Thadanabath v Baulkham Hills Shire Council

[2008] NSWLEC 1191

Land and Environment Court

of New South Wales

CITATION:

Thadanabath v Baulkham Hills Shire Council [2008] NSWLEC 1191

PARTIES:

APPLICANT
Kevin Thadanabath

RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S):

11015 of 2007

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Demolish existing house and tennis court and construct a 66 space child care centre and car parking area,
whether adequate setback and landscaping to achieve compatibility with residential area and streetscape.

LEGISLATION CITED:

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

CASES CITED:

Architectural Property Services v Rockdale City Council (1999) NSW LEC
Project Venture Developments v Pittwater Council [2005] NSW LEC 191

DATES OF HEARING:

18 and 19 /03/2008

EX TEMPORE JUDGMENT DATE:

20 March 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr N. Eastman, barrister
Instructed by Ms K. King
of Gadens

RESPONDENT
Mr M. Fraser, barrister
Instructed by Mr C. Winn
of Baulkham Hills Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

20 March 2008

11015 of 2007 Kevin Thadanabath v Baulkham Hills Shire Council

JUDGMENT

1 This is an appeal against the refusal by Baulkham Hills Shire Council (council) of a development application to demolish an existing house and tennis court and construct a 66 space child care centre with parking for 20 cars at 30 - 32 Brisbane Street, Castle Hill (the site).

2 The key issue between the parties is whether adequate landscaping is provided to screen the car parking and achieve compatibility with the surrounding residential area and the streetscape. Council did not press its contention in relation to site isolation. Other issues including boundary fencing were agreed between the parties and through the imposition of conditions.

The site and its context

3 The site is two allotments (lot 1 and 2 DP 13841) located on the south side of Brisbane Road with a combined frontage of 40.23 m and a total site area of 1831 sqm. 32 Brisbane Road is developed with a single storey house and 30 Brisbane Road has a tennis court. Adjoining the site to the east and south are single dwelling houses (34 and 36 Brisbane Road). The western boundary adjoins a battle-axe driveway which leads to a single dwelling at 28A Brisbane Road. Adjoining the driveway further to the west is a townhouse development.

4 The surrounding area is a mix of one and two storey houses and more recent townhouse and villa development. St Bernadette’s School is located to the west on the opposite side of Brisbane Road. The site is within a school zone with a 40 kilometre speed limit during school pick-up and drop-off periods.

Planning framework

5 The site is zoned Residential 2(a2) under Baulkham Hills Local Environmental Plan 2005 (LEP 2005). The proposal is permissible with consent.

6 Clause 13(2) of LEP 2005 provides:

Except as otherwise provided by this plan consent must not be granted for development unless the consent authority is satisfied that the proposed development:
a) is consistent with one or more of the aims of this plan and any relevant objectives for development
b) is not contrary to achieving the objectives of the zone within which it will be carried out.

7 The relevant objectives of the Residential 2(a2) zone are:

……
(b) to ensure that building form (including alterations and additions) is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment, and
(c) to ensure that any development carried out:
…..
(vi) incorporates landscaping within building setbacks and open space areas, and
….
(f) to allow a range of development, ancillary to residential uses, that:
(i) is capable of visual integration with the surrounding environment, and
(ii) serves the needs of the surrounding population without conflicting with the residential intent of the zone.

8 The parties disagreed on the weight to be given to Baulkham Hills Development Control Plan (the DCP), Part D Section 8 - Child Care Centres (the Childcare DCP), which was adopted after the development application was lodged.

9 Clause 3.4 of the Childcare DCP provides setback provisions. The Objectives include:

i) To ensure that setbacks are consistent with the locality and achieve development that is complimentary to the streetscape.
……..
iv) To ensure that adequate area is provided to permit high quality landscape planting for the development.

10 The Development Controls in cl 3.4 include a requirement that the setback for a childcare centre car park in a residential zone is a minimum of 5 metres from the front property boundary. It requires that:

The front setback areas are to include landscaping with a minimum width of 2 metres to screen vehicles from view from the street and surrounding properties.

11 Mr Eastman, for the applicant, submits that the weight to be given to the standards and controls in the Childcare DCP should be indicative only. He referred to Architectural Property Services v Rockdale City Council (1999) NSW LEC where Lloyd J said that:

Where the relevant development control plan commenced after the development application had been made it should not be given determinative weight. This is not to say that the standards…. should be ignored, they should be taken into account. A failure to comply will not necessarily be fatal to the application provided that it is otherwise satisfactory. Although [the] previous development control plan…. is now repealed, its controls may also be taken into consideration as indicative of standards and controls which applied when the development application was made.

12 Mr Fraser, for the council, agreed that the Childcare DCP should not be given determinative weight but should be given significance and consideration.

13 There is little difference in essence in the submissions of the parties. The Childcare DCP is a relevant matter to be taken into consideration in providing guidance as to whether the objectives of the Residential 2(a2) zone are achieved. A failure to comply with the Childcare DCP requirements would not be fatal to the application.

