Mamari, George v Parramatta City Council
[2006] NSWLEC 807
•07/12/2006
Land and Environment Court
of New South Wales
CITATION: Mamari, George v Parramatta City Council [2006] NSWLEC 807 PARTIES: APPLICANT:
George Mamari
RESPONDENT:
Parramatta City CouncilFILE NUMBER(S): 10738 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Childcare centre
Character of area
Traffic and parking
Objectors concernsLEGISLATION CITED: Parramatta Local Environmental Plan 2001, (PLEP)
Parramatta Development Control Plan 2001, (PDCP)
Environmental Planning and Assessment Act 1979, ss79C and 97DATES OF HEARING: 07/12/2006 EX TEMPORE JUDGMENT DATE: 12/07/2006 LEGAL REPRESENTATIVES: APPLICANT:
Mr C P Malley, solicitor
SOLICITORS:
Maclarens LawyersRESPONDENT:
Mr P Marincowitz, solicitor
SOLICITORS:
DLA Phillips Fox
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
7 December 2006
10738 of 2006 - George Mamari v Parramatta City Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Parramatta City Council (the council) to refuse a development application to remove three (3) trees, alter and add to the existing dwelling and to use it for a thirty-two (32) place child care centre at No 1 Cliff Avenue, Winston Hills.
2 I visited the land in company with the parties on the morning of the hearing and I heard from local residents.
3 I have concluded that there are no traffic or town planning issues that would cause me to refuse the application. Conditional approval is indicated.
The land
4 The land is situated on the eastern side of Cliff Avenue between Allambie Avenue and Reillys Road, Winston Hills. It is irregular in shape and has an area of 1,299.5m2 with a frontage of 21.28m to Cliff Avenue and a depth of 59.80m and 62.35m.
5 Erected on the subject land is a single-storey and part two-storey brick dwelling with sandstone foundation walls.
6 Residential dwellings surround the subject land.
Relevant planning controls
Parramatta Local Environmental Plan 2001, (PLEP)
7 Under the provisions of the PLEP the land is zoned Residential 2(a) and the proposal is permissible with consent. The land is not within a conservation area or is there any heritage item on or near the land.
Parramatta Development Control Plan 2001, (PDCP)
8 The PDCP applies to the land and relevant sections include Sections 4.3 (Amenity Issues) and 4.4 (Design Issues).
The proposal and its history
9 Development application No 631/2005 was lodged with the respondent council on 14 July 2005 to remove three (3) trees, alter and add to the existing dwelling and to use it for a childcare centre.
10 It is proposed to operate the centre between the hours of 7.00am to 6.00pm Mondays to Fridays.
Notification
11 The application was notified to nearby owners and occupants between 7 September 2005 and 28 September 2005 and the council received at least thirty objections.
12 Major concerns of residents were:
· Amenity: the proposal will impact on the existing amenity of the area due to additional noise generated by the children and vehicles.
· Noise: the proposal will increase the noise levels in the area due to the number of outdoor play areas.
· Increased traffic impacts and inadequate parking on site: the proposed use will result in an increase in traffic and demand for on-street parking in the area. Also concern has been raised that parents driving vehicles to drop off and collect their children will park their cars on the street which will impact on pedestrian and traffic safety and restrict access to driveways.
· Excessive hours of operation: the hours of operation being from 7am - 6pm, Monday to Friday.
· Excessive number of childcare centres within the area: there are a number of childcare centres already located in the area.
· Safety issues: the safety to the children from the risk of snakebites.
13 Submissions were also received from the applicant enclosing letters to two of the objectors addressing their concerns.
