Usien v Hornsby Shire Council

[2006] NSWLEC 331

Land and Environment Court

of New South Wales

CITATION:	Usien v Hornsby Shire Council [2006] NSWLEC 331
PARTIES:	Applicant: Janusz Usien Respondent: Hornsby Shire Council
FILE NUMBER(S):	11355 of 2005
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- childcare centre
DATES OF HEARING:	14/06/2006
DATE OF JUDGMENT:	06/21/2006
LEGAL REPRESENTATIVES:	Applicant: in person Respondent: Mr T Pickup, solicitor of Storey & Gough Solicitors

JUDGMENT:

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THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

21 June 2006

11355 of 2005 Janusz Usien v Hornsby Shire Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application to alter and extend an existing child care centre by extending the main indoor play area, adding a new staff room and providing additional parking spaces on lot 14 DP 26493known as 227 Ray Road, Epping.

The site

2 The site is on the southern side of Ray Road. An existing childcare centre for 24 children now stands on it. There is an open car park in the front without landscaping or fence. To either side are single-storey houses. The rear adjoins a school. The locality is low density residential.

The proposal and its history

3 The applicant seeks to expand the existing child care centre for 24 children to cater for 36 children by extending the main indoor play area, building a new staff room and providing additional car spaces.

4 The applicant lodged the development application in October 2004. Following notification the council received three submissions, none of them from adjoining properties. In May 2005 the council refused the application under delegated authority. The applicant lodged the appeal in November 2005.

Relevant planning controls

5 The Community Uses Development Control Plan requires one car space for four children for childcare centres. The Car Parking Development Control Plan contains the same requirement. The Road and Traffic Authority’s (RTA’s) Guide to Traffic Generating Developments 1993 (the Guide) also requires one parking space for every four children. The Guide advises:

Given the short length of stay (the RTA’s surveys found an average length of stay of 6.8 minutes), parking must be provided in a convenient location, allowing safe movement of children to and from the centre.
Consideration could be given to reducing the parking required if convenient and safe on-street parking is available (eg indented parking bays), provided that the use of such parking does not adversely affect the amenity of the adjacent area.

The issues

6 The council submitted a Statement of issues containing seven issues, concerned with the centre’s noise impact and the traffic and parking arrangements. At the request of the parties, the Court appointed Mr S Cooper as the acoustic consultant. Mr Cooper suggested that an acoustic barrier be erected along the two side boundaries in order to reduce the noise impact on the adjoining properties. However, the owners of those properties, who are not objectors, do not want such an acoustic barrier; they prefer to hear the children. In the circumstances the council is not pressing for the barriers.

7 The remaining issue is parking. While the application proposed nine spaces, the Court appointed planning expert, Mr G Shiels, suggested that one space be deleted, in order to allow for landscaping in the front and better manoeuvring within the site so as to allow vehicles to exit in a forward direction. In the council’s submission, the reduction of one space should lead to the reduction of 36 children to 32. Mr Shiels did not support this reduction on the basis that Ray Road is suitable for kerbside parking. I accept Mr Shiels’ evidence, which is supported by comments in the Guide quoted above. While there is no indented bay in Ray Road, the kerbside parking arrangements are ample and convenient.

8 The three objectors did not appear at the view. Their concern was with traffic and parking, which was the remaining issue for the council. The applicant accepted the council’s draft conditions. Since no additional issue remains, nothing stands in the way of the approval of the application. The appeal is upheld.

Orders

1. The appeal is upheld.

2. Development application to alter and extend an existing child care centre by extending the main indoor play area, adding a new staff room and providing additional parking spaces on lot 14 DP 26493known as 227 Ray Road, Epping is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 3 and A.

____________________
Dr John Roseth
Senior Commissioner