Ikhtiar v Campbelltown City Council and Anor

Ikhtiar v Campbelltown City Council [2006] NSWLEC 704; CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373; Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

DATES OF HEARING: 25 September and 22 November 2006

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr D Baird, solicitor Marsdens Law Group

SECOND RESPONDENT Mr A Perkins, solicitor Colin Biggers & Paisley

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

06/10414 Kamran Ikhtiar v Campbelltown City Council and Anor

The consequence of the Court's decision in this appeal will be the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

COMMISSIONER: One resident objected to this proposed child care centre because of concerns of an ethno-religious nature if the proposed development is intended to cater for an exclusively Muslim clientele. Such a statement has no validity as a basis for objection in a planning assessment. Equally, my rejection of such a view also provides no basis for consideration in my planning merit assessment.

As a consequence, I have set aside and disregarded this sentiment in its entirety.

Having noted that, this is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against refusal by Campbelltown City Council (the council) on 6 June 2006 of Development Application 4309/2005/DA-C for demolition of an existing dwelling and the erection, in its place, of a twenty-nine place childcare centre with eight car parking spaces at 23 Fitzroy Crescent, Leumeah (being Lot 4 DP 241539) (the site).

The proposal was publicly notified for ~ 5 weeks between mid-January and mid-February 2006. Seven individual submissions, one group submission and a petition with fourteen signatures were received in response to this public notification.

The site has an area of 752 sq m and is irregular in shape. The site is located at the southern end of Fitzroy Crescent. It has a curved frontage of ~ 9 m to the cul de sac at the end of the street. The southern boundary is ~ 45 m. The western side boundary is ~ 42.7 m and the eastern is ~ 30 m. A somewhat rundown existing detached brick dwelling site is located on the site. The site is relatively flat with a slight slope to the street.

To the east of the site and on the eastern side of Fitzroy Crescent is Leumeah Creek and the heavily vegetated Fitzroy Walk open space area.

A ~ 3 m wide strip along the road verge on the eastern side of Fitzroy Crescent has been landscaped by the residents as a community garden.

Campbelltown North Public School is to the south of the site across a pedestrian walkway leading to the Fitzroy Walk open space area. Another walkway connects Fitzroy Crescent to this walkway and thence, away from the Fitzroy Walk open space area to the public school and the overpass to Campbelltown High School. The connecting walkway separates the site from the only adjoining neighbouring residential dwelling, which is situated ~ 5 m away.

There are dwellings on only one side of Fitzroy Crescent with the other side forming a lawn, which merges with the community garden. There is kerb and gutter only on the residential side of the street.

The residential side of Fitzroy Crescent has a grassed footway width of 3.7 m. As there is no formal, made footpath on either side of the street, the street functions, informally, as a "shared zone" between pedestrians and vehicles.

The reasons given by the council for rejecting the proposed development were that the proposal: o is inconsistent with the objectives of the 2(b) Residential Zone under Campbelltown (Urban Area) Local Environmental Plan 2002 with respect to it placing demands on the existing road network beyond that reasonably required for residential use. o fails to demonstrate that it would not create excessive noise impacts or that it has provided appropriate noise prevention measures in support of the development. o fails to demonstrate that it would not create adverse traffic impacts within Fitzroy Crescent having regard to the size of the street.

Further, the council resolved that: o the site is not suitable for the proposed development given its location at the head of the cul-de-sac and the subsequent site constraints with regards to inability of the site to accommodate a suitable ingress/egress access. driveway design and potential to create a hazard to pedestrians utilising the adjoining walkway. o the site is not suitable for the proposed development given the existing narrow access road and its inability to accommodate traffic flow above low levels of residential traffic, such as would be expected to be generated by the development.

Finally, the council considered that the proposal would constitute an o adverse impact upon the amenity of the residents of Fitzroy Crescent. and was o an undesirable precedent for similar inappropriate development and is therefore not in the public interest. 14. At the first hearing, on site, as a consequence of the evidence of the Court -appointed noise and traffic experts and the joint conferencing of the town planners for the parties, there remained no matters on the merits of the proposal other than those raised by the objectors [vide s 79c(1)(d) of the Act]. In addition, the inadequacy of the plans with respect to waste disposal led to the matter being adjourned for further consideration of this issue.

