Norton v Baulkham Hills Shire Council

[2006] NSWLEC 603

Land and Environment Court

of New South Wales

CITATION:

Norton v Baulkham Hills Shire Council [2006] NSWLEC 603

PARTIES:

APPLICANT
Chris Norton

RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S):

11254 of 2005

CORAM:

Brown C

KEY ISSUES:

Development Application :- alterations and additions to an existing dwelling and use as a childcare centre - traffic - parking - amenity impacts

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Baulkham Hills Local Environmental Plan 2005

DATES OF HEARING:

13/09/06

 
DATE OF JUDGMENT: 

09/27/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Gough, solicitor
SOLICITORS
Storey and Gough

RESPONDENT
Ms S Brew, solicitor
SOLICITORS
MatthewsFolbigg

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

27 September 2006

11254 of 2005 Chris Norton V Baulkham Hills Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA1677/05/HA by Baulkham Hills Shire Council (the council) for alterations and additions to an existing dwelling and it’s use as a childcare centre at 55 Cook St, Baulkham Hills (the site).

The site

2 The site is Lot 521 in DP 624929. It is generally rectangular in shape with a street frontage of 24.38 metres (including a splay for an adjoining battle axe handle), a depth of 56.39 metres and a total site area of 1504 square metres. The site is at the T-intersection of Cook St and Park Rd. Part of Cook St and Park Rd perform a sub-arterial road function for traffic travelling in an east – west direction.

3 The site contains an existing two-storey brick residence with a significant tree in the front setback area. The locality is characterised by single and two-storey detached dwelling houses in established landscape settings. Some recent villa housing developments are located within the immediate vicinity of the site.

The proposal

4 The proposal provides for alterations and additions to the existing dwelling to allow it to be used as a 54 place childcare centre with 7 staff. The hours of operation are 6:30 a.m.-7 p.m. Monday to Friday.

5 A staff car park for five vehicles is provided at the rear of the site with access through the existing garages. A second car park for 11 vehicles is provided in the setback area between the dwelling and Cook St. Access to the car parks is to be provided at the northern end of the site through the construction of a roundabout at the intersection of Cook St and Park Rd.

Relevant planning controls

6 The site is within the Residential 2(b) zone under Baulkham Hills Local Environmental Plan 2005 (LEP 2005). The proposed use is permissible with consent within this zone. Clause 13(2) provides that consent must not be granted unless the consent authority is satisfied that the development is consistent with one or more of the aims of this plan and any relevant objective for development (cl 13(2)(a)) and is not contrary to achieving the objectives of the zone within which it will be carried out (cl 13(2)(b)). LEP 2005 contains no specific requirements for childcare centres.

7 Development Control Plan No. 12 – Parking (DCP 12) provides requirements for car parking and while not directly relevant, Development Control Plan No.3 – Residential (DCP 3) provides guidance on the character anticipated in the Residential 2(b) zone.

8 The Statement of Basic Facts identified Draft Development Control Plan No. 39 – Child Care Centres but stated that the plan had yet to be placed on public exhibition. The draft development control plan was not raised in the Statement of Issues and was not tendered.

The issues

9 The council filed a Statement of Issues containing 5 individual issues. Following amendments to the access, the council raised an additional issue. The issues can be conveniently grouped into the following main areas:

1) whether the proposed roundabout will unacceptably impact on traffic movements in the area,
2) whether the on-site parking facilities are acceptable,
3) whether the proposed development will create unacceptable amenity impacts on adjoining properties by way of noise, stormwater drainage and runoff, overlooking and streetscape.

10 The issues raised by local residents are generally addressed as part of the consideration of the above issues.

The evidence

11 The parties agreed to the appointment of Mr Graham Pindar as the Court appointed traffic and parking expert.

12 Mr Patrick Hurley, a town planner for the applicant and Mr Gavin Cherry, a town planner for the council provided a joint report on the planning issues.

13 The applicant relied on an Assessment of Environmental Noise from Mr Alex Jochelson, an acoustical engineer to address the issue of noise.

