Galluzzo v Campbelltown City Council

[2005] NSWLEC 522

Land and Environment Court

of New South Wales

CITATION:

Galluzzo v Campbelltown City Council [2005] NSWLEC 522

PARTIES:

APPLICANT
John Galluzzo

RESPONDENT
Campbelltown City Council

FILE NUMBER(S):

10285 of 2005

CORAM:

Nott C

KEY ISSUES:

Development Application :- childcare centre for 74 children - amenity and character of the locality - visual impact - traffic and parking - approved subject to conditions

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 97

DATES OF HEARING:

27/07/05 and 14/09/05

 
DATE OF JUDGMENT: 

09/29/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. Creighton, authorised agent (1st day)
Mr A. Rowan, town planner (2nd day)

RESPONDENT
Mr R. Baird, solicitor
SOLICITORS
Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Nott C

29 September 2005

10285 of 2005: John Galluzzo v Campbelltown City Council

JUDGMENT

Introduction

1 This is an appeal against the council’s refusal of a development application for a childcare centre at No. 1 Blomfield Road, Denham Court, on the north-eastern corner of the intersection of that road with Campbelltown Road.

2 I adopt the Statement of Basic Facts dated 27 April 2005 (exhibit 10).

3 The main issues at the hearing related to the impact of the proposed development on the character and amenity of the area and to traffic congestion and safety. The issues are more fully set out in a filed Statement of Issues (exhibit 9). As mentioned in the joint statement of the town planners, the council withdrew issues 7 and 8 (relating to setbacks and shade protection).

4 At the on-site hearing, I heard evidence from a number of local residents, including those who live immediately opposite the proposed development. I have also taken into account letters of objection from them and other persons who own properties in Blomfield Road, which is a rural-residential cul-de-sac serving about 13 residences. Ms A. Starr gave town-planning evidence for the council in support of the council’s refusal of the application. For the applicant, evidence was given by: urban planner Mr A. Rowan; traffic engineer Mr C Hazell; and the applicant himself. There was also evidence from a Court-appointed traffic engineer, Mr R. West.

5 For the reasons given below, I have concluded that development consent should be granted, subject to the detailed conditions that have been generally agreed by the parties and in respect of which I have made some minor changes having regard to my findings.

Unlawful erection of part of the childcare centre

6 The buildings that will comprise the childcare centre are shown on the amended plans in exhibits D and J and are listed in condition 1 annexure A of the Court’s consent. There are two main childcare buildings: building 1 facing Blomfield Road has already been built; and building 2 is not erected. A carparking area has also been constructed between the front of building 1 and Blomfield Road.

7 The council had previously approved a building in the same location and of the general form of building 1. This approved building was to be used as stables. However, the applicant proceeded to erect building 1 but made certain changes so that it is more or less configured to what is shown on the plans for the childcare centre as building 1.

8 The work of erecting a building different from the approved stables and of constructing the carpark was carried out unlawfully and could have been the subject of prosecution proceedings. The Court does not condone such unlawful work. However, in Class 1 of the Court’s jurisdiction concerning a development appeal, it is not the role of the Court to punish the apparent wrongdoing.

9 It is not open to the Court to grant retrospective development consent for unlawful work. However, it has been held that development consent may be granted for the prospective carrying out of any works that may be needed to complete the building for its proposed use. Moreover, whether or not any additional work is required to be done to the unlawfully erected building, the council (and the Court, on appeal) may grant consent for the use of that building. Of course, if the particular building was unsuitable for the purpose or if the proposed use was not appropriate in that location, development consent for the use of the building would not be granted.

10 A building certificate under s 149A of the Environmental Planning and Assessment Act 1979 may be obtained to regularise the unlawful erection of the building. But strictly speaking, it is not necessary for such a certificate to be issued prior to the granting of development consent for the carrying out of additional works or prior to the granting of consent for the use of the building.

11 In the present case, what has been constructed does appear to be a suitable building for a childcare centre, and there is no issue as to its structural soundness. The issues relate to town-planning matters.

12 It seems to me that if the applicant had not constructed building 1 and the carparking area but had first applied for development consent for the childcare centre, it would have been open to the council to approve the development.

13 The development consent that I propose to grant is for prospective work and for the use of the buildings and the carpark for the purpose of a childcare centre.

Traffic conditions

14 Perhaps the main reason given by local residents who opposed the granting of consent related to the traffic likely to be generated by the childcare centre. Blomfield Road is a long cul-de-sac serving about 13 rural-residential properties. As I mentioned, the subject site is on the corner of Campbelltown Road and Blomfield Road, and the owners of the rural-residential lots who live to the east of the subject site would have to pass by the proposed childcare centre in order to turn into Campbelltown Road. There is no other way for these residents to gain vehicular access to the general road network. Because of the volume of traffic on Campbelltown Road during peak hours, vehicles seeking to leave Blomfield Road experience delays. A major concern of the residents was that the increased traffic from the childcare centre would exacerbate the problems.