14 In the circumstances of this case, there was no previous development control plan specifically for childcare centres, but as I understand, a requirement for a 2 m landscape strip was contained in other relevant controls in the DCP, applicable when the application was lodged.

15 The provisions of cl 3.4 of pt D, s 8 of the Childcare DCP are reflected in other provisions of the DCP including pt D s 3 - Landscaping and pt D s 1 - Parking. The aim of these provisions is to provide setbacks and landscaping for the “purpose of screening of car parking and driveway access”.

16 Clause 3.12 of the Childcare DCP relates to vehicular access and parking. Its objectives include:

(i) To provide sufficient convenient parking and manoeuvring area for users of the development, in order to maintain the amenity of adjoining properties, the efficiency of the road network and the safety of road users.

(ii) To ensure that the parking demand generated by the development is accommodated on site.

17 The controls require 1 car space per employee plus one car space per 6 children. In applying this control a total of 20 spaces is required (9 staff spaces and 11 children spaces). I note that to comply with the Department of Community Services (DOCS) requirements only 8 staff are required but the applicant is choosing to provide an additional staff member.

18 The Childcare DCP exceeds the requirements in the Roads and Traffic Authority Guidelines for Traffic Generating Development (RTA guidelines), which require 1 space for 4 children, being the total requirement for both staff and children. This would require 17 spaces to be provided on site. The RTA guidelines permit a reliance on on-street parking where it is safe and convenient and will not adversely impact on the amenity of the locality.

Evidence

19 The Court heard expert planning evidence from Mr H Sanders, for the applicant, and Mr G Samardzic, for the council.

20 The key difference of opinion between the experts is whether the landscape strip along Brisbane Road is adequate to screen the car park.

21 Mr Sanders considered that the proposed 2 m strip provided adequate screening. He noted that even though the Childcare DCP requires a 5 m setback for parking, only a minimum of 2 m is required to be landscaped. In Mr Sanders’ opinion there would be little difference between a 2 m wide landscape strip and parking and a 2 m landscape strip with an additional 3 m setback to the carpark.

22 Mr Sanders noted the existing vegetation at 32 Brisbane Road provides effective screening within a narrow strip and that the tennis court at 30 Brisbane Road had no planting to the street. Mr Sanders acknowledged that as the proposal was not residential it would appear different to the residential development in the street. However, it would be an improvement compared to the St Bernadette’s car park, another non-residential use.

23 In Mr Sanders’ opinion the proposal was not disharmonious in the streetscape and met the objectives of the control and the zoning. Mr Sanders noted that the amended plan (Exhibit O) by narrowing the driveway entrances and providing an L-shaped landscape strip between the middle row of car spaces would further limit views of the car park from the street.

24 Mr Samardzic considered the proposal and the amended plan to be inadequate as the character was different from typical residential developments in the area. Although he acknowledged the non-residential nature of the development would necessitate it being different to some degree from residential development.

25 Mr Samardzic considered that the proposal did not visually integrate with the residential character of the area. The extent of car parking and its lack of setback from Brisbane Road, in his opinion, had an unacceptable impact on the street and did not meet the objectives of the zone or the control in the Childcare DCP.

26 Mr Samardzic noted that the amended plan did not achieve the minimum 2 m wide landscaping, the area within the planter being a minimum of 1.2 m. He considered this to be inadequate space to provide the screening shrubs and trees shown in the landscape plan. The spread of the shrubs would conflict with the car spaces and require pruning. He also raised concerns about the aisle width in the amended plan and the access to car spaces 1 and 7 which would require reversing.

27 In Mr Samardzic’s opinion the 4 car spaces along Brisbane Street (1, 7, 14 and 15) should be deleted and landscaped. While this would not achieve the 5 m setback it would be adequate to meet the objective of the control. Mr Samardzic stated that the deletion of the spaces would require a resultant reduction in children numbers and staff. Mr Samardzic did not consider it appropriate to apply the RTA guidelines and stated that the Childcare DCP rate should be applied. Although he was not aware of the reasons for the differences in the controls other than that Baulkham Hills is a highly car-dependent area.

28 Mr Sanders considered the location of the site close to Castle Hill Town Centre and the availability of on-street car parking (based on Exhibit K), including 3 spaces in the front of the site, would justify provision of parking in accordance with the RTA guidelines. He noted that applying the RTA guidelines for 66 children resulted in a requirement for 16.5 spaces, which is rounded up to 17 spaces. He considered that 16 spaces could be provided on site with the additional space provided on street given the availability and number of on-street spaces. This arrangement would meet the RTA criteria that on-site parking could be reduced where there is safe and convenient on-street parking and its use will not adversely affect the amenity of the locality. He considered that a reduction in numbers of children and staff suggested by Mr Samardzic to be unreasonable.

