Austech Development Group Pty Ltd v The Hills Shire Council

Land and Environment Court (NSW)|2024-10-08

Judgment

COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Austech Development Group Pty Ltd (Applicant) against the deemed refusal by The Hills Shire Council (the Respondent) of Development Application (DA 1301/2023/HA). The Application is for a Centre-Based Child Care Facility.

The Proposal

Broadly, the Development Application proposes the construction of a two storey Centre Based Child Care Facility (the Facility). The Facility would accommodate a total of fifty-eight (58) children (from 0 to 5 years), plus staff and basement parking.
During the Appeal process, the Applicant sought leave, which was granted, to rely on amended plans on the basis that the amendments addressed various issues raised in the Statement of Facts and Contentions (SOFAC). The amendments to the Application were detailed in a Notice of Motion filed on 20 June 2024.
The Respondent was granted leave to file an Amended Statement of Facts and Contentions (ASOFAC) which formed the basis of the Hearing. Whilst many of the contentions were resolved through the joint reporting process, there are still key aspects of the Development, that remain in dispute.

The Site and Locality

The Site is a single parcel of land, with a legal description of Lot 17 in Deposited Plan 206082. The land is otherwise known as 29 Annabelle Crescent, Kellyville (the Site).
Annabelle Crescent is a loop road connecting, at both ends, to Greenwood Road to the north. The Site is located on the south-western side of Annabelle Crescent, approximately midpoint along the loop road and is an irregular shaped allotment, with a north-south orientation. The property frontage is on the northern elevation which faces Annabelle Crescent. It has a frontage of 14.425m to Annabelle Crescent, a rear width of 29.175m and an overall depth of between 38.1m and 40.765m. It has an area of 857m².
The Site is adjoined to the east (No.31) and west (No.27) by single storey dwelling houses. A public laneway traverses the eastern side boundary connecting Annabelle Crescent with the adjoining commercial shops fronting Windsor Road, Kellyville.
A significant aspect of this matter is the Site's proximity to the Kellyville Public School (the School). The School is accessed via Annabelle Crescent and therefore, brings with it the traffic and pedestrian flows associated with primary schools. Figure 1 - Extract from Ex E, Traffic Assessment, showing site in Annabelle Crescent and nearby Greenwood Road. Figure 2 - Extract from Ex E showing subject site and proximity to Kellyville Primary School.

Public Submissions

The Development Application was publicly notified between 6 March and 27 March, 2023. The SOFAC notes that thirty (30) written submissions were received in response to the 2023 notification of the proposal.
In March 2024, a conciliation meeting was convened for this matter, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation process and, as a result, I was present when a number of residents addressed the parties and the Court regarding their concerns. Subsequent to the s 34 conciliation conference, the parties agreed to have me preside over the Hearing. The written submissions made during the assessment of the Application were provided to the Court.

