Janalf Enterprises Pty Ltd v Baulkham Hills Shire Council

Land and Environment Court (NSW)|2005-07-08|Before: Mr J

Background 1 This appeal is against council's deemed refusal of a development application for the construction and operation of a childcare centre for 59 children at 18 Bannerman Road, Kenthurst.

2 The subject property is described as Lot 9, DP 244146 and has a total area of 2.024 ha and a frontage of approximately 66 m to Bannerman Road.

3 The locality is rural/residential in nature, predominantly with single dwellings on large landscaped lots. The proposal 4 This proposal is for the erection of a 59 place childcare centre. The new building is to be located approximately 87 m from the front property boundary (i.e. behind the existing dwelling, with side setbacks of approximately 24 m from the eastern building and 18.5 m from the western side. The proposal includes the construction of an access driveway to a rear carpark for 20 cars, which is adjacent to the new centre. It has a variable horizontal alignment, with a minimum setback of 10 m from the side boundary, which allows for mounding and landscaping.

5 The proposed hours of operation are: Monday to Friday: 7.15 am to 6 pm; Operating over 50 weeks per year (excluding public holidays). 6 The application also proposes the erection of a non-illuminated identification sign, to be located adjacent to the access driveway.

7 Insofar as a number of issues were identified initially, conferencing between the parties reduced the outstanding issues to: + The appropriateness and safety of the proposed access to the childcare centre; + Public interest consideration relating to matters raised by the objectors including access/safety, impact on privacy and amenity of neighbouring properties. 8 Accordingly the parties agreed to Mr J Hewitt being appointed as the Court-appointed expert (CAE) for access/traffic matters. Planning controls 1. Baulkham Hills LEP 1991: Under this LEP the subject land is zoned Rural 1(c) and a childcare centre is permissible with consent. 2. SREP 20 - Hawkesbury-Nepean River, affects the site. 3. DCP No. 1 - Rural 1(a), 1(b) and 1(c) Zones 4. DCP No. 11 - Signage 5. DCP No. 12 - Parking 6. DCP No. 15 - Landscaping

The evidence 9 In response to the access issue, detailed reports were presented by the CAE Mr Hewitt (Exhibits 4 and 5) and Mr L Cullen also provided two traffic reports (Exhibits D and E). The consideration of these reports initially raised questions about the reliability of the traffic survey information provided by council. This matter was checked and a subsequent conference held by Mr Hewitt, Mr Cullen and other involved parties, to agree on the basic survey information interpretation.

10 The issue of adequacy of access to/from the proposed childcare centre arises due to the vertical and horizontal alignment of Bannerman Road, adjacent to subject property, which has the effect of reducing sight distances. The proposed access driveway is situated at a slight ridge in Bannerman Road and on the inside of a horizontal curve, which contributes to the restricted sight distance, due to existing embankments and vegetation. Also the residents have indicated that sunlight angles at certain times of the year compound sight distance concerns.

11 But the restricted sight distance particularly relates to vehicles leaving the subject site, when making a right hand turn into Bannerman Road. Insofar as these vehicles have adequate site distance for vehicles approaching from the right left (i.e. travelling in a westerly direction), there is a potential problem for vehicles travelling in a westerly and easterly direction.

12 This potential problem involves sighting any vehicles leaving the childcare centre, but only arises when these eastbound vehicles exceed the currently signposted speed limit of 70 km/hr. 13 The respective traffic experts have conferred on this issue and they agree that: + given the existing speed profile and level of development along Bannerman Road it is most unlikely that the RTA will reduce the speed zones in the near future, + the "desirable" sight distance requirement for a motorist exceeding "other than a domestic" driveway for the signposted 70 km/h is 97 m as defined in AS/NZS 2890.1 - 2004. + the detailed traffic survey of speed and volumes collected by council between 23.04.2005 to 4.05.2005 is the most appropriate available data and should be relied upon for this assessment. 14 In formulating his opinion on the safety of the proposed access way, Mr Hewitt referred to sections of the AS/NZS 2890.1 standard, in particular the following Fig. 3.2 (Sight Distance Requirements at Access Driveways) provisions. Frontage road speed (Note 4) km/h Distance (y) along frontage road M Access driveways other than domestic (Note 5) Domestic property access (Note 6) Desirable 5 s gap15 Minimum SSD 40 553530 50 694540 60 836555 70 978570 80 11110595 90 125130 Use values from 2nd and 3rd columns 100 139160 110 153190

This is the posted or general speed limit unless the 85th percentile speed is more than 5 km/h above the limit in which case the tabulated speed nearest the 85th percentile shall be adopted. 16 From this, Mr Hewitt maintains his opinion that the sight distance is inadequate because the traffic surveys show that a considerable number of vehicles exceed 80 km/h, i.e. exceed the signposted 70 km/h limit. Also he considers extra caution should be exercised because of the nature of traffic from the childcare development.

