above reasons I have concluded that the application for the expansion of the existing child-care centre should not be approved because it would not be responsive to the objectives of the 7(d5) zone that provide for the conservation of the rural residential character of the area and the need to sympathetically relate to nearby and adjoining development. More particularly the intensity of the proposed expanded development and the insufficient setbacks to Campbelltown Road would be contrary to the rural residential character.

38 In addition the approval of development (building and car parking) that would require removal for the purposes of what I accept as being an inevitable widening of Campbelltown Road within a period of 15 years when the economic life of such development is likely to far exceed this period does not represent orderly and economic planning.

39 It is for these reasons that I have decided that the appeal should be dismissed and the development application refused.

40 For the above reasons the orders of the Court are:

1. The appeal is dismissed
2. The development application for the extension of the existing child-care centre at 1 Blomfield Road, Denham Court is determined by refusal.
3. The exhibits are returned.

___________________

T A Bly
Commissioner of the Court
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