Kang v Parramatta City Council

[2007] NSWLEC 370

Land and Environment Court

of New South Wales

CITATION:

Kang v Parramatta City Council [2007] NSWLEC 370

PARTIES:

APPLICANT
Kang

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10659 of 2006

CORAM:

Bly C

KEY ISSUES:

Development Application :- childcare centre, zone objectives, amenity and character, building form, vehicular access ramp, pedestrian safety.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001
Parramatta Development Control Plan 2005
Parramatta Development Control Plan 2001

DATES OF HEARING:

16, 23 Apr 2007 and 18-19 June 2007

EX TEMPORE JUDGMENT DATE:

19 June 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Briggs, solicitor
of DG Briggs and associates

RESPONDENT
Mr C. Gough, solicitor
of Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

19 June 2007

10659 of 2006 Kang v Parramatta City Council

JUDGMENT

1 This appeal relates to development application No.103/2005 which is for the demolition of an existing dwelling house and the construction of a single storey childcare centre with the basement car parking for the accommodation of 44 children at 9 Bundilla Avenue, Winston Hills. The centre is to operate six days per week with operating hours comprising

2 The irregular shaped site has an area of 923 square metres with a frontage of 9.7 metres to Bundilla Avenue and 33 metres to Reilleys Road. It is situated in a locality predominantly developed with single and two-storey dwelling houses.

3 The site is zoned Residential 2(a) under Parramatta Local Environmental Plan 2001 in which zone a childcare centre is permissible with development consent. Clause 16 (3) of the LEP requires that consent must not be granted for the carrying out of development unless the consent authority is of the opinion that such development is consistent with the applicable objectives of the zone. The relevantly applicable zone of objectives are:

(a) to enhance the amenity and characteristics of the established residential area.
(c) to ensure that building form, including that of alterations and additions is in character with the surrounding built environment.
(e) to allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods.

4 Parramatta Development Control Plan 2005 is the current development control plan applying to the site. However because it came into effect after the lodgement of the subject development application clause 1.4 of the 2005 DCP has the effect of making Parramatta Development Control Plan 2001 the relevantly applicable development control plan. The 2001 DCP contains, relevantly, provisions relating to vehicular access and parking, streetscape, landscape and open space.

5 The site is, pursuant to the 2001 DCP included in the Winston Hills Special Character Area. The applicable provisions in appendix 7 are directed towards ensuring that development is consistent with the existing character of the area, the main elements of character being subdivision pattern, brick and tile houses and the absence of front fences. No reference is made in appendix 7 to land uses other than dwelling houses that are permissible in this area pursuant to the LEP. Although the controls in appendix 7 are directed towards new houses and additions to existing houses, these can be readily applied to the subject development.

6 The application in its various forms was advertised on several occasions with more than 30 objections and a petition being received by the council. These objections were particularised by the 17 objectors who addressed the Court when the hearing began on-site. In essence the following concerns were raised:

• This is a quiet residential neighbourhood and the proposed childcare centre would and adversely affect its quiet non commercial character especially as a result of the amount of traffic that would arrive and depart, taking into account the narrow streets. Particular concerns include the noise and pollution of the vehicles and the reduction in pedestrian and vehicular safety for existing residents which will be compounded by the fact of the centre operating six days per week and the loss of trees.
• Parents and childcare is will find it more convenient to park in the street rather than use the basement car park and this will and adversely affect residential amenity. There being no public transport all children will be delivered to the centre by private vehicle resulting in unnecessary traffic congestion.
• There is an approved childcare centre nearby and a second childcare centre is not required to meet the needs of the local community. It is a private business that will not bring any benefits to this residential area, only adverse impacts.

7 Close by neighbours expressed the additional concerns of loss of privacy and the noise generated by the centre itself. Of particular concern to Dr Griffiths of 14 Cliff Avenue. was the likelihood that the existing concrete driveway on his property that provides access to a single garage would become unusable as a result of the proposal's different finished levels adjoining his property in the road reserve.

8 Whilst the amended statement of issues extends to 20 issues over four pages, as a result of amendments to the proposal, further expert evidence, conditions of consent and the plan of management the remaining issues in essence are as follows:

1. Whether the proposal would be out of character with the area taking into account the form and character of surrounding development and the requirements of the LEP and the DCP.

2. Whether the design of the proposed driveway providing access to the basement would and adversely affect vehicular access to the neighbouring property at 14 Cliff Avenue or result in an inappropriate footpath design.

3. Whether the relationship between the stairway and the driveway in the basement would be unsafe for pedestrians.

9 As for the character of the area the objectives of the 2(a) zone require that the amenity and characteristics of the area be enhanced and that building form be in character with the surrounding built environment. The Winston Hills character area statement whilst mainly focusing on additions to existing houses and new houses nevertheless is directed towards ensuring that development is consistent with the existing character of the area. Many of the associated provisions are met by the proposal such as buildings being wide fronted with low horizontal lines and being of brick construction with tiled roofs. Being of single storey construction like many houses in the locality the proposed building is plainly responsive.

10 There are however to elements of the proposed development that are not responsive and these involve the area of the site between the building and its northern and western boundaries. The applicable requirements indicate an absence of front fences and building setbacks that are consistent with neighbouring buildings. The existing building on the site with its angled relationship to Bundilla Avenue and Reilleys Road, substantial open landscaped setback areas and minimalist fencing is much the same as its neighbours and is plainly responsive to these requirements.

