Sooch v Sutherland Shire Council

[2014] NSWLEC 1207

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sooch v Sutherland Shire Council [2014] NSWLEC 1207
Hearing dates:	25 August 2014
Decision date:	11 September 2014
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld subject to conditions
Catchwords:	DEVELOPMENT APPLICATION: Childcare centre; parking and traffic; landscaping
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 1 - Development Standards Sutherland Shire Local Environmental Plan 2006
Cases Cited:	Maguire v Sutherland Shire Council (1.)Furia Pty Ltd v Sutherland Shire Council (2.) [2013] NSWLEC 1115
Category:	Principal judgment
Parties:	Palvinder Sooch (Applicant) Sutherland Shire Council (Respondent)
Representation:	Applicant: Ms C Rose (Solicitor) Respondent: Ms J Amy (Solicitor) Applicant: Maddocks Lawyers Respondent: Sutherland Shire Council
File Number(s):	10039 of 2014

Judgment

1. COMMISSIONER: The applicant appeals Sutherland Shire Council's refusal of Development Application DA13/0919 for alterations and additions to an existing dwelling to create a childcare centre at 106 Toronto Parade Sutherland (the site).

1. The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

1. The proposed development comprises:

• Alterations and additions to an existing dwelling;
• Demolition of an existing garage;
• Construction of a car park with 7 spaces, including 1 access space;
• Provision for an additional driveway;
• Associated indoor and outdoor play areas;
• Landscaping; and
• Change of use to a childcare centre.

1. Council refused the application on the basis of:

• Non-compliance with the development standard for landscaped area;
• The State Environmental Planning Policy No 1 - Development Standards (SEPP 1) objection for landscaped area is not well founded;
• Unacceptable impacts on the streetscape due to the removal of a large Camphor Laurel; inadequate opportunities for replacement tree planting, proposed parking area and extent of hardstand; signage; fencing.
• Traffic and pedestrian safety issues;
• Inadequate on-site parking;
• Unacceptable air quality given the site's location close to a main road and associated potential health risks;
• Inadequate information in regards to air quality, acoustic fencing and traffic sight line analysis; and
• Matters raised by objectors.

1. The matter commenced as a conciliation conference under s 34 of the Land and Environment Court Act 1979. However, as the parties could not reach agreement on a number of issues, the conciliation was terminated and the matter proceeded to an on-site hearing. In the intervening period, in an effort to address a number of council's concerns, the applicant amended the proposal and plans.

1. The changes include: a reduction in the number of children from 36 to 28 comprising 8 x 2-3 year olds and 20 x 3-6 year olds; provision of 7 parking spaces; an increase in landscaped area from 38% to 40%; and changes to the layout and location of play spaces. In response to these changes, the council prepared an Amended Statement of Facts and Contentions. The matters to be determined relate to:

• Landscaping
• Parking, traffic and pedestrian safety

1. The issue of unacceptable air quality has been resolved by deletion of one play area and an agreed condition of consent regarding ongoing air quality management and monitoring. Streetscape issues have been resolved to council's satisfaction by the amended landscape plan and the deletion of a play area. Similarly, signage and fencing concerns have been resolved.

The site and its locality

1. The site is located on the corner of Toronto Parade and Acton Street Sutherland. The site is zoned Zone 5 - Multiple Dwelling A under Sutherland Shire Local Environmental Plan 2006 (SLEP). Childcare centres are permitted with development consent.

1. A two-storey dwelling and detached double garage are situated on the site. Vehicular entry is from Toronto Parade. Entry to the dwelling is oriented towards Acton Street.

1. The site is close to Sutherland town centre and Sutherland railway station. Toronto Parade is the main distributor road between Jannali and Sutherland. Opposite the site to the west is a commuter parking area between the Illawarra railway line and the western side of Toronto Parade. Acton Street is a one-way street feeding local traffic from Toronto Parade to the Princes Highway. The Sutherland overpass is opposite the site to the south, on the southern side of Acton Street.

1. A metal safety guard protects the footpaths adjoining the majority of the western and southern boundaries of the site.

