Chahda v Liverpool City Council

Land and Environment Court (NSW)|2018-07-06|Before: Dr J

This judgment was given as an ex tempore decision. It has been revised and edited prior to publication.

This Class 1 appeal arises from Liverpool City Council's (Council) deemed refusal of an application by Albert Chahda (applicant) (DA439/2017) for the construction of a 60 place child-care centre above basement car parking on land described as Lot 7 DP 222767 and known as 303 Newbridge Road, Chipping Norton (site). The appeal is brought pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
On 7 June 2018, the Court granted leave to the applicant to rely upon an amended application, under which consent is now sought for a child-care centre over two levels, to accommodate 54 children, with an increased front setback to 7.5 m, an increase in the outdoor play area, revisions to the internal and external layout including a pergola over the play area on the eastern boundary and a widened driveway crossing (amended application). At the hearing the application was further amended to address the Council's remaining contentions, identified in its Amended Statement of Facts and Contentions dated 18 June 2018 (Exhibit A).
While the amendments resolved several of the issues raised in the appeal they did not overcome the Council's primary concern about the location of the development on a classified road. In that regard, the Council asserts that the Court does not have jurisdiction to approve the DA because it offends cl 101(2) of the State Environmental Planning Policy (Infrastructure) 2007 (SEPP). In particular, the Council argues on the evidence that the Court cannot be satisfied that the safety, efficiency and ongoing operation of Newbridge Road will not be adversely affected by the development as a result of the design of the vehicular access to the site or the nature, volume and frequency of vehicles using the road to gain access to the site. The Council also submits on the air quality evidence that the road's impact on the children's health is not satisfactorily addressed in the outdoor play area in this development which is sensitive to vehicle emissions.

