Crawford Education Pty Ltd v Ku-ring-gai Council

The site and previous approvals

1. The site the subject of the development application ("the site") is comprised of 6 parcels of land, four of which are owned by Lindfield Property Holdings Pty Ltd and are legally identified as Lots 61 to 64 in DP 6608 ("the primary site"). The fifth parcel of land is part of an unformed section of Eleham Road, and is owned by the Council ("the Council land") and leased to Krypton Early Learning Pty Ltd ("Krypton"). It is this parcel of land on which the proposed accessible parking space is located. The development application also relies on the carparking contained within a sixth parcel of land described above, which is part of Lot 3 DP785865 located between the primary site and the railway line, owned by Rail Corporation New South Wales ("the Railcorp land"). That land is the subject of a lease to the adjoining North Shore Synagogue, who has sub-licensed the land to Crawford through Krypton. The sub-licence allows Crawford to use the land for parking motor vehicles.
2. An aerial photograph demonstrating the overall lot plan is at Figure 1.
3. The primary site is an irregular shaped allotment with an area of 3715.3m2 known as 2-8 Eleham Road and located on the north eastern side of Wolseley Road. It is gently sloping, with a fall of approximately 5m from north to south.
4. Adjoining the site, to the south, is a public reserve. Access to the primary site is achieved from the Railcorp land to the east, although the primary site has frontage of 54.7m at its west to Wolseley Road. The site is located opposite the Wolseley Road Heritage Conservation Area, which is to the south and south-west, and is comprised primarily of detached dwelling houses.
5. The Railcorp land runs alongside the North Shore Railway line, which is to its east. Vehicular access to the Railcorp land, where the proposed car parking and access to the centre is located, is obtained from Treatts Road, which is to the north of the site. Vehicles then travel in a one-way direction along the Railcorp land and exit the Railcorp land to the Pacific Highway via a southern portion of Wolseley Road, which is not connected to that part of Wolseley Road that fronts the site, except by a pedestrian pathway.
6. To the north is the unmade Eleham Road and residential allotments. Further north, but also located adjacent to the Railcorp land and next to the point where there is vehicular access to the Railcorp land, is a Jewish Synagogue known as the North Shore Synagogue. The site is a 600m walk from Lindfield train station.
7. The site currently contains five linked single storey school buildings comprising classrooms, toilets and ancillary uses. The existing buildings were constructed around 1980 consistent with a consent numbered 80/112 and dated 18 September 1980 ("the 1980 consent"). The 1980 consent applied to lots 54-58 and 61-64 in DP 6608, all leased land between Treatts Road and Wolseley Road (comprising lots 1 and 2 DP 535157) plus an additional area of 890m2. It granted consent for: "Primary and Pre-School development comprising 10 new class rooms, toilet and store facilities, internal re-arrangements to existing buildings, playground areas, for a maximum of 420 children, 56 car parking spaces and car park exit road."
8. On 10 September 1999, development consent was granted to DA 1147/99 for the erection of a shade structure over the assembly area for Massada College Primary School.
9. The current use of the site was approved by development consent 595/15 dated 28 April 2016 ("the 2016 consent"), which granted consent for: "Alterations and additions to former Masada College Junior School for use as child care centre for 70 children and construct acoustic fence."
10. The 2016 consent required modifications to the 1980 consent prior to the issue of the occupation certificate, as follows: "Condition No. 2 is to be replaced with the following revised condition: 2. The maximum number of children on site at any one time is restricted to a total of 420 of which no more than 350 are to be Infants/Primary School pupils and 70 children of pre-school age (0-6 years old). The 70 children of pre-school age are to occupy Classrooms 1, 2, 3 and 4, Outdoor Play Areas numbered 1, 2 and 3, toilets, breezeway, store, L'dry, admin and staff room (shown as hatched areas on the key) as depicted in "Floor Plan: Blocks B, C, D" (Drawing Number DA-02 Amendment G), prepared by Fortey + Grant Architecture, dated 7/4/2016". The remainder of the site is to be retained for Infants/Primary School pupils. Reason: To ensure that the existing consent that applies to the site can operate concurrently with the new consent which permits a child care centre. Condition No. 4 is to be replaced with the following revised condition: 4. The use of school buildings (with the exception of Classrooms 1, 2, 3 and 4, Outdoor Play Areas numbered 1, 2 and 3, toilets, breezeway, store, L'dry, admin and staff room (shown as hatched areas on the key) as depicted in "Floor Plan: Blocks B, C, D" (Drawing Number DA-02 Amendment G), prepared by Fortey + Grant Architecture, dated 7/4/2016 that are subject to the development consent issued for Development Application No. DA0595/15) are restricted solely to School and Sunday School hours, and the buildings on Lots 54 to 56, D.P. 6608 to have dual use with the synagogue. Reason: To ensure that the existing consent that applies to the site can operate concurrently with the new consent which permits a child care centre."