14 The following residents provided evidence on site opposing the development:

• Ms Rosemary Rowe of 7 Brodie St.
• Ms Rosemary Clarke of 53 Cook St.
• Mr B Juric of 49 Cook St.
• Ms Beryl Martyn of 5 Brodie St.
• Mr Remo La Cava of 87 Cook St.
• Ms Lyn Ward of 14 Aminya Pl.
• Ms Jane Barnes of 51 Cook St.
• Mr Scott Ruddock of 62 Cook St.
  

15 The issues raised by local residents on site generally reflect the issues raised by the council. The specific local resident issues were dependent on the location of the particular resident although there was a consistent concern over the additional traffic generated by the proposal and the impact of the roundabout on traffic movements in the area.

Traffic
The local road system

16 Cook St runs in a generally east-west direction from Windsor Rd to Cross St and connects to North Rocks Rd through Park Rd and Renown Rd. Cook St was constructed to perform a residential collector function but with elevated demand, due to the construction of Barclay Rd across Darling Mills Creek, it now acts as a sub regional road between Windsor Rd and Park Rd. It performs as a regional route under the care and control of the council and the Roads and Traffic Authority (RTA).

17 A stop sign is located on the northern arm of the T-intersection of Cook St and Park Rd that provides priority for vehicles travelling in an easterly direction from Cook St into Park Rd and in the opposite direction.

18 A Traffic Impact Statement by Thompson Stanbury Associates accompanied the development application and provided details of morning and afternoon peak hour flows at the intersection. For the morning peak between 7.45 am and 8.45 a.m., the traffic survey indicated that 582 vehicles travelled north on Cook St with 83% turning right into Park Rd. For the afternoon peak between 5.00 p.m. and 6.00 p.m., 736 vehicles travelled west along Park Rd with 95% turning left into Cook St. For vehicles travelling south on Cook Street and using the Stop Sign, the traffic survey indicated that in the morning peak 332 vehicles used the intersection with 87% continuing along Cook Street and in the afternoon peak 92 vehicles used the intersection with 86% continuing along Cook St.

The construction of the roundabout

19 The Traffic Impact Statement by Thompson Stanbury Associates was based on access to the site from a driveway to the south of the site and incorporating a median strip constructed in Cook St to prohibit right turn movements into and out of the site. Mr Pindar did not support this access arrangement. This led the applicant to amend the access to provide for entry and exit at the northern part of the site via a new roundabout at the intersection of Cook St and Park Rd. .

20 Mr Pindar states that the proposed roundabout needs to be considered in terms of its role in the road network generally and this should be the primary consideration. The fact that it may provide a solution to the issue of a suitable access to the application is, in his opinion, a secondary consideration.

21 Mr Pindar describes the existing intersection as sub-standard. The use of a Stop Sign to facilitate and prioritise traffic through the intersection is unusual as channelisation or a roundabout is the normally preferred method. In his opinion, a roundabout will improve safety at the intersection as it will reduce speeds and provide a clearer priority for drivers who are more familiar with roundabouts. The extent to which the volume of westbound traffic in Park Rd will now turn right at the roundabout is difficult to estimate however he notes that the estimated performance of the roundabout is excellent under both peak periods and with very moderate average delays. He further states that it is likely that the traffic patterns brought about by the construction of the roundabout will remain essentially unchanged.

22 At the time of his report no comments were available from the councils Traffic Committee however at the hearing evidence was provided that the councils Traffic Committee opposed to the construction of the roundabout. While stating that weight should be given to the recommendations of the committee, Mr Pindar stated that the comments from the councils Traffic Committee did not change his opinion that the roundabout was appropriate as no specific design issues were raised with the construction of the roundabout. On the basis that the roundabout has the potential to improve overall traffic conditions and that the traffic patterns will remain essentially unchanged, Mr Pindar concludes that the roundabout is acceptable.

23 The construction of the roundabout was an issue raised by a large number of local residents who maintained that additional traffic will be directed into the northern section of Cook St and that the additional traffic will create unacceptable safety and amenity impacts.

24 I agree with Mr Pindar that the proposed roundabout needs to be considered in terms of its role in the road network and that this should be the primary basis for consideration. The role of the roundabout to provide access to a specific development should be a secondary consideration. If the proposed roundabout was located within a local road system, rather than a higher order road system, then any consideration is likely to be less rigorous.

