Khouri v Randwick City Council

[2017] NSWLEC 1001

Land and Environment Court

New South Wales

Medium Neutral Citation:	Khouri v Randwick City Council [2017] NSWLEC 1001
Hearing dates:	1, 2 November 2016
Date of orders:	06 January 2017
Decision date:	06 January 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. Development Application No. 83/2015 for alterations and additions to the existing building and use as a child care centre and associated landscaping at 19 Pine Avenue, Little Bay is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, A, B, D and L.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to the existing heritage building and use as a child care centre – impact on heritage significance of item and heritage conservation area – adequacy of proposed car parking arrangements and the impact on the capacity of the existing local road system.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Heritage Act 1977 Land and Environment Court Act 1979 Randwick Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Joseph Khouri and Mariette Khouri (Applicants) Randwick City Council (Respondent)
Representation:	Counsel: Mr M Staunton, barrister(Applicant) Mr A Seton, solicitor (Respondent)   Solicitors: HWL Ebsworth Lawyers (Applicant) Marsdens Law Group.(Respondent)
File Number(s):	2016/154031
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No. 83/2015 for alterations and additions to an existing dwelling and use as a child care centre to accommodate 86 children at 19 Pine Avenue, Little Bay (the site).

2. The proposed alterations and additions will consist of the following:

new window and door openings, internal dividing walls and floor coverings for the existing heritage dwelling;

a new building entrance;

extension of the existing building at the rear to include children's play rooms and a toilet;

removal of the existing swimming pool;

construction of a new balcony along the western elevation; and

construction of a new fence along the southern (rear) half of the western boundary.

3. The existing basement is to be extended to provide 8 stacked spaces for staff using the existing driveway from Pine Avenue. Existing on-street parking at the rear of the site in Ewing Avenue and McMaster Place is proposed for short term drop-off and pick-up (less than 10 minutes) during week days between 6.30am to 9.30am and 4.00pm and 6.00pm.

4. The council maintains that the application should be refused because of:

unacceptable heritage impact on the existing dwelling being a heritage item and the heritage conservation area where the site is located, and

inadequate car parking, drop-off and pick-up areas and the impact on the capacity of the existing local road system.

5. The contentions relating to unacceptable acoustic impacts, outdoor shading, excessive hours of operation and the ability to transplant two existing palm trees were addressed through additional information or conditions of consent.

The Site

6. The site is Lot 40 in DP 270427. It is rectangular in shape with a northern frontage of 24.5 m to Pine Avenue and 53 m side boundaries to the east and west. The site has a total area of 1,304 sq m. The original cottage was substantially modified and extended in a contemporary fashion to the rear in 2007, when extensive conservation and reconstruction works were also carried out on the original cottage.

7. The locality is characterised by residential development, townhouses and residential flat buildings. To the north of the site on the opposite side of Pine Avenue is a 4 storey residential flat development. Adjoining to the east is public open space known as the Coast Hospital Memorial Park (also known as Pine Avenue Reserve). To the south of the site across McMaster Place is a two storey detached dwelling. Adjoining the site to the west is a parcel of land containing heritage listed trees which provided footpath access between McMaster Place and Pines Avenue.

Relevant planning controls

8. The site is zoned R1 - General Residential under the provisions of Randwick Local Environmental Plan 2012 (LEP 2012). The proposed use is permissible with consent in this zone as a “Child care centre”. Clause 2.3(2) requires that the “consent authority must have regard to the objectives for development in a zone when determining a development application”. Clause 5.10 provides requirements for Heritage Conservation.

9. The building and surrounding grounds are included in Heritage Item No. 1175 under Sch 5 of LEP 2012 and is also included in the NSW State Heritage Register as Listing 01651. The building is described as Pine Cottage. The site is also located within the Prince Henry Site and Coast Hospital Heritage Conservation Area (the HCA) as identified by Heritage Map HERJD09A and is located within the vicinity of a number of archaeological and heritage items. The site falls within the Historic Precinct of the HCA.

