Development Application: Pre-schoolchildcare centreminimum lot widthparking and trafficcl4.6 requests to vary development standards with respect to minimum lot width and floor space ratio129 LGERA 195
Wehbe v Pittwater Council [2007] NSWLEC 827
Judgment (27 paragraphs)
[1]
Background
COMMISSIONER: Lisa Wilson (the Applicant) has appealed a decision by Canterbury Bankstown Council (the Respondent) on 21 December 2016 to refuse her development application (DA_1075/2016) for the alterations and additions to an existing dwelling and granny flat at 68 Neville St, Bass Hill (the Subject Site), for use as a 25 place pre-school for children aged 3-6 years old. The Subject Site is formally identified as Lot 4 in DP 236958.
The proposed development includes:
1. on the ground floor: 90m² of playroom for 25 children, a children's bathroom, and an existing kitchen storage area;
2. on the first floor: two (2) bathrooms and 107 m² of ancillary administration storage space;
3. within the rear yard: the use of an existing and approved secondary dwelling as a staff room, including a bathroom and 32m² of 'ancillary educational learning facility', as well as 200m² of outdoor play space;
4. two (2) new vehicle crossings at the front of the Subject Site, each of 3.3m width, along with the removal of an existing vehicle crossing;
5. the provision of two (2) car parking spaces on the proposed driveway for the purposes of parent drop-off and pick-up;
6. new landscaping in the front setback of the Subject Site;
7. the provision of three (3) staff car parking spaces, to be located within the existing informal parking area to Neville Reserve, opposite the Subject Site, and on the southern side of Neville Street.
8. the provision of a pedestrian refuge and footpath extension at the intersection of Thornton Avenue and Neville Street to facilitate crossing of Neville Street by staff, and other pedestrians;
9. a plan of management which will facilitate, inter alia, the management of car parking arrangements in relation to the proposed development.
The appeal comes to the Court pursuant to section 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
On 23 August 2017, the Applicant was granted leave by the Court to rely on amended plans and documents, including a traffic report prepared by Mr Craig McLaren, and two written requests to vary development standards under the provisions of cl4.6 of the Bankstown Local Environment Plan 2015 [BLEP].
The appeal was the subject of a conciliation conference under s34 of the LEC Act on 21 July 2017.
An inspection of the Subject Site was undertaken as part of the hearing, during which one objector, Mr Patrick Ferry, a resident of Cole Place, made a submission.
Mr Ferry's principal concern related to the potential for the proposed development to generate car parking in Cole Place with the consequence that parked cars could block access to and from his driveway in that street.
[2]
Environmental Planning and Assessment Act 1979
Section 79C(1) of the EP&A Act states:
"79C Evaluation
(1) Matters for consideration--general
In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and
(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.".
Section 79C(3A) Development Control Plans of the EP&A Act further provides that:
If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.
[3]
State Environmental Planning policy (Educational Establishments and Child Care Facilities) 2017
The proposed development is subject to the requirements of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the SEPP), which came into force on 1 September 2017.
Schedule 5 of the SEPP includes savings and transitional provisions, including the following:
(1) This policy does not apply to or in respect of the determination of a development application made under part 4 of the Act, but not finally determined before the commencement of this Policy;
(2) Despite subclause (1), before determining a development application referred to in that subclause for the development for the purpose of a centre-based childcare facility, the consent authority must take into consideration the regulatory requirements and the National Quality Framework Assessment checklist set out in Part 4 of the Childcare Planning Guideline, in relation to the proposed development.
The development application in this appeal was lodged on 11 November 2016 and was not finally determined before the commencement of the SEPP. Consequently, the SEPP does not apply in respect of the determination of the Applicant's development application.
Notwithstanding this, the draft SEPP was available prior to the determination of the development application and it had been the subject of public consultation, and so to the provisions of the draft SEPP is a relevant consideration under s79C(1)(a)(ii) of the EP&A Act. Consequently, the SEPP merits weight in relation to this appeal. The degree to which this weight might be considered is discussed below at [49] to [55].
The SEPP facilitates the effective delivery of educational establishments and early education and care facilities across NSW, including centre based childcare facilities such as the pre-school proposed in this appeal, and it makes the following specific provisions:
1. Cl8 of the SEPP requires that if there is an inconsistency between the SEPP and another environmental planning instrument, made before or after the commencement of the SEPP, the SEPP prevails to the extent of the inconsistency.
2. Cl23 of the SEPP provides that, before determining a development application for development for the purpose of a centre based childcare facility, the consent authority must take into consideration any applicable provisions of the Childcare Planning Guideline (the Guideline) in relation to the proposed development.
3. As identified above at [11], Schedule 5 cl1(2) requires that a consent authority, or the Court on appeal, must take into consideration the regulatory requirements and the National Quality Framework Assessment checklist set out in Part 4 of the Childcare Planning Guideline, in relation to the proposed development.
1. The checklist addresses the adequacy of the design of a centre based childcare facility with respect to various operational considerations including the fencing and barriers, laundry and hygiene facilities, the design of indoor and outdoor spaces, toilet facilities, ventilation and natural light, administrative space, nappy changing facilities, and the manner in which facility design supports supervision of children.
2. The adequacy of the proposed development's design in relation to these matters was not challenged within the hearing, and was not the subject of a contention raised by the Respondent in these proceedings.
3. Having reviewed the amended plans I am satisfied that the requirements of the checklist have been adequately addressed by the Applicant.
1. Cl25 of the SEPP provides certain non-discretionary development standards in relation to centre-based childcare facilities. The object of this clause is:
to identify development standards for particular matters relating to a centre based child-care facility that, if complied with, prevent the consent authority from requiring more standards for those matters.
1. The non-discretionary development standards provided under cl 25 of the SEPP include that a centre based childcare facility development may be located on a site of any size and have any width to street frontage or any allotment depth.
2. This provision of the SEPP was contained in the public consultation draft of the policy within that draft's clause 23(2)(c).
1. Cl26 of the SEPP sets out the relationship between the provisions of the SEPP and relevant provisions of a development control plan. This clause provides:
(1) a provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like of children) does not apply to development for the purpose of a centre based childcare facility.
1. The clause goes on to note that it applies to:
(d) any matter relating to development for the purpose of a centre based child-care facility contained in:
(ii) the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 for of the Guideline other than those concerning building height, side and rear setbacks or car parking rates).
[4]
Bankstown Local Environment Plan 2015
Development on the Subject Site is subject to the Bankstown Local Environment Plan 2015 (BLEP).
Under BLEP the Subject Site is zoned R2 Low Density Residential. The proposed development for a pre-school is permissible with consent in this zone.
The objectives of the R2 zone are to:
provide for the housing needs of the community within a low density residential environment.
enable other land uses that provide facilities or services to meet the day to day needs of residents.
allow for certain non-residential development that is compatible with residential uses and does not adversely affect the living environment or amenity of the area.
allow for the development of low density housing that has regard to local amenity
require landscape as a key characteristic in the low density residential environment.
Cl2.1(2) of BLEP 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.
Cl4.1B of BLEP provides minimum lot sizes and special provisions for certain dwelling types. The objectives of this clause are to:
(a) to ensure that lots for residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas
(b) to ensure that multi-dwelling housing and boarding houses in zone R2 Low Density Residential retain the general low density scaling character of existing single dwelling development
(c) to ensure that lots for non-residential accommodation are as of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, play areas, pedestrian access, sat down and pick up areas, car parks, driveways and vehicle manoeuvring areas
(d) to minimise any likely adverse impact of development on the amenity of the area
(e) where an existing lot is inadequate in terms of its area or width - to require the consolidation of two or more lots.
