Nehme v Blacktown CC
[2006] NSWLEC 684
•10/11/2006
Land and Environment Court
of New South Wales
CITATION: Nehme v Blacktown CC [2006] NSWLEC 684 PARTIES: APPLICANT
RESPONDENT
Tony Nehme
Blacktown City CouncilFILE NUMBER(S): 10255 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Childcare centre, location in cul-de-sac, road capacity, public interest LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Blacktown Local Environmental Plan 1989CASES CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 DATES OF HEARING: 11/09/2006
DATE OF JUDGMENT:
11/10/2006LEGAL REPRESENTATIVES: APPLICANT
Mr P. Clay, barrister
instructed by Mr P. Saab
of Macquarie LawyersRESPONDENT
Mr T. O' Connor, solicitor
of Houston, Dearn O'Connor
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hussey
Date: 10 November 2006
10255 of 2006 Tony Nehme v Blacktown City Council
BackgroundJUDGMENT
1 This appeal was lodged against council's refusal of a development application for a 40 place childcare centre at Gymkhana Place, Glenwood. For the appeal, the outstanding issues can be summarised as follows:
- Capacity of the road system in terms of increased traffic volumes in Gymkhana Place;o
Particulars: AMCORD establishes a capacity of 300 vehicle trips per day for cul-de-sac streets. As a result of the proposed development the total daily volume of Gymkhana Place will be in the order of 361 equal trips.
- Suitability of the site for the development due to it:
a) being located within a narrow cul-de-sac;
b) having poor access to public transport routes and collector road; and
c) not complying with AMCORD requirements.
- Public interest considerations.
2 In order to assess these issues, the parties agreed to Mr G Pindar being the Court appointed expert for traffic matters. In addition to this, Mr C. Hallam (traffic consultant) prepared a report on behalf of the applicant. Consequently, there was a conference between these experts resulting in the joint traffic report (Exhibit 3)
3 The associated planning issues were dealt with by Mr L Fletcher (consulting town planner) and Mr G Apps (council’s senior statutory planner).
4 A considerable number of objections were lodged and these generally related to unsuitability of the cul-de-sac for the proposal in terms of character of the area, excessive traffic and safety.
The site
5 The subject site is known as 8 Gymkhana Place, Glenwood, and it is described as Lot 448 in DP 1008756. It has a road frontage of 25.38 m and total area of 967 sq m and is situated within a cul-de-sac. The site is currently vacant.
6 The surrounding area is comprised predominantly of detached dwellings of recent construction that are mainly 2-storey in height.
The proposal
7 The proposal is for a 40 place childcare centre, which caters for the following age-groups:
- 0 - 2 years, 10 children;
- 2 - 3 years, 15 children;
- 3 - 5 years, 15 children.
8 It is proposed to operate the childcare centre Monday – Friday, 7 a.m. - 5 p.m.
9 The development is for a 2-storey building, with the ground floor component containing all operational areas of the childcare centre and the second storey containing limited staff amenity area. Outdoor play areas and car parking for 10 cars are also proposed.
Planning controls
Blacktown Local Environmental Plan 1988 (BLEP)
10 The site is zoned 2(a) Residential and the proposal is permissible with consent.
Blacktown Development Control Plan 2006 (BDCP)
11 Section 10 deals with non-residential development in the residential zones. Section 10.3 particularly deals with childcare centres, wherein 10.3.3 provides planning and design criteria, including separation distances to other childcare centres. Section 10.3.3.1 specifies the locational preferences, so that there is minimal impact on neighbours arising from noise and privacy intrusion, whereby centres should:
a) be located in close proximity to schools, neighbourhood halls, churches and formal public reserves;
b) if practical, be located on sites that have minimal common boundaries with residential neighbours; and
c) locate play areas as far as possible away from neighbours living rooms.
