Northmead P Pty Ltd ATF Northmead Discretionary Trust v City of Parramatta Council

The issue of weight to be given to the evidence;

1. A question arose during cross examination as to the weight to be given to the evidence of Mrs Sharmeen because she had not disclosed in the JER and then not until the second day of hearing during oral evidence that she resides 800m to the west of the Site. The Applicant made an application at that time for the Court to reject all her evidence. I heard submissions in the absence of the parties and gave the following reasons for allowing the evidence of Mrs Sharmeen: "Having heard the submissions, looked at the short minutes of order made in relation to the preparation of joint expert reports in this matter, which directly expressly refers to the nominated expert witnesses in this case, being Mr McCarthy for the applicant and Mrs Sharmeen for the respondent, to refer to adopt and comply with the Expert Witness Code of Conduct which appears at sch 7 of the Uniform Civil Procedure Rules 2005, the Court has heard an application to not consider at all any of the expert evidence or any of the evidence of Mrs Sharmeen contained in exhibits 1 and 9, exhibit 5 and the photo of 15 May in exhibit 7. Both Ex 1 and Ex 9 expressly include a paragraph that each expert confirmed that they are familiar with the requirements of the Practice Note for Class 1, which was a document referred to in submissions. The Expert Code of Conduct of sch 7 and both exhibits 1 and 9 include an agreement to be bound by them. I find that in relation to being bound by the code of conduct, it may be argued that a qualification of opinion or a disclosure of potential impartiality is not disclosed in the expert reports and that may or may not go to the weight of some opinions that are expressed by Mrs Sharmeen in the now evidence before the Court that she resides 800 metres west of the site; she travels the road almost every day, often twice a day; and that was not disclosed at any time prior to today. I will not reject the evidence of Mrs Sharmeen. The joint expert reports, the facts and the statistics and other objective evidence given by Mrs Sharmeen and Mr McCarthy will be taken into account. However, I will give at times no or little weight to opinion evidence given by Mrs Sharmeen where, for example, at para 12 of Ex 9 says that the application should be refused. There are other instances, and I think it is again at the end of Ex 9, where she expresses an opinion: "Accordingly, council does not support this application". So, those types of opinions will be given little, if any, weight at all. That one, firstly, that is not her role, and secondly, because of information that the Court has received today, the Court cannot be confident in terms of her impartiality in terms of those opinions. However, the fact that she has the experience that she has, has agreed to be bound by the Code of Conduct and that there is sufficient expertise for the Court to be satisfied that she has the education, knowledge and experience in order to give those qualified opinions, I will allow the evidence and give it the due weight once all the evidence is in including any cross examination."
2. I note earlier Directions by the Registrar regarding expert evidence for this matter made on 15 November 2023 by the Court as follows: 1. Order 6 - pursuant to rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (UCPR) the experts are "to confer in relation to traffic issues - contention 13 in the Respondent's Statement of Facts and Contentions under UCPR r 31.24 and prepare a joint expert report." 2. Order 8 parties are to serve a copy of these directions, the SOFAC, Div 2 of Pt 31 of the UCPR, the Expert Witness Code of Conduct in Sch 7 of the UCPR and the Court policies on Joint Reports and on Conference of Expert Witnesses on all experts.
3. I also note the contents of the Court's Conference of Expert Witnesses Policy commenced on 12 June 2015 which at par 23 provides as follows: "Pursuant to paragraph 4(2) of the Expert Witness Code of Conduct (UCPR Sch 7), an expert witness must exercise his or her independent, professional judgment in a joint conference and joint report and must not act on any instruction or request to withhold or avoid agreement. An expert should not assume the role of advocate for any party at the joint conference. If, for whatever reason, an expert is unable to reach agreement with the other experts on any matter, that expert should be free to express his or her disagreement with the other experts."