Cl4.1B (2) of BLEP provides that:
(2) despite any other provision of this plan, development consent must not be granted to development on the lot in a zone shown in column 2 the table to this clause for a purpose shown in column 1 of the table opposite that zone unless:
(a) the area of the lot is equal to or greater than the area specified for that purpose as shown in column 3 of the table, and
(b) the width of the lot at the front building line is equal to or greater than the width specified for that purpose as shown opposite in column 4 of the table.
The table in cl4.1B(2) provides that child-care centres in zone R2 Low Density Residential, should have a minimum lot width of 20m at the front building line of the proposed development.
The lot width of the Subject Site is 15.94m at the front building line of the existing dwelling on the site, which is less than the 20m width prescribed under BLEP.
This Cl4.4 of BLEP provides the maximum floor space ratio (FSR) applicable to various types of development within the former Bankstown LGA. The objectives of this clause are:
(a) to establish the bulk and maximum density of development consistent with the capacity and character of the locality of a development site,
(b) to ensure the bulk of non-residential development in or adjoining a residential zone is compatible with the prevailing suburban character and amenity of the residential zone,
(c) to encourage lot consolidations in commercial centres to facilitate higher quality built form and urban design outcomes.
Under cl4.4(2A) of BLEP the maximum floor space ratio for residential development on land zoned R2 Low Density Residential is 0.5:1, but for non-residential uses is 0.4:1. The FSR of the existing dwelling on the Subject Site is 0.48:1, which complies with the FSR control for residential uses, but exceeds the FSR control for non-residential uses in the R2 zone.
Notwithstanding these non-compliances with the lot width and FSR development standards, cl4.6 of BLEP provides for circumstances in which exceptions may be sought to development standards. The objectives of cl4.6 are:
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development;
(b) to achieve better outcomes for and from development by allowing flexibility
in particular circumstances.
Cl4.6(2) of BLEP provides that:
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
The lot width and FSR development standards are not expressly excluded from the operation of cl4.6(2).
Cl.4.6(3) of BLEP provides that:
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:
(a) that compliance with the development standard is unreasonable or
unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify
contravening the development standard.
The Applicant has submitted written requests under cl4.6 of BLEP to vary the lot width and FSR development standards applicable to the proposed development.
In considering a written request made under cl4.6, the provisions of cl4.6(4) and cl4.6(5) are relevant. These are:
(4) Development consent must not be granted for development that contravenes a development standard unless:
(a) the consent authority is satisfied that:
(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
(b) the concurrence of the Director-General has been obtained.
(5) In deciding whether to grant concurrence, the Director-General must consider:
(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the development standard, and
(c) any other matters required to be taken into consideration by the Director-General before granting concurrence.
[5]
Bankstown Development Control Plan 2015
The proposed development is subject to the provisions of the Bankstown Development Control Plan 2015 (BDCP), which supplements BLEP by providing additional objectives and development controls to enhance the function, appearance and amenity of development in the City of Bankstown..
Part 5A Parking of the BDCP complements the requirements of BLEP by providing additional objectives and development controls to enhance the function and appearance of off-street parking.
The objectives for off-street parking in BDCP Part 5 are:
(a) to have car parking meet the demands generated by various land uses
(b) to have traffic flows that do not adversely affect the surrounding area due to vehicles parked on the streets.
(c) to have minimal on-street car parking in order to ensure road safety and visual aesthetics
The requirements for off-street parking in relation to a proposed child-care centre are provided in cl2.1 of Part 3 of BDCP and are that one off-street car space should be provided per employee. In the case of the proposed development in this appeal, this would equate to an off-street parking requirement of three (3) spaces.
BDCP Part 5 also provides (under cl5.8) requirements of the site distances for vehicles exiting driveways. This clause says that:
for all development, adequate sight distance must be provided for vehicles exiting driveways. Clear sightlines are to be provided at street boundary to ensure adequate visibility between vehicles on the driveway and pedestrians on the footway and vehicles on the roadway. Refer to Australian standard 2890.1 for minimum sight distance requirements.
BDCP Part 6 complements the requirements of BLEP by providing additional objectives and development controls to enhance the function and appearance of child-care centres
This part of the BDCP reinforces the requirements of:
1. BLEP with respect to lots requiring a minimum 20m street frontage for licenced places in the childcare centre of up to 29 children (cl 3.2), and
2. BDCP in relation to off street parking (cl 3.13), which mirrors the requirements identified at [34].
Part 6 of BDCP also provides that :
1. child-care centres with 29 children or less in zone R2 low density residential areas may be located in an existing dwelling house, as is proposed in this development application (cl. 4.4).
2. the minimum setbacks for childcare centres in land zoned R2 Low Density Residential (cl3.6), with which the proposed development complies, should be:
1. 5.5 m to the primary road frontage;
2. 3 m to a secondary road frontage; and
3. 1.5 m to the side boundaries.
1. child-care centres in land zoned R2 low density residential should include:
1. a minimum 2m metre wide deep soil zone along the primary road frontage and any secondary road frontage of the allotment; the
2. a minimum 1.5 m wide deep soil zone around the primary outdoor play area to act as a buffer to the fence, provide spatial separation to neighbouring properties and enhance the aesthetic quality of the space.
1. the maximum height for noise attenuation walls and fences along the boundary of an allotment is 2m (cl5.3);
2. Council may require the operator of a childcare centre in zone R2 Low Density Residential to organise and chair a neighbourhood liaison committee.
1. The purpose of the committee is for the operator and neighbours to resolve any issues, such as traffic and noise, arising from the operation of the childcare centre in such a way as to inform the development of management plans for the centre.
2. A neighbourhood liaison committee is included as part of the plan of management for the proposed.
Notwithstanding the above requirements of BDCP, under the provisions of s79C(3A), if a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(b) ,if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.
[6]
Childcare Planning Guideline 2017
The SEPP provides that a consent authority must take into consideration the Childcare Planning Guideline 2017 (the Guideline) when assessing a development application for a centre based child-care facility such as the pre-school that is the subject of this appeal.
Notwithstanding the requirements of BDCP, the SEPP also provides that the Guideline will take precedence over a development control plan with some exceptions. These exceptions relate to building height, rear and side setbacks and car parking rates.
The Guideline identifies matters for consideration in relation to planning of centre based childcare facilities. These include:
1. site selection and location, including
1. traffic and parking impacts of the proposal on residential amenity (Site selection and location: consideration C1);
2. the characteristics of the site in relation to its suitability for the scale and type of development proposed, including in relation to:
1. the size of street frontage, lot configuration, dimensions and overall size (consideration C2);
2. there being suitable drop-off and pick-up areas, as well as off-, and on-, street parking (consideration C2);
1. traffic parking and pedestrian circulation, including
1. that a combination of design and management plans can be used to avoid conflicts between children, visitors and users of the facility and the requirements for on-, and off-, street parking.
2. that car parking rates are generally measured as a function of capacity, that is spaces per number of children and staff. The capacity of a facility will be determined by several factors that are dictated by compliance with the requirements of the national regulations. In this regards, the Guideline says that:
1. off-street car parking should be provided at rates for childcare facilities specified in a development control plan that applies to the land (consideration C31)
2. a reduction in car parking rates may be considered where there is sufficient on-street parking available at appropriate times within proximity of the site (consideration C31)
1. design solutions may be incorporated into a development to help provide a safe pedestrian environments (consideration 36), including:
1. separate pedestrian access from the car park to the facility,
2. vehicles entering and leaving the site in a forward direction,
1. carparks should be designed to provide clearly marked accessible parking as close as possible to the primary entrance to the building in accordance with Australian standards.