15 The Court has had the benefit of expert evidence from two traffic engineers, one being a Court-appointed traffic engineer (Mr West) whose appointment was acceptable to both parties, and the other being an expert retained by the applicant (Mr Hazell).

16 As well, I directed that the development application be referred to the Roads and Traffic Authority (“RTA”), because it was likely that roadworks would be required in Campbelltown Road because of the increased traffic from the childcare centre. After an adjournment of the proceedings, the applicant’s traffic engineer, the Court-appointed traffic engineer and officers from the Roads and Traffic Authority conferred, and a joint statement was prepared and signed by Messrs West and Hazell and (on behalf of the RTA) by Mr J Hall (exhibit 13). It is not necessary to reproduce the whole of this joint statement. Briefly, the traffic engineers agreed that there should be no more than 50 children at the childcare centre unless a type B intersection was constructed as shown in fig 5.21 of the Austroads Guide to Traffic Engineering Practice—Intersections at Grade, Part 5 (“the Austroads Guide”).

17 The applicant is proposing a total of up to 74 children at the subject site. I accept the opinion of the traffic engineers that if more than 50 children are to be permitted at the proposed centre at the one time, such a type B intersection or at least its equivalent would need to have first been constructed. I mention “at least its equivalent”, because it could be that the RTA will have to widen Campbelltown Road to a four-lane road to cater for the increased volume of traffic that will be using it, irrespective of whether or not there is a childcare centre at the subject site.

18 Because of the cost involved, it is unlikely that the applicant will be able to afford the cost of construction of a type B intersection before the centre commences to operate. Having regard to the traffic flows in Campbelltown Road, the traffic engineers were of the opinion that it would be reasonable for a type A intersection arrangement to support a childcare centre of up to 50 children. According to the expert evidence, a childcare centre for 50 children would generate 40 two-way trips (i.e. 20 in and 20 out) in the AM and 35 two-way trips in the PM peak (i.e. 17 in and 18 out). If a 50/50 arrival trip distribution were applied, these trips would equate to 10 right-turn and 10 left-turn movements from Campbelltown Road in the AM peak and 9 right-turn and 8 left-turn movements in the PM peak. The Austroads Guide indicates that a type A intersection arrangement is sufficient to accommodate a volume of right-turning vehicles from Campbelltown Road of 12 vehicles per hour before the intersection would require upgrading to type B.

19 Therefore, the development consent that I propose to grant will permit up to 50 children at any one time to be at the centre once both buildings are erected, provided that the lower standard of roadworks (type A intersection and associated works) described by the traffic engineers is carried out by the applicant before the childcare centre begins to operate. Due to the high volume of northbound traffic along this section of Campbelltown Road and the number of vehicles turning right into Blomfield Road, the traffic engineers also agreed with the RTA requirement that a road shoulder on the western side of the intersection should be sealed to prevent the break-up of the edge of the road pavement. In upgrading the intersection to a type A, minor works would be involved, including the creation of a 4-m wide CLEAR ZONE on the north-western side of Campbelltown Road, directly opposite Blomfield Road. The clear zone would be achieved by the relocation of a light pole, the removal of two or three trees and minor road pavement works.

20 The applicant has requested permission to use building 1 before the erection of building 2. Building 1 will accommodate 28 children. The traffic engineers agreed that even for 28 children, the type A intersection and associated works mentioned above should be carried out before building 1 is used as a childcare centre. I agree with that view.

21 These works should be carried out in accordance with a more detailed design approved by the RTA, before the childcare centre commences to operate.

22 The traffic engineers Messrs West and Hazel were also of the opinion that even if the proposed childcare centre were not approved, it would be desirable to prohibit right-turn movements out of Blomfield Road during the weekday peak hours. With the approval of the childcare centre, such a limitation on right-turn movements would appear to be even more desirable.

23 Should the council consider imposing such a restriction of right-turn out movements from Blomfield Road during weekday peak hours, condition 15 of the consent will require all costs associated with the implementation and sign posting of this restriction to be borne by the applicant.

24 The traffic engineers were also of the opinion that irrespective of the proposed development, a bus stop on the north-western side of Campbelltown Road in the intersection with Blomfield Road was not desirable and that the bus stop should be moved, perhaps to where the Ampol site is located. This would be the responsibility of the RTA or the council.