17 In response to these concerns, Mr Cullen proposed further improvements at the road/access way intersection. This includes benching the inside of the curve embankment and vegetation clearing, to increase sight distance to approximately 105 m. Also, offsetting the centre line of Bannerman Road towards the site, to allow extra width for emergency passing by speeding westbound vehicles, to avoid the turning vehicles. Consequently he supports the proposal on the basis that the proposed road improvements now provide a satisfactory level of safety.

18 From the examination of the differing positions of these experts, it is apparent that the speed surveys have been interpreted differently. However it is subsequently agreed by the traffic engineers that the 85th percentile speed is 73.4 km/h.

19 On this basis, the 85th percentile of speed is less than 5 km/h above the posted speed limit and therefore I consider application of the Fig. 3.2 provisions of AS/NZS 2890.1:2004 is appropriate in this case. This requires a desirable stopping distance of 97 m and a minimum safe stopping distance (SSD) of 85 m, which the proposal complies with. 20 In this situation where there is a dispute about the likely safety impacts of speed of travel, as a matter of principle the Court will assume that drivers will drive lawfully and not exceed the speed at which they incur a penalty. In this case, the speed limit is 70 km/h and the graded penalty system provides for a first level infringement when the speed limit is exceeded by not more than 15 km/h.

21 By application of this general principle to the current proposal, my assessment is: + the posted speed limit in Bannerman Road is 70km/h and the 85th percentile speed is 73.4 km/h. + the relevant assessment criteria is contained in AS/NZS 2890.1:2004, which requires a desirable stopping distance of 97 m, together with a minimum SSD (safe stopping distance) of 85 m, for this posted speed. Compliance with Note 4 is also achieved, because the 85th percentile speed is not more than 5 km/h above the posted limit. + the applicant proposes specified road improvement works, including benching the road embankment and vegetation removal to improve sight distance, shifting the centre line of the road to provide an emergency passing lane for westbound vehicles and signposting the intersection to indicate the entry driveway for the childcare centre. + these improvements result in the provision of a sight distance of 105 m. 22 On the basis of this evidence, I am satisfied that reasonable provisions have been made for sight distance requirements, because the proposed sight distance of 105 m equates to the minimum SSD for a posted speed limit of 80km/h, which represents a reasonable buffer considering the actual posted speed of the frontage road is 70km/h, even though some drivers may exceed this limit.

23 The other issue then concerns amenity impacts on the neighbouring properties as a result of the childcare centre operations. The neighbours on the eastern side are mainly concerned about noise and the impacts arising from vehicles using the access way adjacent to their common boundary.

24 In response to these concerns the applicant proposes to separate the edge of the driveway some 10 m from the common boundary and construct a landscaping mound to minimise noise and headlight intrusion. Adjacent to the rear carpark it is proposed to construct a 1.8 m high colourbond acoustic fence, which Court has been told will restrict noise intrusion to a reasonable level. In the absence of any technical evidence to the contrary I accept this fence is satisfactory providing it is constructed on the alignment designated AB, or as otherwise approved.

25 Concerns were also expressed by the neighbour of the adjacent western boundary property regarding noise disamenity from children playing in the courtyard area. However this play area is alongside to the neighbouring tennis court and reasonably well separated from the house. Under these circumstances I do not consider unreasonable noise impacts will arise, providing effective management practices are adopted, which limit the number of children playing in the courtyard at any one time. Accordingly I am not convinced that the proposal should be refused on these grounds. However, I consider it reasonable to impose a condition of consent which limits noise generation to a maximum of 5dBA above background noise, to be measured at designated points on the respective boundary fences as discussed during the hearing.

Conclusions 26 Having considered the evidence, submissions and undertaken a view, I am satisfied this application merits conditional consent. The threshold matter concerns the safety of access for vehicles exiting the proposed childcare centre, when making a right turn movement, because of the limitation on sight distances.

