Kabalan v Georges River Council

The impact of the proposed development on road traffic is acceptable

1. Whilst the proposed development will cause an increase in traffic movements in Bailey Parade, that increase is minor and manageable in the circumstances. I reach this conclusion for the following reasons.
2. Firstly, the increase in vehicle movements in Bailey Parade does not cause Bailey Parade to exceed its environmental capacity of 200 vehicles per hour (vph). The RTA Guide to Traffic Generating Developments 2002 sets out an environmental goal volume of 200 vph for local roads. It is not disputed that Bailey Parade is a local road, and that the applicable environmental capacity is for 200 vph. It is clear from Table 2 that the increase in vehicle movements occasioned by the proposed development is well within that environmental capacity.
3. Secondly, the peak of the traffic generated by the proposed development occurs outside the peak periods for the morning school drop-off and afternoon pick-up. I accept that the peak periods for the school drop-off and pick-up are between 9am to 9:30am and 3:10pm to 3:40pm, respectively, although the afternoon peak for the school may extend from 3pm to 3:45pm. Regardless, it is clear that, at those times, the traffic generation for the proposed development is 13vph, or 6-7 vehicles during a half hour period. This increase is negligible, and I accept Mr Steal's evidence that these additional movements will not have any impact on the safety of the road.
4. Thirdly, the proposed development will cater for all car parking on the site. As such, there is no need for street parking to be used. Mr Steal and Mr Corbett agree that the issues with Bailey Parade arise from the street parking (and the narrow width of the carriageway). The provision of all car parking within the site will minimise the potential for additional conflicts by parked cars with vehicular movements along Bailey Parade.
5. Fourthly, when considered as a whole, the resultant two-way traffic volumes for Bailey Parade in the periods in Table 2, are only marginally more than what is experienced presently in the current peak periods. That is, at present, the peak periods of 9am to 10am and 3pm to 4pm have an average existing two-way traffic volume of 103 and 124 respectively. The resultant two-way traffic volumes increase the number of hours over which there will similar volumes of traffic, but does not result in any one period of traffic over 137 vehicle movements per hour. The increased vehicle movements therefore do not create any periods where the number of vehicles per hour is significantly more than what is presently experienced in the current peak periods. This illustrates that the proposed development has minimal impact on the current operative volumes of traffic on the road.
6. Fifthly, it is likely that a proportion of the trips that are estimated to be generated by the child care centre would be by parents with children at the school, so that the resultant two-way traffic volumes for Bailey Parade will be less than that estimated.
7. Sixthly, the SIDRA analysis demonstrates that the intersections with Bailey Parade will continue to operate acceptably with the increase to traffic volumes occasioned by the proposed development.
8. Further, I accept the evidence of Mr Steal that Bailey Parade already operates with vehicles travelling at a low speed of around 40km/h and in a context where drivers are already alert to the existence of the school and the possibility of children walking on or crossing the road.
9. Therefore, I am satisfied that whilst there will be an increase in traffic movements, the change is relatively minor, it is within the environmental capacity of the road and occurs in a context in which vehicles are already travelling at a low average speed of 40km/h.
10. Whilst I accept that, at times, there could be traffic congestion that results in poor driver behaviour, as there is presently, that is a consequence of the current operation of Bailey Parade with unrestricted parking on both sides of the road, and does not result from the proposed development. Mr Corbett agrees that there would be no issue without the parked cars. That issue concerns the management of the road, and does not arise from the proposed development or warrant its refusal. Indeed, I accept the applicant's submission that the proposed development improves passing opportunities on Bailey Parade, as the provision of the wide 9m driveway prevents cars being parked on that side of the road and therefore allows two-way passing on that section of the road.
11. For those reasons, the increase in traffic movements in Bailey Parade that will arise from the proposed development is minor and manageable. I do not accept that it causes a safety impact, as the poor driver behaviour identified by the Council as causing a safety risk instead arises from the current operation and management of the road.