25 The construction of the roundabout is fundamental to the proposed development. I accept that a roundabout would likely reduce vehicle speeds and improve safety however the construction of the roundabout is not the sole mechanism to satisfy this concern, if it was seen by the council or RTA to be an issue that required attention. There was no evidence however to suggest this was the case.

26 I am not however convinced that the proposed roundabout traffic has been properly considered in terms of its role in the road network for a number of reasons. Firstly, I do not accept that existing patterns in the area will necessarily remain unchanged. Mr Pindar’s support was predicated on right turn movements from Cook St into Park Rd remaining largely unchanged. Potentially, there could be additional right turn movements from Park Rd into Cook St from vehicles that currently turn right just to the east of Cook St. The use of the proposed roundabout may offer these vehicles greater convenience in right turn movements and also avoid the traffic calming devices located in that part of Park Rd adjoining Ted Horwood Reserve.

27 Secondly, the status of Park Rd as a sub-regional road and the high volumes of traffic carried by this road clearly suggest that care needs to be taken with the construction of any devices that would impact on traffic flows. This is particularly important as Park Rd and Cook St have unintentionally over time developed into a sub-regional road and according to Mr Pindar, the existing traffic flows already exceed the environmental capacity of the road. I do not accept that the level of research undertaken as part of the development application is sufficient to support changes that may impact on the efficient operation of a sub-regional road. Even accepting that the roundabout may operate efficiently in terms of capacity and level of service, it does not necessarily follow that it is the optimal or most desirable treatment for the intersection as a sub regional road. In the absence of other options that address the sub-regional status of the road and its long-term efficiency, the adoption of the roundabout option is, in my view, premature.

28 Thirdly, and accepting that the treatment of the intersection is to be considered in a wider context, I am not convinced that it is inappropriate that it be considered as part of an individual development application. The procedure associated with public exhibition and consideration of Local Area Traffic Management Plans is a more appropriate mechanism for dealing with changes to traffic conditions, particularly for sub-regional roads and where the changes may have wider implications for local traffic.

29 For these reasons I find that the provision of a roundabout cannot be supported and the appeal must fail. For completeness I will briefly deal with the other issues.

Access to 57 Cook St

30 The amended access plans do not show details of the access to 57 Cook St from the roundabout. Mr Pindar states that in general terms, the concept layout for the roundabout demonstrates that a detailed design will be able to be provided while maintaining the satisfactory operation of the roundabout. The design, while not optimal, is not unusual and a reasonable driver would be able to negotiate the intersection and the driveways with safety.

31 In the absence of any evidence to refute Mr Pindar’s conclusions, I accept that this issue would not be a reason to refuse the development application.

Cumulative traffic impacts

32 Mr Pindar relies on the SIDRA computer modelling in the Traffic Impact Statement by Thompson Stanbury Associates to determine the effectiveness of the proposed roundabout. While noting that the traffic generation has been incorrectly assessed, he states that the proposed development will not result in any unacceptable cumulative impacts in relation to queuing, parking or pedestrian issues although accepting that the development will alter the existing character of the residential area by virtue of the increased level of traffic activity.

33 If the effectiveness of the proposed roundabout is taken in isolation and independent of the wider traffic implications then the conclusions of Mr Pindar may be correct. However for reasons mentioned earlier in the judgement, I am not convinced that the wider impacts of the proposed roundabout has been properly assessed.

Parking
A safe and convenient location?

34 DCP 12 provides car parking requirements for childcare centres. Clause 4.1.1(e) states "car parking for childcare centres must be situated in a convenient location, allowing for safe movement of children to and from the centre".

35 Mr Pindar states that on-site parking is sufficient as it complies with DCP 12 and exceeds the requirements of the Roads and Traffic Authority Guidelines for Traffic Generating Developments. The parking is also convenient in the sense that it is proximate to the building and therefore readily able to be used by people associated with the facility. If cl 4.1.1(e) is taken to include the suitability of its connection to the adjacent road system, Mr Pindar states that people attending the centre will generally find it more convenient to park within the site. He does not consider that reliance on parking in either Park Rd or Brodie St is likely to occur.