4. Finally, the Court's Joint Expert Report Policy which commenced on 12 June 2025 provides at par 14 as follows: "The joint expert report is to contain each expert's acknowledgment that he or she has read the Expert Witness Code of Conduct (in Sch 7 of the UCPR) and agrees to be bound by it (UCPR r 31.23)."
5. The purpose of setting out my reasons for allowing the evidence of Mrs Sharmeen above is to identify that my assumptions which formed the basis for my decision to allow her evidence proved to be incorrect. At the end of the oral evidence, and in response to questions from both the Respondent's counsel and the Applicant's counsel, Mrs Sharmeen disclosed that, notwithstanding that she had signed twice (JER and Supplementary JER) that she had read and agreed to be bound by the Expert Witness Code of Conduct, she in fact: 1. had not read and in fact was not aware of the Code of Conduct (Transcript 17 May 2024 p 82 at 15); 2. was unable to tell the court what her understanding of her role in the proceedings (Transcript 17 May 2024 p 82 to 83); and 3. had never given evidence as an expert in the Land and Environment Court before (Transcript 17 May 2024 p 82 at 26);
6. Although Mrs Sharmeen eventually, after being pressed a number of times by the Respondent's counsel, stated that she understood the difference being an advocate for a party and being independent and that she saw her role as independent (Transcript 17 May 2024, p 85 at 1 to 8), I am not at all confident that she does in fact understand her role as an independent expert pursuant to the UCPR and the abovementioned Court policies. I am not confident because at par 12 of the Supplementary JER (Ex 9) she writes "The additional document has not changed Councils view on this application … and therefore should be refused." This statement appears to confuse her role as an independent expert of the Court with her role as employee of the Respondent council. There are other examples of this confusion throughout the JER which shows her approach as advocate for the council rather than an independent expert including at par 104 "financial burden to council", and at par 122 "a burden for Council to manage".
7. Mrs Sharmeen's CV is annexed to the JER (Ex 1) and notes her experience as Team Leader and knowledge of the road network including submissions to Transport for New South Wales (TfNSW) in 2019 regarding Windsor Road. Nevertheless, Mrs Sharmeen advised the court that her opinion evidence is based on her local knowledge and experience as a driver where she did not take any notes, did not get out of her vehicle and just simply drove down the road at various times.
8. I conclude that apart from her contextual knowledge flowing from her role at Council, Mrs Sharmeen's evidence does not greatly assist the Court because her evidence is based on her own personal experience as a local resident road user. Put another way, her evidence is not based on any forensic approach or analysis, and instead she tended to repeat the contentions and relies on her experience as a local driver. I do not give her evidence much weight at all and I have preferred the evidence of Mr McCarthy who goes through all the particulars of the sole contention raised by the Respondent and sets out his analysis and reasons why the Respondent's concerns are addressed. Mr McCarthy's considered, independent expert opinion is that the contentions has been addressed by the design of the centre, including the signage and the POM which the Applicant argues is a legitimate way to address the contentions as contemplated by the controls.
9. The sole issue remaining in substantive dispute between the parties is the terms of the Draft/Proposed Conditions of Consent, where the Respondent seeks a deferred commencement condition regarding a pedestrian refuge whereas the Applicant submits that they are happy to seek approval and construct a pedestrian refuge if the Local Traffic Committee were to approve it. However, if it is not approved, the Applicant relies on the evidence of Mr McCarthy in relation to the current arrangements and the use of the existing pedestrian crossing for the small number of people who will walk to the Centre. The evidence supports my finding that the existing pedestrian crossing is safe. The argument between the parties is limited to convenience, that is, the Respondent argues that the nature of the traffic flow and the proposed access to the compliant car park on site is inconvenient and may result in parents travelling east will choose instead to part on the street and choose to walk across the road immediately in front of the centre. Mr McCarthy disagrees with this argument.