1. In the unfenced front garden is a large and well-established Camphor Laurel.

1. Adjoining development to the north and east is predominantly low and medium density residential. The adjoining dwelling to the north is listed as a heritage item under SLEP.

The hearing and evidence

1. The hearing was held on site. Two neighbours and the managing director of a nearby business (Olsens Funerals) made oral submissions opposing the development. Their concerns are summarised as:

• Increased traffic creating problems for neighbours exiting their driveways
• Loss of on street parking creating difficulties for the nearby local business and other users
• Pedestrian safety
• Potential traffic safety issues arsing from parents dropping off and picking up children
• Noise - children and air conditioning plant
• Visual impact
• Excessive shading
• Tree removal

1. Expert evidence was provided for the applicant by Mr Keneally (Traffic and Parking) and Ms Wynne (Town Planning), and for the council by Mr McLaren (Traffic and Parking), Mr Ackroyd (Community Services), Ms Giles (Children's Services) and Ms Pinfold (Town Planning). No joint expert reports were prepared.

Landscaping

1. Clause 36(5)(a) SLEP prescribes a minimum landscape area of 45% of the area of the site. The development proposes a landscaped area of 40%. As this is a development standard, the applicant lodged an objection under State Environmental Planning Policy No. 1 - Development Standards (SEPP 1). Based on the amended landscape plan, the council is satisfied that the SEPP 1 objection is well founded and that strict compliance with the standard is unnecessary in the circumstances. During the hearing, Ms Pinfold articulated the ways in which the amended plans meet the relevant objectives.

1. I agree with the Council that the amended landscape plans satisfy the objectives in cl 36(1) SLEP. The relevant objectives are:

(a) to ensure adequate opportunities for the retention or provision of vegetation that contributes to biodiversity;

(b) to ensure adequate opportunities for tree retention and tree planting so as to preserve and enhance the tree canopy of Sutherland Shire;

(c) to minimise urban run-off by maximising pervious areas on the sites of development;

(d) to ensure that the visual impact of development is minimised by appropriate landscaping and that landscaping is maintained,

1. Relevantly, the plans provide for a range of native and exotic species that contribute to biodiversity. In response to an issue raised by the owner of the adjoining property, a large and established Camellia is to be retained and not replaced. While the Camphor Laurel is a significant visual element in the streetscape, it is not protected by any development controls and may be removed without development consent.

1. The landscape plans show replacement tree planting including two Cheese Trees and three Tallowwoods. The Tallowwoods will provide visual continuity with a number of established Tallowwoods growing on the southern side of Acton Street and, combined with shrub and understorey planting, will soften and screen the parking area and building. In this regard, the tree canopy is enhanced and the visual impact of the development is minimised.

1. The landscape plans indicate sufficient pervious areas to minimise runoff.

1. Having read the SEPP 1 objection and assessed the amended landscape plans against the relevant objectives, I am satisfied that the objection is well founded and the proposal should not be refused on the basis of landscaping.

Parking and Traffic Safety

1. The council contends that the proposed childcare centre is in a location that will present on-going safety risks to children using the centre, and to persons and vehicles using the road network and pedestrians within the immediate locality. The council's position is that the location of the site is unsuitable for a childcare centre and should be refused on this basis.

1. The plans indicate 2 x designated staff parking spaces, 1 x shared visitor/ staff parking space, 3 x visitor parking spaces, and I x disabled access parking space. Entry into the site will be a left hand turn in from Toronto Parade with forward exiting and left hand turn into Acton Street. The provision of a driveway onto Acton Street will necessitate the removal of a portion of guardrail and the loss of 1 x on street parking space.

1. In particular, council maintains:

• Given the site's proximity to the station and town centre, there is limited availability of on-street parking and therefore other opportunities for safe drop-offs and pick-ups external to the site are very limited. In council's view this creates a potential for queuing, dangerous manoeuvring, illegal right hand turns off Toronto Parade, and double parking.
• The volume of traffic using Toronto Parade and Acton Street presents a safety risk to pedestrians and vehicles within and external to the site.
• Because of the proximity of the entry to the Acton Street intersection, there is a safety risk associated with vehicles slowing down to enter the site from Toronto Parade
• There is insufficient parking to accommodate the peak demand of staff and parents having regard to numbers of children and staffing levels necessary to accommodate the proposed operating arrangements.
• The Operational Plan of Management states there is only 1 carer for the 2-3 year olds. However, this is not sufficient given that these children are in a separate play area. At least two staff members are required to cover nappy changes, attention to distressed children, food preparation, staff breaks and so on. There is insufficient staff parking given the location of the centre and the road safety and parking issues outlined above.