15. All other town planning, noise and traffic related matters had been resolved, prior to the hearing, to the satisfaction of the council.

16. However, although the council was satisfied with the proposal, a number of resident objectors were heard during the course of the site view and their objections were pressed. Although one of the objectors, Mr Robert Heanes sought to have a town planning report by Mr Haskew admitted as evidence, this was not permitted for reasons not relevant in light of the subsequent course of the proceedings.

17. During the period prior to the consideration of the revised plans incorporating appropriate waste disposal provisions, an application was made, pursuant to s 39A of the Land and Environment Court Act, 1979, by Mr Heanes to be joined as a party to the proceedings. This application was granted on the basis that the council was no longer acting as an effective contradictor on the sole issue which he wished to pursue - namely the traffic impact on other residents and on pedestrians using the street [see Ikhtiar v Campbelltown City Council [2006] NSWLEC 704].

18. Mr Heanes was permitted to adduce expert evidence from Mr Winning, a traffic expert, and Mr Haskew.

19. The only other objection which was raised in any of the resident letters of objection and which was not otherwise dealt with, to my satisfaction, by the town planning and noise evidence, was, as expressed by Ms Christine Drivas of 7 Fitzroy Crescent: This wonderful street is a safe haven for an abundance of wildlife. The increase in usage of the road by parents dropping off and picking up their children increases the risk of harm to the wildlife as well as the environment that houses the animals and birds.
20. In the absence of any specific evidence on this point or any evidence that the community garden and the nearby bushland provides a habitat for any threatened or endangered species, I am unable to conclude that this concern could contribute to or provide any basis for rejecting the proposal.

The site is in the Zone 2 (b) - Residential B Zone created by the Campbelltown (Urban Area) Local Environmental Plan 2002 (the LEP). Childcare centres are permissible, with consent, in this zone.

However, development in the 2 (b) Zone is governed by the requirement that:

Except as otherwise provided by this plan, consent must not be granted for development on land within this zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone.

Amongst the objectives of the 2 (b) Zone is: (e) to allow development which: (i) is compatible with residential use, and (ii) is capable of visual integration with the surrounding buildings, and (iii) serves the needs of the surrounding population without conflicting with the residential intent of the zone, and (iv) does not place demands on services beyond the level reasonably required for residential use.

Mr Ikhtiar included, amongst the materials he provided the court, several letters of support from local residents. There is no suggestion that the proposed building form does not satisfy (ii) and there is no suggestion that there will be any level of demand on services contrary to (iv). I have no relevant evidence which would suggest that, in an appropriately narrow compass, the proposal would not serve the needs of the immediately surrounding population.

Therefore, if the proposal is compatible with residential use, it will satisfy this objective of the zone and thus be capable of approval.

As a consequence, the only basis upon which this appeal could be dismissed would be if I were to uphold the objections of Mr Heanes and determine that the traffic impacts were not acceptable.

At this point, it is appropriate to note that the standard which must be met by any proposal for development, if it is otherwise compliant with the relevant planning instruments, is acceptability and not perfection. Although consideration by a consent authority, whether a council or the Court, may act to improve a development proposal, nonetheless, if a proposal is otherwise acceptable and further improvement is not possible or it is proposed but is not accepted by the applicant, the result must be approval.

There are four, interdependent traffic related bases upon which Mr Heanes objections are founded. These are: o The inadequacy of the turning circle at the head of the street; o Increased traffic volumes in the street; o Conflicts with service vehicles such as garbage trucks; and o Conflicts with pedestrians (whether along the street or using the walkways located adjacent to the site).

One matter about which there was some discussion during the evidence related to the general policy positions adopted by other councils concerning the location of child care centres at the head of cul-de-sacs.

This evidence derived from a number of development control plans of other councils and from policy discussion about this issue.

Mr Haskew noted, in the joint experts' report, that the Second Standing Committee Report of Southern Sydney Regional Organisation of Council's (SSROC) dated 13 October 2005 included a Draft Discussion Paper on planning requirements for Child Care Centres.

He said that this report stated, on pages 6 to 7: Child Care Centres should not be located ... in cul-de-sacs or blocked roads in residential areas unless the property has a double street frontage with a drive through capability. Generally cul-de-sacs lack adequate space for pick-up/drop off causing queuing. The double traffic impact on properties is also considered unacceptable.

