Phillip v Wyong Shire Council

[2005] NSWLEC 465

Land and Environment Court

of New South Wales

CITATION:

Phillip v Wyong Shire Council [2005] NSWLEC 465

PARTIES:

APPLICANT
Wayne and Karen Phillip

RESPONDENT
Wyong Shire Council

FILE NUMBER(S):

10368 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Childcare centre - noise impacts - traffic/access impacts - landscaping - public interest - s94 contributions

LEGISLATION CITED:

Wyong Local Environmental Plan 1991

CASES CITED:

Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266;
Swadling v Sutherland Shire Council 82 LGERA

DATES OF HEARING:

22/08/2005 ; Order 13/9/05

 
DATE OF JUDGMENT: 

08/31/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Fraser, barrister
Instructed by Ms J McKelvey, solicitor
of P J Donnellan

RESPONDENT
Mr C Cole, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

Hussey C

31 August 2005

10368 of 2005 Wayne and Karen Phillip v
Wyong Shire Council

JUDGMENT

Background

1 This matter concerns the development of a 29 place childcare centre at No. 12 Wyreema Street, Warnervale. The proposal involves the renovation of an existing dwelling house, construction of an entry driveway/carparking area in front of the dwelling and provision of recreational play areas at the rear of the house.

2 The s 97 appeal was lodged on the basis of a deemed refusal of the development application. However the council subsequently granted conditional consent to the application and the appeal was pursued by the applicant on the basis of several unreasonable conditions.

3 The hearing commenced with a view and a number of neighbours presented their objections to the proposal. As a consequence of these objections, some of the neighbours considered that they created such significant amenity impacts that the development should be refused.

4 However, the merits of the application have been considered generally in terms of the following outstanding issues:

• noise impacts,
• traffic/access impacts,
• landscaping,
• s94 Contributions, relating principally to neighbourhood roadworks/overbridge,
• public interest.

5 The Wyong Local Environmental Plan 1991 is the main control, under which the site is zoned 2(a) Residential. Accordingly the development is permissible with consent. The other relevant controls include:

• DCP 62 – Home and Centre Based Child Care Services;
• DCP 14 – Tree Management;
• DCP 61 - Carparking;
• Section 94 Contributions Plan.

6 Detailed evidence on behalf of the council was presented by:

• Mr D. Lemcke, Senior development assessment planner,
• Mr R. Burch, Senior transportation engineer.

7 The oral objections from the neighbours were considered in conjunction with the written objections contained within council’s bundle of documents (Exhibit 1).

8 For the applicant, detailed evidence was presented by:

• Mr M. Tuxworth, Consulting town planner
  

9 With respect to the first merit issue concerning noise, the neighbours identified two main aspects. Firstly the noise disamenity emanating from the rear, enclosed play area and secondly, the noise from the use of the front carpark area, in terms of impact on 14 Wyreema Street.

10 In response to these concerns, the applicant has amended the proposal to incorporate a full height acoustic shield adjacent to the covered outdoor play area. Accordingly I understand from the council’s submissions that this condition should restrict noise disamenity to 10 Wyreema Street to a reasonable level and this is consistent with the applicant's acoustic consultant’s recommendation. Under these circumstances, I am satisfied that this amendment should satisfactorily addresses the neighbours’ concern.

11 The other noise concern is in relation to the position of the front carpark and the possibility of noise generation from its usage. This carpark is substantially at the natural ground level and it is proposed to have a 1.5m Colourbond, boundary fence to screen the neighbouring property. However this proposed carpark remains basically the same position as that already granted consent by council. Considering the separation distance from this carpark to the neighbouring bedroom window and the position of the intervening Colourbond fence, I am satisfied that the level of amenity originally considered appropriate by Council will be maintained in this proposal. Therefore I do not consider it reasonable to reject the application on these grounds.

12 The next issue raised concerns that traffic and access impacts. A number of the residents described the relatively quiet, residential nature of the street, which is in no through road. Consequently they say that the roadway is used by pedestrians and children on their way to school and their safety is likely to be compromised by the additional traffic using the childcare facility.

13 However, a traffic assessment was undertaken by the applicant's consultant Mr G. Stapleton. Based on the RTA guidelines, he predicts an increase in traffic generation in the order of 52 vehicles per day. He considers this is a minor increase, which would have minimal impact on the surrounding road network and would not be sufficient to warrant rejection of the proposal.