1. The council presses SLEP cl. 50(2)(c) Urban design- non-residential development in residential areas and elements of cl. 53 Transport accessibility, traffic and car parking. Clause 50(2) states:

(2) The consent authority must not consent to development to which this clause applies unless it has considered the following matters that are of relevance to the development:

(c) the extent to which the residential amenity of the locality concerned will be protected from detrimental traffic-related impacts and noise associated with the development.

1. Relevantly, cl. 53 states:

The consent authority must not consent to development unless it has considered the following matters that are relevant to the development:

(c) the extent to which appropriate levels of car parking will be provided in connection with the development,

(e) the design of proposed car parking areas and access to them.

1. Chapter 7: Vehicular Access, Traffic, parking and Bicycles and Chapter 9: Specific Land Uses in Sutherland Shire Development Control Plan 2006 (SSDCP) are relevant.

1. The preamble Chapter 7 - clause 1 - Number and Dimensions of Parking Spaces Required in Development states:

Accommodating vehicles can have a significant impact on the design of new development. The location and layout of the parking will influence the layout and design of buildings and landscaping. All development must satisfy the demand for parking that it creates within its own site. The provision of sufficient parking must not compromise the safety of the on street and off street environment for vehicles, pedestrians or cyclists. Parking is required for different types of vehicles according to the proposed use. Vehicles include passenger vehicles, motor bikes, light vehicles and heavy vehicles and pushbikes.

1. Council presses the following objectives for all development:

1.a.1.a.ensure all land uses and/or combination of activities provide sufficient parking on site to satisfy the demand for parking by different vehicle types generated by the development, including Traffic Generating Development.

1.a.1.c.minimise reliance on street parking.

1.a.1.f. recognise the need for innovative and site specific parking solutions for development.

1. Clause 1.b.35 Additional Controls for Childcare Centres and Educational Establishments applies. Childcare centres shall provide 1 space for every 4 children in attendance.

Traffic and parking evidence

1. The traffic experts disagree on the safety risks arising from the proposal. Mr Keneally maintains that, in the unlikely event of more than three or four vehicles dropping off/ picking up children at any one time, there is sufficient space for two vehicles to safely queue partly within the site and partly into the parking lane. Mr McLaren considers this not best practice however he concedes that if there were 4 designated visitor spaces for the peak periods this would lessen the likelihood of queuing and satisfy some of his concerns.

1. During the hearing the relative safety merits of reversing into parking spaces was discussed. The experts agree that reversing into a space is preferable. The applicant agreed to require all but the disabled space to be rear to kerb. The location of the proposed shared space was altered to provide the safest option.

1. In regards to pedestrian safety, Mr McLaren raised the location of the pedestrian access noted on the plan as being behind the disabled access space. In his view this is a poor location and potentially dangerous. It was agreed that the pedestrian access should be relocated to the east of the disabled parking space.

1. It was agreed that council's parking controls do not identify the number of spaces required for staff and or visitors. Mr McLaren stated that the rate is based on studies undertaken by the then Roads and Traffic Authority. Mr McLaren's uncontested analysis of childcare centres suggests the parent component is 1:8 at any hour from 7.00 - 9.00 am and 4.00 - 6.00pm. Mr McLaren opines that the site is on a high volume intersection with difficult an unsafe pedestrian access. He is of the opinion that a condition requiring the installation of a concrete median on Toronto Parade to prevent a right hand turn into the site is necessary to ensure parents enter the site safely.

1. Mr Keneally maintains his opinion that the parking provisions are adequate, the concrete median is unnecessary as there is a roundabout about 200m to the north and the local traffic flow does not create any unreasonable risk. In his opinion, the number of pedestrians that might be affected by any potential queuing from Toronto Parade would be negligible.