The Planning Framework

1. The primary site and the Council land is zoned R2 - Low Density Residential under the provisions of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 ("KLEPLC 2012"). Centre-based child care facilities are a nominated permissible use in the R2 zone.
2. The Railcorp land is zoned SP2 Infrastructure. Whilst centre-based child care facilities are prohibited on land zoned SP2, use for that purpose is permissible pursuant to cl 5.3 of the KLEPLC 2012, which provides (insofar as relevant): (1) The objective of this clause is to provide flexibility where the investigation of a site and its surroundings reveals that a use allowed on the other side of a zone boundary would enable a more logical and appropriate development of the site and be compatible with the planning objectives and land uses for the adjoining zone. (2) This clause applies to so much of any land that is within the relevant distance of a boundary between any 2 zones. The relevant distance is 15 metres. … (4) Despite the provisions of this Plan relating to the purposes for which development may be carried out, development consent may be granted to development of land to which this clause applies for any purpose that may be carried out in the adjoining zone, but only if the consent authority is satisfied that: (a) the development is not inconsistent with the objectives for development in both zones, and (b) the carrying out of the development is desirable due to compatible land use planning, infrastructure capacity and other planning principles relating to the efficient and timely development of land. …
3. The width of the Railcorp land is less than 15 metres, and therefore cl 5.3 applies to the Railcorp land such that development for the purposes of centre-based child care facilities can be carried out as long as subs (4) is satisfied. The Council has not raised any issue concerning satisfaction with the matters required by subs (4). Nevertheless, I have considered the same in my reasons below.
4. The objectives for development in the R2 zone are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide housing that is compatible with the existing environmental and built character of Ku-ring-gai.
5. The objectives for development in the SP2 zone are as follows: • To provide for infrastructure and related uses. • To prevent development that is not compatible with or that may detract from the provision of infrastructure.
6. The floor space ratio (FSR) development standard for the primary site and the Council land under the KLEPLC 2012 is 0.3:1. The height development standard for the primary site and the Council land pursuant to the KLEPLC 2012 is 9.5m. The proposed development complies with both standards.
7. The State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 ("SEPP EE") applies to the proposed development. Clauses 23 and 26 provide as follows: 23 Centre-based child care facility - matters for consideration by consent authorities Before determining a development application for development for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development. … 26 Centre-based child care facility - development control plans (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 child care facility: (a) operational or management plans or arrangements (including hours of operation), (b) demonstrated need or demand for child care services, (c) proximity of facility to other early education and care facilities, (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). (2) This clause applies regardless of when the development control plan was made.
8. The relevant provisions of the Child Care Planning Guideline ("CCPG") are considered below.
9. The Ku-ring-gai Development Control Plan 2016 ("KDCP") applies to the proposed development, and the controls with respect to the parking requirements for child care centres are considered in more detail below.

The Evidence

1. The hearing commenced on site with evidence heard from an objector to the proposal. A number of written submissions from resident objectors also formed part of the evidence. The following is a summary of the issues raised concerning the proposed development in the evidence given on site and in the written submissions:

• Concerns about traffic and parking impacts on Wolseley Road;
• Problems with access from Wolseley Road, including increased traffic and safety issues for local residents;
• Concerns about the removal of trees;
• Acoustic impacts on neighbouring properties; and
• Concerns about the appearance of the acoustic fence along Wolseley Road and the adjacent public park.

1. As set out above, Wolseley Road is in two portions that are not connected other than by a pedestrian path. The issues raised by the residents concern the main, north-western portion of Wolseley Road that the primary site has frontage to. However, the proposed development (as amended) does not include access to the centre using that north-western portion of Wolseley Road, and the only access to that part of Wolseley Road from the centre is by pedestrians in the event of an emergency. Given that access to the site and to the car parking is achieved from the Railcorp Land, there are no increases to existing traffic or pedestrian volumes along that north-western portion of Wolseley Road about which the residents are concerned. Further, there are no trees to be removed by the proposal
2. Additionally, the acoustic consulting report (dated 11 April 2017) demonstrates that compliance with the KDCP noise criterion is achieved with the installation of an acoustic fence along the full frontage to Wolseley Road and relying on the existing acoustic fencing along the boundary adjacent to the park. This means that, in accordance with the criterion established by the Council through its KDCP, there will no unacceptable acoustic impact of the child care centre on neighbouring residents.
3. The concerns about car parking are dealt with in my consideration below, where I determine that adequate parking is provided on the Railcorp land.

Expert evidence

1. Mr Luke Marquet, a town planner employed by the Council, Mr Andrew Minto, a consultant town planner engaged by Crawford, and Ms Felicity Fortey, an architect engaged by Crawford, gave expert opinion evidence in a joint report that was tendered at the hearing. They agreed on the appropriate entry points to the centre, including an amendment to the Plan of Management to manage the entry points and to ensure that regular/daily access is not to be provided to Wolseley Road. They also agreed that the remaining contentions concerning tree preservation, landscaping, waste management, and details of changes in levels, are all resolved either by way of the provision of the additional information (which now forms part of the proposed development), or by condition of consent.
2. Ms Lindsay Perry, an access consultant engaged by Crawford, prepared a single expert report, and a supplementary expert opinion, both of which were tendered at the hearing. She opines that the proposed accessible parking space, included in the amended development application, and the proposed accessible path of travel between the accessible car parking space and the main childcare centre entrance are in keeping with the requirements of the Australian standards (AS/NZS 2890.6 (2009) and AS 1428.1 (2009), Amendment No 1).
3. Ms Catriona Mackenzie, an arborist and landscape designer engaged by Crawford, prepared a single expert report, and a supplementary expert opinion, both of which were tendered at the hearing. She considers the impact of the proposed development, including the proposed accessible parking space on the Council land and the access path, on the trees within close proximity of the works. She opines that the proposal is unlikely to result in any perceivable change in tree vigour or diminish the long-term retention of the trees that she has assessed.
4. Mr Brian O'Connell, a civil engineer employed by the Council, and Mr Craig McLaren, a consultant traffic engineer, gave expert opinion evidence in a joint report tendered at the hearing and in oral evidence. Mr O'Connell opines that the cross-fall gradient of the parking spaces is unsafe, and the parking is inadequate because it is not on the same site as the childcare centre and it may not be available into the future because of the potential conflicts with other adjacent uses. Mr McLaren instead says that he has carried out his own risk assessment and considers the parking spaces adequate, and that the parking surveys demonstrate that adequate parking is available. Their evidence is considered further below.
5. As a result of the above evidence, the matters that remain in dispute between the parties are confined to the adequacy of the available parking on the Railcorp land, and the conditions of consent.