14 This issue was considered in the council officers assessment, which notes that Wyreema Road is classified as a Category C road that can adequately accommodate the level of the use proposed, subject to suitable parking being provided.

15 This associated question of suitable parking was discussed during the appeal. The applicants preferred access arrangement is to use the existing footpath crossover to the proposed front carpark area, which contains 7 carparking spaces with adequate manoeuvring area to allow vehicles to enter and leave the site in a forward direction. Against this, Mr Lemcke says that a circular, drive-through access arrangement is necessary to maintain reasonable safety and amenity.

16 Also associated with the parking arrangements, is the council requirement for the provision of kerb and gutter along the frontage of the property to regulate on-street parking and minimise disamenity to neighbouring properties.

17 Having considered these competing positions, it is apparent to me that Wyreema Road has sufficient capacity to accommodate the new childcare centre within reasonable environmental capacity limits. However this development will create some change in usage by the additional traffic visiting the site, to drop off and pick up children on a regular basis. As the site can accommodate the drive through, circular driveway, I am satisfied that this arrangement will be more convenient and safer for the childcare users and it will facilitate turning movements within the property and minimise turning and parking adjacent to neighbouring driveways. On this basis then, I accept the council’s position is reasonable and that the circular driveway should be required in this case.

18 Another disputed aspect of the access arrangement concerns councils requirement for the provision of kerb and gutter between the proposed crossovers. This is apparently required to assist in drainage control and regulate the on-street parking. However, the length of kerb and gutter is in the order of 12 m. As such it would represent an isolated section, which is not characteristic of this streetscape. Furthermore there was no evidence put before the Court to indicate future kerb and guttering for this road. Instead, it seems to me that if an effective earth mound is provided, it will assist in drainage control and parking, whilst at the same time maintaining the relatively attractive, natural streetscape character. Therefore, I do not think it a reasonable condition to require the applicant to provide this isolated, mid-block section of kerb and gutter.

19 The other substantive issue concerns council’s s94 conditions, which includes a contribution of $42,133.86 towards local road improvements and new overbridge. The applicant contends that this is completely unreasonable in the context of this relatively minor childcare development and furthermore, it represents a huge increase in contributions, compared to the s94 regime existing shortly before the subject development application was lodged. Mr Frazer submits that a contribution in the order of $3500 would be more reasonable and this is in line with information that the applicant apparently received prior to lodging the development application.

20 According to Mr Burch’s evidence, the site is covered by the s94 contribution plan (s94CP) dated June 2004 (Exhibit 7). This plan includes the subject site within the Warnervale Village East precinct, which has a gross area of 15.2 ha, to which a factor of 0.33 is applied in respect of future development predictions, which recognises the number of existing dwellings and the reduced potential for development. This gives an effective area of 5.06 ha over which the contributions are levied.

21 Then a further factor of 0.75 is applied on the basis of the Net Developable Area (NDA). This NDA is expressed in hectares and is the actual area on which development can occur excluding land required for public purposes such as trunk drainage, roads, open space, community facilities, etc. The s94CP provides that for development that is not subdivision this equates to the land area of site.

22 In this case, the site has an area of 1618 sq m, which is rounded to 0.16 ha. The overall road costs were initially estimated to be $251,800 per hectare, but on the basis of the 3 monthly indexation, it is now $263,3336.31. Consequently, application of the s94 funding formula results in council’s required contribution of 0.16 x $ 263336.31 = $42,133.86.

23 But Mr Tuxworth has calculated that contribution differently as follows:

The subject site is located within the Warnervale Village east area for the purpose of the Section 94 contribution plan. Clause 10.4.8.4 of the contribution plan indicates that the Warnervale Village east area has a net developable area of 5.1 hectares and will generate daily vehicle trips of 531 and a cost per NDA of $251,800 per hectare (the amount has been revised in the three monthly indexing of costs and is now $263,336.31). The existing dwelling generates 9 vehicle movements per day (RTA guidelines to traffic generating development 2002) based on the daily vehicle trips generated by Warnervale Village east in Clause 10.4.8.4 of the plan the site which has an area of 1,600 sq m will generate a total of 16.7 daily vehicle trips. If the contribution was calculated based on the credit for the existing daily vehicle movements of 9 vehicles per day based on the RTA guidelines the proposed development would generate an additional 7.7 daily vehicle movements which would require a contribution of $19,426.00. The principle of giving credit for existing development is recognized in the calculation of the contributions for water and sewer; it is therefore considered reasonable to calculate the contributions for roads based on credit for the traffic generated by the existing dwelling.