14 The development application was referred internally for comment:
· Landscape officer on 26 July 2005: The recommendations outlined in the arboriculture assessment on pages 11 and 12 shall be implemented. The subject Jacaranda located at the front shall be removed as it is in fair condition only and is expected to live for only 5 - 15 years. This is a common garden species with little contribution to the landscape character of the street. The tree shall be replaced with one Angophora costata (smooth barked apple) provided in a 100-litre container. A further Angophora costata (Smooth-barked apple) shall be provided in a 100 litre container and planted at the front with minimum distances of 2 metres from any boundary. All labels are to remain on plants and delivery receipts or copies of plant purchases, stating species, amount, and container sizes of plants, shall be made available to Council's Compliance Team to facilitate certification that the landscape plan and conditions of consent have been implemented. All landscape works are to be maintained for a minimum period of two years.
· Community Services on 26 July 2005 who had no concerns with the proposal.
· Traffic and Road Safety Engineer on 26 July 2005 and on 3 August 2006. There were no traffic comments in respect of the initial referral to traffic. In respect of the second referral to traffic on 3 August 2006 traffic advised that the proposed childcare centre would increase the current peak hour traffic volume in Cliff Ave from 17 vehicles by an additional 25 vehicles. The increase is relatively large compared to the existing volumes but in absolute terms it is a small amount and would not create an excessively adverse impact on amenity or safety. There is also an existing traffic safety matter at the intersection of Cliff Avenue that requires investigation regardless of whether or not the proposed child care centre proceeds.
· Environmental Health Officer on 26 July 2005: The Environmental Health officer requested that the applicant provide further detailed plans outlining the extent of food serviced to be conducted on-site, if food services are to be provided onsite. The applicant provides to Council the exact details of the kitchen and the exact details of the waste service (contractor, number of services per week) to be provided to the childcare facility when it becomes operational.
· Drainage Engineer on 26 July 2005 who had no concerns with the proposal.
15 The council received amended plans on 26 April 2005. At around the same time the applicant also wrote to the council complaining of the mistreatment received by him during the development application process.
16 An on-site meeting took place on 10 July 2006 to discuss the issues raised by the objectors. The concerns raised by objectors at this meeting were:
· Increased traffic in the vicinity of the childcare centre and that the traffic rat running though the local streets means that the additional morning and afternoon peak traffic generated by the development will impact on the residential amenity of the area. There were further concerns in relation to traffic safety and in particular in respect of the need to turn right from Cliff Avenue into Moxhams Road and the high traffic flows during the morning peak and sight lines at the intersection. In addition to which, concerns were also raised in respect of the lack of public transport and footpaths in the area.
· Concerns that the development will create parking issues in that the narrow width of Cliff Avenue vehicles should not be parked along the street which may then lead to vehicles having to park along Moxhams Road.
· Concerns were raised in respect of noise that will be generated from the centre, which would result in a decrease in the residential amenity of the area as the land slopes, and the noise would carry further than that from a flat site.
· Concerns were raised that the development is not in the public interest as the childcare centre only caters for children 2 years and up and does not cater for children 0 - 2 years.
· Concerns were raised in respect of waste disposal, particularly in respect of possible odour problems caused by the bins stored either on the street or stored within the site.
· Concerns were raised in respect of the disabled access from the carpark to the childcare centre, particularly that it was illegal and that a further access path to the rear yard would provide unacceptable opportunities for overlooking into adjoining properties.
· Concerns were raised in respect of lighting during the mid-winter months and that flood lighting may be required to be provided to the front carpark and the street so as to allow children and parents to access the centre.
· Concerns were raised in respect of the adequacy of the landscaping at the rear, particularly in respect of the proposed fruit trees being replaced with evergreen trees to reduce the opportunity for overlooking.
· Concerns were raised in respect of wildlife in the area, in particular childcare centre attracting snakes and other animals including bats and rats to surrounding residents.
17 The council staff recommended to the council that it approve the application, subject to conditions. The report was considered at the council meetings on 10 July 2006 and 14 August 2006. On 14 August 2006, the council resolved to grant consent to development application 631/2005, subject to standard conditions and additional extraordinary conditions.