[7]
RTA Guide to Traffic Generating Developments
The RTA's Guide to Traffic Generating Developments (the RTA Guide), published in October 2002, provides, inter alia, the parking requirements for specific land uses.
In relation to parking requirements for childcare centres, the RTA Guide provides the following:
1. off-street parking must be provided at a rate of one space for each four children in attendance;
2. given the short length of stay (the RTA surveys found an average length of stay 6.8 minutes) parking must be provided in a convenient location, allowing safe movement of children to and from the centre;
3. consideration could be given to reducing parking required where convenient and safe on-street parking is available, provided that the use of such parking does not adversely affect the amenity of adjacent areas.
[8]
Matters for resolution in this appeal
The principle matters for resolution in this appeal relate to the:
1. proposed development's breach of lot width and FSR development standards (see above at [22] and [24]), and the Applicant's written requests to vary these standards;
2. the adequacy of proposed traffic and parking arrangements;
3. the adequacy of landscaping proposals in the front set back ;
4. the acceptability of the proposed pedestrian refuge and footpath extension at the intersection of Thornton Avenue end of Neville Street
5. the adequacy of the plan of management for the proposed development.
Also, as discussed above at [13], the provisions of the SEPP merits weight in relation to the Court's consideration of the Applicant's proposed development.
Given the above, my approach to this judgment has been to consider first the matter of the weight that should be afforded to the SEPP in this appeal, then to consider the Applicant's two requests to vary development standards for lot width and FSR under cl4.6 of BLEP 2015, before finally considering the evidence in relation to the merits of the Applicant's proposed traffic and parking arrangements, landscaping proposal, proposed pedestrian refuge and footpath extension at the intersection of Thornton Avenue end of Neville Street, and plan of management.
In doing so, I have structured the judgment to address the following questions:
1. What weight should be given to the SEPP in this appeal?
2. Should the Applicant's cl4.6 requests to vary the lot width and FSR development standards in BLEP be upheld?
3. Are the Applicant's parking arrangements in the proposed development acceptable?
4. Are the Applicant's landscaping plans for the proposed development acceptable?
5. Should the applicant's proposal for a pedestrian refuge and footpath extension at the intersection of Thornton Avenue end of Neville Street be supported?
6. Is the applicant's plan of management for the proposed development acceptable?
[9]
What weight should be given to the SEPP in this appeal?
The Applicant submitted that, notwithstanding the savings provisions within Schedule 5 of the SEPP, the provisions of the SEPP should be given weight in this appeal because the draft SEPP was publically exhibited between 3 February 2017 to 7 April 2017, and so had been the subject of community consultation.
In support of this, the Applicant referred the Court to the case of Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289; 129 LGERA 195 (Terrace Towers) in which Spigelman CJ had stated that:
5 Mason P outlines the line of authority in the land and environment court to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its 'certainty and imminence'. I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to the draft.
6 Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application that does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and weight in this respect.
In the same case, Mason P had held, in relation to the draft SEPP at issue in that case, that:
76 A published draft SEPP is undoubtedly something which may be taken into account to the extent that it is relevant (see s79C(1)(ii).
78… A transitional provision in this form does not force the consent authority to shut its eyes to otherwise relevant provisions of the draft planning instrument.
81 in any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published in climate are planning instruments, draft or final, …
The savings provisions in Schedule 5 of the SEPP (see [11]) requires that it must not be applied to, or in respect of, the determination of the development application as it is an application made under part 4 of the Act, but not finally determined before the commencement of the SEPP.
Given this, the provisions of the SEPP should not override the provisions of BLEP where there is an inconsistency between the provisions of these instruments, and consequently, I find that I am required to consider whether the Applicant's written request to vary the development standard for lot width under BLEP satisfactory addresses the requirements of BLEP cl4.6.
Notwithstanding this, based the comments of Spigelman CJ and Mason P in Terrace Towers, I also accept that the SEPP can and should be afforded weight in the Court's considerations in this appeal.
The SEPP requires that the provisions of the Guideline be considered in relation to a development application. Under the SEPP, the provisions of the Guideline would override the provisions of a DCP applicable to a development on the Subject Site to the extent of inconsistency between the two documents.
However, as the SEPP does not have determinative weight in relation to the application, I am of the view that the provisions of the Guideline cannot override the provisions of the BDCP 2015 where these provisions are in conflict.
[10]
Should the Applicant's cl4.6 requests to vary the lot width and FSR development standard be upheld?
The Applicant's expert town planner, Mr Michael Oliver, had prepared written requests seeking to vary the lot width and FSR development standards in BLEP under cl4.6 of that instrument. These requests were tendered as evidence at the hearing.
Cl4.6 of BLEP operates as a precondition to the exercise of power to grant consent and unless I am satisfied that the precondition has been met consent cannot be granted to the Applicant's proposed development.
Mr Oliver, and the Respondent's town planning expert, Ms Kirsty Bova, had prepared a joint expert report on town planning issues that was tendered as evidence during the hearing. The town planning experts also provided expert testimony during the hearing in relation to the Applicant's cl4.6 requests and other planning matters.
In assessing the Applicant's cl4.6 requests to vary the development standards for lot width and FSR in BLEP, I will first summarise the requirements for the consent authority's consideration of these requests, which also apply to the Court on appeal. I will then consider each of the Applicant's cl4.6 requests.
[11]
Requirements for consideration of cl4.6 requests
Under cl.4.6(3) of BLEP, a consent authority must not grant consent unless the consent authority has considered a written request from the applicant seeking to justify the contravention of the development standard by demonstrating:
1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
2. that there are sufficient environmental planning grounds to justify contravening the standard.
In addition, under cl4.6(4) of BLEP, the consent authority must also be satisfied that:
1. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for the development within the zone in which the development is proposed to be carried out.
In assessing whether compliance with the standard is unreasonable and unnecessary, it is appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 (Wehbe) in which His Honor identified five pathways that could be applied to establish whether compliance is unreasonable or unnecessary.
These are to establish that:
1. compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary;
3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable;
4. the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable;
5. "the zoning of particular land" was "unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary.
In order that a request to vary a development standard be upheld, it is only necessary that the Applicant should succeed in demonstrating that compliance with the development standard is unreasonable or unnecessary under one of these pathways.
In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7, Preston CJ also noted that a Commissioner does not need to be satisfied directly that compliance with the development standard is unreasonable or unnecessary, but only indirectly.
[12]
Should the Applicant's cl4.6 requests to vary the lot width and FSR development standard be upheld?
The Respondent had contended that the Subject Site was of insufficient width to accommodate proposed pre-school because it could not provide sufficient area for vehicle manoeuvring in the proposed off street driveway nor sufficient parking spaces without giving rise to adverse impacts on the amenity of the area.
As noted at [45(5)], the Applicant had submitted a written request to vary the development control for lot width. This relied on the first and third of the five pathways in Webhe, and discussed above at [64], to demonstrate that compliance with the development standard is unreasonable or unnecessary because:
1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard, and
2. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable.
In relation to the first of the pathways, the Applicant's request considered, in detail, the response of the proposed development to each of the five objectives for lot width identified at [19], and noted that, because the development did not propose residential use or multi-dwelling housing, the proposed development did not compromise the achievement of objectives (a) and (b), and compliance with the development was unnecessary in these circumstances.
The written request identified, correctly in my view, that the most relevant lot width development standard objectives for consideration in this appeal in were:
(c) to ensure that lots for non-residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, play areas, pedestrian access, set down and pick up areas, car parks, driveways and vehicle manoeuvring areas; and
(d) to minimise any likely adverse impact of the development on the amenity of the area.