27 This issue has been carefully examined by the respective traffic experts. Insofar as Mr Hewitt is dissatisfied on the grounds that the sight distance is inadequate for this type development, nevertheless the final proposal provides an effective sight distance of 105 m. This comfortably complies with the minimum SSD (85 m) and desirable sight distance (97 m) for the posted 70 km/h limit and 5 km/h discretion variation in the standard. Accordingly I do not consider it reasonable that additional sight distance based on the 99th percentile vehicle be required, as submitted by Mr Hewitt, in this case.

28 Furthermore the road improvements involving embankment benching, provisional and emergency passing lane and erection of advisory signposting provides an additional safety buffer, which equates to a posted speed being in the order of 80 km/h.

29 In my opinion then, this comfortably demonstrates compliance with the provisions of AS/NZS 2890.1:2004 for approval. Insofar as the traffic surveys show some drivers exceed the speed limits, nevertheless I do not consider this behaviour should counterbalance the positive community benefits of the childcare centre, where resources are available to enforce speed limits, on a priority basis. Furthermore, I note that the traffic surveys before the Court are for a limited period only, and that Council does not have any significant records of speeding complaints for this section of the road. Also it is not listed as a blackspot road with a dangerous accident history. Therefore I give reduced weight to the concerns expressed by the residents, considering the lack of complaint history. 30 The other issues concern amenity impacts on the neighbouring properties and whilst this is a relatively quiet rural/residential neighbourhood, I do not consider this proposed childcare centre will create undue noise or traffic impacts in the neighbourhood, providing it is operated in accordance with the conditions consent.

31 Apart from this, I have also considered the detailed development assessment report prepared by council officers for this proposal, which accepted that road improvements could be made to create reasonably safe access conditions and ultimately recommended conditional approval be granted to this application. In my assessment of the evidence, I agree with this conclusion and accept that this is a permitted development under the Baulkham Hills LEP, and it also demonstrates reasonable compliance with the other supplementary controls in the respective DCP's. Costs 32 The applicant has lodged a claim for costs incurred in this matter. This comprises two parts: + parts 1/2 for the period of 2 March - 4 April, where the applicant's experts reviewed the traffic information/surveys in relation correct results: $3370.40. + parts 3/4 for the period after 15 April, involving review of Court Directions and procedural matters to complete the appeal: $2318.25. 33 The total cost claim is for $5,688.65 and from the submissions made, is sought primarily because the applicant incurred additional costs in assessing the initial traffic survey information provided by council, which was found to be unreliable. Also additional costs were then involved with processing the revised traffic survey information.

34 Having considered both the applicant's claim and the respondent's response that no costs should be awarded, I note that a basis for costs awards was set out in the Chief Judges determination in Gee v Port Stephens Council [2003] NSWLEC 260, where he stated: 56 I have already indicated there will be many cases in class 1 and 2 where it is appropriate that there be no order as to costs. In my opinion this is likely to be the case where the issues in dispute are confined to merit considerations. However, a different approach may be required where a preliminary question is raised. If it happens that determination of the preliminary question will assist the Commissioner who hears the merits of the matter by defining the content or limits on his or her discretion it is likely that no order for costs should be made … 35 In my assessment, this cost claim relates to the relative merits of the identified traffic issue, which the applicant was required to respond. The parties agreed to Mr Hewitt being appointed as the CAE to deal with this issue, in order to independently assist the Court.

36 Accordingly Mr Hewitt made inquiries of the parties and obtained initial traffic survey information from council, which he used to formulate his initial opinions and conclusion that the proposed access was unsatisfactory. However, the applicant's traffic engineer raised queries about the reliability of these traffic surveys and this resulted in a review of the methodology and survey conclusions. In particular, the 85th percentile speed was reduced from 87km/h to 73.4km/h.

37 Notwithstanding this, the CAE did not change his opinion and maintained his original position that the sight distance requirement were inadequate, because he preferred a considerably higher standard of safety in this case i.e. adoption of the 99th percentile speed.

38 Reference to the cost claim indicates that some "additional" costs were incurred in reviewing the traffic survey methodology and subsequent conferencing. On my review of the various cost elements, it appears they were to some extent incurred because the applicant decided to present its case by challenging the CAE's conclusions. In my assessment, this is a normal situation in class 1 appeals, where experts often disagree. 39 The basic traffic survey information presented to the Court is voluminous and even though some discrepancies were found, this also is not an unusual situation where survey methodologies and resulting conclusions are also often challenged. In this case, the parties have jointly agreed to various conferencing in order to obtain agreed, correlated traffic survey results in order to assist the Court's effective determination of this issue.