1. In regards to on-street parking, Mr McLaren is of the view there should be no reliance on on-street parking as his parking surveys indicated almost total occupancy of nearby on-street spaces along Acton Street and Toronto Parade, particularly between 8.00am and 4.30pm. Mr Keneally's survey results for the morning period show similar results however, Mr Keneally opines that there is adequate parking in other nearby streets just beyond the surveyed area that could be used by staff. Given the proximity of the site to public transport, Mr Keneally is of the view that not all staff members are likely to drive to work.

Submissions

1. Ms Amy maintains council's position that the site is unsuitable for use as a childcare centre given its location on the corner of two busy roads, the high demand for on-street parking and the absence of on-street parking opportunities immediately adjoining the site. These factors give rise to safety concerns for users of the facility as well as for other motorists, neighbours exiting their properties, and pedestrians. She presses the preamble in Chapter 7, cl. 1 SDCP 'All development must satisfy the demand for parking that it creates within its own site. The provision of sufficient parking must not compromise the safety of the on street and off street environment for vehicles, pedestrians or cyclists.' (see [28]).

1. Apart from putting additional pressure on the limited number of on-street parking spaces, Ms Amy maintains that the creation of a driveway onto Acton Street will result in the loss of one parking space. Ms Amy cites Maguire v Sutherland Shire Council (1) Furia Pty Ltd v Sutherland Shire Council (2.) [2013] NSWLEC 1115, a case dealing with two childcare centres and the provision of parking where on-street parking opportunities were available however, the number of children attending one of the centres was reduced in order to reduce parking demand.

1. Ms Amy flags the planned change in the Education and Care Services National Regulations (the National Regulations) from 1 January 2016 requiring a ratio of 1:5 staff per children aged 25 months to 35 months. She asserts that this will create further demand for parking both on and off the site. Ms Amy argues that there is no capacity on the site and in the immediate vicinity that could accommodate the additional parking demand the changes will create.

1. While SDCP, Chapter 7, objective 1.a.1.f. recognises the need for innovative and site-specific parking solutions for develop; Ms Amy contends that such creative solutions are unavailable for this site. While the proposal complies numerically with the DCP, the traffic and parking issues will result in less than best practice. Should the proposal be approved, Ms Amy presses the requirement for a concrete median to be installed in Toronto Parade in order to prevent unlawful right hand turns into the site.

1. Ms Rose for the applicant maintains that the provision of 7 x parking spaces complies with council's controls, and the left hand in and left hand out design of the driveway provides safe access and will not pose a risk to other users of the roads or footpaths. She submits the proposal satisfies the relevant provisions of SLEP and SSDCP.

1. In regards to the staffing arrangements, Ms Rose contends these are fully compliant with the National Regulations requiring 1 x educator for every 10 children aged 3-6 years, and 1 x educator for every 8 children aged 2-3 years.

1. Ms Rose submits that in order to provide a higher level of service, the Operational Management Plan proposes an additional Early Childhood teacher to be on duty between the hours of 9.00 am and 3.00pm. In responding to council's contention regarding supervision of 2-3 year olds, the applicant agreed to ensure an additional and appropriately qualified person would be on site between 6.30am and 9.00am and between 3.00pm and 6.00pm to cover the contingencies identified by council. That is, there would be the equivalent of an extra person, over three shifts, for the duration of the day. However, Ms Rose contends that in meeting this concern, which is beyond the staffing level required by the National Regulations, the applicant has run foul of the council in regards to parking, which remains compliant.

1. With respect to the evidence from the traffic experts, Ms Rose asserts that Mr McLaren agreed that the provision of a fourth visitor parking space for use during the periods of peak activity would address a number of his concerns about the potential risks to other road and footpath users as a consequence of any queuing. She presses Mr Keneally's opinion that: queuing is unlikely but could be safely accommodated; the design of the driveways is the best option for a corner site; the provision of a concrete median is unnecessary; and there is sufficient nearby on-street parking for the additional staff member arriving early and within easy walking distance for the additional staff member arriving for the afternoon shift. In regards to Maquire/ Furia, Ms Rose contends the parking concerns differed from those in this matter and little weight should be given to the findings in those cited matters. Similarly, with respect to the flagged changes in the Regulations, these should be given little weight, as the proposal must be assessed under the current controls.

