Kwok v Parramatta City Council

[2007] NSWLEC 644

Land and Environment Court

of New South Wales

CITATION:	Kwok v Parramatta City Council [2007] NSWLEC 644
PARTIES:	APPLICANT Linda Kwok RESPONDENT Parramatta City Council
FILE NUMBER(S):	10475 of 2007
CORAM:	Moore C
KEY ISSUES:	Development Application :- Childcare centre Parking and traffic
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	12 September 2007
EX TEMPORE JUDGMENT DATE:	12 October 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr M Staunton, barrister RESPONDENT Mr P Marincowitz, solicitor DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

12 September 2007

07/10475 Linda Kwok v Parramatta City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Parramatta City Council (the Council) of Development Application 231/2007 for the demolition of an existing brick dwelling and the construction of a single storey, thirty-five place childcare centre over basement parking at 9 Andrews Place, Dundas (the site).

2 The site has an area of approximately 645 sq m and is at the commencement of the head of the cul-de-sac on St Andrews Place.

3 A variety of matters have been raised with concern to the application - both a limited number on behalf of the Council and a wider ranging set of issues pressed on behalf of a number of objectors who are residents in the immediate vicinity and/or have connections with the Anglican Church at the head of St Andrews Place

4 The issues fall into two categories – those that are internal within the site and those that might be described as the broader traffic and transport issues associated with St Andrews Place.

5 It is convenient to deal first with the issues that are within the site.

6 As a result of the expert report provided by Mr Hallam, the single parties’ traffic engineer, a number of matters have been raised concerning the design of the basement level car park.

7 As a consequence of those matters, the applicant has agreed to accept a requirement that car parking spaces 5 and 6 – being the two car parking spaces in north-western corner directly opposite the access ramp – be designated for staff parking. Around the outside of the remaining six car parking spaces and across the aisle at the southern end of the car park is to be provided a clearly marked pedestrian access path so that no parents or children from parked cars in the basement will be required to traverse any movement path for any vehicle using that car park.

8 In the north-east corner (at the end of this access path way) will be a flight of stairs, which leads from basement to the operational areaat ground level of the childcare centre.

9 During the course of the proceedings, the question of non-compliance with a provision of the Parramatta City Council Childcare Development Control Plan (the DCP) requiring that there be either lift or ramp access from the basement carpark to the level above was discussed with Ms Younis, the applicant's architect. She considered a wide variety of possible designs for a ramp within the general design constraints of the existing proposal. She concluded that it is not possible to accommodate such a ramp.

10 Council’s Senior Development Assessment Officer gave evidence that the combination of the at grade disabled access outside the front of the building and the existence of the child safe perimeter walkway now to be provided renders the use of stairs rather than a ramp acceptable. He did not in press that I should regard this as either warranting or contributing to refusal of the application.

11 There were a variety of other matters relating to landscaping and perimeter fencing which have been settled that will ensure that there are adequate sightlines to the north and north-east for vehicles exiting the car park as they approach the street and to provide additional landscaping in the rear of the site.

12 One of the residents who gave evidence, Mrs Fragatelli who is a neighbour immediately to the south (who raised questions relating to traffic) also raised questions of overshadowing of her property. An examination of the winter solstice shadow diagrams (which were accepted by the Council as being accurate and as explained to Mrs Fragatelli on her property) demonstrate that it will be no overshadowing of any outdoor door area of her property – except a limited extent of the front lawn in late afternoon.

13 I am therefore satisfied that there are no internal elements relating to the development which warrant its refusal or would contribute to warranting its refusal.

14 I now turn to the traffic issues. In doing so, I am obliged to have regard to the status of the DCP which was adopted to operate from 1 April 2007. This application was lodged on 23 March 2007.

15 Although there are a number of matters to which I am taken which evidence the fact that the Council does not and did not intend that the development control plan would apply to this application, I am satisfied that the necessary consequence of the provisions of section 79C(1) of the Act is that I am obliged to have regard the DCP as part of my consideration of this application.

16 The DCP has to be considered in the light of the strictures of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 that it must form the focal or starting point for my consideration but the DCP is not, in itself, determinative.