The controls and guidelines with respect to parking

1. Part 10B.1 of the KDCP sets out the relevant requirements with respect to parking. They stipulate that car parking spaces are to comply with the Australian standard, and that, where the centre is within a mixed use development, they are to be located near the access point to the centre. Specifically, cll 2, 5, 8 and 10 provide as follows: "2. One parking space per four children in care is to be provided, of which at least one space is to be accessible for people with a disability. Refer to Section C Part 23.2. Note: This figure includes staff parking. Note: If the number of children were to increase after approval, additional car parking space will be required." "5. Car parking spaces, circulation areas, roadways and ramps are to comply with AS2890.1" "8. Where a child care centre is located on a corner site such that vehicles may exit the site via an alternate street to that by which they entered, the car parking and vehicular access area is to be designed in a manner that discourages "shortcuts" being taken through the site by drivers who are not visiting the centre." "10. Where a child care centre is located within a commercial building or mixed use development, the parking spaces are to be located and grouped together and conveniently located near the access point to the centre."
2. The objectives of these controls are as follows: "1 To provide safe vehicular access and on-site manoeuvrability. 2 To provide car parking that satisfies the demand generated by the centre. 3 To design car parking areas that are compatible with the character of the surrounding area. 4 To locate and design car parking to minimise disruption to local traffic. 5 To ensure car parking does not affect the safety of the children. 6 To ensure car parking does not create adverse impact on the visual quality and character of low density residential areas."
3. The CCPG sets out the number of car spaces to be provided as well as establishing other relevant guidelines with respect to car parking. At C31, C36 and C37 the guideline provides: "C31 Off street car parking should be provided at the rates for child care facilities specified in a Development Control Plan that applies to the land. Where a Development Control Plan does not specify car parking rates, on-street car parking should be provided at the following rates: Within 400 metres of a metropolitan train station: … In other areas: • 1 space per 4 children. … C36 The following design solutions may be incorporated into a development to help provide a safe pedestrian environment: • separate pedestrian access from the car park to the facility … C37 Mixed use developments should include: • driveway access, manoeuvring areas and parking areas for the facility that are separate to parking and manoeuvring areas used by trucks • drop off and pick up zones that are exclusively available for use during the facility's operating hours with spaces clearly marked accordingly, close to the main entrance and preferably at the same floor level. Alternatively, direct access should avoid crossing driveways or manoeuvring areas used by vehicles accessing other parts of the site • parking that is separate from other uses, located and grouped together and conveniently located near the entrance or access point to the facility."
4. Applying the CCPG and the KDCP to the proposed development, a total of 44 car parking spaces are required for a child care centre of 175 children. However, as the facility currently operates with 70 children, the additional 105 children require the provision of 26 car parking spaces. This calculation does not make a distinction between car parking required for staff, and car parking required for children to be dropped off and picked up.
5. Further, if the development is a "mixed use development", both the CCPG and the KDCP require that the parking spaces be exclusively available to users of the child care centre and located so that the centre is easily accessed from the parking.

The cross-fall gradient of the parking spaces

1. AS2890.1, the Australian/New Zealand Standard for Parking Facilities, which applies as a result of cl 5 of Part 10B.1 of the KDCP, requires that the cross-fall gradient of car parking spaces be no greater than 6.25%. It provides: "2.4.6.1 Maximum gradients The maximum gradients within a parking module including a motorcycle parking area shall be as follows: (a) Measured parallel to the angle of parking - 1 in 20 (5%). (b) Measured in any other direction - 1 in 16 (6.25%). (c) …"
2. The car parking spaces available on the Railcorp land do not comply with the maximum gradient "measured in any other direction", and are not proposed to be upgraded in the proposed development. Measurements of the cross-fall gradient have been taken at 11 spots, and range from a gradient of 7.1% to a maximum gradient of 10.4%.
3. There are no stated objectives for this standard. However, the foreword to the standards includes the following: "The success of a parking development requires an efficient design. It must represent a balance between function, economics, safety and aesthetics. Consideration must be given to the speed and quality of parking service, the traffic circulation, access to and from the street, the external traffic network, car manoeuvring, and convenience for the drivers and pedestrians, including people with disabilities. Although it provides minimum requirements, this Standard cannot be taken as a textbook for the design of parking stations. The services of a qualified person experienced in designing car parking facilities should be sought in the application of this document."
4. I note that the foreword also includes a statement that "its use does not remove the need to comply with regulatory requirements of local government." However, neither the Council nor Mr O'Connell (who relied on this statement in the joint report) identified any "regulatory requirements" that render this statement relevant.

The parties' positions on the cross-fall gradient

1. The Council's position is that the cross-fall gradient is unacceptable, and considers that the proposed car parking is an unacceptable risk to the safety of children. It relies on the evidence of Mr O'Connell, who opines that the gradient poses risks to children walking and could cause them to fall, as well as creating a risk to occupants entering and exiting the car due to the gradient causing prams to roll away and car doors to swing closed.
2. Crawford instead submits that there is no evidence to support that the existing gradient is unsafe, and relies on the evidence of Mr McLaren and the parking assessment carried out by him. Mr McLaren's evidence is that it is a minor non-compliance. He relies on the risk assessment undertaken by him of the car parking spaces, which concludes that the spaces are fit for purpose, and he opines that the cross-fall gradient does not pose a risk to safety. He opines that any gradient up to 12.5% would not cause any adverse issues, as that is the acceptable gradient for footpaths. Mr McLaren opines that the cross-fall gradient is for the efficient design of new car spaces, and does not concern safety. His evidence is that he is not aware of any study or research done that would support the assertion of Mr O'Connell that a gradient greater than 6.25% causes an unacceptable safety risk due to doors closing or any other reason, and that he has spoken many times to the chairman responsible for the Standards and it has never been raised that a risk to safety to occupants is a reason for informing the maximum cross-fall gradient.