The Assessment Framework for the Application

Centre Based Child Care Facilities are regulated by a variety of planning controls. A summary of the legislative framework, relevant to this assessment, is outlined below.
The state policy, State Environmental Planning Policy (Transport and Infrastructure) 2021 (the TI SEPP), contains specific requirements for Centre Based Child Care Facilities. The relevant clauses in the TI SEPP also cross references further requirements in the Education and Care Services National Regulations (2011 SI 653) (the National Regulations).
A particular requirement, in cl 3.23 of the SEPP TI, is that the consent authority must "take into consideration any applicable provisions of the Child Care Planning Guideline" (the CCPG). The CCPG was prepared under the now repealed State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017 (the Education SEPP). Whilst the Education SEPP has been repealed, the Guidelines remain in place and are empowered through the TI SEPP (cl 3.23).
In addition to requiring consideration of the CCPG, the TI SEPP sets out a series of non-discretionary development standards. None of the matters listed in cl 3.26 of the TI SEPP are in dispute between the parties.
A further consideration in the TI SEPP is cl 3.27 that addresses the relevance of development control plans. Broadly, this clause prevents the application of clauses in a development control plan that relate to operation or management plans, hours of operation, demand for child care services, proximity to other education facilities and, in cl 3.27 (d): (d) any matter relating to development for the purpose of a centre-based child care facility contained in - (i) the design principles set out in Part 2 of the Child Care Planning Guideline, or (ii) the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates).
The policy framework for assessing traffic impacts, apart from s 4.15 of the EPA Act, are the policy guidelines in the CCPG: 1. Chapter 2 - Design quality principles, outlines a series of design quality principles to establish the broad design context for new proposals. 2. Chapter 3 - Matters for consideration, sets out a series of matters that must be considered by the consent authority, in this case the Court, when assessing a development application for a Centre Based Child Care Centre Facilities.
Chapter 3 sets out a series of sections where matters for consideration are grouped by relevance. Each of the subsections contain a subheading - Considerations - which contain a number of objectives and "Considerations" to inform the assessment process.
As an example, Section 3.1 - Site selection and location, has four specific objectives followed by Considerations numbered C1 to C4. A relevant "Consideration" in this assessment is a requirement to have regard to the traffic and parking impacts of the proposal on residential amenity and road safety. A further Consideration, in Section 3.1, is at C3 (page 11) which states: "C3 A child care facility should be located: • near compatible social uses such as schools and other educational establishments, parks and other public open space, community facilities, places of public worship • near or within employment areas, town centres, business centres, shops • with access to public transport including rail, buses, ferries • in areas with pedestrian connectivity to the local community, businesses, shops, services and the like."
Section 3.8 - Traffic, parking and pedestrian circulation is a specific section of relevance to this matter. Whilst the parking provision is not in dispute between the parties, the potential for traffic impacts is not agreed.
The Considerations in the CCPG, which are generally focused on the parking and access to a site, are not easily applied to the assessment of the traffic issues in this Appeal. The issues that arise in this matter relate to the potential traffic conflict, that might arise, several hundred metres away from the Site. Nevertheless, C32 states: "C32 A Traffic and Parking Study should be prepared to support the proposal to quantify potential impacts on the surrounding land uses, to optimise the safety and convenience of the parking area(s) and demonstrate how impacts on amenity will be minimised. The study should also address any proposed variations to parking rates and demonstrate that: • the amenity of the surrounding area will not be affected • there will be no impacts on the safe operation of the surrounding road network."
The wording in C32, on first reading, is ambiguous. There is an expectation that the required Study demonstrates how impacts on amenity will be minimised. In addition, the Study should also address any proposed variations to parking rates and demonstrate that there would be "no impacts on the safe operation of the surrounding road network".
At face value, the threshold for any development to have "no impact on the safe operation of the surrounding road network" would be prohibitive. Any development, with as little as one vehicular movement, would have an impact on a road network, albeit, possibly an acceptable impact. An alternative reading is that the Study is only required to demonstrate "no impact" when seeking a variation to parking rates. This is on the basis that the preamble to the criteria discusses variations to parking rates. In any event, the jurisdictional threshold is met by providing "consideration" of these issues. This assessment is undertaken later in this judgment.

The Hills Local Environmental Plan 2019 (THLEP 2019)

The Site is located within an area of R2 Low Density Residential zoned land pursuant to The Hills Local Environmental Plan 2019 (THLEP 2019). The proposed development is defined as a Centre Based Child Care Facility. Development for the purposes of a Centre Based Child Care Facility is listed as permissible, with development consent, in the land-use table applying to this Site.
The THLEP 2019 sets the development standard for the maximum Height of Buildings, pursuant to cl4.3, of 10.0m. It is agreed that the Development does not exceed the Height of Buildings Development Standard.

The Issues

The primary issue of disagreement between the parties relates to the traffic management issues that may arise from the proposed Development. The issue before the Court: Whether or not the traffic generation associated with the proposed Development will compound existing traffic issues associated with the nearby School. In particular, the potential of the proposed use to impact on both the morning drop-off and afternoon pickup at the School.
Associated with the issues of traffic generation and safety is the ability, or otherwise, to control any potential impacts through implementation of the proposed Plan of Management (PoM). At the core of this issue is whether the proposed conditions of any development consent, in concert with the PoM, would ensure the adequate operation of the premises.
In consideration of these issues, the parties rely on Joint Experts Reports prepared by experts covering the subjects of town planning and traffic and parking. These Reports addressed the issues raised in the ASOFAC which included an assessment of the suitability of the Site and the function of the Facility. These focus on potential impacts on the surrounding traffic network and the adequacy of the PoM. The evidence also covers issues raised by objectors relating to traffic, parking and amenity.

Is the traffic and parking acceptable?