In relation to objective (c), the Applicant submitted the objective would be achieved, because:
1. the proposed development included:
1. significant additional landscaping including new trees and shrubs both in front of the existing building and to its rear;
2. appropriate play areas;
3. suitable pedestrian access;
1. based on the report of the Applicant's expert traffic engineer, Mr McLaren, the proposed development could accommodate, without interference to local amenity,
1. adequate parking, both on and off street;
2. sufficient overflow drop-off parking;
3. driveway and manoeuvring areas that were capable of being used safely by the anticipated vehicle type and number.
In relation to objective (d), the Applicant submitted the objective would be achieved and that the development would not give rise to any adverse impact on the amenity of the area because:
1. there would be no built form impacts as the proposal involves the conversion of an existing building;
2. the parking demand would be met through a combination of off-street and on-street parking;
3. no parking permitted on Cope Place under the proposed plan of management for the development;
4. vehicular and traffic upgrades recommended by the Applicant's traffic expert Mr McLaren would have positive environmental impacts in the local area;
5. any acoustic impacts would be within acceptable limits;
6. the installation of a two (2) metre acoustic fence to the side and rear boundaries of the proposed outdoor play space would ensure that acoustic and visual privacy to adjoining residential dwellings was maintained;
7. proposed landscaping would result in an improvement to the streetscape;
8. the provision of a pre-school would have a positive impact on the amenity of the area through the provision of a service to meet the needs of the local community.
In relation to objective (e) of the standard, the Applicant's request said, and I agree, that the proposed development is able to be accommodated on the existing lot while meeting all other objectives of the standard, and so consolidation with an adjoining block is not required, and so the objective is achieved.
Therefore, I am satisfied that compliance with the lot width development standard in BLEP is unreasonable or unnecessary in this case because the objectives of the development standard are achieved by the proposed development notwithstanding its non-compliance with that standard.
As a consequence of fulfilling the requirements of the first pathway, I do not need to consider the Applicant's proposed, and partial, reliance on the third pathway in Wehbe in relation to demonstrating that compliance is unreasonable and unnecessary because the objective or purpose would be defeated or thwarted if compliance was required.
The Applicant also submitted that there were sufficient environmental planning grounds to justify contravening the lot width development standard because:
1. the site is suitable for the proposed development by reason of:
1. the existing improvements on the site which are well suited to the conversion of the existing dwelling for use as a pre-school;
2. the retention of the existing residential structures which will ensure that the preschool facility is consistent the character and built form of the streetscape and locality;
3. the indoor and outdoor areas available on the site which are sufficient to support its proposed use as a child care facility 25 children in accordance with the applicable childcare regulations;
4. the site being well located close to existing public open space areas, including Neville Reserve;
5. the site being within walking distance of Bass Hill Public School and so likely to prove a convenient facility for families with children of different ages, some of which may require the services of the proposed pre-school facility;
6. there being adequate on street parking available in the immediate vicinity of the Subject Site during its proposed operating hours;
7. off-street drop off and pick up parking, which is able to be provided by the proposed development whilst allowing sufficient space to accommodate separate pedestrian access and landscaping that make a positive contribution to the streetscape.
1. the proposed development would not give rise to any adverse environment impacts while meeting the education and care needs of existing and future families within the local community.
Having considered the above points, I have concluded that the Applicant's written request has provided sufficient environmental planning grounds to justify the proposed contravention of the lot width development standard in BLEP.
Finally, the Applicant's written request submitted, and I agree, that the proposed development is consistent with the objectives of the objectives for the development within the R2 zone in which the development is proposed to be carried out, in particular the objectives to:
1. enable other land uses that provide facilities or services to meet the day to day needs of residents.
2. allow for certain non-residential development that is compatible with residential uses and does not adversely affect the living environment or amenity of the area.
Notwithstanding that my consideration of the merits of the Applicant's proposed parking arrangements for the pre-school is provided below (see [97] to [153]), I am satisfied that the Applicant's written request has adequately addressed the requirements of BLEP cl4.6, and that, notwithstanding the contravention of the lot width development standard, the proposed development would be in in the public interest.
I am also of the opinion that:
1. the contravention of the lot width development standard does not raise any matter of significance for State or regional environmental planning; and
2. there is no public benefit in maintaining the development standard in the circumstances of this proposed development.
I conclude that the Applicant's cl4.6 request under BLEP to vary the development standard concerning lot width should be upheld.
[13]
Should the Applicant's cl4.6 request to vary the FSR development standard be upheld?
As noted at [24], the proposed development exceeds the FSR control applicable to the Subject Site for non-residential uses. The Applicant said that while the existing structures on the Subject Site were compliant with the FSR control for a residential development, the extent of the non-compliance under the non-residential standard was 55.6m2.
The Respondent contended that the FSR exceedance had the consequence that an area dedicated to administration storage on the upper floor of the proposed development was excessive and was capable of accommodating additional children leading to an increase in the requirements for off-street parking associated with the development.
In her evidence at the hearing, the Applicant's town planning expert, Ms Bova, expressed a concern that of the floor space ratio could give rise to a risk that the additional floor space would be used by the Applicant for residential accommodation or for the carrying out of a separate business. She noted that such uses could result in unacceptable impacts or in a use of the Subject Site that was not permitted under BLEP.
However, the Applicant's expert town planner Mr Oliver noted, and I agree, that it would not be appropriate to assess the development on the basis of one or more hypothetical scenarios, but rather the Court must assess the development as proposed.
As noted at [45(5)], the Applicant had submitted a written request to vary the development control for FSR. This relied on the first and third of the five pathways in Webhe, and discussed above at [64], to demonstrate that compliance with the development standard is unreasonable or unnecessary because:
1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard, and
2. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable.
In relation to the first of the pathways, the Applicant's request considered, in detail, the response of the proposed development to each of the three objectives for lot width identified at [23] as follows:
1. In relation to objective (a), which aims to establish the bulk and maximum density of development consistent with the capacity and character of the locality of a development site, the Applicant said that:
1. the proposed development did not propose to add to the bulk or density of the existing buildings on the Subject Site;
2. the FSR of the dwelling house and granny flat on the Subject Site are compliant with the FSR for residential accommodation on the site;
3. as a consequence of point (b), the existing buildings are consistent with the built form and character of the site's locality, and so the proposed development achieves objective (a).
1. In relation to objective(b), which aims to ensure that the bulk of non-residential development in or adjoining a residential zone is compatible with the prevailing suburban character and amenity of the residential zone, the Applicant said that:
1. the proposed development does not seek to amend the bulk or built form of the existing dwelling as it presents to Neville Street;
2. by retaining and converting the existing residential dwelling for its intended use as a pre-school, the proposed development is compatible with the prevailing suburban character and amenity of the R2 zone;
3. as a consequence of point (b), the proposed development achieves objective (b).
1. In relation to objective (c), which aims to encourage lot consolidations in commercial centres to facilitate higher quality built form and urban design outcomes, the applicant said that:
1. the subject site is not located within a commercial centre and achievement of the objectives would not be compromised by the proposed development. In this regard, and while not explicitly identified as such, the Applicant argued that these objectives are not relevant to the development with the consequence that compliance is unnecessary, which is the second of the pathways available in Webhe.
Therefore, I am satisfied that compliance with the FSR development standard is unreasonable or unnecessary in this case because the objectives of the development standard are achieved by the proposed development notwithstanding its non-compliance with that standard.
