Badalyan v Baulkham Hills Shire Council

Blackmore Design Group v North Sydney Council 118 LGERA 290 ; CASES CITED: Mathers v North Sydney Council [2000] NSWLEC 84; Edward Liston Properties Pty Ltd v North Sydney Council [No 2] [2000] NSWLEC 181

APPLICANT Mr G McKee, solicitor, Ms D Holm, solicitor SOLICITORS LEGAL REPRESENTATIVES: McKees Legal Solutions

RESPONDENT Mr M Fraser, barrister SOLICITORS Baulkham Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11226 of 2006 Emil Badalyan v Baulkham Hills Shire Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of DA 10272/05/HA by Baulkham Hills Shire Council (the council) for the partial demolition of existing dwelling and alterations and additions to the dwelling for a childcare centre at 101 Showground Road, Castle Hill (the site). The site 2 The site is described as lot 1 in DP 246981and is located on the south-western side of Showground Road opposite Britannia Avenue. It has a frontage of 41.74 m to Showground Road and an area of 1485.05 sq m. A 3.05 m wide Sydney Water easement for water supply extends along the south-eastern side boundary of the site.

3 The site is located in an area that is predominantly residential in character, consisting of generally 1 and 2-storey detached dwelling houses. Other land uses include a childcare centre located at 79 Showground Road, two health care premises at 81 and 105 Showground Road and two home activities at 107 and 125 Showground Road.

The proposal 4 The development application seeks the partial demolition of an existing dwelling and alterations and additions to the remaining part of the dwelling to provide for a two-storey building accommodating a ground floor childcare centre for 42 children and a first floor residence. The centre will accommodate 20 children aged 2 - 3 years and 22 children aged 4 - 6 years.

5 Thirteen car parking spaces are proposed, seven being provided forward of the building and six in an under floor basement car park. Vehicular access to the property is from a single driveway off Showground Road. Right turn movements to and from the site are prohibited by a proposed median in Showground Road.

6 The childcare centre will operate between 7am to 6pm Monday to Friday and employ five staff. One of the staff will reside in the proposed residence. Relevant planning controls 7 The subject site is zoned Residential 2(b) under the provisions of Baulkham Hills Local Environmental Plan 2005 (LEP 2005). Clause 13 provides that consent must not be granted unless the development is consistent with one or more aims of the plan and any relevant objective for development (cl 13(a)) and is not contrary to achieving the objectives of the zone (cl 13(b)).

8 The relevant aim of the plan is cl 2(1)(b). The clause states: The aims of this plan with respect to the community of that area are to encourage a strong sense of community identity and economic well being throughout Baulkham Hills through the development of local communities that are safe, liveable and offer a diversity of land use and economic opportunity. 9 Zone objective (e) provides objectives for ancillary uses such as childcare centres.

10 Clause 53 is relevant to the proposed development as it prohibits childcare centres along classified roads; Showground Road being a classified road. Clause 11A however provides savings and transitional provisions that apply to the development application as it was lodged with the council but not determined prior to Amendment 2 to LEP 2005 on 30 March 2007. Amendment 2 inserted cl 53 into LEP 2005.

11 Other council development control plans apply to the application however, they do not relate to the issues raised by the council. The issues 12 The council filed a Statement of Issues containing 11 separate issues. Following the submission of further information and additional plans the issue of LEP aims (Issue 1), energy saving mechanisms (Issue 2), car park layout (Issue 3), site drainage (Issue 4), the use of the Sydney Water easement (Issue 5), privacy (Issue 6), first floor residence (Issue 7), BASIX certificate (Issue 8) and building materials (Issue 9) were not pressed by the council. The remaining issues related to traffic safety and the weight to be given to cl 53 (Issue 10) and the public interest and (Issue 11). The evidence 13 The parties agreed to the appointment of Mr John Coady as the Court-appointed expert for traffic and parking issues. Leave was granted for Mr Craig Hazell to provide additional traffic and parking evidence for the applicant.