The Applicant relied on the expert traffic evidence of Ms Siew Hwee Kong. The Council relied on the expert traffic evidence of Mr Paul Corbett. The experts prepared a Joint Report (Ex 2) and gave oral evidence.
The issues around traffic are layered with a series of questions. At the core of the issues is an agreement between the traffic experts, that adding to traffic queuing at the intersection of Greenbank and Annabelle Crescent (the Intersection), is highly undesirable. In getting to this position, the experts have agreed on a number of facts: 1. The experts agree that the proposal meets the numerical parking requirements of The Hills Development Control Plan 2012 (THDCP). 2. The assumptions around traffic volumes in the Traffic Report are a reasonable basis upon which to assess the Development. The experts agree that the average vehicle trips per hour (VTPH) as outlined in Table 2.1 of Transport and Parking Assessment (Ex E) is an acceptable guide to vehicle trips at the proposed Facility. 3. There is queueing into the Intersection, based on current school traffic, during the PM peak. The concentration of traffic in the PM correlates with the afternoon pick up time at the School (2:45pm and 3:15pm, par 11.4 of Ex 2). A broader "PM peak" period is adopted by the experts as being 2:15pm to 3:15pm to cater for early arrivals. 4. There is currently no observation of queueing in the Intersection in the AM concentration of traffic going to the School. The AM peak is considered to be between 8:30am and 9:00am (par 11.4 of Ex 2). Again, the morning "AM Peak" is broadened by the experts to cover 8:00am to 9:00am. There are some observations that the queue "gets close" to the Intersection during the morning peak. 5. The AM peak should not be exacerbated in a manner that adds to Intersection queues.
The experts disagree as to whether the traffic impacts that might arise from increased traffic generation can be controlled, or mitigated, in order to ensure no unacceptable impacts arise from the Development. The experts make the following points to underpin their respective positions: 1. Mr Corbett says that the queueing in Annabelle Crescent is an existing constraint and regularly occurs as shown by surveys. At par 11.45 of Ex 2, Mr Corbett notes that "the Applicant consistently and clearly demonstrates that Annabelle Crescent is over capacity" and that there is existing queueing. Mr Corbett notes that there is currently "unsafe arrangements as other motorists currently seek to avoid the queues and make unsafe manoeuvres around other vehicles" (as shown in photos in Ex 1, Figure 2, p 18 and in material associated with Ex 2). 2. Ms Kong comments that the operation of the school has taken place over a considerable time yet there are no crash statistics relating to the Greenwood and Annabelle Crescent intersection. The conclusion Ms Kong reached, based on these outcomes, was that drivers adjust driver behaviour to the circumstances. Ms Kong observed that there is an existing queueing issue at the intersection but notes that this is due to the existing school arrangements and a lack of an adherence, or absence, of traffic management protocols. 3. Mr Corbett has a concern that the concentrated drop off period in the AM peak may mean that the on-site parking is inadequate and that on-street parking may occur. This may result in amenity issues for early drop-offs. 4. Mr Corbett has concerns around the implementation of the PoM and the ability to control recalcitrant customers dropping off children to the Facility. 5. Mr Corbett acknowledged, in his oral evidence, that impacts would not occur if the Facility did not accept children during the morning peak. Mr Corbett acknowledged that there would be no traffic to add to the morning queues if there was no ability, or need, for drop off during that time.
The Applicant's solution is to stop the delivery of children to the Facility during the morning peak. This is to provide certainty that the Development will not add to the morning traffic peak.
The Respondent considers that a "suitable site" would not require such mitigation measures and that the proposed mitigation measures have inherent problems in terms of implementation and enforcement.
Whilst the two experts use different language, they both agree that the School's traffic arrangements are largely uncontrolled. Ms Kong takes a view that if the School traffic was better managed, then the possibility of impacts on Greenwood intersection would be mitigated. Mr Corbett takes the view that the problems with traffic have existed for some time and adding to that problem is unacceptable.
The significance of this is that, the impacts on the Intersection are "current impacts" and would appear to have been in existence, in some form, for many months if not years. The photos provided by the Respondent, through the ASOFAC and the expert reports, have captured a sample of these movements. No evidence has been provided to the Court that any management programs, or physical works, are proposed to minimise the current, documented, "risks".
In contrast, what the Applicant proposes is a highly controlled operation with enforceable conditions and POM to reduce any risks associated with the Development. The experts agree that there is no morning queueing at the Intersection at the present time. I can conclude from this that, if the proposal does not add to the traffic queue during that time, it is unlikely to exacerbate the current situation. On this basis, if the PoM meets the threshold of minimising risk resulting from the Development, then consistency with the planning framework is achieved. On that basis, the deliberations on the adequacy of the proposal shift to whether a PoM is an acceptable way to restrict the hours of operation and therefore, traffic impacts.

Is the proposed Plan of Management adequate?

Evidence has been provided in respect to the form and function of various components of the Facility. The main focus is the implementation and adherence to the PoM. In particular, whether the proposal, to close the Facility for admissions at certain times, is a management approach that is both practical and enforceable. The PoM proposes that the Facility be closed to the admission of children between the hours of 8:00am and 9:00am. This would prevent the potential traffic generated by the proposal from adding to the traffic generated by the School during morning peak drop off.
A guide to the assessment process for a PoM is provided in several cases but most notably in the creation of a planning principle in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315. There was a further update to that planning principle in Amazonia Hotels Pty Ltd v Council of City of Sydney [2014] NSWLEC 1247.
The various decisions that have shaped the criteria for assessment and effective implementation of PoM's often centre around loading facilities. The use of a PoM is a common inclusion on the approval process to manage loading facilities relating to a variety of land uses. The need to limit the operations of loading docks and delivery centres overlap with the issues in this matter. They are generally put in place to minimise the impacts on amenity and traffic in and around a development, particularly at certain peak times.
Whilst comparison of child drop-off process to the delivery of goods might seem obtuse, in reality, the operational aspects are similar. The PoM, and its implementation, seeks to limit the times that delivery of children can be made to the premises. The PoM sets out a series of consequences for recalcitrant "deliveries" and for ongoing prevention of delivery at inappropriate times.

