Trainor & Ors and Act Planning & Land Authority
[2008] ACTAAT 10
•6 May 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:TRAINOR & ORS AND ACT PLANNING & LAND AUTHORITY & ANOR [2008] ACTAAT 10 (6 MAY 2008)
AT07/55, 57-59
Catchwords: Land and planning – development application to build a single storey preschool and childcare centre – variation to Crown lease to increase number of children permitted – whether proposed development meets objectives of community facility land use policies of the Territory Plan – objections relating to traffic and parking.
Tribunal:Mr B Hatch, Senior Member
Dr E McKenzie, Senior Member
Mr J Ashe, Member
Date:6 May 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT07/55, 57-59
LAND AND PLANNING DIVISION )
RE: JULIA TRAINOR
Applicant in AT07/55RE: LEONARD BURN
Applicant in AT07/57RE: GARRY HEARNE &
SUSAN HEARNE
Applicant in AT07/58
RE: GERALD JACOBSON
Applicant in AT07/59AND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: ST NICHOLAS
SCHOOL LTD
Party Joined
DECISION
Tribunal : Mr B Hatch, Senior Member
Dr E McKenzie, Senior Member
Mr J Ashe, Member
Date : 6 May 2008
Decision :
The decision under review is varied by making a variation to the Crown lease as follows:
Clause 3(a) is to be amended to read as follows:
To use the premises only for the purpose of a preschool and childcare centre for a maximum of 30 children with a maximum of 15 children at the premises for the purposes of attending a childcare centre.
………………………..
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT07/55, 57-59
LAND AND PLANNING DIVISION )
RE: JULIA TRAINOR
Applicant in AT07/55RE: LEONARD BURN
Applicant in AT07/57RE: GARRY HEARNE &
SUSAN HEARNE
Applicant in AT07/58
RE: GERALD JACOBSON
Applicant in AT07/59AND: ACT PLANNING &
LAND AUTHORITY
RespondentAND: ST NICHOLAS
SCHOOL LTD
Party Joined
REASONS FOR DECISION
6 May 2008 Mr B Hatch, Senior Member
Dr E McKenzie, Senior Member
Mr J Ashe, Member
Ms Julia Trainor, Mr Leonard Burn, Mr Garry Hearne and Mrs Susan Hearne and Mr Jacobson, residents and past residents of the vicinity of Hill Corner, Yarralumla, have sought review of a decision made on 3 October 2007 by the ACT Planning and Land Authority, (“the Authority”) the respondent to these proceedings.
2. The decision before the Tribunal is made in relation to a parcel of land, being Block 2 Section 62 in Yarralumla. The address is 1 Hill Corner and the parcel of land is at the intersection of Maxwell and Hill Corner. The land in question has an area of 1,839 square metres according to the Crown lease which was issued on 20 July 1998.
3. The application for development of this land was made by the party joined, the St Nicholas School Ltd, and sought approval for the following:
(a) the demolition of an existing building;
(b) the erection of a new single storey preschool to accommodate 40 children;
(c)a variation to the Crown lease to increase the number of children permitted to 40 children; and
(d)associated landscaping, car parking, paving and other site works.
4.The delegate of the respondent approved the application subject to conditions.
5. The land in question has been used as a preschool since the early 1950’s. The preschool was operated from that time until the early 1990’s by the relevant government education authorities from time to time. In about 1993 the government closed the government-operated preschool and around that time the parcel of land was taken over to be used as a preschool by a local community group with links to the local Greek community. That group is now the operator of the St Nicholas School Ltd. The Crown lease was issued in relation to the land to the St Nicholas School Ltd on 20 July 1998. It was that company which made the development application which was approved and is the subject of this application for review.
6. The applicants’ case including their objections to the proposal was, to a large extent, focussed upon flaws they perceived in the process leading up to the approval. The Tribunal has pointed out to the respondent in other decisions and during hearings of matters that, from time to time, the approval process leaves many objectors with a sense that they are not being notified of proposals and that any objections they make are ignored. An application for review such as this, however, is not a forum in which the operations of the respondent can be explored and the fact that this application is now before the Tribunal for review provides the objectors with an adequate opportunity to have their objections to the proposal heard whatever flaws the respondent may have demonstrated in the process leading to the decision under review.
Bulk and Scale
7. The applicants in their response to the facts and contentions filed by the respondent and party joined do not contend that the building is inappropriate. The applicants accept the evidence of Mr Andrew Senger, Senior Development Assessment Officer in the Authority, that in his opinion, the proposed new building is in keeping with its surrounds. He gave evidence that the building is single storey of residential size and configuration. He added that there have been considerable developments in the residential street surrounding the land over the years which have altered the streetscape from its original appearance and, in Mr Senger’s opinion, the proposed development is consistent with those developments.
