Buyozo Pty Limited v Mosman Municipal Council [2008] NSWLEC 1120

Land and Environment Court of New South Wales

CITATION : Buyozo Pty Limited v Mosman Municipal Council [2008] NSWLEC 1120

APPLICANT Buyozo Pty Limited PARTIES : RESPONDENT Mosman Municipal Council

FILE NUMBER(S) : 10548 of 2006

CORAM: Hoffman C

KEY ISSUES: Section 96 Modification :- reduction of drop-off/pick-up parking places from 6 to 4, parking demand for a 90 child day care centre, no potential for on-site carparking.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 03/03/2008

DATE OF JUDGMENT: 3 March 2008

APPLICANT Mr P. McEwen, SC Instructed by Mr C. Reid of Reid & Vesely LEGAL REPRESENTATIVES:

RESPONDENT Mr J. Ayling, SC instructed by Ms J. Walsh of Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

3 March 2008

10548 of 2006 Buyozo Pty Limited v Mosman Municipal Council

JUDGMENT 1 This is a s 96 application in regard to condition Pt A No 1A of deferred development consent issued under appeal No 10548 of 2006 on 2 July 2007. The deferred development consent was granted for a 90 place long day childcare centre at No 613-623 Military Road, Mosman. The terms of existing condition 1A are: "This consent shall not operate until approval has been granted by the Roads and Traffic Authority for the proposed parking restrictions indicated on Figure 1 dated 21 November 2006 by Masson Wilson Twiney which is Annexure A to the joint statement of John Coady and Bruce Masson, Exhibit 10." 2 The applicant seeks to modify it to read: "This consent shall not operate until approval has been granted by the Roads and Traffic Authority for the proposed parking restrictions of the type or variation thereof acceptable to the Roads and Traffic Authority indicated on Figure 1 dated 21 November 2006, by Masson Wilson Twiney which is Annexure A to the joint statement of John Coady and Bruce Masson, Exhibit 10." 3 The subject site has two street frontages, the second being to The Crescent in Mosman, and it runs parallel to Military Road. Due to the less traffic and more parking available the proposal uses The Crescent as its main access. The plan in Figure 1 shows kerbside pick-up and drop-off parking for six cars outside the site and overlapping on the council youth centre and library frontage adjoining.

4 Conveniently, there is a disabled persons car park also outside the council facility that could be used by disabled persons for the childcare centre. The reason for off-site parking is that the subject site is heritage listed and on-site parking is not appropriate or practical. These circumstances were considered in some depth during the original hearing as there is heavy parking demand in The Crescent caused by shoppers and employees and residents of The Crescent and people using the adjoining and adjacent community facilities and parkland.

5 The council's traffic expert, Mr Coady, had sought 16 pick-up and drop-off spaces to service the 90 child facility. The applicant's traffic expert, Mr Masson, had said six are sufficient. The reasons for accepting six spaces are set out in paras 27 to 38 of the judgment. Without repeating all of them it is sufficient for this hearing to say one reason is that childcare centres mainly require pick-up and drop-off spaces in the early morning and late afternoon. Mr Masson's evidence indicated that at those times the peak demand for the shopping centre and community facility car parking did not occur. As a result there would be vacant on-street car spaces within 100 metres of the site in The Crescent in the event of a short period rush of parents that required more than six spaces.

6 The evidence was that six spaces should be sufficient in the morning as parents typically take about seven minutes to park, take the child inside to sign in and depart. In the afternoon there could be minor overlap of pick-up parking demand with shopping centre and community facility demand.

7 A reading of the deferred commencement condition 1A shows that the provision of the six spaces required certainty and at the time of the hearing the Court did not have the benefit of a decision by the traffic committee or, in the event of it being unable to make a unanimous decision, the RTA. That decision is necessary to change the on-street parking regime in The Crescent.

8 In attempting to comply with condition 1A an application was made to the traffic committee. In preparing the application Mr Masson found that the kerbside space in Figure instead of being 34 metres long as shown on Figure 1 is actually 30.2 metres. That is sufficient only for five cars. The application was made with an amended Figure 1.

9 The traffic committee had the benefit of a further survey of other childcare centres in Mosman where the council had allowed up to a maximum of four on-street pick-up and drop-off spaces. It had also considered the resident parking demand for Area 7, being the applicable locality in the resident parking scheme, and the RTA practice of not issuing more resident parking permits than spaces available. The committee's advice is that there are 35 resident parking spaces on the street in Area 7 for which permits could be issued, however, only 12 had been issued to date so there is some flexibility there. However, the committee also considered that a precedent may be caused by allowing more than four spaces for pick-up and drop-off at the childcare centre within a time-restricted regime. 10 In the minutes to the traffic committee meeting of 12 December 2007 in the affidavit by Mr Carl Robert Reid sworn on 28 February 2008 the committee decided to allow pick-up and drop-off on-street parking only across the frontage of the subject site, a distance of 24 metres. This further reduces the number of car spaces to four and the respondent said this is equivalent on the basis of the judgment of 2 July 2007 to a childcare centre for 60 children.

11 The traffic committee added that a review of the parking situation should be had after six months of operation of the childcare centre. The public notification by the traffic committee of the parking changes had resulted in thirteen submissions from residents of The Crescent and Goldsbury Street with seven in favour and six against. Their comments were considered by the committee. The survey of other childcare centres and the number of on-street pick-up and drop-off car spaces did not say how many children are at each.

12 Mr Coady had prepared an updated report clarifying some matters on parking availability near the site. This was tendered. Mr Masson had prepared an updated report too and this was tendered. They had prepared a joint report after a meeting but they remained so far apart in their opinions that it is written as two separate summaries. This was also tendered.

13 I do not agree with Mr Masson that public car parking across Military Road should be considered due to the difficulty and danger of crossing that busy road with children. I agree with Mr Coady that beyond 100 metres from the site parents using car parks at that distance would be very inconvenient. It seems to me that this site, being a heritage item with no capacity for on-site parking, provides opportunity to distinguish it from other childcare centres in regard to the precedent for the number of kerbside pick-up and drop-off parking places and for their location beyond the immediate frontage of the site, however the primary consideration is that this is a ninety child long day care centre and those other centres considered by the traffic committee, according to Mr Coady, have a capacity between 20 and 49 children.

14 In considering this application I have formed the opinion that for the above reasons the need for six on-street drop-off and pick-up car spaces in close proximity to the childcare centre has not changed and is critical to the acceptability of impacts arising from pick-up and drop-off traffic and parking activity for this 90 place childcare centre.

15 Therefore the application is refused and the orders of the Court are: 1 The appeal is dismissed. 2 The exhibits are returned to the parties, except Exhibit 5.

___________________ K G Hoffman Commissioner of the Court ljr

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.