Also as a consequence, I do not need to consider the Applicant's proposed, and partial, reliance on the third pathway is Wehbe in relation to demonstrating that compliance is unreasonable and unnecessary because the objective or purpose would be defeated or thwarted if compliance was required.
The Applicant also submitted that there are sufficient environmental planning grounds to justify contravening the standard because:
1. the proposed development is compatible with the bulk, scale and character of the surrounding locality;
2. the non-compliance with the standard does not arise through the construction of a new building but rather through the change in use of the Subject Site from residential to non-residential;
3. the change in use of the existing residential structures for the purpose of a childcare centre represents the orderly and economic use of the Subject Site;
4. strict compliance with the development standard would require unnecessary and inefficient physical works to reduce the gross floor area of the existing development on the site which would increase the costs of establishing and operating the proposed preschool with no benefit in terms of reducing environment impacts.
Having considered the above points I have concluded that the Applicant's written request has provided sufficient environmental planning grounds to justify the proposed contravention of the lot width development standard.
Finally, and as noted in relation to the request to vary the lot width standard, the Applicant's written request to vary the FSR control submitted, and I agree that the proposed development is consistent with the objectives for development within the R2 zone in which zone the development is proposed to be carried out, in particular the objectives to:
1. enable other land uses that provide facilities or services to meet the day to day needs of residents.
2. allow for certain non-residential development that is compatible with residential uses and does not adversely affect the living environment or amenity of the area.
I am satisfied that the Applicant's written request has adequately addressed the requirements of clause 4.6 of BLEP and that, notwithstanding the contravention of the FSR development standard, the proposed development would be in in the public interest.
I am also of the opinion that:
1. the contravention of the lot width development standard does not raise any matter of significance for State or regional environmental planning; and
2. there is no public benefit in maintaining the development standard in the circumstances of this proposed development.
I conclude that the Applicant's cl4.6 request to vary the development standard concerning lot width should be upheld.
[14]
Conclusion in relation the Applicant's requests to vary the lot width and FSR development standards
Having concluded that the Applicant's written requests to vary the lot width and FSR controls in BLEP should be upheld, I find that the requirements of BLEP cl 4.6 have been met and the remaining merits considerations within the appeal (see [48]) can be assessed.
[15]
Are the parking arrangements under the proposed development acceptable?
The Applicant's cl4.6 request to vary the lot width development standard relies upon, inter alia, the acceptability of the Applicant's proposed traffic and parking arrangements. These and other traffic related matters were the subject of an expert report prepared by the Applicant's expert traffic engineer, Mr Craig McLaren, who had also prepared a joint report with the Respondent's expert traffic engineer, Mr Oleg Sannikov. Mr McLaren and Mr Sannikov provided expert testimony during the hearing.
As identified at [2] there are two principal matters to be considered in relation to the adequacy of car parking within the proposed development. These are:
1. the proposed arrangements for staff car parking [2(7)]; and
2. the proposed arrangements for pick-up and drop-off of children attending the proposed centre [2(5)].
In addition, the Applicant has proposed that:
1. the plan of management for the preschool will include certain requirements related to parking.
I will consider each of these matters in turn.
[16]
Staff car parking
The staff car parking requirements associated with the proposed development are established under cl2.1 of BDCP which, as discussed at [34], provides that childcare centres will provide one car space per employee. The Parties agreed that this equates to an off-street parking requirement for the proposed development of three parking spaces.
Mr Sannikov said that, in his opinion, the staff parking arrangements for the proposed development were in breach of the requirements set out in BDCP and should not be supported.
The Applicant submitted that, given the configuration of the Subject Site, and the need for the proposed development to include off-street facilities for the pick-up and drop-off of children attending the pre-school it was not possible to meet the off-street parking required for staff under BDCP.
The Applicant proposed that, as an alternative to the requirements of the BDCP, the required staff parking be located on-street within the existing informal parking area adjacent to Neville Reserve, opposite the Subject Site and on the south side of Neville Street.
As noted at [39], s79C1(3A) of the EP&A Act requires that where a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority, if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards, is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.
The objectives of the car parking standard in BDCP were identified at [33] as:
(a) to have car parking meet the demands generated by various land uses
(b) to have traffic flows that do not adversely affect the surrounding area due to vehicles parked on the streets.
(c) to have minimal on-street car parking in order to ensure road safety and visual aesthetics.
Mr McLaren stated, in the joint report of the traffic experts, that he estimated that there were 54 car parking spaces available in Neville Street, including a large number of spaces adjacent to the Neville Park. He said that the use of the car parking adjacent to the Park was highest on weekends when the grounds within the reserve were used for sports. He noted that use of the car parking during the week was low, and he noted that this had been the case during the site inspection undertaken at the commencement of the hearing.
Mr McLaren said that the use of three of these spaces to meet the required three staff car parking spaces for the proposed development would not adversely affect the availability of car parking for other purposes in the area.
Mr McLaren added that RMS Guide encouraged applicants to consider reducing off-street parking required where convenient and safe on-street parking is available, provided that the use of such parking does not adversely affect the amenity of adjacent areas. He said that, in his opinion, the circumstances of the proposed development aligned with the circumstances anticipated within the RTA Guide.
Mr Sannikov concurred with the view of Mr McLaren, and said that, given the location of the proposed development, the proposed use of the parking spaces adjacent to Neville Park was acceptable.
Having considered the evidence of the traffic engineering experts, I agree that the proposed use of the parking spaces adjacent to Neville Park to meet the staff parking requirements of the proposed development is appropriate given the location of the Subject Site, the scale of operation of the proposed development, and the availability of parking in that area.
I am also satisfied that the proposal achieves the objectives of the standard for car parking in BDCP, and more specifically will:
1. meet the demands generated by the proposed development;
2. be consistent with traffic flows and will not adversely affect the surrounding area due to the staff vehicles parking on Neville Street; and
3. nevertheless minimise on-street car parking whilst ensuring that road safety and visual aesthetics are not compromised.
Consequently, I conclude that the Applicant's proposal to use of the parking spaces adjacent to Neville Park to meet the staff parking requirements of the proposed development is acceptable.
[17]
Arrangements for pick-up and drop-off of children
As noted at [2(5)], the proposed development includes the provision of two car parking spaces on the proposed driveway for the purposes of parent drop-off and pick-up of children. This proposal gives rise to the following two questions:
1. is the capacity proposed for the off-street parking capacity acceptable?
2. is the design of the proposed off-street parking acceptable?
Dealing first with the matter of capacity, BDCP does not require that car parking be provided for the drop-off or pick-up of children attending childcare centres.
However, the SEPP and the RTA Guide both provide guidance in relation to car parking requirements for drop-off and pick-up of children attending a childcare centre such as the preschool.
The SEPP, which is not determinative in this appeal but which, as I have discussed above, merits weight, requires (under cl23) that before determining a development application for a development for the purpose of a centre based childcare facility, the consent authority must take into consideration any applicable provisions of the Guideline in relation to the proposed development.
Section 3.1 (Site Selection and Location) of the Guideline sets out a number of matters for consideration in the selection of sites implications for childcare centres. These include:
1. traffic and parking impacts of the proposal on residential amenity (C1);
2. the size of street frontage, lot configuration dimensions and overall size (C2);
3. the provision of suitable drop-off and pick-up areas, and off-, and on-street parking.
1. More specifically, in relation to traffic, parking and pedestrian circulation, the Guideline requires that the following considerations be taken into account:
1. off-street car parking should be provided at the rates the childcare facilities specified in a development control plan that applies to the land.
1. As discussed above at [115], BDCP does not specify any rates for the calculation of car parking requirements for childcare facilities
1. where a development control plan does not specify car parking rates, off-street car parking should be provided at the following rates:
1. one space per four children in areas that are not within 400m a metropolitan train station.