14 No oral evidence was provided on site from local residents although 2 letters of objection were received when the development application was advertised. The objections related to noise and traffic safety.

Traffic and parking 15 The entry and exit to the site were addressed as separate matters as they raised separate issues. At the start of the hearing, Mr Coady opposed the approval of the application on traffic safety grounds. He raised concerns with both the entry and exit manoeuvres on to Showground Road. With further amendments by the applicant and additional survey data, Mr Coady reviewed his original position. Mr Hazell maintained that vehicles could enter and leave the site in a safe manner based on the application as originally submitted to the Court. For reasons set out below, the issues dealing with the entry to the site were dealt with as a preliminary issue on 1 May 2007 and the issues dealing with the exit from the site and the weight to be given to cl 53 were dealt with on 14 May 2007.

Entry to the site 16 While initially opposing Mr Coady's suggestion of a 20 m slip lane (or any slip lane) to gain access to the site, Mr McKee in his submissions indicated that the applicant would accept a condition requiring a slip lane to be provided. He submitted that a 10 m slip lane would be appropriate. However, if the Court were not persuaded that a 10 m slip lane would be appropriate then the applicant would accept the 20 m slip lane suggested by Mr Coady and, as I understand, considered appropriate by the council.

17 In essence, the Court is being asked to determine not whether a slip lane is required but whether the slip lane should be 10 m or 20 m in length. Mr Coady's preference for a 20 m slip lane is based on traffic efficiency. In his view a 10 m slip lane will not achieve the same level of efficiency as a 20 m slip lane as cars entering the site will need to slow down to a slower speed to gain access to the site, therefore impacting to a greater extent on the traffic flows along Showground Road. Of the two options, Mr Hazell accepted that the 10 m slip lane would be acceptable.

18 In balancing the evidence I am more persuaded by the evidence of Mr Coady. Mr Hazell estimated that vehicles would enter the 20 m slip lane at 60 km per hour or less. Mr Coady was inclined to suggest a lower speed. This needs to be compared Mr Hazells estimated entry speed of some 15 to 20 km per hour for the 10 m slip lane and 10 to 15 km an hour for the driveway without a slip lane. In my view, and on Mr Hazell's evidence, this comparison clearly supports the 20 m slip lane in terms of traffic efficiency.

19 There was discussion between Mr Coady and Mr Hazell on the potential upgrading of Showground Road as this impacted on the entry and exit movements from the site. Mr Coady maintained that the need for the slip lane is generated by the current line marking arrangements on Showground Road and the proximity with the intersection with Britannia Avenue. If that part of Showground Road opposite the site was marked as two separate traffic lanes, Mr Coady stated that the slip lane would not be required. Mr Hazell suggested that means were available to line mark Showground Road opposite the site for two lanes plus provide a right turn opportunity into Britannia Avenue without overly impacting on traffic flows along Showground Road.

20 I accept that this is physically possible however I am not inclined to adopt a piecemeal approach to traffic management on a state classified road that accommodates 140,000 vehicles per day. Clearly, traffic management on a road of this significance should not be controlled by the needs of a single development but rather by a holistic approach to traffic safety and efficiency along its length.

21 I agree with Mr Coady that there is an expectation by the public that roads of this classification will adopt similar levels of efficiency. Mr Coady stated that he was not aware of any road of a similar classification that maintained a right turn movement from a designated traffic lane. This evidence was not challenged.

22 I am also mindful that any change to line marking arrangements that would impact on other areas of the operation of a state classified road should be undertaken with consultation with any affected resident, the council and the RTA. In my view it would not be appropriate for the Court to adopt any significant changes without some indication from these parties as to the suitability of any changes. Exit from the site 23 The evidence on exit movements from the site was based on independent surveys conducted by or on behalf of Mr Coady and Mr Hazell to determine the gap acceptance or whether there were sufficient gaps in the traffic to allow the vehicles to leave the site without unreasonable levels of delay. Unreasonable levels of delay could result in a level of frustration and unsafe manoeuvres to exit the site.