The cross-fall gradient does not create an unacceptable risk

1. I consider that the cross-fall gradient of the car parking spaces does not create an unacceptable risk that warrants refusal of the development application. I have formed this conclusion for the following reasons.
2. First, I accept that the breach of the standard is minor. The cross-fall of the parking spaces has a gradient that is 0.85 to 4.15 percentage points steeper than the maximum. I accept the opinion of Mr McLaren that this is a minor technical breach.
3. Second, I do not accept the opinion of Mr O'Connell that the cross-fall gradient is unsafe. His assertion that the gradient is unsafe immediately upon a breach of 6.25% gradient was supported neither by evidence of facts that inform that assertion, nor by his expertise in terms of qualifications or experience. I consider his assertion that immediately upon a breach of the standard there is an unacceptable risk of car doors closing and prams rolling away as speculative. It is not supported by stated objectives in cl 2.4.6.1 of the AS2890.1 or by a reference to any study done to inform the standard with respect to the cross-fall gradient in cl 2.4.6.1(b). Indeed, his assertion that it was unsafe for children to walk on gradients greater than 6.25% is plainly inconsistent with the standards that allow gradients of up to 12.5% for pedestrian pathways. In the CV attached to the joint report, there are no qualifications or experience in traffic engineering or road safety that Mr O'Connell has that inform the assertions he has made with respect to the safety impact of the breach of cl 2.4.6.1(b). Instead, I prefer the evidence of Mr McLaren, who, by contrast, has been an accredited Level 3 Road Safety Auditor for over 20 years and has worked in traffic engineering since 1985, and states that he is not aware of any study or information to support the proposition that a breach of the cross-fall gradient creates a risk to safety. Based on this expertise, I accept that gradients up to 12.5% are acceptable for pedestrians as that is the acceptable gradient for footpaths.
4. Third, I accept the submission on behalf of Crawford and the evidence of Mr McLaren that the car parking spaces are already in operation without any reported issue.
5. Fourth, I accept the assessment carried out by Mr McLaren that the car parking spaces are acceptable based on a risk assessment, and are safe for use and fit for purpose.
6. For the above reasons, I accept the submissions of Crawford that the evidence demonstrates that the car parking spaces are safe and workable, and as such that the objective in the KDCP concerning the safety of the children is met notwithstanding the minor non-compliance with cross-fall gradients in the AS2890.1.

The evidence on the availability of parking for drop-off and pick-up

1. As set out above, the KDCP requires a total of 44 car parking spaces for a child care centre of 175 children. However, as the facility currently operates with 70 children, the additional 105 children accommodated by the proposed development requires the provision of 26 car parking spaces.
2. Assuming that the Railcorp land has a capacity of 52 spaces, the parking survey, conducted on 14, 15 and 16 August 2018 by Curtis Traffic Surveys, demonstrates that there are a minimum of 29 spaces available on the Railcorp land for parking in the morning period, and a minimum of 27 in the afternoon peak period. As an additional 26 car parking spaces are required for the proposed development, Mr McLaren opines that there is sufficient parking available.
3. Further, Mr McLaren considers that there is no conflict with the activities at the North Shore Synagogue given that the timetable of scheduled weekly events at the Synagogue are outside the peak periods for drop off and pick up. The event schedule is at Figure 2.
4. Mr McLaren opines that the sharing of the car parking on the Railcorp land between the two uses is a good outcome for the effective use of the car parking spaces. He also considers that occasional events outside of the typical schedule that will cause conflict can be managed through the proposed Plan of Management, which requires staff to park elsewhere or use public transport, a traffic controller to be in attendance and additional child care staff on duty to facilitate a faster check-in procedure.
5. Further, Mr McLaren opines that the one car parking space for every 4 children is an over-estimate of the parking required. He reaches this opinion for two reasons. Firstly, he relies on the results of the RMS Survey conducted in June 2015 to determine the parking demand of child care centres during peak periods, which are recorded in Trip Generation Surveys Child Care Centres (September 2015). The survey results determined that centres with 70 to 100 children require, on average, 1 space per 9 children in the morning peak period and 1 space per 7 children in the afternoon peak period. Even taking a conservative approach, he considers that the peak parking accumulation can be taken as 1 space per 6 children. If this rate is applied to the proposed development, only an additional 18 spaces are required (105 divided by 6), which can easily be accommodated when considering the available parking demonstrated in the parking surveys conducted by Curtis Traffic Surveys.
6. Secondly, he relies on queuing theory analysis. Using the 98th percentile queue length, Mr McLaren's analysis is that a maximum of 24 parent cars at any one time represents the peak accumulation of parked cars associated with the morning peak drop-off of children. The analysis is based on 6min 48sec duration of stay, for which 24 car parking spaces are required to satisfy the 98th percentile queue. The duration of stay is based on the average time taken for pick-up or drop-off. The data on the duration of stay was obtained by Mr McLaren from the RMS data, which has an average length of stay of vehicles across all child care centres of 6min 48sec. In addition to the 24 car parking spaces for parents derived from this queuing analysis, a survey of staff was undertaken that demonstrate that approximately half of the staff drive to work, and therefore 18 car parking spaces are required for staff. This leads to a total of 42 car parking spaces required for a centre for 175 children, which is 24 more than what has been allowed for in the current operation, which the parking survey demonstrates is currently available.
7. The contrary opinion of Mr O'Connell is that the parking surveys by Curtis Traffic Surveys do not give an accurate picture of the availability of parking spaces, for three reasons. Firstly, Mr O'Connell says that the surveys are just based on a 3 day window whereas a consent operates in perpetuity. He considers that there has not been sufficient analysis of the demand for parking of the North Shore Synagogue or of adjacent health care professionals, which also rely on parking within the Railcorp land. A 1000 seat auditorium, as contained within the North Shore Synagogue, requires 166 car spaces in accordance with the KDCP. Accordingly he considers that there are insufficient car parking spaces for both uses.
8. Secondly, Mr O'Connell says that the Synagogue is a place of public worship that could be sold to another denomination attracting more significant numbers than presently declining attendees, which could substantially increase the parking demand and create less available parking for the child care centre.
9. Thirdly, Mr O'Connell points out that the car parking is not provided on the same development lot as the childcare centre and relies on lease that has an end-date.
10. Fourth, Mr O'Connell attended the Railcorp land on 28 May 2018 at 11:20am, and observed that 75% of the parking was occupied.
11. Mr O'Connell therefore opines that in the absence of an analysis of the projected usage for the health professional and the Synagogue, parking available on the Railcorp land cannot be relied upon.
12. Further, Mr O'Connell questions Mr McLaren's queuing analysis and considers that the average time of 6min 48sec in the RMS data is inaccurate because in his experience dropping his own child at child care, it takes greater than 10min.
13. As a result of the potential conflicts with the parking demands of the Synagogue and the health professional, as identified in Mr O'Connell's evidence and in the contentions raised by the Council, the Council seeks the imposition of a condition of consent that requires certain car parking spaces to be set aside for exclusive use of the child care centre as follows: "The child care facility is required to have lawful access to at least 44 of the parking spaces identified in plans DA13 DA14 and DA15 referenced under Condition 1 above for use by staff and visitors to the centre. Of those spaces, 18 are to be set aside for staff parking and 26 respectively are to be set aside for drop off and pick up of children for the exclusive use of the facility during the peak periods of 8am-9am and 4pm-6pm during weekdays (excluding public holidays). These spaces being those spaces closest to the entrance to the child care centre. The spaces are to be signposted as follows: Childcare Centre Parking only weekdays (excluding public holidays) from 8am to 9am, and from 4pm to 6pm."
14. Mr McLaren does not consider that such a condition is appropriate given that it would restrict the parking to the child care centre even in circumstances where it is not actually being used by the child care centre. If it was to be imposed, Mr McLaren considers that 44 parking spaces in total, and 26 spaces for drop off and pick up, as proposed in the condition, are greater than the actual demand. In calculating the actual demand for drop-off and pick-up spaces using queuing analysis, Mr McLaren considers that 6min 48sec is a conservative average duration of stay on which to base the analysis, given the fact that the car parking is located immediately adjacent to the centre. He opines that a queuing analysis based on a 5 minute average length of stay would be a more accurate reflection of actual demand, which results in 18 spaces required for drop-off and pick-up and a total of 36 parking spaces
15. Additionally, the Council relies on evidence of the terms of the lease and the sub-licence. The lease of the Railcorp land to the North Shore Synagogue, which is the head lease for the sub-licence to Crawford, terminates on 31 January 2021, with no option to renew or option to purchase. As such, the Council seeks the imposition of the following condition: "This development consent relies upon the continued servicing of the land with car parking provided by way of licence from RailCorp (now Transport for NSW). The Childcare Centre shall not operate where the a lease / licencing arrangement is not in place, providing for the required number of car parking spaces approved under the terms of this development consent, on land shown on the approved plans."