There is no need to make any determination with respect to the number of other councils which do or do not have a policy ban in the location of a child care centre at the head of a cul-de-sac. It is sufficient to note that this is the case.

In the present proceedings, it is the position that the council had previously considered whether or not it wished to have a development control plan concerning child care centres. Such a development control plan was prepared in draft but has now, specifically, been abandoned by the council.

Had the council, in fact, adopted such a development control plan, its terms would have been the starting or focal point for my consideration of matters contained in it [see Zhang v Canterbury City Council (2001) 115 LGERA 373 per Spigelman CJ at para 75 on pp 386 and 387].

However, the absence of such a plan and the decision not to have such a plan, does not provide any assistance to me in these proceedings.

Indeed, the existence of such plans, elsewhere, with proscriptions on child care centres at the head of cul-de-sacs, in the absence of any evidence for the reasons for adoption of such provisions, also provide me no assistance in those proceedings [see comments of McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at para 86 et seq].

Although Mr Hazell, the court appointed traffic expert, expressed the opinion, in the joint report, that Councils are introducing the prohibition/discouragement of Child Care Centres in cul-de-sacs due to the experience/expected objections from residents about the perceived increases in traffic flows, and associated on street parking problems and not based upon any studies, this opinion is also irrelevant for similar reasons.

In these proceedings, I need consider each of the four traffic issues on the individual merits of the particular circumstances in this case.

Mr Winning noted that the proposal complied with the relevant traffic guidelines published by the Roads and Traffic Authority (the RTA). His evidence was: Relating the above to the subject development is firstly the impact of traffic flow on the existing street amenity. Though existing traffic volumes are not high and the RTA's Environmental Guidelines are not exceeded by the generated traffic of the development, an increase of 100% in traffic flow volumes in the street during peak hour periods, and could exceed 100% during the day is considered does impact on existing amenity and safety due to the increase in traffic volume and current use of the street.

It was Mr Hazell's view that this compliance with the RTA's Environmental Guidelines meant that the proposal was acceptable. I have no compelling evidence which would cause me to set aside these guidelines in this instance.

In addition, what distinguishes this cul-de-sac from others where such proposals might be located is the fact that there is residential development along only one side of it. Thus the potential for conflicts with vehicles exiting driveways is significantly diminished.

Secondly it is my opinion that childcare centres located in a cul-de-sac environment, specifically at their heads, relates to road safety issues in terms of increasing traffic flow and the relationship to the risk of a road related incident that may have catastrophic outcomes.

It is offered that the subject development located in proximity to an access pathway for a School of Primary aged children and "Fitzroy Walk", being a public open space corridor situated to the southeast of the subject site, exacerbates the risk of a road related incident occurring.

Again it may be stated that the traffic flow volumes generated by the development are not high, however given the volumes are an increase of 100% on existing, the additional traffic is not local or familiar to the street amenity, the approach road alignment to the head of the cul-de-sac being curvilinear alignment (reverse curves in approach) with restricted sight distance (plantings), pedestrian usage of the street and impacts that may occur on parking and manoeuverability may increase the risk of an on road incident occurring.

Mr Haskew made comment about the level of pedestrian activity in the following terms: I have also been informed that a large number of school children and their parents use Fitzroy Crescent as a safe pedestrian route to Campbelltown North Public School and the pedestrian overbridge facility to cross the Moore Oxley by-pass to Campbelltown High School.

Mr Haskew also said: The site is situated at the head of the Fitzroy Crescent cut de sac. Situated to the south of the site are two pedestrian magnets which have direct bearing on the amount of pedestrian activity within Fitzroy Crescent. These are: + Campbelltown North Public School, which I note is accessed via a pedestrian laneway running along the north-western boundary of the subject site. + Fitzroy Walk, being a public open space corridor situated to the south-east of the site, and which discharges at Fitzroy Crescent adjacent the eastern boundary of the subject site.

The subject site therefore, is situated at the confluence of 2 pedestrian walkways.

To the north of Fitzroy Crescent on Rudd Road near Kulgoa Road is a bus stop which services routes 883 and 874 of the Local Busways Services. These routes provide services to Campbelltown (883) and Leumeah Ruse, Kentlyn (874).