12 To ensure the safe movement of traffic entering and leaving the site in the provision of adequate parking for parents/guardians dropping off and picking up children and to reduce the incidence of street parking, childcare centres should not be located on sites having a frontage to any road which in the opinion of council is unsuitable for the establishment of a childcare centre having regard to:
a) prevailing traffic conditions;
b) pedestrians and traffic safety;
c) the likely impact of development on the flow of traffic on the surrounding streets system.
13 The DCP also identifies certain roads on which applications for childcare centres will not be entertained. This includes culs-de-sac where "childcare centres will not be supported on lots within culs-de-sac".
Blacktown City Council Engineering Guide for Development 2005 (BCCGuide)
14 This guide was prepared to provide engineering guidelines for the subdivision and development of land within the city area. It contains Tables 3.1 and 3.2 detailing the following road hierarchy and widths for the residential areas:
Cul-de-sacs: serving a maximum of 30 dwellings/dwelling units, (not lots) -carriageway of 7.5 m.
The evidence
Local street : minor loop roads and cul-de-sacs serving more than 30 dwellings including corner lots - carriageway of 9 m.
15 The primary issue raised by council and the residents concerns the suitability of the site for the development, in terms of its location in the Gymkhana Place cul-de-sac. The objectors expressed their concerns that this residential site was not suitable for a "commercial type" development because it was not compatible with the character of the area and will increase safety concerns for residents.
16 This issue of cul-de-sac suitability in terms of traffic, road and environmental capacity was addressed by Mr Pindar and Mr Hallam. However, these experts advocated significantly different approaches to the assessment of this issue.
17 Notwithstanding this, they agreed that the traffic flows are a fundamental element and comprise the trips generated by the 21 homes in Gymkhana Place (i.e 190 veh/day), together with additional trips to the childcare centre (i.e. 150 veh/day), giving a total projected daily traffic flow of 340 veh/day. However Mr Hallam said that as the two properties on the corner of Gymkhana Place and Equestrian Way front Equestrian Way, then the overall traffic projection in Gymkhana Place should be reduced to 320 veh/day.
18 They also agreed that the cross-section of Gymkhana Place provides a 7.5m wide carriageway, with rollover kerbs and grassed footpaths.
19 According to Mr Pindar, this traffic flow represents almost a doubling of the existing traffic, which he considers will create unreasonable amenity impacts, resulting in the environmental capacity of this road being exceeded. Therefore he says that the proposal should not be approved.
20 This conclusion is substantially based on Mr Pindar’s interpretation of the provisions of AMCORD, which apparently categorises road carriageway widths of 3.5 m to 3.7 m as an Access Place (one lane only) and carriageway widths of 5 m for an Access Street as having a capacity of no more than 300 vehicles per day.
21 In further support of his position, Mr Pindar refers to Council’s Engineering Guide for Development, wherein Table 3.1 specifies a 7.5 m width for cul-de-sac serving no more than 30 dwellings (and 9 m for culs-de-sac serving more than 30 dwelling).
22 Against this, Mr Hallam expressed strong disagreement to this approach, based on his interpretation of the AMCORD guidelines and his direct experience in formulating the RTA environmental road capacity guidelines. He says that reference should also be made to the weekday peak hour traffic flows, which will increase from the current 18 veh/hr to approximately 46 – 50 veh/hr after the development.
23 Consequently, he says that the usual performance standards applied to assess the environmental capacity of residential streets are contained in the RTA’s Guide to Traffic Generating Developments in the following Table 2.1:
- Table 2.1 Environmental Capacity Performance Standards on Residential Streets
Local Access way 100 Street 200 environmental goal 300 maximum Collector Street 300 environmental goal 500 maximum
24 From this, Mr Hallam says it can be seen that the lowest peak hour flow recommended is for an Access Way, where a maximum of 100 veh/hr is allowed. On the basis of the foregoing estimated maximum peak hour flow of 50 veh/hr after development, which is half of the allowable 100 veh/hr threshold, then the proposal clearly satisfies the RTA criteria.
