Willis V Hornsby Shire Council

[2007] NSWLEC 98

Land and Environment Court

of New South Wales

CITATION:	Willis V Hornsby Shire Council [2007] NSWLEC 98
PARTIES:	APPLICANT Kenneth Willis RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	11103 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- use of an existing shop for a medical centre - need for a disabled car parking space
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Hornsby Shire Local Environmental Plan 1994
DATES OF HEARING:	23/02/07
EX TEMPORE JUDGMENT DATE:	23 February 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr D Williams, solicitor SOLICITORS Whitehead Cooper Williams RESPONDENT Mr K Webber, solicitor SOLICITORS Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

23 February 2007

11103 of 2006 Kenneth Willis V Hornsby Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Hornsby Shire Council (the council) of Development Application No. 1211/2006 to use an existing shop for a medical centre at 165 - 167 Pacific Highway, Hornsby (the site).

2 The proceedings were heard as an On Site Hearing on 23 February 2007 and the judgement reflects the contents of the Statement of Basic Facts and the findings given on-site.

3 The site has an area of 374 square metres and contains an existing shop that was previously occupied as a video store on the ground floor. Two residential units are located on the first floor. Rear access is available across adjoining properties by way of an easement from Dural Lane.

4 The site located within the West Precinct of the Hornsby Town Centre. The existing building is a heritage item of local significance and is located within the Hornsby West Side Heritage Conservation Area. The locality consists predominantly of two-storey attached commercial buildings.

5 The site is zoned Business F (Town Centre) under Hornsby Shire Local Environmental Plan 1994. The proposed use is permissible with consent within this zone.

6 Hornsby Shire Access and Mobility Control Plan (the Access DCP) applies. The Car Parking for People with a Disability Element is relevant. The element objective is "to provide car parking for people with disabilities that is of a suitable dimension and located to link it with access pathways". The relevant prescriptive measure refers to Table 4 for the provision of parking spaces. Table 4 requires 3% of the recommended number of car parking spaces be provided for people with a disability. In this case 27 spaces are required therefore 1 space is to be provided for people with a disability.

7 The Access Route and Building Entrance Element is also relevant. The element objective is "to ensure routes and entrances to buildings from public places are accessible to people with disabilities". The relevant prescriptive measure requires continuous unobstructed parts of travel to be provided from open space areas, car parks, set down areas to public entrances.

8 There are number of other planning documents that relate to the site however none relate to the issues raised by the council in this appeal.

9 The council filed a Statement of Issues that contained the single issue of the non-provision of a car parking space and consequent appropriate access for people with a disability.

10 Mr Ken Willis, a town planner provided evidence for the applicant and Ms Rita Baker, also a town planner provided evidence for the council. They provided a joint statement. Mr Willis stated that the public car parking spaces are provided nearby and provide good access to the site. In an ambulance is required to attend the site, Dural Lane would provide easy and level access to the site.

11 Ms Baker relies heavily on the provisions of the Access DCP. She maintains that the disabled car parking should be provided in the area at the rear of the site with access from Dural Lane. She notes that the public car parks in the area do not satisfy the demand for car parking. Additionally, Ms Baker states that the public disabled car spaces are not within a satisfactory distance from the site and do not provide safe access.

12 With the benefit of the view of the site and surrounding area and balancing evidence of Mr Willis and Ms Baker, I am satisfied that the additional disabled car parking space required by the council is not necessary for a number of reasons. Firstly, the Access DCP applies primarily to new buildings although I note that in certain circumstances existing buildings may need to comply.

13 Secondly, the existing public disabled car parking spaces are conveniently located to the site. Two spaces are located in Station Street, less than 50 metres from the site and with level access provided via controlled pedestrian lights across the Pacific Highway. The other two spaces are located in public car parks behind the site with access off Dural Lane. These spaces are located less than 100 metres from the site and while the access along Dural Lane or William Street is sloping it is not excessive. As a guide, cl 25 of State Environmental Planning Policy (Seniors Living) 2004 provides that if certain facilities are located not more than 400 metres from the site than access to these facilities is deemed to be satisfactory.

14 Thirdly, the site is located in very close proximity to a major bus interchange and Hornsby railway station that provides disabled access from the platforms.

15 Fourthly, Mr Willis states that the owner of the site (and other owners in the area) have made monetary contributions to the council over time for the acquisition of land for car parking that presumably includes disabled car parking spaces.

16 Overall, I am satisfied that the absence of a dedicated disabled car parking space at the rear of the site will not significantly impact on the ability of disabled persons to access to the site. For the reasons mentioned in the preceding paragraphs I accept that the relevant objectives of the Access DCP are satisfied.

17 As additional plans were required to more accurately reflect the development application and amendments were required to the councils draft conditions of consent, directions were given for the filing of these documents. The conditions that identified the plans and reflected the findings in the judgment were filed on 1 March 2007.

18 The Orders of the Court are:

1) The appeal is upheld.
2) Development Application No. 1211/2006 to use an existing shop for a medical centre at 165 - 167 Pacific Highway, Hornsby is approved subject to conditions in Annexure A.
3) The exhibits are returned.

____________
G T Brown
Commissioner of the Court