Sumegi v Randwick City Council

[2007] NSWLEC 442

Land and Environment Court

of New South Wales

CITATION:	Sumegi v Randwick City Council [2007] NSWLEC 442
PARTIES:	Applicant: Adam Sumegi and Melanie Sumegi Respondent: Randwick City Council
FILE NUMBER(S):	10306 of 2007
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- childcare centre; noise and parking
DATES OF HEARING:	12/07/2007 and 13/07/2007
DATE OF JUDGMENT:	19 July 2007
LEGAL REPRESENTATIVES:	Applicant: Mr M McMahon, solicitor Respondent: Ms A Pearman, barrister instructed by Ms T Litt, solicitor of Bowen Gerathy Shaw Reynolds

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

19 July 2007

10306 of 2007 Adam Sumegi and Melanie Sumegi v Randwick City Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal by Randwick City Council (the council) of a development application to convert the existing residential building to a childcare centre for 39 children on lot 7 section 1 DP 3026, known as 45 Market Street, Randwick.

The site

2 The site is on the eastern side of Market Street, between Darley Road and Gilderthorpe Avenue. Its frontage is 14m and its area is 580m2. It now contains a two-storey duplex.

3 To the south of the site is a two-storey house. To the north and east are three-storey apartment buildings, with several apartments oriented towards the site. At the Darley end of Market Street is Queens Park, which contains several ovals. At the Gilderthorpe Avenue end is a landscape business, while further to the south is a community hall used for children’s activities.

The proposal and its history

4 The applicant proposes to alter and extend the existing building and convert its use to a childcare centre for 39 children, operating from 7 am to 6 pm. Three cars in stacked formation are to be parked on the site, while the kerb along the frontage is to be assigned to short-term parking between 7 and 9am, and between 4 and 6pm so as to make it free for parents and carers during delivery and pick-up times.

5 The applicant lodged the development application in August 2006 for a childcare centre for 46 children. Following notification, the council received 17 letters of objection. Following the lodgement of amended plans in October 2006 the council re-advertised the application and received five letters of objections. The council’s planning report of November 2006 recommended approval. The council did not accept the recommendation and invited the applicant to amend its proposal by reducing the number of children. The applicant lodged the appeal in May 2007.

Relevant planning instruments and policies

6 Randwick Local Environmental Plan 1998 zones the site Residential 2B, a zone that permits childcare centres with consent. The Randwick Childcare Centres Policy guides the assessment of applications for childcare centres. The Policy requires parking to be provided on site, however, accepts on-street parking in certain circumstances. The Parking Development Control Plan requires one space for every two staff members in attendance plus “adequate space for drop off/pick up of children”. The Roads and Traffic Authority’s Guidelines for Traffic Generating Development requires one off-street parking space for four children, though it accepts that parking for the delivery and picking up of children may be on the street.

Matters in Contention

7 The council filed its Statement of Contentions listing five matters in contention. However, in the course of the hearing it emerged that there was only one matter in dispute: the availability of parking and its consequences for the number of children in the centre. The council contends that the parking constraint limits the number of children to 32, while the applicant submits that there is adequate parking for a centre catering for 39 children.

The objectors’ evidence

8 The Court heard the evidence of several objectors. Mr Douglas Herridge, the owner of 41/43 Market Street, adjoining apartment building to the north, said that several bedrooms in the apartments face the site. A childcare centre in these circumstances is not appropriate. Ms Katina Andrew, who lives at 47 Market Street, adjoining the subject site to the south, was concerned about noise and traffic. Mr Rob Wilson, who lives at 1/32 Figtree Avenue, was mainly concerned about noise. Mr Vince Cornell and Ms Angela Fehringer, who live in unit 2 32 Figtree Avenue, were concerned about noise, lack of parking and the dangers posed by stack parking. Mr David Fisher, who lives in unit 9 of 41/43 Market Street, was concerned about noise, parking and safety, as well as the removal of a palm tree.

9 I note that the council’s planning expert, Mr Stuart McDonald, said that the acoustic measures proposed by the applicant, supplemented by additional safeguards proposed by Mr McDonald would ensure that the noise at the apartments and dwellings nearby would remain at an acceptable level. While the council raised the issue of acoustic and visual privacy in its Statement of Contentions, it noted that these concerns could be resolved by conditions. Since the applicant accepts the council’s draft conditions, I conclude that the council does not accept the objectors’ claim that noise disturbance will be excessive.

10 As concerns parking and traffic, these matters were debated at length during the hearing.

The expert evidence

11 The council’s traffic expert was Mr Graham Pindar, while the applicant’s was Mr Tim McCarthy. As mentioned above, the council’s planning expert was Mr McDonald, while the applicant’s was Mr Anthony Betros.