25 In addition to this, Mr Hallam says that the actual character of Gymkhana Place should be taken into account, because it is not a narrow street with restricted alignment. Instead it is a typical local residential street that is quite different from a designated Access Way where there is a maximum designated speed of 25 km/hr for the narrower carriageways. As Gymkhana Place has the physical characteristics of a local residential street, where the RTA environmental goal is 200 veh/hr and the projected higher peak hour flow at the end of the street is 50 veh/hr, this represents 25% of the threshold figure, which again confirms its comfortable compliance with the RTA environmental capacity criteria.
26 This street character includes the fact that Gymkhana Place has a carriageway width of 7.5 m. As such the BCCGuide includes this as the recommended carriageway width for culs-de-sac and when this is compared with the AMCORD standards, it allows a capacity of up to 3000 veh/day for such minor collector streets. Furthermore, Mr Hallam says that where Gymkhana Place intersects with Equestrian Street (classified as a local street), it maintains the 7.5 m carriageway, which indicates council’s acceptance of this general carriageway width as suitable for both local street and culs-de-sac.
27 Mr Hallam expressed strong opposition to Mr Pindar's use of the AMCORD guidelines to set a limit of 300 veh/day for culs-de-sac, stating that "this is an interpretation of convenience that is totally inconsistent with the principle of ‘environmental capacity’ developed in the RTA Guide”. This is notwithstanding Mr Pindar's qualification that:
" Council has in my view simply adopted a lower AMCORD environmental threshold while also widening the carriageway for other reasons, as permitted in AMCORD … It does not prevent Council of adopting a lower threshold level where it considers this is appropriate, for example, in culs-de-sac."
28 Apart from this, Mr Pindar also supported his position by reference to the Road Design Parameters as set out in Table 3.2 of the following council subdivision guidelines:
Table 3.2: Road Design Parameters
SUB-ARTERIAL Based on traffic Counts 150 mm kerb & gutter INDUSTRIAL
*Collector & Heavy Duty
*Light Duty-
-1 x 107
5 x 106150mm kerb & gutter
150mm kerb & gutterCOMMERCIAL - 150 mm kerb & gutter RESIDENTIAL
*Major Collector
*Minor Collector
*Local Street
*Cul-de-sac
*Access Street
*Private/Community Title Roads4,000 – 10,000
2,000 – 4,000
500 – 2,000
0 – 500
0 – 500
0 – 500
5 x 105
2 x 105
5 x 104
5 x 104
5 x 104150 mm kerb & gutter
150 mm kerb & gutter
Roll top kerb & gutter
Roll top kerb & gutter
Roll top kerb & gutter
Mountable/Rigid Pavement
29 The main point of interest concerns the various road type classifications and designated vehicle capacities. In particular that:
- local streets have a vehicle capacity (AADT) of 500 – 2000,
- cul-de-sac have a vehicle capacity (AADT) of 0-500,
- access streets have a vehicle capacity of 0-500 (AADT).
30 From this, Mr Pindar contends that the 500 veh/day threshold is not an environmental capacity threshold, but rather a design parameter for the purpose of assessing the structural requirements of the road pavement based on axle loadings. Accordingly, he says it has no bearing on the amount of traffic that the road may be permitted to carry for other reasons. He says this strengthens council’s case that culs-de-sac can only serve a maximum of 30 dwellings, where about 255 veh/day are generated.
31 However, Mr Hallam says this interpretation is totally wrong because both Tables 3.1 and 3.2 need to be read in conjunction. On this basis section 3.6 of the Guide discusses pavement design where the "N" value specified the "equivalent standard axle loadings" or the ESA’s for the road. These relate to the axle dynamic loads transferred to the road through traffic.
