Mayer v Hurstville City Council

[2006] NSWLEC 339

Land and Environment Court

of New South Wales

CITATION:	Mayer v Hurstville City Council [2006] NSWLEC 339
PARTIES:	APPLICANT Katherine Mayer RESPONDENT Hurstville City Council
FILE NUMBER(S):	10956 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application - Existing Use Rights :- Parking .
LEGISLATION CITED:	Hurstville Local Environment Plan 1994 County of Cumberland Planning Scheme Ordnance Development Control Plan 2, Car Parking Development Control Plan 6, Child Care Centres .
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373; .
DATES OF HEARING:	20 and 21 March 2006
EX TEMPORE JUDGMENT DATE:	03/21/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr P Clay, barrister INSTRUCTED BY McKees Legal Solutions RESPONDENT Mr P Rigg, solicitor Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

21 March 2006

10956 of 2005 Katherine Mayer v Hurstville 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 refusal by Hurstville Council (the council) of a development application for the conversion of an existing dwelling house into a child care centre catering for twenty children. Development Application 20040722 applies to Lots 45 and 46 DP 10112 at 32-34 Chamberlain Street, Narwee (the site).

2 On the morning of the first day of the hearing, I visited the site in company with the legal representatives of the parties and those advising them.

3 The site presently accommodates two child care centres, both of which operate in a fashion which occupies the totality of 32 Chamberlain Street; portion of the front of 34 Chamberlain Street and the totality of an area across the rear of 34 Chamberlain Street.

4 The area that is the subject of this application is land which is entirely on 34 Chamberlain Street and comprises a brick residence; an off street paved parking area at the front; limited pedestrian access to the building and a private open space to the rear. The private open space is to the east of the house.

5 There are two matters put by the council in this case as to why the appeal should be dismissed.

6 The first is that the proposed use is prohibited under the Hurstville Local Environment Plan 1994 (the LEP) as both allotments are zoned 5A General Special Uses zone and are identified on the plan comprising the council’s zoning map with the indication, in red lettering, for the use as a church. Permitted uses in the LEP, for this zone, are for that purpose and purposes ordinarily incidental or subsidiary to that purpose and, potentially, any public purpose.

7 I do not consider it is necessary for me to determine, in these proceedings, whether or not use as a child care centre comprises a public purpose or not as I am satisfied, on other grounds, that the existing use right did not cease in 1996 as contended by the council.

8 The position of the council is that, at the time the property was sold to a company associated with the present applicant in 1996, the use of the dwelling, although continuing as a dwelling, ceased to be used for a purpose ancillary to the use of the totality of the allotment as a church - the dwelling having prior to that time been used as a residence for the minister ministering to the parish who worshipped at the adjacent church.

9 However, I am satisfied that that does not mean that that change of characterisation from church residence to secular residence effected an extinguishment of the existing use rights. I have reached that conclusion for the following reasons.

10 At the relevant time, it would appear that the County of Cumberland Planning Scheme Ordnance (the CofCPSO) applied as the original planning instrument to the site and that the area of both allotments was zoned in the Living Area zone. Column 3 of the table for the CofCPSO provided that dwelling houses are permitted without consent and that places of public worship, amongst other matters in column 4 of the table, are permitted in that zone with consent.

11 Therefore, the establishment of the building which was a church, now a former church, on 32 Chamberlain Street and confined in its entirety to 32 Chamberlain Street was permissible with consent and the construction of the dwelling house which is on 34 Chamberlain Street and entirely on 34 Chamberlain Street was permissible without consent.

12 The original consents are not available and I, therefore, have no evidence (and am not asked to draw any inferences from the absence of such evidence and do not draw any inferences from the absence of such evidence) as to the nature of the application made by the church, the then Methodist Church, at the time of construction of the church buildings and of the residence.

13 The only relevant documents which cast any light on those matters are contained in extracts from the council’s records which show that, in 1976 and in 1978, the church’s own plans submitted to the council (for either construction of the hall or additions to the building that was the church) delineate the area which is the subject of this application on 34 Chamberlain Street as being regarded by the church as being entirely separate from the land upon which the buildings within which worship was conducted were constructed.

14 I am further satisfied that the material contained in a document entitled ‘Application for permission to sell property’, which was an application to the New South Wales Synod of the church for the sale of the Narwee church halls and residence, shows, on a reasonable reading of para 6.4 of that document, that the questions were considered by the church at the time of sale as being two separate questions - that is the question of the sale of the church purpose buildings (comprising the place of worship and the hall to the rear) and, as a separate and second question, the building that comprises the residence. Para 6.4 clearly shows, with respect to the worship-related buildings, as follows:

Narwee congregation ceased formal worship in February 1995 and has combined with Riverwood congregation.