10. I now set out my reasons for concluding that on the exercise of discretion and after having considered the evidence before the Court to satisfy the Child Care Planning Guideline, Part 2 Principle 7 and Part 3 Matters for Consideration, it is my view that development consent can be granted for the Proposed Development.
11. The experts divided the single traffic contention into 2 topics, and they were cross examined in relation to the particulars of the contention and their written evidence. I will set out my reasons using the 2 topics of the experts. The first topic is the design of the on-site car park as it relates to safety and convenience. There is no evidence to support the contention that the design of the on-site carpark is deficient or that the design in and of itself will have any impact on the safety of motorists or pedestrians. This is the convenience issue which I come back to at [28].
12. The second topic is whether the Proposed Development maintains a safe environment for pedestrians, motorists and cyclists around the centre. This is where the disputed deferred commencement condition for a pedestrian refuge arises.
13. The Respondent acknowledges that Hammers Road is a local road, however relies on the evidence of traffic flow being heavier than usual for local roads. Mr McCarthy undertakes an analysis of the traffic data and I accept his evidence. I note that Mrs Sharmeen did not raise any contention in relation to the adequacy of the traffic surveys by Mr McCarthy (Transcript 17 May 2024, p 59 at par 45) and I find that McCarthy is the only expert before the Court who has put any evidence before the Court who has done an independent analysis of the traffic data. I do not give any weight to the Site Detours (Ex 5) as an attempt to support any assertion that they are evidence of delays or queuing because the document is dated in the future (22 May 2024), Google maps is partly predictive and there was no explanation by Mrs Sharmeen for the conclusions she reached. The Court was not assisted by this document which did not provide any metrics or thresholds for the blue, orange and red colour scheme other than Mrs Sharmeen's descriptors of free flow traffic, not free flow and not very congested and congested. No other explanation is given and apart from illustrating distance of travel, which is agreed. I give that document no weight.
14. There does not appear to be any disagreement between the experts except in relation to queues on Hammers Road (Transcript 17 May 2024, p 87 par 35)
15. The Applicant submits that the Proposed Development does not seek to rely on on-street parking and relies on the following: 1. the driveway design of left in and left out (see Fig 1), 2. POM (Ex D) which requires: 1. CCTV to record, monitored daily and recordings to be kept for a fixed period of time 2. Warning to be issued and the fact of a warning to be recorded in the incident register 3. Termination of child placement and the fact of such termination to be recorded in the incident register 1. Signage plan and ground floor Rev K plan, Ex C 2. Ability of enforcement by Council in the event of non compliance with the POM
16. Notwithstanding, the Applicant agrees to making an application to the Local Traffic Committee to instal a pedestrian refuge at the front of the Site but not as a deferred commencement condition. The Proposed/Draft Conditions of Consent filed after the hearing on 22 May 2024 in accordance with my direction is marked Ex 11. I come back to this and topic 2 at [39].

The design of the on-site car park as it relates to safety and convenience (Topic 1)

1. There are no concerns about delays being caused inside the carpark.
2. Mrs Sharmeen's concern is that parents may opt to park on the street because "they may experience difficulties in accessing the car park due to queuing of eastbound vehicle in Hammers Road" (Supplementary JER, par 75, Ex 9). At para 59 of JER, Ex 1 she acknowledges that the layout of the proposed car park and the location of the driveway comply with the Australian Standard. Nevertheless, she does not support the location of driveway in Hammers Road for a number of reasons which mostly are not supported by any reliable evidence before the Court. The only reason given which is worth exploring in detail relates to convenience and in her opinion "[d]ue to delays and difficulties in accessing the car park, many parents may choose not to drive into the basement car park and instead park on-street resulting in adverse impacts to local traffic and residential amenity." Mr McCarthy does not agree.
3. Firstly, there was no evidence to support Mrs Sharmeen's assertion of the number of parents who might choose to park on-street notwithstanding there being on-site car parking provided and the terms of the POM requiring parents to park on site. Mrs Sharmeen remained dubious of compliance with the POM (Ex D) in relation to street parking.