8. The applicants in their submissions pointed out that their objections were to the development application as submitted and that the respondent had achieved considerable changes in the original development application to comply with applicable planning requirements.
9. The Tribunal attended at the land to view the area. As a consequence of the site inspection the Tribunal has no hesitation in accepting the evidence of Mr Senger that the proposed building is in keeping with its surroundings.
10. The Tribunal notes that this development is within the B4 policy area of the Territory Plan for community facilities. The objectives of the community facility land use policies are as follows:
a)ensure that adequate sites are available to meet community needs for community services and facilities in appropriate and accessible locations;
b)enable the efficient use of sites by allowing a broad range of uses appropriate for the location on sites;
c)provide sites for adaptable and affordable housing for people in need of supportive housing and residential care;
d)provide sites for emergency services which are within response times for their areas of coverage;
e)safeguard the amenity of surrounding residential areas against unacceptable adverse impacts due to the operation of community facilities, such as traffic, parking, noise, or loss of privacy.
11. Permissible uses for developments in areas covered by the B4 policy include childcare centres and educational establishments.
12. The Tribunal accepts that the development application satisfies Part B4 of the Territory Plan.
Traffic and Parking
13. A major concern for the applicants is in relation to the increased traffic they perceive the development would generate and the proposed parking arrangements. An understanding of this issue is complicated by the changes made to the proposal by the party joined over the period of the assessment process and during the hearing. In particular, the St Nicholas School Ltd has modified the numbers of children and their designation as either pre-school or child care pupils to be accommodated in the development.
14. The application under review allowed for a pre-school and childcare centre for a maximum of 40 children. At the start of the hearing the party joined advised the Tribunal that 40 places were no longer sought and that a lesser number of places was actually required. During the course of the hearing the numbers were again revised with the final position being a request for the Crown lease to be varied with clause 3(a) amended to read as follows:
To use the premises only for the purpose of a preschool and childcare centre for a maximum of 30 children with a maximum of 15 children at the premises for the purposes of attending a childcare centre.
15. It is in the light of this final proposal that the parking and traffic arrangements need to be viewed.
16. The basis for the applicants’ submission is their observation that the current arrangements for parking at the preschool are clearly inadequate. There is in effect no parking on site at present. There is a driveway leading onto the site upon which one car can be parked. For everyone else, the only available places to park are in the street surrounding the preschool and upon the grass verges of those streets. The Tribunal acknowledges that this is an unsatisfactory arrangement and a particularly unsafe arrangement for a school of any sort but especially for one catering for small children.
17. The only evidence before the Tribunal on this issue was given by Mr Andrew Curran, a traffic and security engineer. He gave expert evidence about the number of car spaces which would be required pursuant to the ACT Parking and Vehicular Access Guidelines, the relevant guidelines pursuant to clause 9.2(b) of Part A3 of the Territory Plan. Mr Curran stated that the parking requirements for a new centre with 15 children in childcare and 15 at the preschool, would be as follows:
(a)for a childcare centre -1 car park for the centre; 2 car parks for 15 children; 2 car parks for visitors; 1 car park for pick up and set down for each 10 children, that is, 1.5 car parks. A total of 6.5 car parks would be required for the childcare centre component of the proposal;
(b)for a preschool centre - .8 car parks per 10 children, that is, 1.6 car parks; .4 car parks for pick up and set down per 10 children, that is, .6 car parks. A total of 2.2 car parks would be required for the preschool component of the proposal.
18. Thus according to Mr Curran’s evidence, the total number of car parks required by the guidelines for the new development catering for 15 children in childcare and 15 in pre-school would be 8.7 car parks to be rounded up to 9 car parks. The plans before the Tribunal allow for 10 car parks.
19. The Tribunal notes that these 10 car parks include two car parks which are best described as tandem car parks, that is, one of the cars is effectively boxed in by the car behind it. Such an arrangement would not be suitable for visitors or people picking up or setting down children. Such an arrangement would however be appropriate for the purpose of a staff car park particularly in relation to staff who leave work at the same time. The reality however may well be that the two car spaces in tandem are only ever used as one car space. Even if that were to be the case 9 car spaces are available. This meets the requirements of the Territory Plan.