10. Randwick Comprehensive Development Control Plan 2013 (DCP 2013) applies. The relevant controls of DCP 2013 are Part B: General Controls, particularly pt 2.1 Heritage Items and Heritage Conservation Areas, particularly pt 4.11 Prince Henry Hospital Heritage Conservation Area, Part D 1.1 Child Care Centres: and Part E: Specific Sites, particularly pt E 4 Prince Henry Site - Little Bay.

Heritage impact

The evidence

11. The council’s contentions relate to the incompatibility of the proposed additions with the heritage values and significance of the heritage item. It was also contended that the proposed additions will be visually prominent and dominate the heritage item and that the relocation of two phoenix palm trees adversely affects the historic landscape setting of the HCA.

12. Expert evidence was provided by Mr Robert Staas, for the applicant, and Mr Peter Romey, for the council. As a starting point, Mr Staas notes that contrary to the heritage contentions, the annotation in DCP 2013 relating to Section 2.1 of DCP 2013 (B2 General Controls - Heritage) clearly indicates that this part of DCP 2013 does not apply to land located within the Prince Henry Site for which specific controls apply. While the accepted principles of appropriate design in relation to heritage items and conservation areas should be considered, the contention raised by the council in these proceedings is not the applicable standard for assessment of the application. The general design approach and the revised design now before the Court is the result of direct discussions with the NSW Heritage Office and was considered an acceptable approach subject to clarification of the modifications made in response to those discussions.

13. Mr Staas states that the additional built form does not have an unacceptable or unreasonable additional adverse impact on the item or its context. There are no additional significant adverse impacts on views to Pine Cottage from Pine Avenue or from Nurses Walk. The addition, when viewed from McMaster Place, is not dissimilar to other contemporary buildings in near proximity, which have been approved by the council in the past. The proposed alterations and additions maintain a height and massing which allows Pine Cottage to be appreciated from the primary viewing positions in the surrounding area.

14. The new work is quite removed from any direct connection of the existing contemporary additions to the original cottage and will not 'dominate' or compete with its fabric or form. The lower height of the additions ensures that the high pitched roof of the original cottage retains visual prominence in the primary views to the site. Nothing in the current proposal further obscures any significant appreciation of the original built form or detail.

15. Mr Staas acknowledges that the additions will be visible from a variety of locations in the surrounding area but does not agree that this results in an unreasonable domination of the existing heritage item which is already to some extent affected by the previous contemporary additions to the rear. The revised proposal maintains a similar height and character to the existing additions and provides for a landscaped setback along the rear boundary and the relocation of two of the palm trees to maintain a continuity of setting with the adjacent areas. Mr Staas further states that there is no defined or significant streetscape character in this area of the former hospital site that would require the existing situation to be maintained with no further change.

16. In his opinion, the open landscape to the east will still be dominated by sky and sea, and Pine Cottage will still be appreciated as an historic cottage with contemporary additions if the current application is approved and constructed.

17. In relation to the removal of the trees from their current location Mr Staas maintains that this is an acceptable outcome. The result is one which has merit and will continue to provide evidence of human intervention in the costal landscape as part of an evolving landscape character resulting from the cessation of the previous hospital uses and the adaptation of the site for a variety of new uses. Mr Staas notes that there is no specific or special mention of this particular group of plants in any of the Heritage Management documentation, however in regard to the more prominent and similar palms and coral trees in the adjoining Nurses Walk, consideration is given in the Conservation Management Plan and the Site Specific Controls to the complete removal of these trees and their replacement, potentially with different species. This suggests that the approval of the current application is well within the allowable alternatives for treatment of the subject site and will not result in unacceptable impact.

18. Mr Romey states that, irrespective of whether Section 2.1 of DCP 2013 (B2 General Controls - Heritage) is directly applicable, the proposed development is unacceptable due to its adverse impacts on the heritage values of both Pine Cottage and its context. The Streetscape Analysis section of Section 2.1 (Heritage Items and Heritage Conservation Areas) states that 'A new building, or additions which will be visible from the street, should fit into its streetscape context'.

