Virginia Street Properties Pty Limited v Randwick City Council

[2015] NSWLEC 1013

Land and Environment Court

New South Wales

Medium Neutral Citation:	Virginia Street Properties Pty Limited v Randwick City Council [2015] NSWLEC 1013
Hearing dates:	29 January 2015
Decision date:	29 January 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	Consent Orders: childcare centre
Legislation Cited:	Randwick Local Environmental Plan 2012; Environmental Planning and Assessment Act 1979
Cases Cited:	Wehbe v Pittwater Council [2007] NSWLEC 827
Texts Cited:	Randwick Development Control Plan 2013
Category:	Principal judgment
Parties:	Virginia Street Property Pty Limited (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: Mr M Staunton (Applicant) Solicitors: Mr T Messenger, HWL Ebsworth Lawyers (Applicant) Ms V McGrath, Norton Rose Fulbright (Respondent)
File Number(s):	10979 of 2014

Judgment

1. Virginia Street Properties Pty Limited lodged Development Application DA/536/2014 with Randwick City Council on 8 August 2014 seeking consent for alterations and additions to an existing building for use as a childcare centre at 2 Virginia Street, Kensington.

2. The issues between the parties have been resolved and they are seeking Consent Orders from the Court.

The site and its context

3. The site is located on the north eastern corner of Virginia and Baker Streets with a site area of 689.8sqm. It is a rectangular allotment and contains a two storey building with an outbuilding at the rear. The building, a former corner shop and residence has been converted without consent to flats and is built to the street boundaries and setback 905mm from the common boundary with No 4 Virginia Street.

4. Development within the vicinity of the site comprises single and two storey dwelling houses. A ‘pocket’ park is located directly opposite the site.

Background and the proposal

5. The proposal involves alterations and additions to the former shop building to convert it for use as a 53 place child care centre catering for 0-5 year olds operating from 7am to 6pm Monday to Friday.

6. The works involve installation of new window and door openings, internal dividing walls and floor coverings and general renovation of the internal building areas. The extension of the existing building at the rear is also proposed and would provide for additional floor space, ramp access and covered area at ground level and a partly roofed outdoor play area on the first floor. Three onsite parking spaces, including one disabled car space, staff amenities and storage area would be provided within the garage building. The floor area of that building would be reduced and the side wall removed with storage areas created in that place.

7. The ground floor of the main building would contain an entry foyer, office area, 2 indoor children’s play rooms, toilets, cot room, nappy room, kitchen, laundry and storage areas. An indoor playroom, outdoor children’s play terrace, toilets and storage spaces would be provided on the first floor. Planter boxes and acoustic barriers would be installed around the perimeter of the upper level terrace and a new lift would be installed within the building to provide disabled access.

8. The plans include a proposal to reinstate the front awning and other building enhancements as outline in a statement of heritage impact lodged with the development application.

9. The proposal includes the removal of trees, shrubs and plants and the clearing of some existing hardstand area and provides for new hedge plantings along the south-eastern side boundary. The outdoor play spaces at both levels would include a variety of natural and synthetic surfaces including sand pits, artificial turf and softfall area. An acoustically rated fence backing would be installed along the fence to the play areas and the site’s perimeters and also along the upper level terrace balustrades, consistent with the recommendations of a noise assessment also lodged with the application.

10. The application relies on street parking adjacent to the site in addition to the spaces within the garage, to satisfy the council’s controls.

The planning controls

11. The site is zone R2 – Low Density Residential under the provisions of Randwick Local Environmental Plan 2012 (LEP). The proposed use is permissible with consent in that zone. Clause 2.3(2) of the LEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. the objectives of the R2 zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

• To protect the amenity of residents.

• To encourage housing affordability.

• To enable small-scale business uses in existing commercial buildings.

12. Clause 4.4 of the LEP establishes maximum floor space ratios and the floor space ratio (FSR) applicable to the site is 0.5:1 for buildings other than dwelling houses or semi-detached dwellings where a maximum FSR of 0.6:1 is permitted for those uses. The existing buildings, including the outbuilding, have a FSR of 0.537:1 so exceed that control. According to the evidence, the use of the outbuilding for carparking and the consequential loss of GFA would, when accounting for the additions to the main building, result in a FSR of 0.539:1, still in excess of the development standard. The application has lodged a written objection to that development standard in accordance with the provisions of clause 4.6 of the LEP.