24 Mr Coady's survey found that the gaps in the traffic along Showground Road would only accommodate some 12 vehicles per hour based on the 2005 AUSTROADS publication Guide to Traffic Engineering Practice - Part 5 : Intersections at Grade (the 2005 AUSTROADS publication). The 2005 AUSTROADS publication advocates a gap of 5 seconds or more between moving vehicles to allow a vehicle to safely enter the traffic flow. Based on the estimated 15 vehicles per hour leaving the site, Mr Coady concluded that the ability to safely exit the site could not be achieved.

25 Mr Hazell's survey provided a different result. His survey indicated that 31 vehicles could safely leave the site based on the 2005 AUSTROADS publication. He concluded that vehicles could safely exit the site.

26 Because of the large difference in the survey results, Mr Coady accepted that it would be appropriate for additional surveys to be carried out. Mr Coady and Mr Hazell agreed on the consultants to carry out the task (not being those who had previously conducted surveys) and the time for the surveys between 2 May 2007 and 9 May 2007. It was agreed that this issue could be considered at a later date and directions were given for the undertaking of the survey, the consideration by Mr Coady and Mr Hazell and a future hearing date. 27 The hearing on the further survey data on gap acceptance was conducted on 14 May 2007. The further survey found that there were 92 gaps per hour that would allow vehicles to leave the site in accordance with the 2005 AUSTROADS publication. Mr Coady was surprised at the results considering his previous survey and made further inquiries of the survey company. He ultimately accepted the survey results taking into account the more sophisticated basis for the survey and the extended survey period. Notwithstanding the survey results Mr Coady maintained his concern over vehicles leaving the site although he accepted that this concern would not warrant the refusal of the application. Mr Hazell reiterated his view that vehicles could safely exit the site. The weight to be given to cl 53 28 Clause 11A requires the development to be assessed "as if the relevant amending plan had been exhibited under the Act but had not been made" In this case, it must be concluded that the amending plan is certain and imminent as it has been made. The question to be answered by the Court is the weight to be given to cl 53.

29 Mr Fraser, for the council, submits that determinative weight should be given to the amendment and the development application refused. Where an amending LEP has the effect of making the development the subject of the development application prohibited such provisions can be given determinative weight where it undermines the planning principle underlying the amendment. Determinative weight can be conferred upon the amending instrument notwithstanding the fact of a savings provision.

30 He relies on the decision of Lloyd J in Blackmore Design Group v North Sydney Council 118 LGERA 290 where His Honour states (at 299) that "it is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach that has been favoured in the Court of Appeal is to ask whether the proposal is antipathetic thereto". A similar reliance on the objectives of the later instrument was adopted by Talbot J in Mathers v North Sydney Council [2000] NSWLEC 84. 31 In Edward Liston Properties Pty Ltd v North Sydney Council [No 2] [2000] NSWLEC 181 Talbot J stated (at par 35) "… if what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed a future planning objective for the area, then it should be rejected."

32 Ms Holm, for the applicant, submitted that the remaining issue in the proceedings related to the entry and exit from the site. The issue over the entry was satisfactorily addressed in the preliminary findings through the imposition of a condition requiring a 20 m slip lane. The issue over the exit and the gap acceptance was satisfactorily addressed by the further survey that showed more than adequate gaps in the traffic flow to allow vehicles to exit the site in a safe manner. The results of the survey were accepted by Mr Coady who stated that there are no traffic reasons why the application should be refused. Ms Holm saw no inconsistency with the findings in Blackmore Design Group and Edward Liston Properties and consequently no reason why determinative weight should be given to Amendment 2. Findings 33 While LEP 2005 does not specify the objective for the amendment, the Section 69 Report on the amendment provides the following helpful explanation: The prohibition of childcare centres along classified roads seeks to reduce vehicle conflicts, maintaining traffic flows along main roads, and to improve child safety. Childcare centre developments will still be permissible on classified Roads within the Rural 1(a), 1(b) or 1(c) zones. 34 An understanding of reasons behind the amendment is necessary to consider the matters raised in Blackmore Design Group, Edward Liston Properties and Mathers.