19. The principle of requiring new buildings or additions to fit within an established heritage context is generic across heritage development controls. The principle is also reflected in the key landscape design principles in Part E4 of the DCP 2013, which is specific to the Prince Henry Hospital site, and states that 'buildings are to be designed so they do not dominate the landscape and are consistent with the Prince Henry DCP area's character of "buildings within an open landscape setting dominated by sky and sea'" (Section 2.5 Landscape). Mr Romey believes that there would be a substantial difference in visual prominence between the existing 2007 extension and the proposed addition, particularly in views from the southeast. The southeast corner (and highest point at RL37.4) of the existing roof is set back from the southern (rear) boundary of the subject site by approximately 10 m. The approximate setbacks from the eastern boundary and diagonally from the southeast corner are 4.7 m and 12.2 m respectively.

20. These substantial setbacks have the effect of ameliorating the apparent bulk of the existing addition when viewed from the open space immediately to the southeast of the site. By contrast, the approximate setback from the proposed addition from the southern (rear) boundary is less than 1 m. The approximate setbacks from the eastern boundary and diagonally from the southeast corner are both less than the existing setback at approximately 4 m.

21. The proposed addition will not result in substantial impacts on views of Pine Cottage from the north or northwest where the prominence of Pine Cottage itself can be viewed from the street. Pine Cottage and the proposed additions will also be partially screened by the Nurses Walk tree plantings in certain locations. However, in views from the northeast around to the south, the proposed addition will not be a comfortable fit within its context. Mr Romey states that the proposed addition will be visually prominent (substantially more so than the existing 2007 extension) when viewed from the open spaces on the east and west (including part of the Nurses walk), but particularly from the southeast (Pine Avenue Reserve).

22. The proposed addition will also be particularly prominent from McMaster Place. The existing extension from 2007 is set back from the rear boundary to McMaster Place by between 8 m and 10 m, so that in these views it will be seen as a contemporary building within a fenced garden context. The setback of the proposed addition is less than 1 m with no fence, so that the extension itself will effectively define the rear boundary to the McMaster Place frontage. The proposed extension will therefore neither' fit into its streetscape context' nor comprise a 'building(s) within an open landscape setting dominated by sky and sea'.

23. Mr Romey is of the view that the two palm trees are not only intrinsically significant as historic plantings that date from the early 20th century development of the site as a large hospital complex in a bucolic coastal landscape, but also as a consequence of their contribution as a group to the significance of this broader cultural landscape. Mr Romey agrees that the preferred conservation outcome is for these plantings is that they be retained insitu.

The legislative framework

24. As Pine Cottage is identified in the State Heritage Register, specific provisions in the Heritage Act 1977 apply, as well as those in LEP 2012 and DCP 2013.

25. Section 57 of the Heritage Act 1977 relevantly provides that:

57 Effect of interim heritage orders and listing on State Heritage Register

(1) When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3:

(a)

(b)

(c) .

(d)

(e) carry out any development in relation to the land on which the building, work or relic is situated, the land that comprises the place, or land within the precinct,

(f) alter the building, work, relic or moveable object,

(g)

(h)

26. Clause 62 of the Heritage Act 1997 states:

62 Matters for consideration

In determining an application for approval in respect of an item or land, the approval body shall take into consideration:

(a) the extent to which that application, if approved, would affect the significance of any item as an item of the environmental heritage,

(b) the representations, if any, made with respect to that application under section 61 (3),

(c) such matters relating to the conservation of that item or land as to it seem relevant, and

(c1) any applicable conservation management plan (within the meaning of section 38A) endorsed by the Heritage Council, and

(d) such other matters as to it seem relevant.

27. The Prince Henry site is identified in Sch 5 of LEP 2012 as follows:

Prince Henry Site and Coast Hospital Heritage Conservation Area and their settings, significant built and landscape components, including historic precinct (comprising significant buildings, structures and landscape features such as ornamental plantings, retaining walls, kerbs and significant road alignments)

28. As Pine Cottage (19 Pine Avenue, Lot 40 of DP 270427) is an identified heritage item under Sch 5 of LEP 2013 and is within the HCA; cl 5.10 of LEP 2013 applies.