32 Consequently Mr Hallam says that the only guidance to the maximum daily or peak hour flow for culs-de-sac is that provided in the Council’s Engineering Guide in Table 3.2, which is unambiguous. The AADT ranges for the roads listed flow typical threshold, of 10,000 veh/day for major collectors, 4000 veh/day for minor collectors and 2000 veh/day for local streets. Comparatively, the RTA environmental capacity threshold maximums are 500 veh/hr (5000 veh/day) for residential collector streets and 300 veh/h (3000 veh/day) for local residential streets, with goals for the latter being 200 veh/hr (2000 veh/day). Whilst he says that he does not necessarily agree with the setting of a limit for culs-de-sac of 500 veh/day, this limit is clearly the intention of the Council Guide.
33 Mr Hallam’s conclusion in supporting the application, is that the appropriate environmental limit for a 7.5 m wide street such as Gymkhana Place is 200 veh/hr, with 2000 veh/day being a surrogate measure for this flow. He says that the lowest case situation that can be considered is for the only AADT threshold figure published in the Council Engineering Guide of 500 veh/day, to be used, in which case the projected daily flow of 320 veh/day is just two thirds of this limiting value, with this flow only occurring past four existing dwellings in Gymkhana Place.
34 The associated planning aspects were addressed by Mr Apps and Mr Fletcher. Mr Apps provided background information relative to the provision of childcare centres in culs-de-sac. He says that council has adopted a general minimum carriageway width of 7.5 m for public roads which is not a result of anticipated capacity, but a reflection of the manner in which a cul-de-sac serving up to 30 dwellings functions. This greater width has been adopted to enable easier passing of vehicles, enable street parking and garbage truck movements and the like.
35 Mr Apps generally discusses the locational preferences for childcare centres relative to access roads and in respect of culs-de-sac says:
"I consider that culs-de-sac in the residential areas perform a function of a lower order residential street and help provide a neighbourhood context where the residents have a sense of ownership of their street. I consider that many people choose to live in a cul-de-sac to enjoy a sense of neighbourhood. I consider that non-residential activities in a cul-de-sac diminish that sense of neighbourhood."
36 Mr Apps does not support the proposal because of its location in Gymkhana Place cul-de-sac, which is a lower order street where the prohibition on childcare centres aims to "reduce traffic impacts in the lower order street and to encourage the location of childcare centres in better proximity to collector roads and public transport routes".
37 In response to this, Mr Fletcher notes that there is no issue of permissibility or consistency with the zone objectives with this proposal on the subject site. Furthermore he notes that the locational provisions relating specifically to cul-de-sacs were not drafted, or even publicly exhibited, until after the current development application was lodged with council. Therefore he considers this DCP provision should be discounted or given little weight.
38 Insofar as he defers to the traffic experts on the road capacities, and refers to the survey undertaken by Council which indicated there are approximately 100 childcare centres operating in the City of Blacktown, he notes with interest that the survey does not identify the number of childcare centres in cul-de-sacs or where this location has caused problems in the City.
39 Mr Fletcher's observations on the locational restriction of childcare centre in the subject case is as follows:
Firstly, in my view the location of a particular development within a cul-de-sac is significant. That is, there would be much greater traffic impact in terms of the number of properties affected if a child-care centre were located at the head of a cul-de-sac rather than at or close to its entrance. Where a child-care centre is located at or near the entrance to a cul-de-sac, in my opinion it is much less likely that vehicles accessing the centre would need to traverse the full length of the cul-de-sac and thereby affect traffic volumes along its entire length.
Secondly, for the reasons outlined previously, it is my opinion that this provision of the DCP should be given little or no weight in the interests of procedural fairness as the restriction on child-care centres in cul-de-sacs was introduced by Council along after the subject development application was submitted to them for assessment and determination.
Finally, I agree with Mr Apps' comment that it is sensible to have child-care centres located close to main routes, but not on main roads. In my view, the following map indicates that the location of the proposed child-care centre is essentially consistent with this approach.