The subject site is therefore situated between pedestrian magnets to the north and south of the site. In addition to this, Fitzroy Crescent generally runs parallel to Rudd Road and provides a significantly higher level of pedestrian amenity by virtue of its landscape setting and low traffic volumes than the alternative north/south route of Rudd Road itself.

However, he noted: A site inspection was conducted by me on 22nd September, 2006 between 9:00am and 9:15am. Unfortunately I was incorrectly advised of the school starting time and so commenced the survey after the time at which school children would be expected to be present. During the 15 minute survey, I recorded 4 non-school aged pedestrians travelling southbound along Fitzroy Crescent. Each of them were walking in the vehicular carriageway. At the time of writing it is my intention to conduct another survey between 3:00pm and 3:30pm today, to observe school egress movement. Unfortunately I cannot commit to current time constraints allowing the same.

Mr Winning expressed the opinion that the possibility of pedestrian conflict with a vehicle, whether at the head of the cul-de-sac or along Fitzroy Crescent by itself, was low. He said: If the proposed childcare centre becomes operational it is my opinion that though the probable risk of an on road incident occurring is low the outcome of an incident should it occur is catastrophic. This opinion is based on Austroads guidelines within the Road Safety Audit Manual (Section 6) and is reproduced in Appendix 1 to this report.

Although I accept that the outcome might be as he proposes, the fact that the probability of such an accident occurring is low is, in my view, the appropriate risk factor to be considered.

Mr Hazell also considered that the risk was low.

This fact, together with the absence of any concrete evidence supporting assertions (as opposed to hearsay) that there is a high pedestrian use of the walkways leads me to conclude that the risk is low and that pedestrian conflict would provide no basis upon which to reject this application.

In addition, Mr Ikhtiar provided a number of photographs taken over a period in July 2006, at before and after school times, which show no pedestrian activity whatsoever in the street. It was not suggested that these photographs were not taken on the days that they were annotated by Mr Ikhtiar nor at the times annotated by him.

This evidence, coupled with the evidence of Mr Haskew about his observations, or, more correctly, lack thereof, leads me to dismiss the assumption, not based on any observational evidence, that these walkways would act as pedestrian magnets.

Mr Winning also said: It is my opinion that Condition 37 recognises the potential road safety implications of the site by requiring that " the applicant is required to erect an advisory street sign, at a suitable location in Fitzroy Crescent, to warn motorists that they are approaching a childcare facility ." (Author's emphasis). If Council consider that a street sign is warranted then it is my opinion that some concerns must have been considered relating to the road safety operational aspects of the proposed development.

By implication, Mr Winning asks me to set aside the possibility that this might not merely be a reflection of a broader approach taken by the council to signage for such establishments. Absent any evidence that this is a requirement idiosyncratic to this site, I am not prepared to draw such a conclusion. Even if I were to do so, some concerns must have been considered relating to the road safety operational aspects of the proposed development, in light of my remaining findings, could not conceivable found refusal nor make any significant contribution to requiring refusal.

Mr Hazell considers that the sight lines for vehicles entering and exiting the driveway of the proposal are satisfactory and the fact that the head of the cul-de -sac has a 16.6m diameter is sufficient for vehicles to be parked on both sides and still enable another vehicle (85th percentile design vehicle) to undertake a complete u-turn. This was derived from consideration of the specification of AS2890.1 (the Standard).

Mr Winning and Mr Haskew put the proposition that the 99th percentile design vehicle was a more appropriate measuring basis - if I were to use the Standard for guidance.

It was Mr Hazell's evidence that, although the Standard was not strictly applicable, it was the practice of traffic engineering practitioners to use it as a relevant source of assistance when considering turning circles in locations such as cul-de-sacs. I except this evidence as to the appropriateness of obtaining guidance from the standard.

Mr Hazell provided a number of 85th percentile design vehicle turning templates to demonstrate that the cul-de-sac head was satisfactory for such vehicles - even with other vehicles parked in it.