29. Clause 5.10(4) of LEP 2012 states:

(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

30. Clause 5.10(4) requires the Court to consider the effect of the proposed development on the heritage significance of heritage item or heritage conservation area. In this case, consideration needs to be given to effect of the proposed development on both Pine Cottage and the HCA.

Findings

31. Part B2, cl 4.11 of DCP 2013 sets out in detail the Historic, Aesthetic, Social and Technical/Research Significance for the HCA. The HCA is further divided into precincts with the site located within the Historic Precinct. The Precinct Objectives and relevant parts of the Desired Character for the Historic Precinct at Part E4, cl 6.6 are:

Precinct Objectives

To conserve the heritage significance of the Historic Precinct and it's setting.

To conserve significant built and landscape elements while adapting them to suitable new uses.

To ensure that new development respects the historic structure and layout of the precinct and relates sympathetically to significant built and landscape elements within the precinct.

Desired Character

This precinct will accommodate a variety of residential development, community uses, and housing for older people. This will be achieved largely by appropriate adaptation of existing significant buildings, areas of sensitive 'infill' development, complemented by areas of open space.

Significant built and landscape heritage elements within the Historic Precinct will be conserved. Aboriginal and Historical archaeological relics and sites within the precinct will be managed, recorded and conserved as appropriate.

The streetscape of the Historic Precinct will continue to be strongly influenced by the many retained built and landscape heritage elements as well as the existing road structure and layout. Pine Avenue and its Norfolk Island pine trees will continue to be the dominant landscape element. The structure and general layout of the precinct will be retained, together with the open character of the landscape.

Development within the Historic Precinct will primarily comprise conservation and adaptation of existing heritage buildings on site (for residential, community and small scale local retail uses), with small pockets of new development.

…

…

It is important that new development complements the established character of the precinct by having a compatible scale and architectural character, and through careful consideration of the spaces between buildings

32. If the proposed development is considered in the context of the requirements in cl 5.10 of LEP 2013, DCP 2012 and the Precinct Objectives and relevant parts of the Desired Character for the Historic Precinct then I accept the conclusions of Mr Staas on the impact on the heritage significance of Pine Cottage and the HCA.

33. The physical changes to the existing building (the original cottage and the 2007 contemporary alterations and additions) generally involves an rear (southerly extension between 4.675 m and 5.772 m, the extension of the roof in an easterly direction by around 1 m, the enclosure of a verandah area under the new roof extension, the extension of the 2007 additions in a northerly direction by 1.4 m to reduce the separation from the original cottage and a new awning on the western elevation to mark the new entry to the child care centre. The existing two palm trees are to be relocated on the site and the existing basement is to be extended but will not be visible from any public area.

34. The question of whether Section 2.1 of DCP 2013 (B2 General Controls -Heritage) applies is not a matter that will impact on the determination of the heritage contention in this case. I did not understand there to be any dispute between Mr Staas and Mr Romey that the accepted principles of appropriate design in relation to heritage items and conservation areas should be considered. These matters fall generally and specifically within the different parts of DCP 2013.

32. I am satisfied that any impacts on the heritage significance of Pine Cottage are minimal, at best. The original form of Pine Cottage has been changed markedly with the 2007 alterations and additions. These alterations and additions were found to be acceptable to both the council and the Heritage Council and allowed the original form of Pine Cottage to be easily understood while providing new alterations and additions for contemporary living. The statement of Mr Romey that the proposed additions “will be visually prominent” is, in my opinion, overstating the impact of the proposal even when viewed from the more visually prominent location from the northeast to the south. The proposed additions are consistent, architecturally with the 2007 additions and the southerly extension and the extension of the roof in an easterly direction does not change the relationship already established by the 2007 approval. The finished development will still be seen as a historic cottage with contemporary alterations and additions that do not unacceptably impact on the heritage qualities of Pine Cottage but subject to one change. To maintain this relationship, the separation between the original form of Pine Cottage and the 2007 extensions should remain unchanged although the depth of the separation may be reduced to maintain the same floor area. A condition of consent will be included to require this change (see condition 3).