25 So, if the works described above relating to the type A intersection are carried out, up to 50 children may attend the childcare centre. Before further children above the number of 50 and not exceeding 74 are allowed to attend the childcare centre, the intersection will have to be upgraded to at least a type B intersection in accordance with condition 19. If the RTA carries out general upgrading work to Campbelltown Road so that there is an equivalent to a type B intersection, the applicant may apply to the council to modify the consent to permit additional children up to a total number of 74.

26 As mentioned, the expert traffic engineers were of the opinion that it would be desirable to prohibit vehicular right-hand turns from Blomfield Road during the weekday AM and PM peak times. It was suggested in one of the letters of objection that requiring left-turn out movements from Blomfield Road would mean that vehicles would have to proceed to a roundabout to the south in Campbelltown Road and then go around it to proceed back northwards. The resident suggested that the use of this roundabout was unsafe. However, the traffic engineers Messrs West and Hazell have examined that roundabout and do not consider that it is unsafe. I accept the experts’ opinions.

Parking

27 The proposed number of carparking spaces for the childcare centre is 23 for both staff and carers. The average stay of a carer is likely to be a little over 6 minutes and not all carers will be arriving at the same time. The proposed number of carparking spaces is more than what the council's DCP 52 requires. The proposed number of spaces also complies with the Roads and Traffic Authority Guidelines. The traffic engineers Messrs West and Hazell were of the opinion that it was unlikely that there would be a need for parents or carers’ to park in Blomfield Road and that it was likely that there would always be sufficient parking spaces on the site. Conditions of consent will require that all staff and carers cars and any visitors should park on the site. The childcare centre will also be required to make it a condition of enrolment that all carers should park on site and not on the street. See condition 15. If, contrary to expectations, the number of carparking spaces were found to be inadequate, it seems that a couple of more spaces could be provided readily by a small extension of to the north-western side of the rear of the carparking area (subject to a modification application being lodged by the applicant and approved by the council).

Character of the locality

28 I have taken into account the provisions of council’s DCPs and of the Campbelltown (Urban Area) Local Environmental Plan 2002. In the LEP, I particularly note clauses 2(1)(c) and (2) (aims and objectives), 17 (provisions relating to the 5(c) zone), 25 (provisions relating to the Environmental Protection 1-ha minimum zone 7(d5)) and 31 (outdoor advertising controls).

29 The major part of the subject land where the childcare centre will be located is zoned 7(d5) and childcare centres are permissible in this zone with the consent of the council.

30 I acknowledge that a childcare centre has a different character to a residential character. Although there are clearly differing opinions on the question, it seems to me that it may be held that the proposed development is “consistent with” (even though it might not conform with) the objective of the zone of encouraging a high-quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining land development.

31 The proposed development is appropriately located on the corner of a busy road, namely Campbelltown Road, and the existing development near the site includes commercial and residential uses and there is a variety of building forms and architectural styles nearby. The character of the locality includes the character of development on the opposite side of Campbelltown Road in the Liverpool City Council area. Development opposite the site includes a service station, houses and a landscaping supply business.

32 If the childcare centre had been proposed on a property further down the cul-de-sac of Blomfield Road (away from the Campbelltown Road intersection), the location of such a relatively large centre might not have been appropriate.

33 Building 1, which has already been constructed, is a pleasant-looking single-storey building facing Blomfield Road and it adjoins and is opposite residential development in that road. The proposed childcare centre has a character that is different from (but not necessarily incompatible with) the rural-residential character. It seems to me that the single-storey building 1 will be consistent in appearance with a development of high-quality design. However, additional landscaping is required that will enhance the appearance of the establishment, and a condition of consent requires this landscaping to be carried out and maintained.

34 Unlike some childcare centres on smaller sites, the proposed development has a circular driveway with two entrances at Blomfield Road. Vehicles will be able to readily access the carparking spaces, and the number of parking spaces is in excess of what the council’s DCP requires.

35 Having regard to the amenity of residences in Blomfield Road, I am of the opinion that only one advertising or identifying sign of the modest size shown in the development plans should be approved for the site. If the address of the childcare centre is publicised as 1 Blomfield Road, it will be sufficient for persons coming to the site to identify where the centre is located by looking for the Blomfield Road sign at the intersection of Campbelltown Road. Turning into Blomfield Road, the car driver will be able to identify the subject land as the childcare centre by the single sign on the site at the Blomfield Road frontage. Likewise, having regard to residential amenity, the sign is not to be illuminated. Moreover, floodlighting of the carpark is not to occur. See condition of consent 5, 6 and 7.

36 There was criticism of the proposed western elevation of building 2 facing Campbelltown Road. In front of this long western elevation is a proposed outdoor play area. There will be shade cloths (supported by poles) over the outdoor area. Although the poles will extend 500 mm above the gutter of the single-storey proposed building 2, the shade cloths will dip down to a lower height between the poles of about 2.4 m above the ground.