Mr Winning, however disputed the appropriateness of using 85th percentile design vehicle turning templates. He evidence was: The diagrams adopt the B85 Vehicle whereas I believe the correct template to use is the B99 Vehicle. Clause B2.3 of AS2890.1 states: Except as permitted in Clause 2.5.2(c) [relates to intersections and situations where two vehicle need to pass and not relevant to the subject situation] and B2.2 design dimensions based on the B85 vehicle shall be limited to parking spaces and parking aisles.

Note: This is based on the philosophy that the statistical chance of two or more longer vehicles seeking to occupy adjacent parking spaces at the one time is relatively low, and where this does occur, a driver can divert to an alternative space with only minor disruption to other users.

The cul-de-sac head of Fitzroy Crescent is a public road and not a parking space or cul-de-sac head. Accordingly, it is not appropriate to adopt the B85 Vehicle.

The appropriate use of the B99 Vehicle is described at B2.2 as follows: Design dimensions based on the B99 vehicle are required at all locations where failure of a vehicle to be able to physically fit into the facility would occasion intolerable congestion and possible hazard. Such locations shall include all access driveways, ramps and circulation roadways, unless there are special circumstances of severe space limitation coupled with relatively low traffic volumes in which case the B85 vehicle dimensions may be used.

The purpose of using the B99 vehicle rather than the B85 vehicle therefore, is to avoid situations of congestion and hazard. It is exactly those issues which make the head of a cul-de-sac unsuitable for a child care centre and I do not consider it appropriate to adopt the B85 vehicle simply because the B99 vehicle swept path demonstrates manoeuvring problems.

It is impossible to consider that the child care centre's activitives would occasion intolerable congestion and possible hazard [expressions that are in the conjunctive rather than the disjunctive].

Therefore, I accept the evidence of Mr Hazell that the 85th percentile vehicle is the appropriate one whose swept paths should be used to assess the appropriateness of a turning circle at the head of this cul-de-sac. Such a vehicle is what might be described as a medium sized family saloon car. There is no actual traffic pattern evidence to suggest that any assumption based on anything larger is warranted.

Based on the 85th percentile design vehicle turning templates that were in evidence, I accept that, under virtually all circumstances, there will be a possibility for such a vehicle to turn, in one movement, in the turning circle even if there are other vehicles parked in it at permitted orientations.

This broad conclusion, however, does not respond to other concerns relating to turning by the garbage collection service truck as shown by photographs taken on 16 May 2006 that the garbage service, on Tuesdays, may take place at times when parents might be expected to be dropping off children at the childcare centre.

Although Mr Hazell opined that garbage would be collected before 7:00am so that there would be no overlap with Child Care Centre operations and service vehicle (truck) access, this is clearly inaccurate.

Although this is a matter of some concern, I am not prepared to conclude that, by itself, it warrants refusal of the application nor could it contribute, signifficantly to warranting refusal.

I have reached this conclusion for two reasons.

The first is that the number of parking spaces to be provided on the site is, on an appropriate regulatory assessment, adequate and expected to be capable of meeting parental parking needs at the relevant times.

The second is that, even if this is not the case, I am satisfied that the number of vehicles which might spill into the street is sufficiently low that there is unlikely to be any realistic probability of significant conflicts with the garbage truck.

Even if the garbage truck were to arrive at a time when parents were dropping off children, I am not satisfied that this once a week occurrence could remotely provide sufficient concern to warrant rejection.

Finally, Mr Hazell suggested the implementation of parking restrictions in the cul-de-sac head if this would resolve the concerns about parking.

Mr Haskew's evidence was that he considered any such restrictions would introduce their own problems.

However, given my general conclusions, I do not consider that this warrants further consideration.

As a consequence, I am satisfied that there is no basis upon which I could refuse the application.

The orders of the Court, therefore, will be: 1. The appeal is upheld; 2. Development Application 4309/2005/DA-C for demolition of an existing dwelling and the erection, in its place, of a twenty-nine place childcare centre with eight car parking spaces at 23 Fitzroy Crescent, Leumeah (being Lot 4 DP 241539) will be granted development consent subject to conditions which will be annexed to the orders of the Court; 3. The exhibits, other than Exhibits A, B and M, are returned.

02/02/2007 - Minor error - This correction is made pursuant to Part 10 rule 7(1) of the Land and Environment Court Rules 1996 - Paragraph(s) 14

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