24 Having considered the alternative approaches, I accept that it is reasonable to give credit for the existing dwelling and this was acknowledged by council. However the significantly different contribution amount (an additional $22,707.86 by council) appears to arise because of the alternative applications of the concepts stated in the s94CP.

25 In his report, Mr Lemcke outlines the concept of net developable area (NDA) and dwelling units (DU) as follows:

One DU is defined as a dwelling of three bedrooms and other development is given an equivalent number that relates to the particular type of use. For example a 4 bedroom dwelling has a DU of 1.28, commercial development of shops or offices 0.005 per square metre of floor space and schools 0.04 per pupil. A credit of one DU is to be applied for development sites with an existing dwelling. For the calculation of DU equivalent for a childcare centre the longer opening hours are taken into consideration in the figure of 0.0625 is applied in accordance with the Development Contributions Manual. For childcare centres the number of students and staff are calculated in recognition of the use of water and sewer facilities by the total number of people on-site.

26 In calculating these different contribution amounts, the parties agree that the site is situated within the Warnervale Village East precinct in the s94 CP where the following factors apply:

- the net developable area is ; 5.06 Ha.
- the total current road costs are; $263,366.31
- the predicted total daily trips are; 531.
- the site area is ; 0.16 Ha.

27 Based on these agreed facts then, the reasonableness of both approaches can be assessed, in terms of the objectives of the s94 CP. When the contributions are calculated on the basis of the NDA and the DU concepts, it seems that this application results in some inequities when applied generally to particular facilities. Whilst this application has been accepted as reasonable in respect of incremental demand for water and sewerage facilities, other factors warrant consideration in incremental changes for traffic facilities.

28 Taking into account the sites residential zoning, its area of 0.16 Ha and the relatively new condition of the existing dwelling, a reasonable expectation is that the site could be subdivided into two lots, with the existing house remaining on the front lot, together with the new rear allotment. Assuming this existing dwelling is given credit and does not have to contribute towards further road infrastructure, the NDU would be 0.08 Ha. Accordingly, a contribution to calculated on this basis would be ; 0.08 x $263,336 = $ 21,066.

29 Alternatively, if another approach is appropriate when the land is not subdivided, this could be considered by way of the incremental increase in demand for that facility, generated by the development. In this case, the traffic experts predict that this childcare centre will generate 52 vehicle trips per day. Assuming the existing dwelling house is entitled to a credit of 9 vehicle trips per day, the incremental change is 43. By reference to a vehicle trip unit ($263,336 / 531 = $496), the following calculation can be made; 43 x $ 496 = $ 21,328.

30 In my opinion, the consideration of these alternative applications provides a sensitivity test on the reasonableness of councils condition. From this, it is apparent to me that the councils condition is unreasonable in this case because it does not give sufficient credit for the existing dwelling, in terms the sites overall demand for future road infrastructure. Instead, the sensitivity test shows that a contribution in the order calculated by Mr Tuxworth is more reasonable.

31 Because this contribution is toward future roads, to a standard appropriate for the new development areas and the new childcare centre will contribute towards the need for these facilities, I consider a reasonable approach is to impose a contribution related to the predicted in increase in traffic movement attributed to this development. Based on the foregoing calculations, a s94 contribution of $21,328 is then fair and reasonable this case.

32 In determining this amount, I note that it has been determined on the basis of the individual circumstances relating to this site and its development and this approach may not be directly applicable to other situations. I also note that the site area calculations for water and sewer have been applied and accepted by the applicant in this case and accordingly I accept those contributions are reasonable.

Conclusions

33 Having considered the evidence, the submissions and undertaken a view, I am satisfied that this childcare centre merits conditional consent, although the s94 contribution towards roadworks facilities should be reduced.

34 The proposal involves refurbishment of an existing residential dwelling house, which is situated in the Residential 2(a) zone and is permissible with consent. I note that the proposal has been subject to a detailed planning assessment by council officers, who find its merits satisfactory and that it is compatible with the zone objectives. In the absence of any compelling challenge, I accept this conclusion.