There is sufficient available parking

1. I consider that the evidence clearly demonstrates that there is parking available on the Railcorp land, which forms part of the site the subject of the proposed development, and that the available parking is sufficient to accommodate staff parking and parking for pick-up and drop-off. There is not a skerrick of evidence that the existence of the North Shore Synagogue or the health professional rooms unacceptably affects the availability of that parking.
2. First, the parking surveys clearly demonstrate that sufficient parking is available during the peak morning and afternoon periods to cater for the additional children in accordance with the parking required by the KDCP. I do not accept that any weight can be given to the observations made by Mr O'Connell on 28 May 2018, as the observations were made outside the time for drop off and pick up, and the evidence is that there was no event at the Synagogue and it was caused by unusual activity associated with construction work.
3. Second, I accept that the evidence of Mr McLaren that the parking rate of one space for 4 children in the KDCP is an over-estimate, based on the queuing analysis and the RMS childcare survey results from 2015. As such, the actual parking demand of the proposed development will be less than the number of parking spaces required by the KDCP. I do not consider that any weight can be given to Mr O'Connell's criticism of the queuing analysis based on his evidence that it takes him over 10min to drop his child to childcare. The queuing analysis is based on averages obtained through RMS data, and Mr O'Connell's criticism of Mr McLaren's analysis demonstrates a lack of understanding of the RMS data, of queuing analysis and of the concept of averages.
4. Third, I accept that the regular events at the Synagogue are outside the peak drop-off and pick-up times. Except for Wednesday Rabbi's Shiur at 10am, the events occur well outside of the operating hours of the child care centre, with at least half an hour between the Synagogue event and the opening or closing time of the centre. The Wednesday Rabbi's Shiur is outside of the peak morning drop off period. Whilst there is a potential for conflict with staff parking for that event, the parking survey demonstrates that at 9:45am and 10am on the Wednesday of the survey (15 August 2018) there are 37 car parking spaces available, which is adequate to accommodate the additional parking required by the proposed development.
5. Fourth, I accept the opinion of Mr McLaren that the Plan of Management will appropriately deal with occasional events and days of religious observance.
6. Fifth, I do not accept that the Court can rely on the potential use or potential changing attendance of the North Shore Synagogue as a reason to find that the existence of the Synagogue unacceptably affects the availability of parking. Any such exercise is purely hypothetical, and there is no evidence of any conflict or that any increase in attendance will occur.
7. Sixth, I consider that access to available parking can be maintained by conditions of consent. The first condition that I consider appropriate is for lawful access to parking spaces on the Railcorp land to be maintained. It is sufficient for that condition to reflect condition 42 of the 2016 consent and for it to require access to the 44 spaces required by the KDCP, so that the appropriate wording is as follows: "The child care centre is to have lawful access to a minimum of 44 car parking spaces located within the parking area (Railcorp owned land) shown on plans DA13 DA14 and DA15 referenced under Condition 1 above."
8. The second condition that I consider appropriate is for the operation of the child care centre to continue only with lawful access to the Railcorp land. However, contrary to the Council's submission, I do not consider it appropriate for the condition of consent to prescribe that the access is to be achieved by an ongoing lease. As such, the appropriate wording is that proposed by Crawford as follows: "This development consent relies upon the continued servicing of the land with car parking within the area shown on the approved plans and described in the development application as the railway lands. The Childcare Centre shall not operate if the development does not have access for parking to the area described in the development application as the railway lands and shown on the approved plans."
9. The third condition that I consider appropriate is for 24 spaces to be exclusively available for pick up and drop off during peak hours. This is consistent with the requirement for mixed use developments in the CCPG, which is for drop off and pick up zones to be "exclusively available for use during the facility's operating hours with spaces clearly marked accordingly, close to the main entrance and preferably at the same floor level". Although the proposed development is not for a mixed use development, the fact that the car park on the Railcorp Land is a shared car park weighs in favour of imposing a condition consistent with this requirement. I have determined that 24 spaces is the appropriate number based on the queuing analysis conducted on an average duration of stay of 6min 48sec. There is insufficient evidence before me to accept that 5min is a more accurate duration of stay, and I therefore cannot accept Mr McLaren's opinion in that respect. I do not consider it necessary to reserve spaces for staff parking, as this would sterilise those spaces and discourage flexibility in the event that there are occasional events or days of religious observance that will require staff to park elsewhere or use public transport. Such a condition ought to be included in the condition referred to in [76] with appropriate wording as follows: "Of these parking spaces, 24 of those located closest to the entrance to the child care centre are to be set aside for exclusive use for drop off and pick up of children during the peak periods of 8am-9am and 4pm-6pm during weekdays (excluding public holidays). The spaces are to be signposted as follows: Childcare Centre Parking only weekdays (excluding public holidays) from 8am to 9am, and from 4pm to 6pm."
10. For all of the reasons expressed above, I consider that the parking available on the Railcorp land is sufficient to accommodate parking for the proposed development, and that access to that parking can be maintained through the above conditions of consent.