1. In regards to other evidence heard on site concerning acoustic issues, Ms Rose proposes changes to the Operational Plan of Management specifying play times and the number of children in the various age groups to be using the outdoor play area at any time. The applicant agrees to changes to the plans to show a 1.8m lapped and capped timber fence, and the imposition of a condition of consent confirming the proposed location of any air conditioning unit to be within the service area on the eastern side of the dwelling. In addition, the applicant agrees to amend the plans to relocate the nappy change area and storeroom in order to facilitate better supervision of the 2-3 year old children.

Findings and conclusions

1. The substantive issues in this matter concern parking, traffic safety and pedestrian safety as articulated in Contention 2 of council's amended Statement of Facts and Contentions.

1. It is agreed that there is limited availability of on-street parking in the general vicinity of the site. Apart from a small portion of Toronto Parade adjacent to the Funeral business, the parking is unrestricted. The experts' parking surveys, agreeing to exclude the commuter parking area adjoining the railway line, indicate reasonable availability of on-street parking in the immediate vicinity in the mornings until 7.30-8.00am. Parking opportunities start to arise again from about 4.00pm. The surveys do not include nearby streets that are within relatively easy walking distance. I accept Mr Keneally's evidence that spaces are available in these streets.

1. While I accept that nearby opportunities for drop-offs and pick-ups may be limited, the proposal satisfies the numerical requirements for on-site parking in SDCP. I am satisfied that the designation of the proposed shared parking space as visitor parking before 9.00am and after 3.30pm, the periods recognised by the experts as being the peak periods for drop-off and pick-up, provides sufficient space for parents/carers. I note Mr McLaren's acceptance of this as a way of minimising the potential impacts of queuing on other traffic using Toronto Parade. I am also satisfied the traffic engineers' parking surveys indicate sufficient on-street parking to accommodate a staff member arriving early in the morning. While perhaps having to park further away, it should not be unreasonably difficult for the late shift staff member to find a parking space, if indeed they choose to drive rather than use nearby public transport options.

1. Despite the numerical compliance, council presses sub-clauses 53(c) and (e) in SLEP in the context of the preamble in Chapter 7, SDCP that all demand for parking should be accommodated on site. By meeting the specific control in cl. 1.b.35 SDCP requiring childcare centres to provide 1 space for every 4 children in attendance, I find the proposal satisfies objective 1.a.1.a - to provide sufficient parking on site. While the preamble considers that all parking should be accommodated on the site, objective 1.a.1.c. SDCP requires reliance on street parking to be minimised. I note that council, in its Amended Statement of Facts and Contentions, has not specifically raised the removal of one on-street parking space associated with the construction of the driveway onto Acton Street.

1. In regards to the findings in Maquire/ Furia, my understanding is that the two childcare centres, the subjects of those proceedings, did not provide a compliant number of parking spaces on site, and site specific conditions of consent were imposed. Therefore, I do not propose to give any weight to that case, as every matter must be determined on its own merits.

1. The council raises the possibility of dangerous manoeuvring (such as a right hand turn across the painted median on Toronto Parade), and double parking. These concerns can be given little if any weight as there must be underlying assumption that road rules will be followed. In regards to Toronto Parade, vehicles travelling north can use the roundabout about 300m from the site to safely enable left hand entry to the site. The council has not adduced sufficient evidence to support the installation of a concrete median in Toronto parade opposite the site.

1. I am not persuaded that vehicles slowing down to enter the site will create conflict with other vehicles using Toronto Parade. The driveway currently exists in this location and the fact that someone is turning into a driveway, be it into a commercial or residential property, is a normal phenomenon. In considering cl. 53 SLEP, the configuration of the driveway with left turn in and left turn out is agreed by the traffic experts to be the most appropriate design, and safer than a vehicle reversing out onto the street. As discussed during the hearing, the relocation of the shared space and the requirement for parking rear to kerb for all spaces except the disabled space should minimise any additional potential for conflict. I also note the discussions relating to the positioning of the wheel stops in the designated parking spaces.