For the above reasons, it is my view that the location of the proposed child-care centre is generally consistent with the principle of it being a convenient, safe and accessible location and is therefore consistent with the intent of Council's locational criteria, albeit that it is located within a cul-de-sac.The subject site is located in close proximity to the Westlink M7 motorway and Old Windsor Road. Both of these major routes are accessed off Norwest Blvd. It would be inappropriate to have a child-care centre on Old Windsor Road or Norwest Blvd as they are main roads. The intersection of Greenhill Drive and Norwest Blvd is a fully signalised intersection with protected turn bays. The site in Gymkhana Place is only a short distance off Norwest Blvd and Greenhill Drive. It should also be noted that a transit way is currently under construction on Old Windsor Road which will significantly improve public transport facilities in this locality.
Conclusions
40 In the process of assessing the disparate opinions on the site suitability, I note that most of the matters raised by the objectors have been considered in the experts assessments. Gymkhana Place is an attractive cul-de-sac, as are most of the other residential streets in this recently developed neighbourhood. However, the planning controls generally allow childcare centres in residential neighbourhoods to serve the local community and there was no significant evidence presented, which distinguished Gymkhana Place from other nearby residential streets.
41 According to the issues identified by council for the appeal, the main issue concerns the road capacity of Gymkhana Place, with particular reference to AMCORD guidelines. The consideration of this threshold issue introduced other evaluation criteria from the RTA Traffic Guide and also Councils Engineering Guides reference to road capacities.
42 Unfortunately there does not seem to be any specific reference to AMCORD in the DCP, despite it being identified in the issues as a relevant control. Furthermore, there seems to be some inconsistencies with the prohibition of childcare centres in culs-de-sac when assessed against the AMCORD criteria, in the absence of peculiar circumstances being identified.
43 Nevertheless it was introduced into the proceedings from a general reference in the BCC Guide introductions. Notwithstanding this, the relevant AMCORD details are contained in Element 2.1, which deals with ‘ Street Design and On-street Car Parking’. The stated intent of this element is:
To provide for streets that fulfil their designated functions within the street network, accommodate public utility services and drainage systems, and create a safe and attractive environment.
44 Consequently, the following performance criteria to achieve this intent include:
P1 The design features of each type of residential street convey its primary function.
P2 The street reserve width is sufficient to cater for all street functions, including;- safe and efficient movement of all users;
- provision for parked vehicles;
- provision of landscaping;
- location, construction and maintenance of public utilities.
Designing for safety .
P4 The design facilitates safe use by pedestrians, particularly people with disabilities, the aged and children, by:
- providing a carriageway width which allows vehicles to proceed safely at the operating speed intended at that level of street;
- making allowances for restrictions caused by on-street parking;
- providing a horizontal and vertical alignment which is not conducive to excessive speeds.
45 The performance criteria and acceptable solutions are then embodied in the Table 1, (Attachment 1).
46 The associated diagrams in AMCORD for the road cross sections show that:
- a 3.5 m carriageway (Access place); allows a car and cyclist to pass and has an indicative maximum traffic volume range (IMTVR) of 0-300 vpd,
- a 5 m carriageway (Access street); allows a car to pass a parked car or moving car and has an IMTVR of 0-300 vpd,
- a 5 - 5.5 m carriageway (Access street); allows a moving car to pass a truck, that is too narrow for cars to park opposite each other without blocking the street. This has an IMTVR of 300-1000 vpd,
- a 5.5 m – 7 m carriageway (Access street), has an IMTVR of 1000 – 2000 vpd.
a 7 – 7.5 m carriageway; is wide enough for two vehicles to pass each other while passing a parked car. It is wide enough for a moving car to pass between two parked cars, but is not wide enough for two moving vehicles to pass at once. It has an IMTVR of 1000 – 3000 vpd.
47 From these AMCORD descriptions, it appears to me that the design guidelines provide the various characteristics to achieve the stated intent for various streets, which includes the creation of "a safe and attractive environment". Furthermore, these guidelines do not appear to differentiate cul-de-sac functions, except in access streets (0 – 300 vpd) where reference to footpaths in traditional cul-de-sac type streets is made.