How does the possible traffic generation and the proposed PoM compare when assessed against the relevant criteria in the planning principle?

A further question is whether the proposed PoM would require people to act in a manner that would be, unlikely, or unreasonable, in the circumstances of the case: Is absolute compliance required to achieve an acceptable outcome?
I am swayed by the Applicant's argument and the evidence of Ms Wong that the PoM will be effective. Ensuring that children will not be delivered to the Facility in the critical morning peak is part of an acceptable approach to minimising impacts. The combination of the Facility refusing to accept children during the morning primary school peak; the agreement signed by the carer responsible for the child and, the consequences of offending behaviour, are likely to achieve an acceptable outcome.
As to whether absolute compliance is required to achieve an acceptable outcome. The evidence suggests that this is not the case. In particular, the survey material indicates that the current morning peak has not resulted in queueing at the Greenwood intersection. In contrast, whilst queueing does extend to the vicinity of the Intersection, the evidence provided by the traffic experts does not suggest that a vehicle arriving to the Facility between the hours of 8:00am and 9:15am would significantly alter the current status quo. The evidence is that, there is some capacity during the AM peak given that there has been no queuing at that time. The potential conflict would only arise if the recalcitrant carer arrived at a time, and on a day, that the queue was at capacity. There are many days when the School is not operating (closed for holidays, student free days), or attendance is low, and on these occasions, the arrival of a recalcitrant customer is not likely to critically pressure the Intersection.
Having asked and answered these questions, the evidence is, the proposal meets the broad series of questions set out in the planning principle for PoM's. The result is that I agree with the Applicant that the management regime is an acceptable outcome subject to the appropriate development consent conditions and the implementation of the proposed PoM in approval.

What are the remaining jurisdictional matters requiring consideration?

Consideration has been given to the potential contamination of the Site, pursuant to State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards), which applies to the Site. The Application was supported by a Preliminary Site Investigation Report prepared by GSL Environmental (November 2022). The Report canvassed the potential environmental risk as well as acid sulphate soils, geology and hydrology issues. The parties are not in dispute that the matters relating to potential contamination have been adequately investigated. I am satisfied, on the basis of the Report, and the agreement between the parties, that no issues arise and that the requirements of the SEPP Resilience and Hazards have been met.
I am also satisfied that matters relating to bio-diversity, including landscaping, water quality and drainage have been adequately considered. A number of technical reports have bene prepared by the Applicant, and assessed by the respondent, including landscaping outcomes, water quality and stormwater management.
A Geotechnical Report was prepared by Sydney Geotech (dated November 2022). This Report considered the matters raised by cl 7.2 - Earthworks in THLEP. The findings have been considered by Council and have not given cause to contentions that are in dispute between the parties. I have considered the material provided in accordance with the requirements of the cl 7.2 - Earthworks of the THELP 2019.

Conclusions

The issue of traffic started as a threshold issue for this matter given the current status of traffic in Annabelle Crescent. At one level, it could be perceived that the School traffic generation is so saturated that any additional traffic would be unacceptable. In an assessment sense, if this were the case, it should extend to any form of development that has the ability to generate a vehicle trip in the morning in Annabelle Crescent. That would include any additions to a dwelling that increased bedrooms, any new dwellings, any changes to the school size, and so on.
Based on the planning framework, and the evidence in this matter, it is reasonable to reach a conclusion that controlling the morning peak through management processes is an appropriate approach. The operation of the Site can be controlled through conditions on any development consent, along with the PoM, to remove the overlap with traffic from the School at critical times. This approach meets with the tests associated with the implementation of PoM's outlined in the relevant judgments.
As a result, I am satisfied that the proposal before the Court has adequately addressed the merit issues that require consideration prior to the granting of any development consent. This includes adequately addressing the merit issues raised by adjoining and nearby residents in respect to traffic, parking and amenity.

Orders

The Court orders that: 1. The Appeal is upheld. 2. That the Development Application DA 1301/2023/HA, as amended, for the construction of a Centre Based Child Care Facility with a maximum capacity of 58 children ranging from 0 to 5 years, at 29 Annabelle Crescent, Kellyville, NSW is determined by the grant of Development Consent subject to the conditions set out in Annexure A to this judgment. 3. The Exhibits, apart from Exhibits 1, C, D and F, are returned.

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. Decision last updated: 19 December 2024

At a glance

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Judgment (14 paragraphs)

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Cases Cited (2)