Development consent should be granted

1. There are no other contentions that remain in dispute between the parties that would warrant refusal of the proposed development. Further, I am satisfied that the proposed development is not inconsistent with the objectives for development in the R2 zone, as it provides a facility that meets the day to day needs of the local residents. It also uses the SP2 zoned land that is currently not used for railway infrastructure, and therefore does not detract from the provision of infrastructure and is not inconsistent with the objectives of the SP2 zone.
2. However, there remains a dispute, firstly, as to whether I ought to allow the development application to be amended to include an application under the Roads Act and, secondly, with respect to a number of the conditions of consent that are proposed by each of the parties.

The Roads Act application

1. The construction of the proposed accessible parking space requires works to be carried out on the Council land, in an area that forms part of the unformed public road. As such, approval is required under s 138 of the Roads Act. Crawford seeks leave to amend the development application to seek that approval, which is opposed by the Council.
2. Crawford submits that given the proposed development now incorporates the construction of the accessible parking space, the Court ought to grant approval to that work being carried out on the Council land and that there is no reason why it shouldn't do so. Crawford submits that any engineering details can then be provided at the construction certificate stage. In support of their preference that the Court grant the approval, Crawford asserts that they face a risk that the Council will decline a Roads Act application as a means of frustrating the consent, and there is no avenue for appeal if that occurs. It says that such a concern arises because of the condition imposed on the owner's consent for the development on the Council land, which states that "the land is not to be used for the purpose of the applicant meeting statutory and regulatory requirements for a childcare centre in respect of open space, recreation facilities, parking or other requirements, due to the revocability provisions of the Act."
3. The Council submits, however, that it is not appropriate for the Court to step into the shoes of the Council and issue a Roads Act approval in circumstances where the Council hasn't had a proper opportunity to either receive the plans that it would normally require, or deal with the application in the usual course. It submits that it is not appropriate for those plans to be provided at the construction certificate stage, as this would mean that they can be signed off by the principal certifying authority, which may not be the Council. In support of this submission, Mr O'Connell gave evidence that the usual course for a Roads Act application is for the detailed design for construction to be provided to the Council and considered by the relevant officers of the Council prior to approval.
4. The Council also submits that the condition on the owner's consent is not sufficient to give rise to a reasonable apprehension that the Council will somehow use the power under the Roads Act to thwart the development.
5. Whilst I consider that the provision of the accessible parking on the Council land provides an appropriate outcome for the proposed development, and is a far more acceptable solution for the accessibility of the centre than that previously proposed, I accept the Council's submission that it is not procedurally fair for the Court to consider the Roads Act application as part of the development application in circumstances where that aspect of the application was not sought until the commencement of the hearing. As such, the application should be considered by the Council in the usual course and by receiving the plans that it would normally require. Accordingly, I decline to grant leave to Crawford to amend the development application to seek the Roads Act approval.
6. The development consent should instead be subject to a condition of consent that makes it clear that approval must be obtained from Ku-ring-gai Council as the road authority under ss 138-139 of the Roads Act for the works on the Council land prior to the issue of any Construction Certificate.

Conditions of development consent

1. I have above determined (at [73]-[75]) the appropriate conditions of consent with respect to the availability of car parking. These would replace the Council's proposed conditions 71 and 73, which have the headings "Maintenance of Lease…" and "Provisioning of parking spaces" respectively. Similarly, I have determined above (at [84]) that a condition should be imposed that makes it clear that approval under the Roads Act is required.