36 I accept Mr Pindar's evidence that adequate on site parking is provided as it complies with DCP 12. I also accept that the proposed on-site parking is conveniently located and provides for the safe movement of children. In considering the impact on the adjacent road system I agree with the council that it is important to take into account the nearby road system because it cannot always be guaranteed that adequate parking will be available for parents to drop-off and pickup children within the site. While Mr Pindar relies on the RTA average of 6.8 minutes for a drop-off and pickup, there can be no certainty that parents will arrive at regular intervals over the morning and afternoon peak times. For this reason it is imperative that some overflow area within the local street system is available to provide an area where children can be picked and dropped off in relative safety.

37 Notwithstanding the concerns of local residents, I not convinced that some on street parking will necessarily create unacceptable amenity impacts because of the generally short duration a vehicle will be parked in the street and also the limited peak periods for dropping of and picking up children. In this case, that part of Cook St to the north of the site is the most convenient area that could be utilised as overflow parking as the southern part of Cook St and Park Rd carry high levels of traffic and present an unacceptably high safety risk. Potentially, vehicles could park in Brodie St however it is less convenient than Cook St. For the reasons mentioned earlier, I not satisfied that the existing low volumes of traffic would remain at low levels in Cook St to the north of the site following the construction of the roundabout.

Car park design

38 The council raised additional issues relating to the grade of the access driveway, the size of the proposed car parking spaces and the manoeuvrability in the car park. Mr Pindar addressed each of these issues and concluded that with some minor adjustments the proposed car park was acceptable in terms of Australian Standard AS 2890.1. While the access grade exceeded the council's requirements and the requirements in Australian Standard AS 2890.1, Mr Pindar accepted that it was similar to the existing driveway and the proposal reflected the natural levels on the site. In his opinion, vehicular access could be obtained to the site without strict compliance with the council's requirements and the requirements in Australian Standard AS 2890.1. I agree with Mr Pindar that these issues are not sufficient to warrant the refusal of the application.

Amenity impacts
Noise

39 This was an issue raised by local residents and not the council. As I understand, the council accepted the findings in the Assessment of Environmental Noise from Mr Jochelson that required some amendments to the existing fencing.

40 In the absence of any evidence to refute Mr Jochelson’s conclusions, I accept that noise would not be a reason to refuse the development application. In coming to this conclusion, I note that the treatment of noise from the vehicles using the car park on 53 Cook St was not properly addressed however I accept that additional acoustical evidence would likely provide a suitable solution to any potential noise impact on this property based on the general conclusions in the Assessment of Environmental Noise. Similarly, I accept that additional acoustical evidence would likely provide a suitable solution to any potential noise impact from the activities in the first floor area of the dwelling from the windows not being bricked up.

Stormwater drainage and runoff

41 This was an issue raised by local residents and not the council. I accept that this issue can be adequately addressed through conditions and the provision of detailed drainage plans.

Overlooking

42 This was an issue raised by local residents and not the council. Boundary fencing provides adequate protection from overlooking at the ground floor level. While the first floor potentially provides the opportunity for overlooking I note that the proposal provides for the bricking up of the windows that directly overlook the residential properties in Brodie St. The windows facing Cook St will have little or no impacts on overlooking and the windows facing the rear yard could be treated to prevent overlooking.

43 As I understand, some concern was expressed that cars parking in local streets could create overlooking impacts. Because of the separation between the street and the houses and the short duration a vehicle will be parked in the street and also the limited peak periods for dropping of and picking up children I do not consider this to be a valid concern.

Character

44 This was an issue raised by local residents who maintained that the childcare centre will have an unacceptable impact on the character of the area. In accepting that the childcare centre is a different use to the predominantly residential character of the area, it is nonetheless a use that is permissible within the zone. The proposal makes use of an existing dwelling so there can be no dispute that the built form is consistent with the residential character of the area.

45 The proposed car park does however disrupt the landscape setting in which most dwellings in the area are located. The loss of the significant tree in the front setback area exacerbates this impact so greater emphasis should be given to providing landscaping to screen the car park in the front setback area to achieve a greater consistency with the existing landscape character of the area. .

Orders

46 For reasons mentioned in the preceding paragraphs, the Orders of the Court are:

1) The appeal is dismissed.
2) DA1677/05/HA for alterations and additions to an existing dwelling and the use of the dwelling as a childcare centre at 55 Cook St, Baulkham Hills is refused.
3) The exhibits are returned.
___________
G T Brown
Commissioner of the Court