48 My assessment of the competing positions on this issue is that as Gymkhana Place has a carriageway width of 7- 7.5 m, it has the capacity of at least an Access street (i.e. 1000 -2000 vpd). As it has been agreed by the experts, that the projected traffic volumes after development of the childcare centre would be in the order of 320 vpd, I am satisfied that Gymkhana Place can comfortably accommodate this volume of traffic and also achieve a safe and attractive environment. This is in accordance with Mr Hallam’s interpretation of the AMCORD guidelines and is consistent with his references to the associated RTA environmental capacity criteria for streets, to which the proposal also demonstrates comfortable compliance.
49 I also consider that Table 3.2 in the BCCGuide confirms that culs-de-sac should be designed for wheel loadings that accommodate a minimum 500 vpd, as stated by Mr Hallam. Therefore Gymkhana Place pavement should be able to be comfortably carry the proposed childcare centre traffic, which includes allowing vehicles to pass each other safely.
50 This conclusion is also confirmed by the council’s traffic management section, who raised no traffic objections to the proposal. The traffic section said that the traffic generated by the proposal would not have a significant impact on the surrounding road networks and that the parking and access arrangements are satisfactory.
51 In addition to this, I note the conclusion that the access on-site parking is satisfactory, which is consistent with both Mr Pindar’s and Mr Hallam’s evidence on which I rely.
52 For these reasons then, I consider Mr Hallam’s interpretation of the relevant AMCORD more realistic in the subject matter and rely on his opinions, in preference to those of Mr Pindar. In particular, I do not consider Mr Pindar’s interpretation that Amcord requires a cul-de-sac such as Gymkhana Place to have a limited maximum traffic volume of 300 vpd is reasonable, in the circumstances of this case. But in any case, if the 300 vehicle trips per day is critical, I consider the projected daily traffic of 320 vpd (i.e. a 7% increase) is still reasonable.
53 Notwithstanding this, I accept that there could be circumstances where variations to the general guidelines are appropriate, but Mr Pindar has not adequately substantiated this in my assessment, because he mainly relies on council's policy. Therefore I have considered Mr Apps’ and Mr Fletcher’s opinions on the policy implications, to particularly identify what other higher order qualitative factors need be considered in order to achieve the desired safe and attractive residential environment, addressed by AMCORD.
54 I accept Mr Apps’ opinion that culs-de-sac are lower order residential streets and that some residents may choose to live there to enjoy a sense of neighbourhood. But this could equally apply to the other lower order access streets identified in AMCORD, which have a similar environmental capacity. Presumably these residents would also be entitled to enjoy a sense of neighbourhood and I therefore consider Mr Apps opinion that "non-residential activities in a cul-de-sac diminish that sense of neighbourhood", unreasonable and somewhat discriminatory, considering that some non-residential activities such as childcare centres are allowed in all the residential zones.
55 In considering the merits of the subject application, Mr Fletcher's point that the location of the proposed childcare centre at or near the entrance to the cul-de-sac, whereby the childcare centre traffic would only pass 4 properties in Gymkhana Place, tends to confirm that any traffic impacts would be minimised on other residents of the cul-de-sac. This is consistent with the evidence of Mr Hallam. As I have stated previously, the absence of specific criteria on the restriction of childcare centres in cul-de-sacs, results in my acceptance of Mr Fletcher's opinion that the proposed site, near the entrance to the cul-de-sac is suitable for the proposed childcare centre.
56 I also consider that the operating hours are relevant where the childcare centre is to be closed on weekend. Therefore the character of the street as a result of traffic use will be unaltered when the majority of residents are most likely to engage in their neighbourhood activities. Likewise, the weekday closing time of 5pm should also minimise any traffic amenity impacts.
57 Insofar as the residents raised concerns about other traffic matters, including the safety of the nearby intersection of Equestrian Way and Greenhill Drive, I note that it has a somewhat unusual intersection alignment, but the traffic experts have not expressed any significant concerns to the effect that the incremental change in traffic due the operation of the childcare centre on this, or other nearby traffic facilities warrants refusal of the application.