Surrender of previous development consents

1. The Council seeks the imposition of conditions that require the surrender of all previous development consents concerning the land. This includes a deferred commencement condition requiring the surrender of the 1980 consent, and DA 1147/99 for the erection of shade structure over the assembly area for the Masada College. It also includes a condition that requires the 2016 consent for the child care centre to be surrendered prior to the issue of an occupation certificate.
2. The Council submits that this is appropriate so that there can be no confusion as to the purpose for which future works are carried out on the site, and so as to remove any further additional car parking pressure on the site and surrounding residential streets that could be caused by the operation of historic consents. In support of this submission, the Council refers to the decision in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 ("Leda Manorstead"), in which Pepper J considered whether the conditions of a project approval affected the operation of historic consents. The Council also submits the surrender of the prior consents is appropriate in order for the site to meet the objective of the EPA Act for the "orderly and economic development of land" because it will provide certainty as to what use is being carried out on the land.
3. I am not persuaded that it is appropriate to require the surrender of development consents in circumstances where development the subject of the consents has been carried out and the proposed development concerns alterations and additions relying on buildings constructed pursuant to those consents. Leda Manorstead does not create a precedent or basis for doing so. Rather, Leda Manorstead demonstrates that where a consent or approval is acted upon, a person so acting is bound by the conditions imposed on that consent or approval. The decisions of the Court have re-iterated that multiple consents can operate with respect to the same site, which decisions are discussed by Pepper J in Leda Manorstead at [76].
4. In the present circumstances, to require the surrender of the consents would have two unwarranted consequences. Firstly, it creates potential issues with respect to the buildings on the site, and the previous and current use of the site, which have not been fully explored. This includes uncertainty with respect to any occupation certificates issued pursuant to those consents, which form part of the development consent (see s 6.4(c) of the EPA Act). Secondly, in the context where the 1980 consent applies to an area of land broader than the site, it would render unlawful any use of the land the subject of the 1980 consent that is not within the site. It was represented to me that the school buildings on that land are being used for classes for children during services at the Synagogue ("Sunday School").

Amendment of previous development consents

1. Crawford seeks to amend the previous development consents to achieve consistency across them, just as the Council did in the grant of the 2016 consent for the child care centre.
2. Crawford seeks to amend the 1980 consent by reducing the number of primary school children that can be on the land that benefits from that consent, to reflect that 170 preschool children will now be in the child care centre. The Council opposes this amendment on the basis that it considers that this is an increase in the total number of preschool children on the land that benefits from the 1980 consent, beyond the number in the proposed development. I do not accept the Council's position in this respect. Given that the 1980 consent operates on land broader than the site the subject of the proposed development, if 175 preschool children are on the site, this would be inconsistent with the 1980 consent as amended (if it remains operative) which limits the preschool children to 70. In circumstances where the Council modified the 1980 consent to reflect the 2016 consent for 70 preschool aged children, I accept that, given that the number of preschool children will now increase to 175 by the proposed development, this should be reflected in the 1980 consent and the number of primary school children on the land the subject of the 1980 consent should be reduced in a corresponding manner. Similarly, condition 4 should be modified to reflect the fact that the areas to be utilised by preschool aged children are expanded into the site the subject of the proposed development. This follows the approach taken by the Council in the grant of the 2016 consent for the child care centre, and it is appropriate to follow that approach, even if there are doubts as to whether a school could operate on the basis of the 1980 consent. Accordingly, I accept Crawford's submission that conditions 2 and 4 of the 1980 consent should be replaced with the revised conditions as follows: "Condition 2 is to be replaced with the following revised condition: 2. The maximum number of children on site at any one time is restricted to a total of 420 of which no more than 245 are to be Infants/Primary School pupils and 175 children of pre-school age (0-6 years old). Condition 4 is to be replaced by the following revised condition: 4. The use of the school buildings (with the exception of the buildings approved for use as a child care centre the subject of DA0639/17) are restricted solely to School and Sunday School hours, and the buildings on Lots 54 to 56, DP 6608 to have dual use with the Synagogue."
3. I note that the parties agree that, following counsel advice, it is unlikely that the 1980 consent could be lawfully acted upon for the full operation of the school without a further development application. Crawford seeks to give effect to that with a proposed condition 70, which says: "For the avoidance of doubt, the subject buildings are not be used for the purpose of an infants/primary school or in conjunction with an infants/primary school without a further development application or modification application."
4. The Council considers that proposed condition 70 is otiose as the present proposed development does not seek consent for use as a primary school.
5. Whilst providing the clarity of proposed condition 70 could be useful, in my view it may create confusion given the present use of the other buildings the subject of the 1980 consent for Sunday School. In those circumstances, and where the Council opposes the condition, it ought not be imposed.
6. Crawford also seeks to modify the 2016 consent to achieve consistency with the grant of consent for the proposed development, by changing the conditions of the 2016 consent by, inter alia, increasing the number of children and the number of car parking spaces. I do not consider that this is required, and I accept the submission made on behalf of the Council that this may create some doubt as to which of the consents are being carried out. In turn, this may create uncertainty as to whether the operational conditions of the consent for the proposed development attach to the increase in the number of children brought about by the modification of the earlier consent. As such, condition 66 proposed by Crawford will not be imposed.

Consolidation of lots

1. The Council seeks that the lots that form the primary site, Lots 61 to 64 in DP 6608, be consolidated by the imposition of a condition of consent requiring the same. Its position is that this will provide for the orderly development of land and is essential for the appropriate fire separation of the buildings. In support of its position, it relies on the provisions of the KDCP at Part 3B, Control 2, which states that "[w]here development is proposed to cross lot boundaries, consolidation of the subject lots will be required." Crawford opposes this condition, and submits that the consolidation of lots does not reasonably relate to the proposed development for alterations, additions and increase in child care numbers.
2. I have determined not to impose a condition to require the consolidation of lots. There is no evidence with respect to whether the consolidation will meet the objectives of the controls in the circumstances of the proposed development. The Council's written submissions on the conditions (signed by Mr Marquet) refer to an agreement by the planners, but no such evidence has been given. Given the proposed development is for alterations and additions to, and use of, existing buildings, I do not consider it appropriate for there to be a strict application of the control absent a consideration of the merits of such consolidation.