Findings

29 The control in the Childcare DCP and other controls in the DCP provide for a minimum landscape strip of 2 metres to screen car parking. The proposal provides less than this minimum. The shrubs may screen the car park when viewed directly from the street and the proposed internal planting will assist in breaking up the expansive car parking. However, I consider that the proposal does not achieve the objectives of the zone for non-residential development. The extent of car parking and its proximity to the front boundary is uncharacteristic of the residential area, which is predominantly houses in landscape settings. St Bernadette’s School is a non residential use, but its carpark is not an element in the streetscape that should be emulated.

30 While I accept that the childcare centre will not and should not appear as residential, the test is whether it is “capable of visual integration with the surrounding environment’ and “serves the needs of the surrounding population without conflicting with the residential intent of the zone”.

31 The planning principles set out by Senior Commissioner Roseth in Project Venture Developments v Pittwater Council [2005] NSW LEC 191 address the issue of compatibility. He states:

For a new development to be visually compatible with its context it should contain or at least respond to the essential elements that make up the character of the surrounding urban environment.

32 In the context of the proposal, landscaping within setback areas is an essential landscape and streetscape element. This landscaping comprises canopy trees, shrubs and grass and provides a degree of separation between the street and the built form. A setback area predominantly occupied by car parking is uncharacteristic of the area.

33 While parking is necessary to service the needs of the development, the extent of car parking should be balanced by the amount of landscaping to be provided both around the perimeter and within the car park. The proposal provides a large number of car spaces and I am not satisfied that a landscape strip with a minimum internal dimension of 1.2 m provides sufficient depth to ensure that the proposal visually integrates with its surrounding residential environment, particularly as the spread of the screen plants may conflict with the car spaces. I accept Mr Samardzic’s opinion that the 4 spaces along Brisbane Road should be deleted and replaced with dense landscaping.

34 The question is then whether the loss of these car spaces should result in a reduction of children and staff numbers or whether the 16 spaces provided on-site will meet the parking demand generated by the development and achieve the aims of the Childcare DCP for car parking.

35 In the circumstances of this particular case, the RTA guidelines will provide adequate on-site parking to meet the needs of the development and the objectives of the Childcare DCP. The survey undertaken by Mr Pindar, traffic consultant for the applicant, indicates that there is adequate on-street parking in the vicinity of the site. The occasional use of one on-street parking space for limited periods in the morning and evening peak periods is not likely to adversely impact on the amenity of the locality.

36 To ensure maximum utilisation of the car park during morning and evening peak periods by parents, the starting and finishing time of staff should be staggered to enable parents to use staff car spaces prior to their arrival or after their departure from the centre.

37 The number of staff required by DOCS as a ratio of the number of children in each age group. Therefore a reduction in two children would not result in a reduction in staff unless the numbers of children in each age group is rearranged which has implications on the size of the play rooms and design of the centre. Given that the proposal meets the objectives of the Childcare DCP in relation to car parking, I do not find a reduction in the children to be necessary.

38 The parties agreed that the acoustic fencing along the boundary of 34 Brisbane Road should be 2.4 m, comprising 1.8 m lapped and capped fencing and 600 mm vertical perspex, commencing at a distance of 12 m from the front boundary. The height of the fence extending 1 m either side of the carport at 36 Brisbane Road is to be 2.7 m, comprising 1.8 m lapped and capped and 900 mm vertical perspex. This will be tapered to meet the height of the fence at 34 Brisbane Road.

39 The experts agreed to one sign 1,500 mm by 1,500 mm which has been included as a condition.

40 The only other issue related to the hours of operation. I accept Mr Sanders’ evidence that the closing time of 7pm instead of 6.30pm is unlikely to result in adverse impacts on the neighbourhood given the small number of people likely to be attending the centre at this time. The proposal will therefore meet the objective of cl 3.3 in the Childcare DCP to ensure that childcare centre developments operate at times which will have minimal impact on the community and the environment.

41 I note Mr Eastman’s submission that the deletion of 4 car spaces can be conditioned, however, due to the subsequent changes to the landscape plan, the floor plan and the conditions I will not issue final orders until amended plans and conditions are submitted.

42 The Directions of the Court are therefore:

1 By 28 March 2008, the Applicant is to serve amended plans (including car park plan, architectural plans and landscape plan) incorporating the following changes:
• The deletion of four car spaces along Brisbane Road (spaces 1, 7, 14 and 15 on Ex O) and replacement with dense lanscaping
• Car park design that complies with the AS/NZS 2890.1:2004 (minimise aisle and car space width to maximise landscaping)
• Continuous footpath along east boundary to reception and resultant changes to building (as shown on Ex O)
• Fence heights
2 By 4 April 2008, the Respondent is to serve any comments on plans and amended conditions.
3 By 9 April 2008 plans and conditions to be filed together with short statement on any matters not agreed.
Final Orders will be issued in Chambers

___________________

Annelise Tuor
Commissioner of the Court
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