The sightlines from the driveway exit (Contention 1(a))

1. The Council contends that the sightlines from the driveway exit, particularly when looking right, are inadequate as they are obstructed by parked cars and street trees.
2. Guidance is provided in AS2890.1 - 2004 regarding the sight distances that should be available to drivers departing access driveways in Figure 3.2. The diagram and table from that figure is reproduced below.
3. Figure 3.2 provides that a stopping sight distance of 45m is required for roads with a speed of 50km/h. It also provides an area along the road that has the words "No permanent site obstruction (see Note 3)". Note 3 states that "Parking on this side of the frontage road may need to be restricted on either side of the driveway so that the sight distance required by the above table to an approaching vehicle is not obstructed".
4. Mr Steal and Mr Corbett agree that Bailey Parade is a straight road with no significant vertical geometry, and that there is a slight crest in Bailey Parade approximately 70 metres to the west of the proposed vehicle access driveway to the childcare centre development. They agree that this distance exceeds the minimum sight distance requirement and therefore the crest is not a relevant consideration for the purpose of assessing sight lines at the proposed vehicle access.
5. However, Mr Corbett's evidence is that the sightline is obstructed by parked cars and street trees, and that these obstructions, together with the narrow width of Bailey Parade, means that a vehicle leaving the site will manoeuvre onto Bailey Parade at a time that it is unsafe to do so, with no room to pull to the side if there is an oncoming vehicle. He says that this will result in a vehicle-vehicle crash, with young children likely to be passengers of one or both vehicles. The Council, in its submissions, also suggested that this could cause a driver to mount the footpath in a reversing manoeuvre to avoid a collision with an oncoming vehicle.
6. Mr Steal's evidence is that the typical application of Figure 3.2 of AS2890.2 is to ignore parked vehicles and street trees when undertaking the sight distance assessment. He points out that if these objects were to be considered as unacceptable obstructions, on most roads there would be no street trees and no kerbside car parking. His evidence is that, it is clear from the number of driveways, street trees and lack of parking restrictions along Bailey Parade that the Council does not consider these obstructions to sight lines to be unacceptable. Mr Steal has conducted a detailed analysis of the sight lines available at the driveway, including a video and images taken at the site driveway which show that a vehicle is visible to a driver exiting the site. Based on that analysis, his evidence is that the movement of the vehicle travelling past the driver waiting in the driveway will be easily perceived.

The sightlines are acceptable

1. I consider that the sightlines from the driveway of the proposed development are acceptable, for the following reasons.
2. Firstly, the minimum safe sight distance of 45m is numerically achieved.
3. Secondly, parked cars and street trees are ordinary features of local roads, and are sporadically located such that vehicle movements can be perceived when vehicles move past them. This is supported by the sightline analysis undertaken by Mr Steal. Whilst Note 3 of Figure 3.2 of the AS2890.2:2004 says parking "may need to be restricted on either side of the driveway", Note 3 does not suggest that the full length specified in the diagram may need to be free of parked cars.
4. Thirdly, the width of the driveway and the removal of T2 reduces the extent to which the sightline will be impeded to the right. The proposed driveway will span 8.973m on Bailey Parade, and a driver exiting the driveway will have unobstructed sightlines for the full width of that driveway and with no obstruction by the street tree that is currently adjacent to the existing driveway.
5. Fourthly, the risk associated with exiting from the driveway is minimised in two ways. The first is by the width of driveway, which allows vehicles queuing to exit the site to remain on the site until it is safe to exit. The second is by the design of the driveway and basement, ensuring that all vehicles exit the site in a forward direction.
6. The hypothetical examples of risky or illegal driver behaviour, advanced by the Council, are of no assistance. There is not a skerrick of evidence to support the Council's assertion that there is an increased risk of a reverse manoeuvre over the footpath as a result of the proposed development. Instead, I prefer the evidence of Mr Steal that the human eye will pick up the vehicle movement through the gaps in the street trees and parked cars, and I consider that the width of the driveway will allow cars to wait in the driveway until it is safe to turn onto the road.