40 Insofar as errors were detected in the original survey information, I am satisfied that they were inadvertent and not intentional so as to frustrate the applicant's case. Fortunately for the applicant, the review of the traffic information has resulted in a significant reduction in the 85th percentile speed, which has allowed the Court to issue consent to the proposal, on the basis that conditions of consent can now reasonably address the traffic issue. Again in my assessment, this is a fairly normal process, which involves an applicant's decisions to allocate appropriate resources to best present the merits of its case.

41 With regard to the cost claim, I note that Pt 16 Rule 4 of the Land and Environment Court Rules 1996 states that no order for costs may be made in Classes 1, 2 and 3 of the Court jurisdiction "unless the Court considers that the making of cost order is, in the circumstances of the case, fair and reasonable".

42 Furthermore I have considered the respondents submissions that the Land and Environment Court has only rarely made orders for costs under Pt 16 Rule 4, particularly in respect of an application for merit review. Where the Court has made an order for costs, it has done so only where the respondent's conduct was unjustified. 43 In this regard, the Court was referred to Toon v Ku-ring-gai Council (No. 2) [2004] NSWLEC 593, where Justice Cowdroy made an award for costs against a council because it persisted in raising an issue despite contrary opinion from its own expert. Also reference was made to Funtime Investments Pty Ltd v Yass Valley Council (2004) NSWLEC 322, where the Chief Judge made an order for costs against a council because it failed to discharge its responsibility in respect of notification of relevant matters to affected persons and in respect of preparing material to assist the Commissioner to make a determination as to the force or otherwise of the objections which had been received.

44 In the current case, I accept that the error in the methodology of the first council survey was inadvertent and not intentional. The survey material was provided to the CAE, which he apparently found credible and utilised to formulate his opinions. When the error was detected, council readily responded and acknowledged it. As I have stated before, I consider this normal procedure in dealing with relatively detailed survey information where collection methodologies and resulting conclusions are often challenged.

45 In my assessment then, I consider council has acted responsibly in dealing with the traffic survey error without prejudicing the applicant's case and therefore it is not fair and reasonable to award costs against it in this regard. 46 With respect to the other aspects of cost claim regarding the respondent's application to amend the Court's Directions unnecessarily, I have considered the detailed chronology of events submitted by the parties. It appears to me that the applicant was an agreeable party at the time, to most of this activity relating to the amendment of the Directions. Accordingly I do not consider there are circumstances where it would be fair and reasonable to award costs regarding these aspects.

47 The final aspect of the cost claim concerns time involved in dealing with the Notice of Motion to vacate, filed by the respondent. It seems to me that the extended time sought in the NOM was reasonable in order to establish the reliability of the survey information, so that the most informed decision could ultimately be made by the Court. Again, motions of this nature occur regularly in Class 1 proceedings and I am not convinced in this case that would be fair and reasonable to award costs in regard to this aspect and therefore the costs application is dismissed with each party to pay its own costs of this merit appeal.

48 In summary then, I do not consider the cost claim in this Class 1 proceedings is fair and reasonable and therefore it should not be allowed. With respect of then to costs associated with costs hearing component, I consider it reasonable that each party bear its own costs.

Court orders 1 The appeal is upheld. 2 Development consent is granted to DA 1317/2004/HA for the construction and operation of a childcare centre, ancillary access way and landscaping works at 18 Bannerman Road, Glenhaven, Lot 9 DP 244146 in accordance with the conditions in Annexure A. 3 The exhibits may be returned except for Exhibits 5, 6, 8, 9, 12, A, C, E and F. 4 Each party to bear its own costs associated with the appeal. ______________ R Hussey Commissioner of the Court rjs/ljr

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.

CITATION : Janalf Enterprises Pty Ltd v Baulkham Hills Shire Council [2005] NSWLEC 340

Gee v Port Stephens Council [2003] NSWLEC 260; CASES CITED: Funtime Investments Pty Ltd v Yass Valley Council [2004] NSWLEC 322; Toon v Ku-ring-gai Council (No. 2) [2004] NSWLEC 593

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