The Parties noted that, as discussed at [44], the RTA Guide also provides, inter alia, recommendations on parking for specific land uses, including for childcare centres.
The RTA Guide, consistent with the requirements of the Guideline, recommends that off-street parking should be provided at a rate of one space for each four children in attendance at a childcare centre
The Parties agreed that a rate of one car space for each four children in attendance at the proposed preschool equates to a recommendation that six (6) car parking spaces be provided for the proposed development.
As noted at [103], the Applicant submitted that Subject Site is not able to meet a requirement for six off-street car parking places.
However, the Guideline provides that a reduction in car parking rates may be considered in a range of circumstances including where there is sufficient on-street parking available at appropriate times within proximity of the site
RTA Guide also says that consideration could be given to reducing parking required where convenient and safe on-street parking is available, provided that the use of such parking does not adversely affect the amenity of adjacent areas.
The evidence of Mr McLaren, as previously noted above at [107], was that there were 54 car parking spaces available on-street in the vicinity of the Subject Site, near Neville Reserve, and including more than 21 spaces on the same side of Neville Street as the Subject Site. Mr McLaren had also testified that these spaces are not heavily utilised during the week, and that their principal use was on the weekend, outside of the proposed hours of operation of the pre-school.
Mr McLaren's evidence in the joint report was that the on-site provision of two off-street car spaces was expected to meet the demand on most occasions and may only be exceeded in the mornings for a short period of time, provided that the turnover time of the car places with five (5) minutes.
Mr Sannikov acknowledged in the joint report of the traffic experts that he agreed with Mr McLaren's assessment on this point, although he questioned whether the inclusion of a requirement for a maximum stay of five minutes in these spaces, as proposed by the Applicant for the development, would be adhered to by parents.
Mr McLaren said that he agreed that the successful implementation of the plan of management would be an important element in achieving the desired functionality of the on-site parking spaces, including the achievement of the five minute turnover time for the off-street car spaces. However, he also noted that the use of a plan of management to achieve this outcome represented best practice in this regard.
Mr McLaren said that the plan of management should include provisions for the placement of appropriate and unobtrusive signage, indicating the maximum time for parking in off-street car spaces, and maximum vehicle speed, a requirement that parents should make appointments in advance where longer meetings with staff were required, and should specify that reversing within the driveway was not permitted. He recommended that these matters be required for inclusion within the plan of management as part of a condition of consent for the proposed development
Having considered the evidence of the experts, I agree the evidence of Mr McLaren on this matter that a plan of management, inclusive of the full suite of requirements to be communicated to parents, should be sufficient to support the efficient operation of the on-site parking, and that this be required as a condition of consent for the proposed development.
The Applicant proposed, and I agree, that this be given effect through the inclusion of a condition 63A within the Respondent's draft without prejudice conditions of consent.
In my view, it will be in the interests of parents to adhere to the requirements within the plan of management, and I am of the opinion that those requirements are not unreasonable.
Consequently, I satisfied that the provision of two off-street parking spaces, along with the availability of other parking on-street that is safe and in close proximity within Neville Street will provides satisfactory parking for the drop-off and pick-up of children from the preschool.
I am satisfied that this parking is consistent with the requirements and guidance provided within the Guide and the RTA Guide, and so is consistent with the requirements of the SEPP.
In relation to the design of the proposed off-street drop-off and pick-up area, BDCP does require that 'the siting and design of car parks and driveways must ensure the safe movement of people and vehicles to and from childcare centres'.
This was the subject of testimony from Mr McLaren and Mr Sannikov during the hearing and in their joint report in which they addressed two specific points in relation to the design of the proposed driveway. These were whether:
1. the width and curvature of the design would permit a car to safely transit through the proposed driveway?
2. sightlines available to drivers exiting the driveway were acceptable?
In relation to the first of these questions, the Applicant's expert, Mr McLaren, had provided swept path analyses that had demonstrated that, based on the requirements within the Australian Standard (AS2890.1-2004), 99% of vehicles would transit safely through the proposed driveway at a speed of 5km/h.
Mr Sannikov said that he had prepared swept path analyses that illustrated that cars travelling through the driveway at a speed of 10km/hr may need to undertake an reversing manoeuvre within the driveway in order to successfully transit the full driveway path.
Mr McLaren said that, in his opinion, it was unlikely that a parent driver would seek to transit the driveway at a consistent speed of 10km/hr as the purpose for entering the driveway was to slow and stop the vehicle so as to park for drop-off or pick-up of a child.
Mr McLaren also said that, in his opinion, the provision of signage at the entry to the driveway and the advice that would be provided to parents under the plan of management would be sufficient to ensure that any parent entering the driveway would do so at a speed consistent with the recommended 5km/hr maximum speed.
Mr McLaren said that the use of a plan of management to support the achievement of behavioural outcomes in relation to childcare centres was best practice and successful in his experience.
Having considered the evidence of the experts, I once again prefer the opinion of Mr McLaren on this point as it is based on his documented experience and I found his testimony to be detailed and considered.
Consequently, I conclude that the design of the driveway is acceptable in terms of the width and curvature of the design and its capacity to permit a car to transit safely through the driveway.
Finally, in relation to the acceptability of the sightlines available to drivers exiting the driveway, the traffic experts had differing views on this question.
In their joint report, Mr Sannikov said that he had measured the distance between the exit driveway and the intersection of Thornton Ave and Neville Street as approximately 33m, and that, 'at best' a driver exiting the Subject Site would have a sight line to a vehicle turning from Thornton Avenue into Neville Street of about 40m.
Mr McLaren said that in his calculation, the sight distance from the proposed exit driveway to the Thornton Ave intersection was approximately 37.8m (along the most direct path from the driver position of a vehicle approaching from the north in Thornton Ave using the corner fence as an obstruction) and 40.9m if measured along the vehicular path.
Mr Sannikov said that the posted speed limit on Thornton Avenue was 50km/hr and that, based on the requirements of AS 2890.1-2004, a stopping sight distance (SSD) of 45m was required. He said that the distance from the proposed exit driveway to the intersection could not meet this requirement.
Mr McLaren, in his evidence during the hearing, said that in his opinion, the roundabout at Thornton Avenue acted as a traffic calming device and as a consequence vehicles exiting that roundabout into Neville Street would do so at a speed much less than the posted speed limit. He said that based on the design of the roundabout, he had estimated that cars turning into Neville Street from Thornton St would make the turn at between 21km/hr and 22.9km/hr. He also noted that he had undertaken a 'vehicle following study' at the intersection and that during this he observed vehicles generally exiting the roundabout onto Neville Street as travelling at around 25km/hr.
Mr Sannikov said that he disagreed with Mr McLaren's analysis, as, in his view, the formula applied by Mr McLaren to estimate the exit speed of vehicles from the roundabout were developed for use in the design of roundabouts where certain speeds were assumed, with the required design specifications of the roundabout the outcome of the formula. He said that in his view this formula could not be used to reengineer an estimation of exit speeds based on the design of a roundabout.
The Applicant tendered the results of a traffic survey undertaken at the roundabout at the intersection of Thornton Avenue and Neville Street. This analysis had been prepared by Trans Traffic Survey between 5 and 12 September 2017, and noted that the average speed of vehicles exiting the roundabout was 29.5km/hr, with the 85th percentile speed of vehicles exiting from the roundabout in an easterly direction onto Neville Street calculated to be 33.3km/hr.