Background

At the hearing the Court received evidence comprising background material and detailed expert evidence. A view of the site and surrounding areas was also undertaken on the first day of the hearing. I have considered that material, including the evidence from the neighbour on the eastern boundary and it seems to me the essential facts are as follows:
The new development is proposed to be located on the northern side of Newbridge Road. The road has six lanes, a speed limit of 70km/hr and currently carries an annual average daily traffic volume of 42, 039 vehicles.
The road is zoned SP2 (classified road) under the Liverpool Local Environmental Plan 2008 (LEP).
A concrete median strip is constructed in the middle of the road in front of the site. The concrete strip impedes traffic heading in a westerly direction from turning into the site from Newbridge Road.
To overcome the access issue generated by the concrete medium strip the application relies upon a single driveway entry with a left turn in and left turn out laneway.
In practical terms this means that any vehicle travelling in a westerly direction on Newbridge Road and wishing to access the site would need to turn at the lights into Epson Road and down either Whelan Avenue and once it passes the double lines then conduct a U-turn safely back to the site. Alternatively, a vehicle could travel into Franklin Road and conduct a U-turn or a three-point turn in that street and then come back down Epsom Road and turn onto Newbridge Road and then into the property.
The traffic experts, Mr Hollyoak and Mr Wiafe agreed that the proposed 54 place childcare centre will generate 44 trips in the AM peak (22 in, 22 out) and 38 in the PM (19 in, 19 out) peak periods, compared to the traffic generation from the existing detached dwelling of 1 trip per hour (Joint Traffic Report Exhibit 6 p 2 at 4).
Given that the site has a frontage to a classified road the Court cannot grant consent to this application unless it is satisfied that the preconditions expressed in cl 101(2) of the SEPP are met.
The SEPP clauses provide: 101 Development with frontage to classified road (1) The objectives of this clause are: (a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and (b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads. (2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that: (a) where practicable, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
The Roads and Maritime Services (RMS) has provided concurrence to the application under s138 of the Roads Act 1993, subject to certain conditions being included in any development consent issued by the Council (now the Court). The applicant has accommodated these RMS conditions in its amended proposal. That said, it is accepted that a concurrence from the RMS under s138 of the Roads Act has nothing to do with the satisfaction of the preconditions raised by the SEPP.
The parties town planners, David Haskew (for the applicant) and Rodger Rappolo (for the Council) have agreed that the site's location on a classified road does not warrant refusal of the proposal provided acoustics, air quality and traffic issues arising from the site's frontage to the classified road are determined to be satisfactory.
With respect to access into the site, Mr Hollyoak and Mr Wiafe in their joint reports (Exhibit 6 and C) have agreed that the amended driveway design now minimises the impact on the road and supersedes the need for a deceleration lane. In short, they accept the alternate measures now proposed including: incorporation of a slightly angled splitter island into the design of the driveway to separate the entry and exist lanes; and, at the kerbside, the widening of the driveway to 12.3 m (as shown on the plan marked figure 2 (Exhibit C) are appropriate.
The traffic experts have also agreed that the basement car park will accommodate more than the requisite number of vehicles generated by the development including a B99 sized vehicle (e.g. 5.2m length x 1.94m width). However, while the length of the proposed 30m driveway will accommodate the Council's garbage truck or a removalist truck these vehicles will not be able to enter the car park. Should such a vehicle of this size enter the site then it could only exist the site by a reverse movement out into the traffic on Newbridge Road.
Needless to say, both traffic experts accepted that such a reverse manoeuvre onto this particular classified road is dangerous.
To overcome this constraint the applicant has agreed to the imposition of a condition of consent requiring the operator use only a private contractor for garbage which will be able to enter the car park. To preclude these larger size trucks/vehicles from entering the site it is proposed that the Plan of Management (POM) will stipulate the size of vehicles allowed to enter the site - similar to those referred to in the traffic joint report, Annexure F.
Both traffic experts accepted that strict adherence to the POM is necessary in order to avoid a dangerous reverse movement by a large truck onto the classified road.
While Mr Hollyoak was ultimately satisfied that all traffic impacts were satisfactorily dealt with by the amended application the Council based on Mr Wiafe's written and oral evidence remained concerned about the development's adverse effect on the classified road in terms of traffic congestion and flows on the road generated by vehicles entering the site, (despite traffic counts about less kerbside lane traffic).
Put simply, Mr Wiafe's evidence is that the increase in left hand turn movements into and from the site (which will be 22 vehicles per hour) - that is one vehicle every 3 minutes is likely to slow down traffic flow on Newbridge Road and cause congestion at the driveway entry to the site, due to queuing of vehicles behind those who are waiting to turn into the site. In his expert assessment this will have a marginal adverse impact on the efficiency and ongoing operation of traffic flow and safety.
Whereas, Mr Hollyoak told the Court that in his opinion the impact will not be significant. In reaching his conclusion Mr Hollyoak accepted that there had been 2 reported rear end accidents proximate to the site in the last 5 years and that with the recent approval of the Moorebank Intermodal Terminal (MIT) (currently under construction) there will be an increase of heavy vehicles on Newbridge Road over time. He also agreed that vehicles turning right into the site may cause friction in the kerbside traffic lane and result in queuing, particularly if the car parking is accessed immediately upon entering the site.

Jurisdiction

As stated at the outset the SEPP raises a jurisdictional issue. Unless I am satisfied that the preconditions express in cl 101(2) are met I must refuse this application.
The objectives of the clause are: 1. To ensure that new development does not compromise the effective and ongoing operation and function of classified roads; 2. To prevent or reduce the potential impact of traffic noise and vehicle emissions on developments adjacent to classified roads.
The Council invites me to apply the Court's reasoning in Benson McCormack Architects v Manly Council [2013] NSWLEC 1223 ('Benson') to the facts at hand as there has been no change to cl 101(2) since Benson - despite amendments to cll 100 and 102 of the SEPP in 2017. Therefore the Court's interpretation of the provision stands.
The three matters in cl 101(2) are conjunctive: Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 1075. Therefore, any one matter in cl 101(2) about which I am not satisfied precludes the issue of consent.
In this case the parties agree that cl 101(2)(a) is not relevant because the classified road is the only access to the land. That said, the next relevant consideration is cll 101(2)(b)(i) and (iii) according to the traffic assessment both experts agree that the design of the vehicular access to the land will require traffic on the classified road to slow down to enter the site and this will adversely affect the traffic flow to varying degrees on the classified road in terms of the safety, efficiency and the ongoing operation. Mr Wiafe is of the opinion that this will have a marginal adverse affect (or impact) on traffic flow and cause traffic conflict adjacent to the proposed driveway crossing. He refers to previous traffic incidents on the road and believes the proposal may generate further rear end collisions at the entry driveway to the development as vehicles necessarily slow down to enter the site with some traffic travelling at a maximum speed limit of 70km. He is of the opinion that the location of this 54 place childcare centre without a deceleration lane to take the slower traffic into the driveway and out of the stream of flowing traffic is inappropriate - albeit he accepts that the driveway design will allow vehicles to enter the site without a deceleration lane. Mr Hollyoak is of the view that this impact will not be significant. Although he accepts that cars will need to slow down to enter the driveway from Newbridge Road he does not believe this will generate queuing or conflict.
Separate to that issue both experts accept that strict compliance with the POM is necessary to avoid large trucks reversing from the site. Mr Hollyoak agreed that such a manoeuvre onto this classified road was clearly unsafe. Although based on his experience he was confident that the use of smaller vehicles for removing garbage from the centre will not be an issue. Mr Wiafe remained concerned that this could happen with adverse consequences for road safety.