58 In the ultimate I am satisfied that this childcare centre is permitted on this residential site and that its approval within a cul-de-sac, should not result in unreasonable environmental harm due to its projected traffic generation, when assessed against the relevant AMCORD guidelines. It also appears from Mr Fletcher's evidence that this site has a similar level of access to public transport routes and collector roads as the majority of the surrounding neighbourhood, so that this is not a reasonable ground to refuse the application, in my assessment.
59 It also seems reasonable to me, that due weight be given to the changes to the DCP in respect of the restriction on childcare centres in culs-de-sac. This policy change occurred after the lodgement of the development application. Under these circumstances line of authority in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 are relevant, where the Chief Judge stated:
86 The role of a development control plan was recently considered by the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 at 386-387. The correct approach to consideration of, and the weight to be given to, a development control plan is assisted by the express inclusion of a reference to development control plans in s 79C of the Environmental Planning and Assessment Act 1979. In the early days of planning law in this State, that approach was defined by the decisions of the Land and Valuation Court and there are many decisions which deal with the role of development control plans and policies in the decision with respect to an individual development proposal. Some of them were considered by Lloyd J in Segal v Waverley Council [2004] NSWLEC 363: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-645; Hunter District Industries Pty Ltd v Newcastle City Council (1957) 2 LGRA 240 at 248-249; Shellcove Gardens Pty Ltd v North Sydney Municipal Council (1961) 6 LGRA 93 at 102; Crusade Construction Co Pty Ltd v Sutherland Shire Council (1961) 6 LGRA 372 at 376-377; Foreman v Sutherland Shire Council (1964) 10 LGRA 261 at 269; Boyce v Burwood Municipal Council (1964) 10 LGRA 280 at 282-283; Regent Project (No 6) Pty Ltd v Hornsby Shire Council (1970) 20 LGRA 316; Leeroy Television Service Pty Ltd v Leichhardt Municipal Council (1970) 21 LGRA 40 at 42-43; JOL Pty Ltd v Waverley Municipal Council (1971) 22 LGRA 152 at 155; Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303 at 309-310; Smith v Wyong Shire Council (No 2) (1980) 41 LGRA 202 at 212-214.
87 Consideration was also given to the approach to be adopted to a development control plan by the Court of Appeal in North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 and in the later decision North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23. These decisions, and others, provide the principles relevant to consideration of development control plans. In summary they are:
- · A development control plan is a detailed planning document which reflects a council’s expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan.
· A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.
· A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied.
· A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.
· Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.
89 In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, Mason P discussed the role of policy in the consideration process. The President emphasised that environmental planning instruments are not “the only means of discerning planning policies or the 'public interest'” (at LGERA 210).
90 The public interest is expressly acknowledged as a relevant consideration in s 79C(1)(e) of the Environmental Planning and Assessment Act . It was similarly acknowledged in s 91 of the Act in its original form. It must extend to any well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan.
91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options.
60 Therefore, considering the interim circumstances under which the DCP restriction was introduced after the lodgement of a development application and that the cul-de-sac restriction does not appear to have gone through the public exhibition process, I consider it should be given diminished weight. Notwithstanding this, my assessment of the evidence is that this proposal demonstrates reasonable compliance with the AMCORD, even though it is not identified in the amended DCP. This results in my assessment that this development application merits conditional consent.
61 Reference to the draft conditions indicates that it is a deferred commencement, subject to the provision of an on-site detention stormwater plan. I understand from the submissions that this drainage requirement is feasible and the conditions require final detailing.
1. The appeal is upheld.
2. Development consent is granted to DA – 05 - 1221 for the construction and operation of a 40 place childcare centre at 8 Gymkhana Place, Glenwood, subject to the conditions in Annexure A.
3. The exhibits may be returned except for Exhibits 3, 5, 7, A, B and C.
___________________
- R Hussey
Commissioner of the Court
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