The council’s decision
18 However, a rescission motion was considered at the council meeting of 14 August 2006 and by notice dated 25 August 2006 the council as a whole resolved to refuse the application for reason that:
1. The curvilinear and narrow nature of Cliff Avenue does not lend itself to this type of development.
2. The residential nature of the locality is inappropriate for this type of development.
3. The need for access to Cliff Avenue from Moxhams Road creates an extreme safety hazard due to the steepness of Moxhams Road.
4. On street parking in Cliff Avenue will exacerbate the safety concerns of residents particularly in regard to the ‘drop off’ and ‘pick up’ of small children.
5. The proposal is not in the public interest.
6. The absence of 0 - 2-year-old places at this proposed centre fails to address the real needs of childcare in the northwest sector of the Local Government area.
The hearing
19 The appeal was filed on 22 August 2006.
20 At the hearing the court heard evidence on behalf of the respondent council from:
· Ms J Ngoy, resident of No 1A Cliff Avenue, Winston Hills;
· Mr R John, resident of No 33 Cliff Avenue, Winston Hills;
· Mr A McCouch, resident of No 1 Betty Avenue, Winston Hills;
· Mr H Box, resident of No 8 Cliff Avenue, Winston Hills;
· Ms S Thuens, resident of No 37 Cliff Avenue, Winston Hills;
· Mr R Prosser, resident of No 85 Moxhams Road, Winston Hills;
· Mrs Scott, resident of No 12 Cliff Avenue, Winston Hills;
· Mr D Scott, resident of No 12 Cliff Avenue, Winston Hills;
· Mr A Rogers, resident of No 11 Betty Avenue, Winston Hills;
· Ms K Matthews, resident of No 70 Moxhams Road, Winston Hills.
21 Mrs J Gapps resident of 68 Moxhams Road, Winston Hills, provided a written statement to the Court, [Note: Exhibit 6].
22 Mr A Ludvik, the Court-appointed town planner concluded that the proposal:
- …is consistent with the objectives of the Residential 2A zoning of the land under the terms of the PLEP2001.
The proposal will have no undue or unreasonable effect on the amenity enjoyed by residents of surrounding properties.
The matter does not raise any town planning issues that would warrant the refusal of the application and all of the issues raised can adequately be addressed by appropriate conditions of consent, [Note: Exhibit 4, p 14].
23 Mr C McLaren the Court-appointed traffic engineer, considered the traffic and parking related Issues 3 to 8 and concluded on 3 November 2006, “…there are no reasons to refuse the subject development application on traffic and parking grounds”. [Note: Exhibit 5, p 2].
24 Mr B Siciliano, Senior Development Assessment Officer, Parramatta City Council prepared the statement of basic facts dated 25 August 2006.
The issues
25 On 28 September 2006 the council filed a statement of issues:
- Character of area/zone objectives/suitability of site
- (Clause 16, zone 2A objectives, Parramatta Local Environmental Plan 2001).
Traffic/parking
- (Clause 4.3.5 Parramatta DCP 2001.)
Objectors
- Conditions
10 The Respondent submits that in the circumstances of the case, none of the issues is capable of resolution by way of conditions of consent.
26 The following emerged as the salient issues:
· Character of area.
· Traffic and parking.
· Objectors concerns.
The evidence and findings
Character of area
27 Mr Ludvik, the Court-appointed town planner, pointed to the fact that the Residential 2(a) zone permits a wide range of different uses, even those uses that are different in character to conventional dwelling houses. He considered the proposed use could not be considered contrary to the objectives of the zone because of its childcare centre use.
28 He also pointed to the fact that the proposal does not involve any significant alterations to the form of the existing building. There is a change in that the front garden that is presently landscaped would be largely given over to car parking. However, as shown in the landscape plan in Exhibit L a planter bed is proposed on either side of the driveway entrance and an Angophora costata is proposed south of the driveway to replace the existing Jacaranda. The driveway and car park is proposed to be stencilled concrete and this would reduce the visual impact of this element.
