Innovative Building Design (NSW) Pty Ltd v Sutherland Shire Council

[2006] NSWLEC 822

Land and Environment Court

of New South Wales

CITATION:

Innovative Building Design (NSW) Pty Ltd v Sutherland Shire Council [2006] NSWLEC 822

PARTIES:

APPLICANT
Innovative Building Design (NSW) Pty Ltd

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10290 of 2006

CORAM:

Murrell C

KEY ISSUES:

Development Application :- increase in childcare places from 40 to 56, parking, safe and convenient drop-off and pick-up, incremental development.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Local Environmental Plan 2000
Sutherland Development Control Plan

DATES OF HEARING:

28/07/2006

EX TEMPORE JUDGMENT DATE:

07/28/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Baltins, solicitor
of Willis & Bowring

RESPONDENT
Mr J. Reilly, solicitor
of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

28 July 2006

10290 of 2006 Innovative Building Design (NSW) Pty Ltd v Sutherland Shire Council

JUDGMENT

This determination was given extemporaneously
and has been edited prior to publication

1 This matter has come before me today as an appeal against the refusal of a development application by Sutherland Shire Council for a childcare centre at the address known as 30 Wilson Parade, Heathcote.

2 The appeal is on the basis that the applicant sought an increase in the number of children from 40 places to 56 and the council determined the development application stating the reason that the safe and convenient parking for carers and parents to the centre was inadequate and on those grounds the development application failed.

3 The Court-appointed expert Mr Lyle Marshall provided a statement of evidence to the Court. The Court also had the benefit of the evidence of Mr Craig McClarin, an independent consultant traffic engineer and also council’s traffic engineer, Mr Conneeley .

4 The Court met on site this morning to carry out an inspection of the premises. It is noted that the premises are in a commercial neighbourhood business zone in Wilson Parade. The commercial zone is limited to the subject premises and the adjoining corner shop. To the east of the subject site there is a laneway where the residential area commences. To the south of the subject site there is vehicle access to the school known as the Heathcote High School.

5 The development application has the effect of increasing the number of places at the centre, in particular for the 0-2 year olds, which currently are not accommodated in the childcare facility. The proposal was advertised and no objections were received.

6 While on site the Court directed that the experts, that is, the three experts, confer on the parking provision for the centre. A single space provided on-site with access from the laneway was suggested as a means to provide safe and convenient parking for the childcare centre and time restricted spaces on the side street. The council had indicated prior to the proceedings this morning in their “without prejudice” conditions that three car parking spaces be provided at the rear of the premises.

7 The applicant has subsequently accepted that three car parking spaces can be provided at the rear of the premises and that the space for outdoor child playing area would still meet the necessary requirement. That is, 7 sq m per child for the facility and on the calculations of the draftsman 59 children could be accommodated, and this does not rely on the area at the rear of the property of some 5 metres in width.

8 The applicant during the proceedings has suggested that a greater number of children could be approved, however, the amount of open space is not the only requirement. On an overall assessment the Court would not approve of an increase over the proposed 56 places in the development application because this would also lead to a greater demand for parking. And in the circumstances of this case a 56 place centre is considered the maximum that could be accommodated on the subject site. Clearly in terms of the current parking requirements, that is, council’s development control plan and the traffic guidelines, some 14 spaces would be required for a centre of 56 places. Therefore the limit of 56 places must be imposed on this centre as a condition of consent and the increase is only allowed on the basis that the centre will now provide for three car parking spaces at the rear from the laneway. The traffic experts are satisfied that the width of the laneway can facilitate three parking bays at the rear between 3 m and 3.2 m wide. This additional width of the individual spaces is necessary having regard to the width of the laneway to allow easy manoeuvring for

9 In combination, with the three on-site spaces above, other conditions relating to traffic and parking are also imposed to meet the requirement for safe and convenient parking. That is, three time restricted (ten minutes) on-street spaces in front of the childcare facility in Wilson Parade are to be provided. This requires the post box to be re-positioned. Also on the Avenue, that is all but one removed from the childcare centre being separated by the corner shop, kerbside parking is proposed to be limited to 10 minutes for the distance up to the laneway. This distance provides for two vehicles. It should be noted that the Court only agrees with this proposal because the owner of the corner store does not object as this will assist turnover for the business by removing the opportunity for all day parking.

10 The Court, in assessing a development application for an increase in the number of children for childcare centres must have regard to the total operation of the centre and it is inappropriate and it would be short-sighted of the Court to allow for increases in numbers of places in childcare centres by just the demand generated by the increased number of children, and ignoring current deficiencies. In fact, the Court would be erring in law if it merely had regard to the increase in number and the demand generated from that increase, as opposed to comprehensively assessing the efficient, effective and safe operation of the whole childcare facility. Assessment of incremental increases can lead to inappropriate development and is not in the public interest.

11 Clearly safety must be shared goal in terms of the provision of childcare facilities and council’s development plan requires safe and convenient pick up and drop off points for childcare facilities and I must give the DCP proper and genuine consideration in my assessment.

12 Whilst there is a significant shortfall in parking of the 14 spaces required, the traffic experts agree the provision of the three on-site spaces and time limited parking represents a marked improvement to the current situation, as well as providing for a supply of parking for the increased number of children.

13 In my assessment I agree with the respondent the provision of the three on-site spaces together with the time limited kerbside parking satisfies the requirement for safe and convenient pick up for the proposed 56 place childcare centre.

14 Accordingly, I can see no reason why the Court should not agree to consent orders with the above amendments. The Court has also received evidence for appropriate ‘deferred commencement’ conditions for an amended plan to be submitted for the approval of the council and for an acoustic report to be provided to the council on the basis of a 56 childcare centre, having regard to its relationship with the adjoining residential premises opposite the laneway to the rear. Any noise amelioration recommendations considered necessary by the acoustic are to be incorporated in an amended plan, together with the car parking spaces at the rear and this is to be submitted for the approval of the council.

15 As part of the deferred commencement condition there is also a requirement for a plan of management. The Plan of Management is merely to reflect any acoustic recommendations in terms of the management and operation of the facility and also with respect to parking for parents and carers and staff. The management plan is to be approved by the council as part of the deferred commencement condition. The Court agrees with the applicant that there is not a requirement for a basix certificate and in this condition is therefore deleted.

16 The operational conditions will also insert a maximum noise level to be achieved at the nearest residential dwelling house that is opposite the laneway. The Court accepts the traffic engineer’s agreed conditions with respect to the operation of the facility as contained in Exhibit 8 and the deferred commencement is also accepted by the applicant..

17 Therefore on the basis of the evidence to the Court, having regard to the traffic engineer’s advice, having regard to the Court’s assessment of the development application, the formal orders of the Court are:

1. The appeal in respect of the property known as 30 Wilson Parade, Heathcote, is upheld by consent.

2. The development application submitted to Sutherland Shire Council and as amended for an increase in the number of children attending the childcare centre from 40 to 56 is determined by the granting of a ‘deferred commencement consent’ and subject to the general conditions as contained in Annexure “A”.

3. The exhibits with the exception of A, D, 7, 8 and 9 are returned to the parties.

___________________

J S Murrell
Commissioner of the Court
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