33. From a HCA perspective, Mr Staas and Mr Romey generally accept that the potential impacts from the proposed additions are views mostly from the northeast around to the south to the site. Mr Romey maintains that the proposed addition will not be a comfortable fit within this context whereas Mr Staas maintains that the open landscape to the east will still be dominated by sky and sea and Pine Cottage will still be appreciated as an historic cottage with contemporary additions even if the current application is approved and constructed. The different conclusions from Mr Staas and Mr Romey appear to be based on different considerations with Mr Staas considering the relationship of the proposed development with the Historic Precinct of the HCA and Mr Romey preferring to, in part, address this relationship in the narrower context of the site of the dwelling (that is, Lot 40).

34. Again, I am satisfied that any impacts on the heritage significance of Historic Precinct of the HCA (and the HCA, itself) are minimal, at best. Clearly, as the Court is required to consider the effect of the proposed development on the heritage significance of the HCA, particularly the Historic Precinct of the HCA then the wider consideration suggested by Mr Staas is appropriate.

35. Even though the additions will be visible from a variety of locations in the surrounding area, it cannot be said that the proposal results in a domination of the existing heritage item given that the original cottage and 2007 alterations have the effect of reducing the previously available views of the sea from locations such as the Nurses Walk. The proposed development adds to the loss of views to the sea but not to any meaningful way when those views are still available when walking a few paces further along Nurses Walk. I agree with Mr Staas that there is no defined or significant streetscape character in this area of the former hospital site that would require the existing situation to be maintained with no further change.

36. I can also comfortably dismiss Mr Romey’s concerns where he states that the proposed additions are in conflict with Section 2.5 Landscape of DCP 2013 where 'buildings are to be designed so they do not dominate the landscape and are consistent with the Prince Henry DCP area's character of "buildings within an open landscape setting dominated by sky and sea'" (Section 2.5 Landscape). The proposed additions have little or no effect on the significance and character of the Historic Precinct. The proposal will still result in a final form that is ‘within an open landscape setting dominated by sky and sea' given the relatively small additions and the unchanged open setting for some distance surrounding Pine Cottage.

37. Consequently, I see no conflict with the Precinct Objectives for the Historic Precinct at Part E4, cl 6.6 in that the proposal “conserve(s) significant built and landscape elements while adapting them to suitable new uses” and that “new development respects the historic structure and layout of the precinct and relates sympathetically to significant built and landscape elements within the precinct”.

38. The result is that the proposed development will satisfy the desired character for the Historic Precinct in that in that the proposal will “will accommodate a variety of … community uses…. This will be achieved largely by appropriate adaptation of existing significant buildings, areas of sensitive 'infill' development, complemented by areas of open space”, “Development within the Historic Precinct will primarily comprise conservation and adaptation of existing heritage buildings on site (for residential, community and small scale local retail uses), with small pockets of new development” and “that new development complements the established character of the precinct by having a compatible scale and architectural character, …”.

Approval by Heritage Council

42. As the site is entered as an item of State significance on the SHR, s 57 of the Heritage Act 1977 requires approval from the Heritage Council for the proposed development. Section 62 provides the matters for consideration in deciding whether approval should be granted. Section 65(1) states:

65 Effect of failure to make determination

(1) Where the approval body has not determined an application for approval (other than an application for approval in respect of integrated development) within a period of 40 days, or, where public notice of that application has been given under section 61, within a period of 60 days, after service of that application on it, it shall, for the purposes only of section 70, be deemed to have determined that application by refusing approval.

43. Mr Stass and Mr Romey provided oral evidence on their discussions with different officers of the Heritage Council in their endeavours to obtain their comments on whether approval could be granted. Unfortunately, there was no agreed position on the outcome of their respective discussions.