11 The proposed building complies with the numerical setback requirements of the DCP. However, by comparison with its neighbours it is positioned much closer to the street hence does not meet the alternate requirement of the DCP that new development should have setbacks consistent with those in the locality. Whilst the proposed fencing is of an open style, the proposed formal boundary style screen landscaping is uncharacteristic by comparison with the nearby more open landscaped front gardens.

12 On behalf of the respondent Council Mr D O’Toole a town planner argued that the proposed development would not meet the character objectives of the LEP taking into account the basement with its access ramp and the inadequate building setbacks. He reached this conclusion notwithstanding his opinion that in itself the built form of the development would be acceptable.

13 In relation to residential amenity he was also concerned at the increased noise, traffic movements and parking in this quiet residential area, these impacts extending over six days per week between 7 a.m. and 7 p.m.

14 On behalf of the applicant Mr D Bobinac a town planner was also of the opinion that the proposal in terms of built form was appropriate adding that the proposed double with driveway would be consistent with other such driveways in the locality. It was his opinion that the new formalised landscaping would enhance the amenity of the site and that the locality would benefit by the replacement of the existing ageing dwelling.

15 He did not accept that Reilleys Road was entirely quiet during peak periods and taking into account that the vehicles associated with the childcare centre will not all arrive at the same time there will not be any significant impact on the amenity of the locality. Also, it is unlikely that the childcare centre will operate at maximum capacity on Saturdays.

16 Whilst there is much to commend this development which is a form of development that is anticipated by the planning controls I have been persuaded that it does not meet the objectives of the LEP regarding the amenity and character of this locality. In this regard I prefer the evidence of Mr O'Toole particularly taking into account: the formal landscaping and lack of openness; the presentation of the basement car park to the street and the associated pedestrian arrangements; and the setbacks.

17 These matters together with the anticipated traffic generation and pedestrian movements associated with the proposed childcare centre lead to the conclusion that it would not enhance the character of this neighbourhood nor would it be sufficiently compatible with the characteristics of the established development pattern in terms of its siting and building alignment.

18 Having reached this conclusion I should however observe that, taking into account the sites constraints, particularly its shape, that whilst a better response is possible it is plain that any redevelopment of this site could appropriately involve buildings much closer to the street frontages than is presently existing on the site.

19 In relation to the driveway access an examination of the engineering drawings reveals that if the works as indicated were to be carried out the driveway to the garage at No. 14 Cliff Road would become inaccessible from the street. The existing and proposed relative levels indicate a step between the existing concrete apron and the finished levels of around 270 millimetres. Dr Griffiths said that he should not have to allow alterations to be made to his driveway nor should he be required to allow others to do this. In this context I understand that should this driveway need to be reconstructed to provide vehicular access between the Reilleys Road carriageway and the garage the driveway would end up having an unacceptably step gradient of around one in four. This gradient would require transition gradients and these would be unable to be provided in the short distance available.

20 Whilst I understand that the engineering design for the footpath area was prepared in consultation with Council officers this is no excuse for this fundamental flaw in the design.

21 It was submitted on behalf of the applicant that by raising the level of the basement driveway at the street frontage and other associated changes this could rectify the design flaw. This could be effected by way of a deferred commencement condition of consent.

22 I accept that a different design could resolve this problem but am concerned at the unknown consequences that might result from the raising of the driveway, for example the driveway gradient, transitional zones, drainage and clearances. Taking these uncertainties into account together with the fact that one of the reasons for the adjournment of this appeal on 23 April 2007 was to resolve problems associated with this driveway, I am not satisfied that it would be appropriate to resolve this matter in the manner suggested.

23 As for the issue of the relationship between the stairway and the driveway in the basement, I recognise that there could be a conflict between persons using the stair and manoeuvring vehicles especially as there is no protected landing at the foot of the stairs. This development is likely to generate up to 35 vehicle movements per hour in the peak period and many of these movements should occur in the basement. Taking into account that this stair has a chairlift to enable access by disabled persons the absence of a safe area at the foot of the stairs that cannot be utilised by vehicles is a matter of concern.

24 Also of some concern is the fact that parents or carers taking children from the car park in a pram or stroller are required to proceed from the basement at the ramp beside the driveway onto the public footpath. They are then required to proceed along the footpath before turning back into the property then up two further ramps to the front door. In my view this would discourage some use of the basement car park, resulting in unnecessary on street parking.

25 As indicated above the LEP contains an objective that effectively encourages the provision of community facilities such as childcare centres in the 2(a) zone. Notwithstanding that the definition of community facility seems to indicate that these should be provided by a public authority, religious organisation or the like and taking into account that childcare centres are permissible in the zone it seems to me that there is no fundamental reason why this site could not be developed with a childcare centre. Of course a different design would need to take into account the above concerns as well as taking into account what the residents describe as the quiet residential amenity of this area. As a consequence it may need to be significantly smaller by comparison with the childcare centre presently proposed. In turn amenity impacts on neighbouring properties would be more readily mitigated.

26 For the reasons I have given I have decided that the appeal should be dismissed and the development application refused.

27 The orders of the Court will be that:

1. The appeal is dismissed.
2. Development application No.103/2005 for the demolition of an existing dwelling house and the construction of a childcare centre at 9 Bundilla Avenue, Winston Hills is determined by refusal.
3. Exhibit S is retained.

___________________

T A Bly
Commissioner of the Court
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