29 I am satisfied that despite the change likely to be wrought by the presence of the proposed car park the character of the proposal would not be such as to warrant refusal of the application.
Traffic and parking
30 Mr McLaren, Court-appointed traffic engineer, the examined the traffic aspects of the proposal and its impact on the local street system and concluded that the narrowness of Cliff Avenue, and its curves to the south of the land are desirable in lowering traffic speed. The extra traffic likely to be generated by the proposal did not lead him to the conclusion that Cliff Avenue will be less safe.
31 Any traffic safety hazards at the Cliff Avenue and Moxhams Road intersection he considered would be a suitable matter for consideration of the local traffic committee. He stated that for a sign posted speed limit of 50kph, the sight distances are adequate in both directions.
32 He considered that the on-site car parking complies with the council’s and RTA requirements in this regard and he expected that demand for car parking would be fully accommodated on site. He observed that although existing on-street car parking in the vicinity of the land is low, on-street parking conditions would not be exacerbated such that the application should be refused.
33 He considered the position of the driveway in relation to the Moxhams Road intersection was adequately offset and met the requirements of AS2890.1-2004 and the RTA Guidelines.
34 He was satisfied that the internal car parking and pedestrian access arrangements would be adequate for the intended purpose.
35 I accept the evidence of Mr McLaren, and would not refuse the application for reason of any traffic or car parking issues.
Objectors concerns
36 Mr Ludvik examined issues raised by objectors including those outlined in the statement of basic facts and he concluded that the:
· centre will not, in my view, result in the emission of undue or unreasonable noise or objectionable noise;
· activities of the centre would be unlikely to cause an unreasonable noise impact on the amenity of nearby residents;
· hours of operation are consistent with most long day care centres and are satisfactory;
· centre would be remote from other centres and thus there would be unlikely to be any cumulative impact;
· waste collection would be restricted by condition to 6.30am to 6.30pm Monday to Friday and the operation is unlikely to be an attraction to snake, and other animals including bats and rats;
· centre is car based and people accessing on foot would be limited;
· centre would be accessible by people in wheelchairs by means of ramps at 1:14 grade or chair lift.
37 Mr Ludvik was satisfied that these concerns could be reasonably addressed by imposing conditions on the consent.
38 I accept that evidence and would not refuse the application for reason of issues raised by nearby resident objectors.
39 For the above reasons, the appeal is upheld.
Conditions
40 The conditions are those amended conditions in Exhibit 3 and as further amended during the hearing.
Amended drawings
41 Changes to architectural plans as agreed during the hearing shall include:
· disabled accessible space to be 3.2m wide;
· delete landscape strip between spaces 2 and 3;
· add landscape strip to car parking space 4 and dwelling;
· add handrail to the front ramp after height reaches 200mm;
· front fence height no greater than 500mm along the length of the wall with piers no greater in height than 600mm to match existing front wall;
· move disabled inclinator to the rear and adjust levels of landing and extend stairs;
· new entry door at top of new stairs;
· privacy screen to 1.6m high;
· metal decorative lattice screen as per Condition 4C; and
· stencilled concrete to not extend over the council verge.
42 Changes to the landscape plan shall include:
· to conform with the architectural plans; and
· reduction in height of the landscaping near the entry.
43 The parties agreed that these changes are to be served by 14 December 2006 and checked by the Court-appointed experts by 21 December 2006 and filed by 22 December 2006.
Orders
44 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 631/2005 lodged with the respondent council on 14 July 2005 to remove three (3) trees, alter and add to the existing dwelling and to use it for a childcare centre at Lot 32, DP 22663 being No 1 Cliff Avenue, Winston Hills, is approved subject to Conditions 1 to 63 in Annexure A.
3. The exhibits except for Exhibits A, B, C, D, E, F, G, H, J, 3 and 8 are returned.
S J Watts
Commissioner of the Court
sw
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
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