Walton v Blacktown City Council

[2006] NSWLEC 781

Land and Environment Court

of New South Wales

CITATION:

Walton v Blacktown City Council [2006] NSWLEC 781

PARTIES:

APPLICANT
Lance and Linda Walton

RESPONDENT
Blacktown City Council

FILE NUMBER(S):

10552 of 2006

CORAM:

Bly C

KEY ISSUES:

Development Application :- Use of dwelling as transitional group home, off-street car parking, residential capacity

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 9 – Group Homes
Blacktown Local Environmental Plan 1988
Blacktown Development Control Plan 2006

DATES OF HEARING:

29/11/2006

EX TEMPORE JUDGMENT DATE:

11/29/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr L Walton, self represented litigant

RESPONDENT
Mrs M-L Taylor, solicitor
SOLICITORS
Norman Waterhouse Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

29 November 2006

10552 of 2006 Lance and Linda Walton v
Blacktown City Council
JUDGMENT

This decision was given extemporaneously

and has been revised and edited prior to publication.

1 This appeal relates to development application No. 04-4644 which is for the use of the existing four-bedroom dwelling house presently used as a permanent group home at 11 Fullam Road, Blacktown, as a transitional group home for 10 people.

2 The rectangular shaped site comprises Lot 50 DP 21882 and has an area of 563 sq m. The locality in which the site is situated is predominantly residential in nature, mainly comprising detached dwelling houses. There is a small group of local shops and a small park opposite.

3 Relevantly applicable planning controls comprise State Environmental Planning Policy No. 9 Group Homes (“SEPP 9”), Blacktown Local Environmental Plan 1988 (“the LEP”), Blacktown Development Control Plan 2006.

4 The site is zoned Residential 2(a) under the LEP in which zone the proposal is permissible with development consent. The proposal is also permissible pursuant to SEPP 9.

5 The application was advertised and council received a petition with 16 signatures plus one separate objection whose author also signed the petition.

6 The application was refused by the council by notice of determination dated 11 October 2005 for reasons relating to insufficiency of information including uncertainty as to the maximum number of occupants likely to reside on the premises and insufficient off-street car parking.

7 The Statement of Issues provided by the respondent council identifies in essence the following issues:

• the maximum number of persons to be accommodated in the house;
• the provision of off-street car parking;
• Issues raised by objectors: dwelling size for 10 persons; antisocial behaviour; and management and maintenance.

8 The case began on site when I heard from a number of neighbours. Concerns expressed by these residents include the excessive number of people in the small dwelling house; the likely antisocial behaviour of the residents; and possible threats to children. Two residents supported the proposal contending that in the past few problems had arisen and that generally the residents of the group home were decent people.

9 Having considered the council’s position in relation to the application and having considered all of the materials provided for the Court including the evidence of Mr G Apps a council town planner, I agree that conditional development consent should be granted. Such conditions should basically limit the number of residents to eight and require the provision of two off-street car parking spaces.

10 Mr Apps supported these conditions although he believed 3 car parking spaces should be provided. In his oral evidence he agreed that the eight resident limit could be extended to 10 people in an emergency subject to the extra people being children and subject to the emergency request being made by the police or the Department of Community Services.

11 Mr Walton rejected both of these conditions. He said that the eight plus two residents emergency arrangement was in effect equal to the 10 person limit that he was seeking and as a consequence the limit should be raised to 10. In this regard Mr Apps said that whilst the four bedrooms could physically accommodate 10 people he was nevertheless concerned that overall, the house was simply too small for 10 people. In this regard he referred to the relatively small size of the common living spaces and the fact that there is only one bathroom and one toilet.

12 In this regard I have been persuaded by Mr Apps’ evidence that, on a long term basis, 10 people in this house, especially as they will be largely unrelated, would amount to overcrowding. I will therefore impose the condition as suggested by the council but I do not accept that the extra two people needs to be limited to children taking into account Mr Walton’s evidence as to the need for flexibility.

13 In relation to car parking Mr Apps said that the DCP requirement of one space per three beds should be interpreted to be one space per three people. Whilst I understand his logic I am not so sure that the standard can so easily be set aside. He also explained that three spaces should be provided including one tandem space even though tandem spaces are normally not permitted.

14 Mr Walton argued that three car parking spaces was excessive and that one would be sufficient given that the people who come to the home usually include children and are usually very poor and do not have cars. He also referred me to SEPP 9 which in effect requires such homes to be treated as a dwelling house which would otherwise only require one parking space.

15 Applying the DCP requirement as it is written the six beds in the premises would generate a need for two cars. Taken this together with what I accept from Mr Walton as to the low incidence of car ownership by residents it is my opinion that in all of the circumstances a provision of two car parking spaces would be reasonable, noting that the site is able to readily accommodate two car parking spaces. This is in part evidenced by the applicant’s plans and my inspection of the site.

16 The orders of the Court are therefore that:

1. The appeal is upheld.
2. Development Application No. 04-4644 for the use of the 4 bedroom dwelling house at 11 Fullam Road, Blacktown, as a transitional group home pursuant to State Environmental Planning Policy No. 9 – Group Homes is determined by the granting of development consent subject to the conditions in Annexure “A” hereto.
3. Exhibit 1 is retained.

___________________
T A Bly
Commissioner of the Court
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