Electrical and telecommunications services

1. The Council seeks the imposition of a condition that requires all electrical services to be undergrounded. The wording of the condition is as follows: "All electrical services (proposed) shall be undergrounded from the proposed building on the site to the appropriate power pole(s) or other connection point. Undergrounding of services must not disturb the root system of existing trees and shall be undertaken in accordance with the requirements of the relevant service provided. Documentary evidence that the relevant service provider has been consulted and that their requirements have been met is to be provided to the Certifier prior to the issue of any Construction Certificate. All electrical and telephone services to the subject property must be placed underground and any redundant poles are to be removed. Reason: To provide infrastructure that facilitates the future improvement of the streetscape by location of service lines below ground."
2. Crawford opposes this condition on the basis that no works are proposed that would require external electrical services, and as such the condition is not "of relevance to the development the subject of the consent" in satisfaction of s 4.17(1)(a) of the EPA Act.
3. Mr O'Gormon-Hughes described this condition as applying only to any new electrical services installed as a result of the development. However, the condition sought to be imposed is not consistent with Mr O'Gormon-Hughes' explanation of its intent. I consider that the condition is reasonably related to the development but that the wording ought to be amended to reflect the intent, with suggested wording as follows: "Any new electrical services installed for the purpose of the proposed development and requiring a new connection from the building to the appropriate power pole(s) or other connection point should be undergrounded between the building on the site and the power pole(s) or other connection point. Undergrounding of services must not disturb the root system of existing trees and shall be undertaken in accordance with the requirements of the relevant service provided. Documentary evidence that the relevant service provider has been consulted and that their requirements have been met is to be provided to the Certifier prior to the issue of any Construction Certificate."

Lift required to comply with Australian standards

1. The Council seeks the imposition of a condition requiring that the lift, that was constructed as complying development, be certified as compliant with accessibility requirements. The precise wording of the condition is as follows: "Prior to the issue of an Occupation Certificate, the Principal Certifier shall be satisfied that: • the lift design and associated functions are compliant with AS 1735.12 & AS 1428.2 • the level and direction of travel, both in lifts and lift lobbies, is audible and visible • the controls for lifts are accessible to all persons and control buttons and lettering are raised • international symbols have been used with specifications relating to signs, symbols and size of lettering complying with AS 1428.2 • the height of lettering on signage is in accordance with AS 1428.1 - 2009 and the signs and other information indicating access and services incorporate tactile communication methods in addition to the visual methods."
2. Crawford opposes the first three dot points of the condition on the basis that the installation of a lift is not part of the development application, and says that therefore the condition is not "of relevance to the development the subject of the consent" in satisfaction of s 4.17(1)(a) of the EPA Act.
3. Contrary to this submission, the expert report of Ms Perry (Ex E) relies on the platform lift to provide an accessible path of travel to other areas of the childcare centre. In circumstances where it forms part of an accessible path of travel, I accept the submissions of the Council that it is appropriate to impose a condition of consent requiring the lift to meet the specified accessibility requirements as described above (including all 5 dot points).

Plan of Management

1. The Plan of Management (Ex B) needs to be updated to reflect that the disabled parking space is provided on the Council land, rather than including a proposed management strategy for access from the carpark for people with a disability. It is otherwise acceptable.

Outcome of the appeal

1. For the reasons expressed above, none of the contentions that remained in dispute warrant refusal of the development application. The proposed increase in the number of children can be accommodated on the site, and there is parking available on the Railcorp land to accommodate the increase in parking demand. Given that the other planning controls of the KLEPLC 2012 are met, the appeal should be upheld and development consent granted. Leave should also be granted to amend the development application in accordance with the amended plans in Ex K and L.
2. However, prior to the development consent being granted, the Plan of Management needs to be updated as explained above at [104], and the conditions of consent need to be provided that reflect my findings at [73]-[75], [84], [88], [91], [97], [100] and [103].
3. The changes to the Plan of Management can also reflect what is sought by the Council in proposed condition 3, such that the reference in cl 10.2 of the Plan of Management, stating that "Reddam ELS Lindfield will implement any measures recommended by the arborist within 14 days" can be amended by adding the words "for emergency works only. Pruning works of trees would otherwise require a separate tree works application to Council with the appropriate arborist assessments provided."
4. The Court orders that: 1. Leave is granted to the applicant to amend the development application in accordance with the plans in Exhibits K and L. 2. The applicant is to file and serve the final Plan of Management by 26 August 2019. 3. The respondent is to file and serve, and provide in word version by email to the Court, conditions of consent that reflect the findings in this judgment, by 30 August 2019. 4. The proceedings are listed at 4pm on 2 September 2019 for final orders to be made. 5. Exhibits 2, 4, 6, 7, 8, 9, B and F are returned.

Addendum made on 5 September 2019

1. In accordance with the terms of directions in paragraph [108] of my judgment of 20 August 2019, Crawford has prepared an amended Plan of Management and the parties have provided me with proposed conditions of consent. I am satisfied that the conditions of consent reflect my findings and that consent to the application should be granted subject to those conditions of consent.
2. The Court orders that: 1. The appeal is upheld. 2. Development consent DA0639/17 is granted for alterations and additions to the childcare centre at 2-8 Eleham Road, Lindfield, including the increase in the number of child care centre places from 70 to 175, security fencing, various external store rooms and associated landscaping works, subject to the conditions of consent in Annexure A. ………………………. J Gray Commissioner of the Court Annexure A (288 KB)

Amendments 05 September 2019 - Addendum made on 5 September 2019 In accordance with the terms of directions in paragraph [108] of my judgment of 20 August 2019, Crawford has prepared an amended Plan of Management and the parties have provided me with proposed conditions of consent. I am satisfied that the conditions of consent reflect my findings and that consent to the application should be granted subject to those conditions of consent.

The Court orders that: (1) The appeal is upheld. (2) Development consent DA0639/17 is granted for alterations and additions to the childcare centre at 2-8 Eleham Road, Lindfield, including the increase in the number of child care centre places from 70 to 175, security fencing, various external store rooms and associated landscaping works, subject to the conditions of consent in Annexure A. 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: 05 September 2019