35 Put simply, the difference between the parties rests largely on the safety of the entry and exit arrangements. The council submits that the objectives of the amendment can only be met if the entry and exit arrangements are entirely safe and without any risk of being incurred greater than that which would be incurred other than on a main road like Showground Road. The applicant submits that the evidence suggests that the entry and exit arrangements are safe.

36 There was no disagreement between Mr Coady and Mr Hazell that the numerical requirements in the 2005 AUSTROADS publication were satisfied for gap acceptance. The range in survey results was however still a mystery to Mr Coady although he ultimately accepted the latest survey results. The survey results did not however totally remove Mr Coady's concerns over exit movements from the site. I share his concerns.

37 In balancing the opposing submissions I am not satisfied that the proposed development is acceptable in this location. In my view, compliance with the numerical requirements in the 2005 AUSTROADS publication is only part of the consideration required. It is necessary to also consider the particular site characteristics and importantly it's context. Section 79C(1)(b) and (c) of the Environmental Planning and Assessment Act 1979 requires consideration to be given to "the likely impacts of that development…" and "the suitability of the site for the development" respectively. In this case, this involves a broader consideration of the traffic implications taking into account the location on a classified road, the close proximity to the intersection with Britannia Avenue and the particular traffic characteristics near the site. 38 Mr Coady and Mr Hazell rely on criterion established by relevant bodies to form their opinions. For example, the traffic generation for childcare centres found in the Roads and Traffic Authority (RTA) publication Guide to Traffic Generating Developments, Section 3 - Land use Traffic Generation (October 2003) is adopted by Mr Coady and Mr Hazell. This document provides an average number of vehicles for the morning and evening peak periods based on the type of childcare facility. In my view, it would be unrealistic to blindly adopt these criteria without considering the wider context in which these criteria are to be considered.

39 For this application, quick and safe access to the site is critical because of the high volumes of traffic on Showground Road. To rely on an average for the dropping off and picking up children over the peak times to achieve quick and safe access to the site is questionable in this location. It is inevitable that there will be times when the car park is at capacity or a number of vehicles arrive at the same time.

40 The particular characteristics of the site and its general location cannot accommodate these circumstances as no safe on street parking is available to allow some additional or emergency capacity for customer parking. The potential risk is exacerbated, as persons attending the site would not be aware that the car park was at capacity until they had entered the car park. With no close on street parking facilities available, unacceptable and unsafe vehicle movements could easily occur, as could disruptions to the traffic flow along Showground Road. I am also mindful of the increased need to provide a safe environment for children. The ability to satisfactorily address these likely situations is a significant negative aspect of the proposal. 41 I also note that there are no plans to change the configuration of Showground Road within the RTA 5 - year rolling works program.

42 For these reasons I am not satisfied that the proposal is acceptable in this location as it undermines the planning principle underlying the amendment in that it is inconsistent with reducing vehicle conflicts, maintaining traffic flows along Showground Road and improving child safety. I am satisfied that the inconsistency with the planning principle underlying the amendment is significant and warrants determinative weight being given to the amendment notwithstanding the savings provisions in LEP 2005. Orders 43 The Orders of the Court are: 1) The appeal is dismissed. 2) DA 10272/05/HA for the partial demolition of existing dwelling and alterations and additions to the dwelling for a childcare centre at 101 Showground Road, Castle Hill is refused. 3) The exhibits are returned.

      G T Brown
      Commissioner of the Court

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