13. The site is located within the West Kensington Heritage Conservation Area (HCA). Clause 5.10 of the LEP requires that development consent be obtained to alter the exterior of a building in an HCA. Clause 5.10 (4) states that the consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

14. A Statement of Heritage Impact was prepared and lodged with the council as part of the development application.

15. Randwick Development Control Plan 2013 (DCP) applies to the site and the proposal is consistent with all of the relevant controls in that plan with the exception of the provision of on-site parking. A total of 11 spaces are required on site and only 3 are provided. The applicant relies on the existing kerbside parking adjacent to the site including one additional space that would be provided as the result of removing an existing driveway crossing off Baker Street. The DCP notes that there are instances where it may not be possible to provide off-street car spaces (clause 3.3) and requires an applicant to demonstrate that the proposed level of parking is adequate. A traffic and parking report was prepared as part of the development application and is found in Exhibit A.

The issues

16. The contentions in the case related to the lack of information in relation to carparking. These issues have now been resolved and the parties are seeking consent orders from the Court.

The evidence

17. The hearing commenced on site with a number of objectors providing evidence to the Court. The issues raised are summarised as follows:

• Noise;

• Traffic safety and parking;

• Concerns about proposed conditions that address noise and privacy issues;

• Council has failed to deliver on its promise to prepare a local area traffic management scheme.

18. An expert traffic report (Exhibit 3) had been prepared by Mr C McLaren for the applicant and Mr G Pindar for the council. The experts were not required for cross examination however did assist the Court during the site view. They agree that the proposed traffic management plans address the council’s contentions and that the development will not adversely impact on the road network. Consent conditions reflecting the joint position of the experts are agreed.

Conclusion and findings

19. The council advises that its contentions in the case have been addressed and that there is no reason why consent should not be granted. The use is permissible in the R2 zone and consistent with the objectives of that zone. As the FSR of the existing buildings already exceeds that permitted on the site and the works make minimal change to the gross floor area (GFA) of the development, the council says that in the circumstances of the case compliance with the FSR development standard would be unreasonable and unnecessary and the objection to the standard would be in the public interest and should be upheld. A comprehensive review of the applicant’s written objection to the FSR development standard has been undertaken by council’s officers and they conclude the proposed development does not contravene the objectives of the FSR development standard and the relevant objectives for development within Zone R2, that the justification for contravening the FSR standard is well founded and supportable and the resultant layout is suitable for the site.

20. The alterations and additions have been assessed and found to be satisfactory in terms of the HCA.

21. For consent to be granted, I must have regard to those matters in Section 79C of the Environmental Planning and Assessment Act 1979 (EP&AAct). Having regard to the evidence, I am satisfied that the development would be consistent with the provisions of the LEP and the DCP, that the proposed Plan of Management and physical works to address noise and privacy will adequately mitigate any adverse impacts of the development on the natural and built environment, that the development would have positive social and economic impacts in the locality as it provides a service that is in demand by residents and is therefore in the public interest. The site is suitable for the development.

22. Applying the principles established by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 and the council’s assessment of the applicant’s written objection to the FSR development standard, I am satisfied that the objection to that development standard is well founded.

23. In relation to the matters raised by the objectors, the traffic experts agree that the proposed parking and traffic calming measures to be employed will address safety concerns. The council accepts the use of the kerbside parking adjacent to the site as meeting the DCP requirements and conditions have been imposed that require local traffic committee approval for parking restrictions and signage during the morning and afternoon drop-off/pick-up times.

24. The applicant’s acoustic expert, Dr Tonin, has assessed the proposal and made recommendations to address noise concerns. These recommendations are incorporated in the proposed consent conditions and require that a validation report be prepared three months after commencement of operation to ensure compliance with the appropriate standards.

25. The issues raised by the neighbour have been incorporated into amended conditions and through changes to a Plan of Management with the exception of the proposed hours of operation which are unaltered and not opposed by the council.

26. The need or otherwise of a local area traffic management plan is not a matter for the Court in relation to the traffic generated by the proposal.

27. I am satisfied that the proposal is lawful and there being no reason why the Consent Orders should not be made, by consent, the Orders of the Court are:

1. The appeal is upheld.

2. Development Application DA/536/2014 for alterations and rear ground and first floor additions to an existing building for use as a childcare centre for 53 children, including on site parking spaces, new cantilevered awning over Virginia and Baker Street frontages, alterations to the existing garage and changes to the Baker Street boundary fence and a new acoustic screen at 2 Virginia Street, Kensington is approved subject to the conditions in Annexure A.

3. The exhibits, other than Exhibits B and 2, are returned.

______________

Sue Morris

Commissioner of the Court

10979 of 2014 - Conditions (152 KB, pdf)

**********

Decision last updated: 09 February 2015