12 Mr Pindar and Mr McCarthy agreed that

· staff parking may be provided in a three-stack formation provided the parking was adequately managed. Mr Pindar was satisfied with the condition relating to the management of the stacked spaces.

· Pick up/drop off parking may be provided on-street with two spaces along the site frontage signposted for short-term parking.

· The RTA Guidelines requirement may be relaxed to one space per eight children (Mr Pindar) or one space per nine children (Mr McCarthy) in addition to staff parking.

· A reasonable distance for drop off/ pick up parking is 100m.

13 In their joint report Mr Pindar and Mr McCarthy agreed that there were at most times four parking spaces available within 100m of the site. After their oral evidence was concluded, the applicant tendered a survey of parking spaces conducted by Mr McCarthy (which Mr Pindar had seen and which came to the Court as Exhibit C). In the applicant’s submission this survey indicates that there are at most times at least five spaces available within 100m of the site.

14 The outcome of the traffic experts’ evidence was that Mr Pindar supported a childcare facility for 32 children, while Mr McCarthy supported one for 39 children.

Consideration of the evidence

15 The dispute between the parties is based on the different views of the traffic experts. Mr Pindar argues for drop off/pick up parking at the ratio of one kerbside spaced per eight children; Mr McCarthy argues that the ratio should be one to nine children. If he is right, and only four kerbside parking spaces can be relied on, this justifies a centre for 36 children, not 39. I am inclined to accept the ratio of one to eight, since this is reflected in several development control plans of councils other than Randwick. However, I am also aware that the difference between one in eight and one in nine is not great.

16 Mr Pindar says that one can rely only on four parking spaces being available within 100m; the applicant contends that that one can rely on five. If Mr McCarthy is right, it justifies a centre for 40 children, if Mr Pindar is correct, it justifies a centre for 32 children. If Mr Pindar is correct on the number of parking spaces and Mr McCarthy is correct on the ratio of one parking space for nine children, it justifies a centre for 36 children.

17 I return to Exhibit C mentioned above. It contains a survey of available parking spaces within 100m of the site, carried out at 15-minute intervals in the morning on four days. The survey is presented in two tables: the top table lists the number of available spaces without making allowance for illegal parking. The bottom table lists the available spaces with making allowance for illegal parking. The top table suggests that, with the exception of one quarter-hour period, there are at least five spaces available in the morning peak. The bottom table shows smaller numbers, with several periods showing only two available parking spaces.

18 The question arises: should such a survey take into account illegal parking? Where illegal parking indicates that the driver parked illegally only after trying hard to find a legal spot, it should be taken into account. Where it indicates the actions of a reckless driver or an owner parking across his/her driveway, it should not be. I am inclined to think that illegal parking indicates in most cases a driver who is too lazy to find a legal spot (and therefore more related to driver character than to the availability of parking), though, of course, there is no evidence to support this assumption.

19 On the basis of the top table in Exhibit C, one may conclude that there were five parking spaces available at most, though not all times within 100m of the site. Mr Pindar accepted that four spaces were available at most times. Five spaces would justify a centre for 40 children; four spaces would justify a centre for 32 children. It seems to me that a compromise between the two is a centre for 36 children. The compromise in this case is not simply a halving of the difference; rather it reflects the uncertainty concerning the number of available spaces is four or five.

20 I note that the council relied on the fact that there was parking overflow in Market Street from the ovals at Queens Park and the nearby community hall. Neither of these facilities provides any on-site parking. It seems to me that the childcare centre, which at least is located in Market Street, has as much claim to kerbside parking in the street as those other, more removed locations.

Conclusion

21 The dispute in this case narrowed to a childcare centre for 39 children or one for 32 children. The justification for the number of children was on the grounds of the availability of kerbside parking for parents and carers bringing and collecting the children. In my opinion, that availability cannot be established with precision. The evidence of the two experts combined suggests that a centre for 36 children is likely have sufficient kerbside parking spaces to discourage double parking by parents and carers. I note that the council’s planning staff recommended the approval of a centre for 46 children.

22 Since the availability of parking was the only matter in contention between the parties, the appeal is upheld, subject to a limit of 36 children.

Orders

1. The appeal is upheld.

2. Development application to convert the existing building from residential use to a childcare centre on lot 7 section 1 DP 3026, known as 45 Market Street Randwick is determined by the grant of consent subject to the limit of 36 children and the conditions in Annexure A.

3. The exhibits are returned except Exhibit A.

_________________
Dr John Roseth
Senior Commissioner