35 This acceptance is subject to the imposition of appropriate and reasonable conditions. In the circumstances of this case, I am satisfied that the traffic engineering details indicate a minimal increase in traffic to and from the childcare centre, which Wyreema Road can comfortably accommodate in terms of its environmental capacity.

36 Insofar as the neighbours express some concerns about traffic safety and convenience due to the extra vehicle movements and turning at the centre, I consider it reasonable for the development to incorporate the circular, drive-through carpark/drop-off area, in order to minimise this disamenity to the neighbours. The applicant agreed this could be done. In my assessment, it represents a higher degree of safety for the car parking area and should reasonably address the neighbours concerns about on-street car parking, while still allowing suitable replacement landscaping to maintain existing, attractive streetscape.

37 The other amenity issue concerns noise generation from the property. However the applicant proposed amendment to the rear play area, to incorporate full height acoustic panelling, in accordance with the acoustic consultant recommendation, satisfactorily addresses this concern.

38 Accordingly I am satisfied that the substantive public interest matters raised by the residents can now be reasonably addressed by the imposition of appropriate conditions consent.

39 The other significant issue concerns the determination of reasonable s94 contributions in respect of this development. Initially I have considered Mr Frazer submissions that this is a relatively small development that is sensitive to significant upfront costs. His submission is that it is reasonable for the applicant to pay a percentage of the costs of the facility, as allowed in s94 A of the EPA & Act.

40 However, the subject s94 contribution plan does not authorise payments of a percentage of levies. Accordingly I have considered the provisions of this s94 CP, in terms of the provisions of s94 B, to assess a reasonable contribution in the circumstances of this case.

41 On the basis of the agreed facts concerning the net developable area, the estimated cost of the roads/overbridge facilities and trip generation predictions, which I rely on, I consider it reasonable to given credit for the existing dwelling and the contribution levied in respect of the additional traffic generated. This results in a contribution of $21,328, which I consider reasonable in respect of this development.

42 The associated aspect of this contribution concerns the applicant's request to delay payments over a longer period. In this regard I note that this element of the s94 CP includes the overbridge, which is a major facility that relies on complimentary funding from council sources and state government agencies. Furthermore, there are no design plans for this facility at this stage or any reliable construction program.

43 Nevertheless, the s94 CP provides:

7.0 TIMING OF WORKS
Council is not able to bankroll works required as a consequence of development proposed under this Plan and will only be able to provide works and services when sufficient funds have been provided by way of contributions.
Priority spending of contributions may, however, be directed to particular items identified in this Plan and this has been considered in formulating work schedules. Refer attached Tables .
In relation to the provisions of any Plan requirements, the years shown in the Plan are indicative only. The provision of any item will be dependent on the threshold criteria established for that item, and not necessarily any date shown in the Plan.

44 It is apparent that the s94 CP does not have a reliable timetable for these designated works. Furthermore the Court was told that there is no design plan for the overbridge and that it is likely that some time will be required to obtain the necessary approvals. Therefore on basis of the evidence put before the Court, the future implementation of these facilities is uncertain, in my assessment.

45 Nevertheless, I consider it reasonable at this stage to implement the intentions of the current s94 CP by requiring a contribution towards this infrastructure, that is considered appropriate for this new development area. But this should be related to the rate of development in the area, which determines the timely provisions of necessary facilities. Considering the current rate of development in the area, it would seem that a reasonable time to make some progress with these works would be in the order of 5 years. Although I particularly note that in this case the timing provisions in the contributions plan are substantially dependent on the complimentary commitment of council funds and state agencies and not just developer contributions.

46 As I therefore consider that this 5 year period is reasonable in the context of this development, to progress the implementation of the facilities, I also consider it reasonable in the light of the current situation with the over bridge, to allow staged payments of the contributions, on an annual basis and indexed over 5 years. If the applicant elects this option, the total contribution should be secured by way of appropriate agreement, prior to issue of the occupation certificate.

47 In accordance with this assessment, the following Court orders are made.

1 The appeal is allowed.
2 Development consent is granted to DA 2924/04, for the operation of a childcare centre at 12 Wyreema Road, Warnervale, subject to conditions in Annexure A.
3 The exhibits may be returned except for 2, 12, A, B, C and E.
__________________________
R Hussey
Commissioner of the Court
Rjs/ljr