Findings

As it stands I have a divergence of expert opinion about whether the safety, efficiency and ongoing operation of the classified road will be not be adversely affected by the development as a result of the design of the vehicular access to the land (cl 101(2)(b)(i)) and the nature, volume and frequency of vehicles using the classified road to gain access to the land (cl 101(2) (b) (iii)).
The applicant invites me to have regard to the single entry driveways further along the road, which provides access to the McDonalds and a home ware store carpark and the residential town house driveways. I observed these developments and driveways at the site view.
However, after considering those driveways and the nature of the uses they service I must conclude on the evidence before me that the traffic impacts generated by this proposal are very different. The experts have assessed additional traffic to the site of 44 cars - peak traffic volumes of around 22 vehicles per hour into and out of the site. On that basis it is not unreasonable to assume that the nature of the proposed use will generate more cars driving into and out of the site at concentrated times of the day than the traffic entering the McDonalds site or the residential town house driveways. It is not unreasonable to assume that many working parents and carers will drop off children to the site (which is a long day child care centre) in morning peak and after work at roughly the same time each day. Based on the traffic evidence the concentrated traffic flows into the site at certain times of the day will be different to those entering and existing McDonalds and the residential town houses further along the road.
Having regard to all of the evidence - including the experts agreed position that strict reliance on a POM is necessary to preclude large trucks from entering the site in order to avoid unsafe reversing movements from the site, I am not satisfied as required by cll 101(2)(b)(i) and (iii) of the SEPP. For a POM to be effective, a single breach should not create a situation where there is unacceptable impact - in this case a very unsafe consequence: Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 at [62].
Therefore, I agree with the Council if I am not satisfied on the evidence that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: the design of the vehicular access to the land, and the nature, volume or frequency of vehicles using the classified road to gain access to the land then cll 101(2)(b)(i) and (iii) precludes me from granting development consent to the application. In short, I do not accept the applicant's submission that Mr Hollyoak's evidence "that the impact will not be significant" on the facts of this case, on this classified road, does not preclude my satisfaction.
The clause does not contemplate varying degrees of satisfaction, it invites satisfaction or not and an assessment by a traffic expert that "the impact will not be significant" does not allow me to have the requisite satisfaction as required by cll101(2)(b)(i) and (iii).
As a consequence I do not have jurisdiction to approve this development application.
Having reached that conclusion I do not need to deal with any other issues discussed at the hearing including air quality.

Orders

Accordingly, the Court orders: 1. The appeal is dismissed. 2. Development Application DA439/2017 for the construction of a 60 place child-care centre above basement car parking on land described as Lot 7 DP 222767 and known as 303 Newbridge Road, Chipping Norton is refused. 3. The exhibits are to be returned.

S Dixon Senior Commissioner of the Land and Environment Court

Amendments 23 July 2018 - - Corrections on coversheet

Typoghraphical changes to s. 102(b)(i) and (iii) at praragraph [12], [28], [30], [34] and [35] 26 July 2018 - Correction to title of Legislation at par 3 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: 26 July 2018

At a glance

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