Site suitability (Contention 4)

1. The Council's position is that the site is not suitable for the proposed development given the existing poor functioning of Bailey Parade as a consequence of its narrow carriageway, location adjacent to Peakhurst Public School, and the obstructions to the sightlines. The Council submits that the neighbourhood is therefore not a good fit for the proposal, contrary to Part 3.1 of the CCPG, and the proposal does not meet the CCPG objectives of minimising adverse impacts on neighbouring properties, as it will instead exacerbate the existing sub-optimal traffic environment.
2. The Council points out that whilst C3 of the CCPG provides that a child care facility should be located near compatible social uses such as schools, read together with the HDCP, that should be understood to be true where there is no major traffic conflict. Additionally, the Council relies upon Part 3.8 of the CCPG, which emphasises that a safe pedestrian environment is essential to the site.
3. The Council relies on the written submission from the former Peakhurst Public School principal, who outlines concerns regarding traffic and pedestrian conflicts.
4. Contrary to the Council's position, I find that the site is suitable for the proposed development. I reach this conclusion for the following reasons.
5. Firstly, the proposed development does not create a traffic and pedestrian conflict. The proposed development caters for all parking within the site, with pedestrians accessing the development either through the onsite parking or on the existing footpath. In assessing the development, I must make the reasonable assumption that drivers will follow the road rules, and not mount or stop on the footpath contrary to law.
6. Secondly, the existing functioning of Bailey Parade, relied upon by the Council, and referred to in the written and oral submissions by local residents and the former school principal, arises from the current management of the road. As set out above at [57], the congestion in Bailey Parade and the issues with passing oncoming vehicles, occurs as a result of the current operation of Bailey Parade with unrestricted parking on both sides of the road. The experts agree on this point. This is readily able to be resolved through restrictions on car parking, consistent with the evidence of Mr Steal. In my view, the Council's operational decision not to manage the road in a way that permits two-way passing does not inform the suitability of the site for development.
7. Thirdly, the site's location on Bailey Parade is appropriate for the development in circumstances where it is already a low speed environment, and where drivers are already alert to the existence of the school and children walking on or crossing the road.
8. Therefore, there is nothing particular to the site, its location or characteristics that makes it unsuitable for the proposed centre-based child care facility. Instead, the site is located in close proximity to a public school and along a road that has an average low speed of 40km/h. In my view, it is a good fit for the neighbourhood, and, as set out above at [68]-[69], the design of the carpark and driveway minimises any risk caused by the characteristics of Bailey Parade. It also minimises its impact on the existing operation of Bailey Parade, for the reasons set out at [48]-[58].

Development consent should be granted

1. For the above reasons, the Council's contentions concerning traffic and safety impacts (contention 2), the adequacy of the sightlines (contention 1(a)) and site suitability (contention 4) are not established and do not warrant refusal of the development application. Each of the remaining contentions are agreed to have been resolved.
2. Further, consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of residential uses, it is unlikely to be contaminated. In addition, I am satisfied that the development complies with the relevant development standards that apply pursuant to the HLEP, and, based on the Statement of Environmental Effects dated 26 March 2021, I am satisfied of the matters in cl 6.7.
3. There is therefore no basis upon which to refuse the development application and it ought to be granted, subject to conditions of consent. The parties have agreed on the appropriate conditions of consent.
4. The Court orders that: 1. The appeal is upheld. 2. The development application (DA2021/0192) for the demolition of the existing structures and construction of a 2 storey 56 place childcare centre with basement parking at 31 and 33 Bailey Parade, Peakhurst, is determined by the grant of consent subject to the conditions in Annexure A. 3. Exhibits A-D and 7-8 are retained, the remaining exhibits are returned.

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: 30 October 2024