44. The most recent correspondence from the Heritage Council to the applicant’s architect, FLC Architects, dated 1 September 2016 states:

Thank you for submitting an application under Section 60 of the Heritage Act 1977 for alterations and additions and change of use of Pine Cottage, 19 Pine Avenue, at the Prince Henry Site, Little Bay (SHR 01651).

On 23 March 2016, the Heritage Council informed Randwick Council that it would not grant general terms of approval for an Integrated Development Application at Pine Cottage, 19 Pine Avenue (DA/83/2015).

It is understood that DA/83/2015 will be determined by the Land and Environment Court. It is currently undergoing Conciliation under s34 of the Land and Environment Court Act 1979. It is also understood that DA/83/2015 has been modified as a result of the Conciliation process.

The proposal described in the Section 60 application is a modified version of the previous Integrated Development Application (DA/83/2015). This application has not been approved by the consent authority. The proposal therefore cannot be considered for approval under Section 60 of the Heritage Act 1977 until DA/83/2015 is determined.

Please note no further action will be taken on this application. A cheque refunding your lodgement fee of $500 has been sent to you via post. You will be able to lodge a new Section 60 application once DA/83/2015 has been determined.

45. This correspondence clearly invokes the provisions in s 65(1) of the Heritage Act 1977, in that the application to the Heritage Council has been deemed to have been refused. Consequently, the provisions in s 39(6) of the Land and Environment Court Act 1979 (the Court Act) are relevant and state:

(6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body:

(a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and

(b) in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

46. In accordance with s 39(6)(a) the Court Act, approval is granted under s 57 of the Heritage Act 1977 to the proposed development. In coming to this conclusion no specific matters that required consideration under s 62 of the Heritage Act 1977 were brought to my attention beyond the heritage matters addressed by the heritage experts.

Traffic/parking

The evidence

47. The council’s contentions relate to the inability to provide adequate drop-off and pick-up areas and on-site parking and the impact on the capacity of the existing local road system. Expert evidence was provided by Mr Craig McLaren, for the applicant and Mr John Flannigan, for the council.

48. Mr McLaren states that he has undertaken on-street parking surveys over three weekdays that demonstrate that convenient and safe on-street car parking exists within Ewing Avenue and McMaster Place at the rear of the site for drop-off and pick-up areas. Also, service and vehicle delivery can be appropriately managed to occur either on-site via the existing driveway (with a low frequency of visits and reversing vehicle activity onto Pine Avenue or in nearby kerbside parking locations outside of peak parent drop off and pick up times. Mr McLaren disagrees that the identified on-street parking to be used for short term drop-off and pick-up areas "widely dispersed" as suggested by Mr Flannigan. In his opinion, it is concentrated and at the rear of the centre and is easily accessible and safe for use. This approach is adopted at many other child care centres in conjunction with an Operational Plan of Management (OPM). Disabled parking can also be provided within the on-site driveway area, which can also be suitably managed under an OPM.

49. Mr McLaren notes that Randwick City Council has previously approved child care centres that rely upon on-street parking for drop off and pick up activity associated with child care centres that are convenient and safe for that purpose. Given the availability of nearby safe and convenient on-street parking, as found from surveys over three days, it is considered reasonable in the circumstances to state that the "overall planning benefits of the proposed development outweigh any deficiencies”.

50. In response to the concerns expressed by the operators of the adjoining Coast Care Centre for Seniors and the Office of the Aboriginal and Islander Health Worker Journal, Mr McLaren notes that there is no detailed demand survey, independently collected that details the use of the existing on street parking or no existing consent condition that reserves parking for the sole and full time use of persons associated with these organisations.

51. In relation to the impact on the local road system, Mr McLaren expects that recreational peaks for the beach and golf course would occur on weekends when the child care centre would not be operating. Mr McLaren also notes that the golf course has significant car parking areas next to the club houses, such that golf course users are unlikely to park such long distances away. The proposed time zoned kerbside parking areas in Ewing Avenue at the rear of the child care centre is located some 450m from the golf courses and the nearest beach some 400m with falling terrain.

52. Mr Flannigan acknowledges that onsite parking for staff is provided in excess of that required by Section 3.2 of Part 7 of DCP 2013.