15 The only logical application of those words must be to the worship-related buildings. The second notation in that paragraph says:

Residence is not required to house minister.

16 It seems to me that the only logical interpretation of those words can be that this element of the Georges River Presbytery of the church applied its mind to a separate question; that is the question of whether or not the residence was required for the purposes of housing the minister.

17 I am satisfied that, as a consequence, it is a reasonable inference that that which came into existence when the structures were first constructed was a residence on a residential allotment to be characterised as a dwelling - albeit a dwelling used in association with the church - and that the buildings that were constructed firstly on 32 Chamberlain Street and subsequently across the rear of both allotments were church buildings for the purposes of worship-related activities.

18 I am satisfied that, as a matter of fact, the characterisation of the use of the residence on 34 Chamberlain Street, although no longer used as a residence for a minister of religion serving the congregation in the adjacent buildings, nonetheless should be characterised as the continuing use of that structure as a dwelling as originally permitted pursuant to the CofCPSO.

19 I am, therefore, satisfied that, as a matter of fact, there was, at the time of sale of the property to interests associated with Ms Mayer, a continuation of the permitted use characterised as a dwelling and that there is no reason to refuse the present application on that basis.

20 That then leaves the question of the adequacy of parking.

21 It was put to me by Mr Rigg, solicitor for the council, that conformably with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, the relevant development control plans should be the focal point or starting point for my consideration of these issues. I accept that is undoubtedly the position.

22 It is also quite clearly noted in Zhang, however, as set out by Spigelman CJ, that, after a proper and appropriate cosideration of the development control plan and consideration of the issues raised by it, there is also a discretion after appropriate consideration of other matters brought into play by s 79C of the Act to depart from the strict requirements of the development control plan.

23 I, therefore, turn and start with the relevant development control plans.

24 The first of those is Development Control Plan 2, Car Parking (DCP 2), which was adopted by the council on 4 August 1999 and took effect from 12 August in that year.

25 The second is Development Control Plan 6, Child Care Centres (DCP 6), which was adopted by the council on 26 February 2003 and came into effect from 18 March 2003.

26 The numerical requirements brought into play by DCP 2 are identical with those contained in the subsequent DCP in 2.3.1, parking and driveway under the general heading of 2.3 access and parking for child care centres. DCP 6 also notes on p 4 in cl 1.5 that DCP 2 continued to operate. There is, however, no discrepancy numerically between them.

27 I have had the advantage of a joint statement by Ms Michelle Whitehurst, a traffic engineer employed by the council, and Mr John Cody, a traffic engineer who has acted as a consultant to the applicant. Neither of them gave evidence in the proceedings and neither of them provided separate statements of evidence. However, I am satisfied that the material contained in the joint statement more than adequately permits me to deal with these matters.

28 The requirements numerically for the application to succeed are not dependent on the settlement of a remaining difference between the parties as to how many children will be permitted pursuant to the application depending on a revised calculation of the amount of outdoor play space that will be available for children on site. That number will be some number less than that sought by the applicant but its final determination rests on revised plans for a rear access ramp to the premises and do not need to detain me because that calculation will not impact on the number of parking spaces required by the development control plans.

29 The first requirement is one for one space for two staff members on site. It is agreed that, no matter how many children are to be accommodated, there will be a requirement for two staff parking spaces. The second is a requirement for one long term visitor space and the third is a requirement for spaces for the picking up and dropping off of children for a period of time limited to not more than fifteen minutes by any one vehicle. For this application it will require two drop off spaces.

30 There is a requirement in DCP 6, at 2.3.1 (g), that parking patterns must allow for vehicles to be driven in a forward direction when entering and leaving the premises. The reason for this provision being relevant is that, as the sole on-site parking space is one which will not permit entry and exit when travelling in a forward direction, one of the movements will need to be a reversing movement.

31 Although the DCP requires that (and I commence by considering it with the presumption that that is appropriate), consideration of paras 4 and 5 of the joint statement by Ms Whitehurst and Mr Cody leads necessarily to the conclusion, in my view, that the off street parking provided on the site is acceptable under all the circumstances - that being their uncontradicted expert evidence (and there being no expert evidence that would cause me to set aside the expert evidence which I have, including expert evidence on behalf of the council). I am satisfied that it is appropriate to count that one off street parking space as part of the parking provision for the application.

32 There is therefore, as noted in par 5 of the joint statement, a shortfall of two long terms spaces and two short term drop off and pick up spaces.