Mr McLaren said that, applying a formula from the Australian Standard for estimation of the required minimum SSD at 33.3km./hr, the recommended SSD was 28.4m. He also said that for a speed of 40km/hr, the SSD requirement was 37.7m using the same formula. He noted that if the relevant reference tables within the Australian Standard (as provided within the joint report of the traffic experts) were to be relied upon, a SSD of 35m was set down for vehicles travelling at 40km/hr, assuming a 'critical gap acceptance time' of 5s.
Having considered the evidence I have concluded that the sightlines from the exit driveway of the proposed development to the Thornton Avenue roundabout are acceptable and will facilitate safe exit of vehicles from the Subject Site. My reasons for this are that:
1. based on the Trans Traffic Survey, the 85th percentile exit speed of vehicles exiting onto Neville Street was 33.3km/hr. Mr McLaren had calculated that this required a SSD of 28.4m, which is exceeded by the most conservative of Mr Stannikov's estimates of available sightline distance which was 33m.
2. At a nominal 40km/hr exit speed (which is more than 25% higher than the 85th percentile speed of exiting vehicles), Mr McLaren had estimated that a SSD of at least 35m, and up to 37.7m was required. Mr McLaren had said that in his estimation, the sightline distance available to a driver exiting the Subject Site was 37.8m and he provided a detailed explanation of how he had arrived at the measurement of that distance, which, in my opinion, provides confidence as to its reliability.
3. Mr Stannikov had said that 'at best' a driver exiting the Subject Site would have a sight line to a vehicle turning from Thornton Avenue into Neville Street of about 40m, and this aligned with Mr McLaren's estimate of sightline available to a driver exiting the Subject Site based on of vehicular path;
4. in either circumstance, it is my conclusion that notwithstanding the differences in the evidence of the experts in relation to distances, taken as a whole, they indicate that, even at speeds above the 85th percentile exit speed of vehicles onto Neville Street from Thornton Avenue, adequate sightlines would be available to the driver of a vehicle exiting the Subject Site onto Neville Street following the drop-off or pick-up of a child from the proposed preschool.
[18]
Conclusion re parking
In summary, I am satisfied that the parking arrangements for the proposed development are acceptable in terms of:
1. the capacity of the proposed off-street parking;
2. the design of the off-street parking, including the adequacy of sightlines for a driver of a vehicle exiting the Subject Site onto Neville Street.
3. the availability of on-street parking for staff, and for parking by parents, if required
4. the adequacy of the proposed plan of management, as amended by the recommendations of Mr McLaren, for management in relation to:
1. the management of vehicles using the proposed off street parking for drop-off and pick-up;
2. the management of the proposed staff parking on-street;
3. mitigation of impacts to residents in Neville Street and Cole Place, and in particular the prohibition of parking by parents of children using the pre-school centre in Cole Place.
[19]
Are the landscaping plans for the proposed development acceptable?
The Applicant's amended plans included landscape plans for the proposed development, which provided:
1. a deep soil zone around the primary outdoor play area to meet the requirements of BDCP as identified at [38(3)(b)].
2. a hemi-spherical deep soil zone of some 4m depth within the front setback to the primary street frontage.
The deep soil zones proposed to include shrubs and tree plantings, including a canopy tree in the front deep soil zone.
The landscape treatment of the proposed development was the subject of evidence from the town planning experts at the hearing.
Mr Oliver was of the opinion that the proposed landscaping, including a tree and shrubs in the front landscape area, provided a higher quality outcome compared to the current landscaping onsite.
Ms Bova agreed that the inclusion of a canopy tree in the landscaping plan was positive. She noted that a circular driveway, such as is proposed for the preschool, for the use of parents dropping-off or picking-up children, was not characteristic of the local area. However, in response to a question from the Applicant, Ms Bova also agreed that the provision of off-street drop-off and pick-up facilities was to be encouraged within childcare centre developments of the sort proposed by the Applicant.
Having considered the evidence of the town planning experts, I have concluded that, while the proposed circular driveway is not characteristic of the local area, it does provide a functional drop-off and pick-up area for parents of children attending the preschool (see [153]). Given the presence of the driveway, the proposed landscaping plan for the front setback is consistent with the requirements of BDCP (see [38(3)(a)], and is acceptable.
[20]
Should the applicant's proposal for a pedestrian refuge and footpath extension at the intersection of Thornton Avenue end of Neville Street be supported?
The Respondent contended that the proposed pedestrian refuge within the median island towards the intersection of Neville Street and Thornton Avenue should have minimum dimensions of 2m x 2m, and that the pedestrian pathways on Neville Street must align with the pedestrian refuge area.
The acceptability of the Applicant's proposed installation of a median crossing to facilitate the safe crossing of Neville Street by pedestrians including staff was the subject of expert testimony of the traffic engineers within their joint report and during the hearing.
Within the joint report, Mr Sannikov said that the proposed concept design for the pedestrian refuge and footpath extension near the Thornton Avenue roundabout did not provide sufficient details, nor contain adequate references to applicable standards and guidelines, to facilitate assessment and approval by Council.
Mr McLaren, also within the joint report, had said that Council's request for a 2m x 2 m island treatment was wider than the pedestrian refuge which existed on the southern leg of Thornton Avenue beyond the roundabout, which he said was 1.5m wide. Mr McLaren had provided a more detailed design for the pedestrian refuge within the joint report.
Mr McLaren provided a number of options that he said might be examined were Council to maintain its requirement for a 2m x 2m dimension to the pedestrian refugee.
Having considered the evidence of the expert traffic engineers, I've concluded that the provision of a pedestrian refuge generally in the position as proposed by the Applicant has merit in the context of the proposed development, and in relation to the proposed provision of on-street car parking for staff.
The Respondent's draft, without prejudice, conditions of consent tendered as evidence during the hearing provided that resolution of the final design of the pedestrian refuge should be agreed between the Applicant and Council and that it would require the consent of Council, as the relevant roads authority under s138 of the Roads Act 1997, before works could be carried out.
Beyond recognising the merit of providing the pedestrian refuge as proposed by the Applicant, I am not of the view that the proposed draft conditions of consent for this aspect of the proposed development (conditions 1 and 2 of schedule A) require amendment by the Court, and as a consequence, I conclude that should the proposed development be granted consent those particular conditions of consent should be retained.
[21]
Is the Applicant's plan of management for the proposed development acceptable?
The Court has considered the basis upon which the adequacy of a plan of management should be assessed. The decision of the Commissioner in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 (Renaldo Plus 3) at [54] identifies eight questions that should be considered in assessing the adequacy of the plan of management. .
I have considered the Applicant's submissions in relation to its proposed plan of management in this case in against the eight questions identified by the Commissioner in Renaldo Plus 3, and concluded as follows:
1. Do the requirements in the management plan relate to the proposed use and complement any conditions of approval?
1. The requirements in the management plan will relate to the proposed use and will complement any conditions of approval, as evidenced by my finding that they be amended to reflect the recommendations of Mr McLaren at [129].
1. Do the requirements in the management plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?
1. The requirements in the management plan, in my opinion, will not require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case. There will be benefit in parents acting in accordance with the requirements of the management plan as this will facilitate the efficient management of the preschool to their benefit and that of their children.
1. can the source of any breaches of the management plan be readily identified to allow for any enforcement action?
1. The sources of any breaches of the management plan will be readily identifiable and allow for enforcement action if required. The establishment of a neighbourhood liaison committee will provide a vehicle for identifying breaches in relation to parking, as will communications between parents and staff of the preschool.
1. Do the requirements of the management plan require absolute compliance to achieve an acceptable outcome?
1. The requirements of the management plan will not require absolute compliance to achieve an acceptable outcome in my opinion. Should breaches occur there are mechanisms available to remedy these, and alternative arrangements available to mitigate any breaches in the short term.