37 A creamy-coloured colorbond fence has already been erected along the western and northern sides of this outdoor area. The appearance of this long fence, with no landscaping in front of it at present, is unacceptable having regard to the objectives of the 7(d5) zone, even though colorbond fences are not prohibited by the relevant DCP. However, the applicant proposes to establish landscaping in front of the fence, so that the fence will be extensively screened from view from Campbelltown Road. Some of this landscaping will grow to a height of 3.3 m and will also soften the appearance of the upper part of the long western façade of building 2 that would otherwise be seen behind this fence. A solid fence is desirable as it may reduce slightly the impact of traffic noise experienced in the outdoor play area.

38 It is not as though this colorbond fence is located only several metres from Campbelltown Road. In fact, at the southern end of the outdoor area, the setback of the colorbond fence from Campbelltown Road is 23.5 m, and the setback of the fence increases to about 28 m towards the northern end of the outdoor area. The setback of the proposed shade cloths from Campbelltown Road is on average about 32 m, and the setback of the western elevation of building 2 itself from Campbelltown Road is about 38 m.

39 In addition to the landscaping proposed immediately adjacent to the western face of the colorbond fence, it is proposed to have landscaping adjoining the open timber-rail fence marking the boundary of Campbelltown Road.

40 With the setback of the colorbond fence from Campbelltown Road and with the proposed landscaping in front of it, I consider that the proposed development would be acceptable in the locality. No landscaping has been established at the present time in front of the colorbond fence facing Campbelltown Road, no doubt because the applicant was uncertain as to whether consent would be granted for the proposed development. The carrying out of the planting of the landscaping should not be deferred however until building 2 is erected. As part of the consent for the use of building 1, it will be a requirement of the consent that the landscaping on the western side of the fence should be planted prior to the childcare centre commencing to operate in building 1. Any landscaping that dies will have to be replaced and again maintained. To assist in the growth and maintenance of the landscaping along the western side of the colorbond fence facing Campbelltown Road, it will be a requirement of the consent that before building 2 is occupied, an automatic watering system is to be installed for the landscaping along the fence. The water for this automatic watering system is to be rainwater that has been collected from the roof of the proposed building 2, in accordance with a rainwater collection plan submitted to and approved by the council. See conditions 3 and 25.

41 Although it was not raised by the council, I questioned whether it was appropriate to permit the continuing use of the childcare centre in building 1 for a maximum of 28 children when later the applicant commences to build building 2. However, having regard to the available area of the subject land to the west and to the north of the outdoor area, the council at the hearing did not seek to have a condition imposed requiring the use of a childcare centre in building 1 to cease while the construction work was carried out on building 2. It appears that construction vehicles and employees vehicles relating to the proposed construction will be able to access the subject site from an existing gate on Campbelltown Road. The storage of material and the parking of vehicles will be able to take place away from activities of the children. However, I requested the council to nevertheless draft a condition of consent requiring a management plan to be submitted for approval by the council before the actual work of construction commences on building 2, to ensure the safe operation of the childcare centre in building 1 and in the outdoor area. The management plan should also take into account the need for the continuing operation of the effluent disposal system that will be installed. See condition 27a.

42 The hours of operation of the proposed childcare centre will be as proposed by the applicant, from 7 am to 6 pm Monday to Friday and from 8 am to 1 pm on Saturday. Although the council submitted that the commencement hour on Saturday should be 8 am, I am of the opinion that the commencement time of 8 am will be acceptable on a Saturday, since there will be noise at that time from traffic on Campbelltown Road and from other activities of a commercial nature opposite the subject site.

Generally

43 This has been a case where there have been legitimate and opposing town-planning opinions. However, having regard to the location of the proposed childcare centre on the corner of Campbelltown Road and to the conditions of consent that will be imposed, particularly relating to landscaping and the upgrading of the intersection, it is appropriate to grant development consent.

44 No application was made for cost. Prima facie I would be inclined to the view that there should be no order as to costs. The principal reason for the adjournment was at the Court’s direction to enable the involvement of the RTA in the formulation of conditions relating to the standard of roadworks in Campbelltown Road. In my opinion, the adjournment resulted in a better and more certain resolution of the traffic issues.

45 The conditions of consent (in Annexure A) reflect the findings made above and are (except for several small changes) otherwise as proposed by the council.

Orders

46 The orders of the Court are:

1. The appeal is upheld.

2. Development consent is granted for a childcare centre at No. 1 Blomfield Road, Denham Court, subject to conditions in Annexure A hereto. [Annexure A is not published in this internet version of the judgment. The annexed conditions may be inspected at the council.]

3. The exhibits, other than exhibits 9, 10, 13, 16, D and J, may be returned.
___________
A J Nott
Commissioner of the Court
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