17 However. consistent with Zhang, if after a proper consideration of all of the issues raised by section 79C of the Act, I am satisfied that, notwithstanding the provisions of the DCP, the development should be granted approval, it is appropriate that I so grant approval.

18 I have had the benefit of a detailed submission of Mr Berry from 3 Arrunga Street, Dundas commenting on the original report by Mr Hallam. I also have Mr Hallam's response to Mr Berry’s submission. Mr Hallam's report, with his customary thoroughness, deals with the traffic and parking issues not merely in the immediate proximity to the development but also with the intersection with Calder Road to the south and the question of other possible conflicts in St Andrews Place.

19 The proposal is in an area zoned Residential 2(c), under the Parramatta Local Environmental Plan, which zone is designed to accommodate significant increases in density from the traditional single dwelling density that is otherwise disclosed in the immediate vicinity of the development. During the course of the view, I have had the opportunity of inspecting the exterior of two partially constructed medium density developments near the intersection of St Andrews Place with Calder Road and a new development on the intersection with Calder Road.

20 There is, I am informed, a further medium density development approved on the southern side of St Andrews Place and there is at least one pair of residences on the north eastern corner of the cul-de-sac head that is offered for sale – presumably for such developed purposes. It is clearly an area in transition. It is also an area where the head of the cul-de-sac provides a pedestrian access way from St Andrews Place to Dundas Station and from St Andrews Place to the nearby public school to the east.

21 The parking area of the church, at the head of St Andrews Place, is used as an informal drop off and pickup area for children attending the school and there is also evidence of children coming from the walkway from the Station and crossing across the head of the cul-de-sac to access the walkway to the school.

22 The parking requirements of the Council require that there be nine parking spaces provided for the development and the proposal is compliant. This requirement is consistent with the Roads and Traffic Authority requirements for such a development which compliance creates the presumption that all traffic movements will, in fact, be accommodated within the scope of the development. There is therefore no necessity – despite anecdotal evidence from residents to the contrary – for me to consider the possibility of any on street parking.

23 Mr Hallam proposes moving the limit of the present parking restrictions that are in operation to accommodate pick up and set down for the primary school to the driveway immediately to the south of the site on the western side of the street. This appears to be a sensible course to follow. This change will also assist with sightlines for vehicles exiting in the driveway - giving a more than adequate view to the south of any traffic in St Andrews Place.

24 Although I understand and can appreciate the concerns expressed by the residents about traffic volumes in the street, I have the uncontradicted expert evidence of Mr Hallam that these arrangements are satisfactory. I can see nothing from a reading of his report that would cause me to cast doubt on that conclusion.

25 There remains the issue of the proscription in the DCP, at page 20, that the Council will not allow proposed childcare centres on sites that are adjacent to arterial and main roads and sites within cul-de-sacs.

26 There is no explanatory material provided in support of that proscription. I requested Mr Marincowitz, solicitor for the Council, to obtain instructions as to how that provision came to be incorporated in the DCP. His instructions are that an elected member of the Council proposed it from the floor of the meeting. That is an entirely proper and appropriate process in a democratic society but provides little assistance to me in understanding of the philosophical planning basis which would underpin the insertion of such a provision.

27 I have, to the contrary position, Mr Hallam's evidence that there is no ordinarily prima-facie presumption against the approval of childcare centres within cul-de-sacs and his evidence that, in the present circumstances, the location is an entirely appropriate one.

28 Having considered the provision of the DCP, as I am obliged to by the decision in Zhang, I am satisfied, on the basis of Mr Hallam’s evidence and the absence of any technical material in support of the proscription in the DCP, that this proscription does not provide any basis upon which I should refuse the application.

29 I am therefore satisfied that the consequence should be that the appeal is allowed; Development Application 231/2007 for the demolition of an existing brick dwelling on the construction of single storey, 35 place childcare centre over basement parking at 9 St Andrews Street, Dundas should be determined by the granting of development consent; and the exhibits, other than Exhibits 1 and 9, should be returned.

Commissioner of the Court