53. The on-street parking spaces for pick-up and drop-off are located within four separate areas, each area is proposed for timed short term parking restrictions during peak periods. The locations of the proposed timed parking areas are in close proximity to the development site however Mr Flannigan contends that the separation of timed parking areas makes the convenience and safety of the on-street parking questionable. Vehicles are likely to queue at each timed parking area before moving onto the next area and this raises both safety and convenience issues. Particular concern is raised about the indented bay closest to the intersection of Ewing Avenue and Pine Avenue. This bay is considered by Mr Flannigan as unsuitable for short term/higher turn-over parking given its proximity to the intersection, the geometry of the road layout and the current line markings. Two of the parking areas are located near indented bays adjacent to the Coast Care Centre for Seniors (15 Pine Street) and the office of the Aboriginal and Islander Health Workers Journal (2 Ewing Avenue). The applicant has not undertaken any consultation regarding the proposed alterations to the on-street parking with these two groups. The limited survey information provided by the applicant over three days may not accurately reflect the usage of the indented parking bays by the subject organisations.

54. Mr Flannigan also contends that insufficient parking survey information has been provided to assess parking demand/parking availability during the summer months. Mr Flannigan notes that the golf course is not a factor in generating parking demand in the vicinity of the development site however the nearest beach is only approximately 400 m from the site with falling terrain. In his opinion, a distance of 400m from the beach is no impediment to beach goers parking in the vicinity of the. The streets surrounding the development site are also in close proximity to a church.

Findings

55. I agree with Mr McLaren on the matters of drop-off and pick-up areas and on-site parking and the impact on the capacity of the existing local road system.

56. Weight must be given to Mr McLaren’s on-street parking surveys that demonstrate that convenient and safe locations are available close to the proposed child care centre within Ewing Avenue and McMaster Place at the rear of the site for pick up and drop off are available. No other surveys were provided to refute his conclusions. I accept that the pick- up and drop- off areas are acceptable when used in conjunction with an OPM. As pointed out by Mr McLaren and accepted by Mr Flannigan; this is an approach adopted by the council for other child care centres.

57. Disabled parking can be provided within the on-site driveway area, as can deliveries outside the normal pick up and drop off times, both of which can be suitably managed under an OPM. In any event, there seems little other option when the proposed development satisfies the DCP 2013 requirements for off street parking and additional parking on the site would likely have an unacceptably significant impact on the setting of Pine Cottage.

58. Mr Flannigan’s concerns over the use of the indented on street parking spaces for a drop-off and pick-up area (Zone c) near the corner with Pine Street because of their likely frequent use and the proximity to the corner are overstated, in my view. Zone c is not the closest parking area to the child care centre and I am not convinced that the use of this area for a pick up and drop off area will generate sufficient traffic confusion at the intersection that it should not be used for the child care centre.

59. The operators of the adjoining Coast Care Centre for Seniors and the Office of the Aboriginal and Islander Health Worker Journal expressed concern over the potential loss of on street parking if the child care centre was to be approved. Their concerns related to the absence of a parking study that identified the current users of the spaces by staff and visitors from the two organisations. In response, I do not accept that is sufficient justification for a detailed demand survey of persons associated with these organisations. The spaces in question are presumably located in the road reserve and are available to all persons to use not just the staff and visitors to the Coast Care Centre for Seniors and the Office of the Aboriginal and Islander Health Worker Journal. The simple answer is that the public spaces will have to be shared amongst all potential users; as happens in most other areas.

60. The potential impact on the local road system is also not a reason that would warrant the refusal of the application. I agree with Mr McLaren that recreational peaks for the beach and golf course would occur on weekends when the child care centre would not be operating. While there may be some overlap during summer and school holidays; these occurrences would not be a sufficient reason to refuse the application.

Orders

61. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 83/2015 for alterations and additions to the existing building and use as a child care centre at 19 Pine Avenue, Little Bay is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 1, A, B, D and L.

________________

G Brown

Commissioner of the Court

Decision last updated: 06 January 2017