20. With regard to the matter of traffic, Mr Curran gave evidence in relation to the extra vehicle trips that would be generated as a result of an increased number of children at the subject land. In his report prepared prior to the hearing, Mr Curran provided some tables setting out the increase in vehicle trips per hour as a result of proposed changes. In his evidence before the Tribunal he modified his figures in accordance with later changes made to the proposal.
21. Mr Curran’s expert evidence is that there would be an increase in morning vehicle trips per hour of 20 and in the afternoon, of 13. His evidence is that at current rates the vehicle movements per hour are well within any theoretical limit for the streets in Yarralumla. An increase in numbers of children in the development would still leave any vehicle movements well within any theoretical maximum. Working out a theoretical capacity for vehicle movements is, according to Mr Curran, a very complex task. He was not questioned further in relation to what would have been a theoretical piece of evidence. The Tribunal notes his evidence, however, that Weston Street which is the extension of Maxwell Street past Hill Corner has a current vehicle movement rate of 1,600 per day and that, while it is complex to work a theoretical capacity, his expert opinion was that Weston Street could handle in excess of 4,000 vehicle movements per day and still not be over its theoretical capacity.
22. The Tribunal accepts that the vehicle movements for the streets in the vicinity of the land could not be said in any way to be approaching the capacity of those streets and as such do not appear to pose any difficulties with respect to approving this development application.
23. Mr Curran also gave evidence in relation to sight distances. Sight distances are the distances that a motorist can see when approaching and turning at an intersection. Mr Curran’s expert opinion is that all of the sight distances for the intersections are of a good standard. While some of the sight distances were not of the highest standard, in general they met what Mr Curran regarded as a high standard for urban roadways.
Conclusion
24. Following the hearing of this matter and submissions by the applicants, the respondent and the party joined, all of which were of assistance to the Tribunal, the issues became reasonably well defined. The applicants had some sensible and well reasoned arguments in relation to the process, matters which need to be taken into account by the respondent in its future dealings with all applications. Nevertheless, as far as this matter is concerned, it eventually came before this Tribunal for determination and the Tribunal can see no reason to take into account any deficiencies which may have occurred at an earlier stage. A potential matter of concern related to the actual physical structure of the building, but by the time of the hearing the applicants accepted Mr Senger’s evidence that the building was of an acceptable standard in relation to all aspects of the Territory Plan. After examining the evidence, together with the requirements of the Territory Plan, the Tribunal agrees that the proposed building is of an acceptable standard.
25. The remaining issue of substance concerns the traffic that will be generated by the proposed development and the proposed parking arrangements. Mr Curran’s expert opinion is that the parking arrangements that currently exist are inadequate. The Tribunal attended at the site and does not disagree that the existing parking provision is poor. The Tribunal accepts Mr Curran’s analysis that the most recent plans for the proposed development to provide at least 9 and possibly 10 car parking spaces on site meets the requirements as set down in the guidelines. The Tribunal also accepts his evidence that any traffic in the locality generated by the proposed development will be of a small degree and therefore not an issue of concern.
26. Having considered the objections raised by the applicants, the Tribunal concludes that the proposed development on the land would not be inconsistent with the Territory Plan. The Tribunal, however, considers that it is necessary to vary the decision under review with a variation to the Crown lease as follows:
Clause 3(a) is to be amended to read as follows:
To use the premises only for the purpose of a preschool and childcare centre for a maximum of 30 children with a maximum of 15 children at the premises for the purposes of attending a childcare centre.
27. The current decision already provides for the party joined to lodge for approval with the Planning and Land Authority a revised site plan showing all car parking spaces required for the development by the ACT Parking and Vehicular Access Guidelines to be accommodated on site and manoeuvring areas for car parking and exiting. The Tribunal does not make a specific variation to the decision under review in relation to car parking but notes that the current proposal allows for 10 car parks with two of these being tandem car parks and that there is sufficient manoeuvring areas for those car parks.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT07/55, 57-59
APPLICANTS: JULIA TRAINOR; LEONARD BURN; GARRY & SUSAN HEARNE; GERALD JACOBSON
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: ST NICHOLAS SCHOOL LTD
COUNSEL APPEARING: APPLICANT:
RESPONDENT: MR G MCCARTHY
PARTY JOINED: MR J OLIVER
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTY JOINED: MEYER VANDENBERG
OTHER:APPLICANT: SELVES
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR B HATCH, SENIOR MEMBER
DR E MCKENZIE, SENIOR MEMBER
MR J ASHE, MEMBER
DATE/S OF HEARING: 26-28 FEBRUARY 2008 PLACE: CANBERRA
DATE OF DECISION: 6 MAY 2008 PLACE: CANBERRA
______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
0
0