33 The DCP is curiously worded, in cl 2.3.1, in that it has two separate subparagraphs both numbered (c) and I turn to the second of those which indicates that the council may consider, in special circumstances, approving an application where pick up and drop off is not provided on the site (there then following a number of tests to be applied).

34 The joint statement of evidence by Ms Whitehurst and Mr Cody provides, in para 8, agreement that, with the fifteen minutes on street parking restrictions, there will be five spaces available to accommodate the child drop off/pick up activity generated by the extended child care centre - three on-street spaces plus two spaces in the drive through porte-cochere. They agree that this provision is adequate for the expanded childcare centre.

35 Faced with that agreement, I am satisfied that the terms of 2.3.1 second (c)(I) are satisfied and that the only matters against which I should test it are those contained in (III) to (V) of that paragraph. The question of whether or not there is some cumulative deficiency across the three child care centres proposed for the site is irrelevant, in my view, given the agreement between the expert witnesses that the pick up and drop off facilities are adequate for the totality of the activities proposed for the site.

36 The first of the remaining tests is (III) - Is it in the public interest to do so? I am satisfied that the agreement which appears to have been reached with the applicant that the applicant will meet the cost of signposting of the short term parking arrangements, they being an arrangement which are presently ad hoc and unregulated and un-signposted provides a benefit in the public interest for this to occur. This may also assist in addressing the concerns expressed by the sole objector to the proposal, Mr Terence Fisher of Unit 4, 24-26 Chamberlain Street, Narwee, who gave evidence during the course of the on-site hearing. I am also satisfied that signposting, as proposed at the applicant’s cost, will provide some modest possibility of increasing the general residential amenity in the area.

37 Mr Fisher’s evidence given in writing and orally concerned not the long term parking by either visitors or staff but the lack of discipline of parents in their approach to parking during drop off and pick up times - that is clear from paras 1 and 3 of his letter of 2 December 2004.

38 I am satisfied that not only is there appropriate numerical provision of spaces for that drop off and pick up to occur but that the signposting will provide some greater opportunity for discipline and therefore satisfies those provisions of the development control plan.

39 I turn to (V) of 2.3.1 second (c) which deals with the issue of pedestrian safety. The council has not prayed in aid any evidence that deals with questions of pedestrian safety. I am satisfied, from the view, that there are no obvious matters of pedestrian safety - there being clear sight lines in both directions and the drop off and pick up points being on the same side of the street.

40 I am, therefore, satisfied that, despite the provisions of the two clauses of DCP 6, there is no basis upon which I should require rigid adherence to them. On the contrary, there is evidence that demonstrates that they are otherwise appropriately satisfied in the public interest. Therefore, conformably with Zhang, it would be appropriate to depart from the DCP in that regard.

41 Finally, with respect to the deficiency in the staff and long term visitor parking, the agreement between Ms Whitehurst and Mr Cody is that there is adequate spare parking capacity in Chamberlain Street to accommodate this shortfall. Mr Cody indicated that it was acceptable. Ms Whitehurst was concerned that if these two deficient spaces were not accommodated on site there would be some undesirable precedent of a more general basis.

42 However, I am satisfied from the view, from the number of spaces that were obviously available during the course of the view, that there is no present adverse impact. There is no impact from any future development activities of which any evidence is before the Court and I am, therefore, satisfied that having considered the requirements of both development control plans that the expert evidence provided on behalf of the council and the applicant causes me to conclude that, despite the development control plans, the underlying intent of the development control plans have been satisfied.

43 Therefore, on all the issues that were put in contention, the appeal should be upheld and the development application should be granted approval subject to conditions only subject to the finalisation of the number of pupils/children to be accommodated on site which is dependent on a recalculation of the outdoor play space area in order to satisfy the regulations of the Department of Community Services in that regard.

44 I am satisfied that the issue of precedent has been dealt with in the Court in Class 1 appeals on the basis that if an application is acceptable in its own merits it is acceptable and, if it is an undesirable proposal, it will otherwise set an undesirable precedent and ought to be refused.

45 I am satisfied, in this case, that there is no basis for refusing on the merits of any of the elements and that with respect to the off street parking arrangements for the long term visitor and the staff member, having seen the availability of parking on the street and that availability during the course of the view being consistent with the views expressed by the experts in para 9 of their statement, that, even if it were to be a precedent, it is not an undesirable one.

46 The appeal will, therefore, be upheld and development consent issued subject to conditions which remain to be settled between the parties. I therefore give the following directions:

1. The respondent is to file and serve revised conditions of consent by 12 noon on 23 March;
2. The applicant is to file and serve a revised ramp plan and outdoor play area plan by 12 noon on 23 March; and
3. The matter is re-listed before me for mention at 9am on 24 March.

Tim Moore

Commissioner of the Court