1. Can the people subject of the management plan be reasonably expected to know its requirements?
1. People who are the subject of the management plan can reasonably be expected to know its requirements. The requirements of the management plan will be made available to parents of children attending the preschool, and its staff.
1. Is the management plan to be enforced as a condition of consent?
1. The management plan will be enforced as a condition of consent.
1. Does the management plan contained complaint management procedures?
1. The establishment of a neighbourhood liaison committee under the plan of management will provide an avenue for transmission of complaints.
1. Is there a procedure for updating or changing the management plan including advertising of any changes?
1. The final draft of the plan of management should include a provision for updating the plan and making updates available to parents, staff and the neighbourhood liaison committee.
Having considered these questions, I am satisfied that the Applicant's proposed plan of management for the development, as amended, will be acceptable.
[22]
Other merits considerations of the proposed development
The town planning experts also provided testimony in their joint report in relation to the acoustic matters arising from the proposed development.
That report, amongst other things, recorded the agreement of the town planning experts that the acoustic report prepared by Acoustic Logic in October 2016, and which was submitted with the original development application, had adequately demonstrated that there would be no unacceptable acoustic impacts arising from the on-site operations of the proposed preschool.
Ms Bova raised concerns in relation to the potential for children attending the preschool to produce acoustic impacts on residences in parts of Neville Street beyond the Subject Site as the children and their parents arrived or departed from the facility.
However, Mr Oliver in the joint report of the town planning experts had identified, correctly in my view, that clause 5.2 of Part 6 of BDCP did not require an acoustic assessment of noise generated within the Street as a result of a proposed childcare facility, but rather that the potential acoustic impacts of the facility be assessed in relation to adjoining properties.
The town planning experts also provided evidence on the design of the acoustic fences along the side boundaries at the front of the Subject Site, and in the context of a proposed condition of consent within Schedule A of the draft without prejudice conditions of consent tendered as in evidence during the hearing by the Respondent.
That proposed condition of consent (condition 3 of Schedule A) required that the Applicant provide an amended acoustic report to Council in order to demonstrate how satisfactory acoustic treatment could be achieved in the proposed car park area in the front setback. The condition also required that any such treatment should not include fencing that is greater than 1m in height forward of the front building line (unless otherwise approved by Council).
Mr Oliver said that, given that the front setback of the building on the Subject Site is significantly greater than the minimum 5.5 m required under BDCP, a fence of 1.8m height would only be required from a point 3m back from the front boundary of the Subject Site, as this would provide improved sightlines for drivers entering and exiting the site, and maintain acoustic privacy to adjoining properties.
Ms Bova said that in her opinion a fence higher than 1m would only be possible from a point 5.5m in from the front boundary of the Subject Site, as this was the specified minimum front setback applicable to the proposed development.
While I acknowledge the benefit of lowering of the front side fences at some point to improve sightlines for drivers entering and exiting the Subject Site, while maintaining acoustic privacy outcomes to neighbouring properties, I am of the opinion that this matter can be resolved in discussions between the Applicant and Council (as it is envisaged under proposed condition 3 of schedule A of the draft without prejudice conditions of consent).
Consequently I do not propose to make a finding on this matter in this judgement, and I do not propose that the wording of condition 3 should be altered in final conditions of consent for the proposed development.
[23]
Conclusion
Based on the above considerations, I am satisfied that:
1. The Applicant's written requests to vary the development control for lot width and FSR set out in cl 4.1B(2) and 4.4, respectively, of the Bankstown Local Environmental Plan are well founded;
2. the Applicant's proposed use of the parking spaces adjacent to Neville Park to meet the staff parking requirements of the proposed development is appropriate, given the location of the Subject Site, the scale of operation of the proposed development, and the availability of parking in that area;
3. the proposed off-street parking is consistent with the requirements and guidance provide within the Guide and the RTA Guide, and so is consistent with the requirements of the SEPP;
4. other aspects of the parking arrangements for the proposed development are acceptable in terms of:
1. the capacity of the proposed off-street parking;
2. the design of the off-street parking, including the adequacy of sightlines for a driver of a vehicle exiting the Subject Site onto Neville St;
3. availability of on-street parking for parents, if required;
4. the adequacy of the proposed plan of management, as amended by the recommendations of Mr McLaren, for management of traffic in relation to:
1. the management of vehicles using the proposed off street parking for drop-off and pick-up;
2. the management of the proposed staff parking on-street;
3. mitigation of impacts to residents in Neville Street and Cole Place, and in particular the prohibition of parking by parents of children using the preschool centre in Cole Place.
1. the Applicant's proposed landscaping plan for the front setback is consistent with the requirements of BDCP, and is acceptable;
I conclude that:
1. The Court should approve Applicant's written requests to vary the development control for lot width and FSR set out in cl4.1B(2) and 4.4, respectively, of the Bankstown Local Environmental Plan;
2. the Applicant's proposal to use of the parking spaces adjacent to Neville Park to meet the staff parking requirements of the proposed development is acceptable;
3. the provision of two off-street parking spaces, along with the availability of other parking on-street that is safe and in close proximity within Neville Street, will provide satisfactory parking for the drop-off and pick-up of children from the pre-school;
4. the Applicant's proposed plan of management for the development, as proposed to reflect the recommendations of Mr McLaren at [129], and my findings at [169(8)(a)], are acceptable.
5. the proposed conditions 1 and 2 of schedule A of the Respondent's draft without prejudice conditions of consent should be retained in final conditions of consent for the proposed development;
6. the wording of condition 3 in Schedule A of the Respondent's draft without prejudice conditions of consent should be retained in final conditions of consent for the proposed development;
7. The Applicant's development application DA_1075/2016), for the alterations and additions to an existing dwelling and granny flat at 68 Neville St, Bass Hill (the Subject Site), for use as a 25 place pre-school for children aged 3-6 years old, should receive development consent, subject to conditions of consent to reflect conclusions (1) to (6) above.
[24]
Directions
The Court directs that:
1. The Parties are to prepare, and file with the Court by Tuesday 6 March 2018, final conditions of consent based on conclusions of the judgment at [182];
2. The matter is listed for mention on Wednesday 7 March 2018 at 4:15pm.
3. If the direction at (1) is complied with, final orders will be made in chambers granting development consent, and the mention on 7 March 2018 will be vacated;
4. The matter is adjourned until 4:15pm on Wednesday 7 March 2018;
5. The Parties are granted liberty to restore on 2 days' notice.
[25]
Addendum
I had previously directed that the Parties prepare, and file with the Court, final conditions of consent based on conclusions of the judgment at [182].
Those final conditions of consent having been filed with the Court as directed, I now make the following orders.
[26]
Orders
The orders of the Court are:
1. The Applicant's cl.4.6 request to vary the development standard for lot width, set out in cl4.1B of Bankstown Local Environment Plan 2013, is upheld;
2. The Applicant's cl.4.6 request to vary of the development standard for FSR set out in cl4.4 of Bankstown Local Environment Plan is upheld;
3. The appeal is upheld;
4. Development application DA_1075/2016 for the alterations and additions to an existing dwelling and granny flat at 68 Neville St, Bass Hill is determined by the grant of consent, subject to the conditions provided at Annexure 'A'.
5. The exhibits are returned, with the exception of Exhibit 2.
………………………….
Michael Chilcott
Commissioner
Annexure A (81.2 KB, pdf)
[27]
Amendments
09 March 2018 - Orders made
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Decision last updated: 09 March 2018