1. Although the applicant complies with the current staffing requirements specified in the Regulations, it accepts council's concerns in regards to the supervision of the 2-3 year olds in the event of a nappy change etc and proposes additional staffing. In providing this additional staff member, the applicant still complies with the parking controls in SDCP, as the controls do not specify the rate at which staff parking must be provided. I find no grounds to require the applicant to go beyond the rates specified in SDCP. I agree with the applicant that little weight can be given to future changes in the Regulations however, the provision of an extra staff member at this stage would numerically satisfy the future ratio.

1. In considering cl. 50(2)(c) SLEP, I am satisfied that the design of the entry, exit and on-site car park is unlikely to cause any unreasonable or detrimental traffic-related impacts on nearby residential amenity. There is no evidence that the additional traffic generated by the proposal will have any significant impact on neighbouring properties or on pedestrian movements.

1. In regards to noise associated with the development, I note the Addendum Report prepared by Koikas Acoustics Pty Ltd shows a 2.1m high fence achieves a compliant noise level. The report states that a 1.8m fence would result in a non-compliance of 1 dB at one site but could be rendered compliant if the number of 4-6 year old children were split into two groups of 6 children at any one time. Taking into consideration the concerns of the neighbour to the north in regards to light and outlook, I propose to require a 1.8m fence, agreed by the parties to be lapped and capped timber, and a condition limiting the number of children using the outdoor play areas. In this regard, the applicant has agreed to amend the Operational Plan of Management to indicate the play times and numbers of children.

1. Having considered the evidence, matters for consideration under s 79C of the EPA Act, and heard from the parties, I find that the development application can be given conditional approval with changes to be made to the Operational Plan of Management and the plans.

Directions

1. This judgment identifies a number of changes to be made to the plans and the Operational Plan of Management. Some amendments to council's draft without prejudice conditions are required.

(1)   The relevant architectural plans are to be amended to show the location of the shared parking space, relocation of the pedestrian access adjoining the disabled/ access parking space, position of wheel stops, and the reconfiguration of the ground floor - store, nappy change areas and toilets associated with Play Area 2. The landscape plans are to show the retention of the mature Camellia in the north-eastern corner of the site. Acoustic fencing details are to be shown on the plan and or specified in the conditions of consent.

(2)   The Operational Plan of Management is to be amended to: reflect the staffing and parking arrangements agreed to by the applicant; make changes to food and drink preparation as agreed by the parties during the hearing; include a clear indication of the numbers and ages of children to be using the play areas and the times of play; and require rear to kerb parking for all parking spaces except the disabled/access space.

(3)   The council is to prepare Conditions of Consent that reflect the findings in this judgment and which address editing issues identified during the hearing. Condition 38 is to be amended to specify 28 children.

(4)   The plans, Operational Plan of Management and Conditions of Consent are to be consistent with each other and with this judgment.

(5)   The applicant is to provide the council with amended plans and Operational Plan of Management by 22 September 2014. The parties are to have agreed on conditions of consent by 25 September 2014. The parties are to file with the court the amended plans, Operational Plan of Management and Conditions of Consent by close of business 30 September 2014. The Conditions of Consent are also to be provided in electronic form in word.doc format.

(6)   On receipt of the amended documents, final Orders will be made in chambers granting approval to Development Application No. 13/0919 for alterations and additions to an existing dwelling to create a childcare centre for 28 children at 106 Toronto Parade, Sutherland, subject to conditions of consent.

The amended plans and conditions

1. As directed, the parties filed the amended plans, Conditions of Consent and Operational Management Plan. I am satisfied that the documents reflect the findings made on 11 September 2014 and address the issues raised.

Orders

1. The orders of the Court are:

(1)   The appeal is upheld.

(2)   Development consent is granted to Development Application No. 13/0919 for alterations and additions to an existing dwelling to create a childcare centre for 28 children at 106 Toronto Parade, Sutherland, subject to the conditions of consent in Annexure A.

_________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 08 October 2014