4. The Respondent tendered a supplementary bundle called "Site Detours" prepared by Mrs Sharmeen (Ex 5) and explains that "what these Google Maps do is simply show the distance for that manoeuvre at p 29 of the POM blue route (parents will drive to the roundabout to the east and then come back) and red route (when leaving the Site, involves turning left into Hammer Road, going all the way to a roundabout and then coming back to the basement carpark) comprising additional travel for someone who is driving in an easterly direction if they decided to do what the POM requires - an additional 1.8km (Transcript 16 May 2024 pp 8 and 9) The Respondent submits that: "someone that has to drive an extra 1.8m potentially in congested traffic before even getting to the driveway, taking them to a basement carpark, is less likely to do that and more likely to park on Hammers Road and the consequence of that is that they are likely to cross the road." (Transcript 16 May 2024 p 9 at par 32)
5. It is agreed that in relation to existing traffic volumes most cars are heading eastbound in the morning however, for the purpose of assessing the Proposed Development and the concerns raised by the Respondent regarding convenience of access to the Site, I accept Mr McCarthy's evidence that the catchment of the child care centre would largely be based upon residential areas and the Site is very centralised to residential areas and his assumption is that 25% of traffic volume to the Site will be in all directions (Transcript 17 May 2024, p 27 at par 5). Appendix C to the POM provides "Vehicular approach and departure routes" and shows the routes that parents can take to approach and depart the Site. Mr McCarthy also attaches at Annexure G to the JER (Ex 1) a detailed map of the anticipated arrival and departure routes for the development traffic (JER at par 40). There is general agreement between the experts that there are various routes to get to and from the Site (Supplementary JER, at par 45 and 46, Ex 9). This is also relevant to the determination of the conditions of consent regarding a pedestrian refuge which I come back to at [61].
6. The Applicant submits that, in circumstances where parents are heading east to the child care centre and intend to continue heading east, they have to go to the roundabout, do a U‑turn at the roundabout at Kleins Road (the top image) which is roughly a 500 m diversion based on the Site Detours (Ex 5). Those parents that want to continue heading east would do an exit left turn leaving the centre, head to the roundabout to the west and come back travelling east. The Applicant agrees that that would be a further 1.3 kilometres to get back to the centre according to the Site Detours (Ex 5)
7. There are other alternate routes which Mr McCarthy goes through in the Supplementary JER (Ex 9) including turning into Glenn Ave and back up Hemsworth Street, and Redfield Street as well: refer to par 44 in Supplementary JER. In cross examination Mr McCarthy explains that it largely depends on where the parents are travelling to and from. "So say if they're trying to get to Windsor Road, they could turn left onto James Ruse Drive. So it's Cumberland Highway and go that way, or as you mentioned, they could take the route through the local subdivision; I think there's a laneway, we talked about it in the supplementary joint report, which they can do that to then go through some of the residential areas to get to Kleins street, I'd suggest." (Transcript 17 May 2024, p 30 at par 4)
8. I accept Mr McCarthy's evidence, which he repeats a number of times in cross examination (Transcript 17 May 2024, p 32 at par 15, p 34 at par 6, p 35 at par 5)), that it would be more convenient for parents in a rush to park in the basement car park than it would be to park on-street and walk. This together with the traffic catchment for the Site leads me to conclude that it is unlikely and it will be uncommon for parents to choose to park on-street because of convenience and I adopt the reasons given by Mr McCarthy. For those few and unlikely instances where a person may choose to park on-street, the parties consider the suggestion on Site by Mrs Sharmeen for a pedestrian refuge which I come back to below when I consider the conditions of consent at [45].
9. In relation to Mrs Sharmeen remaining dubious of compliance with the POM (Ex D) in relation to on-street parking, I have considered the planning principle regarding the adequacy or appropriateness of a plan of management to the particular use and situation: Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 at [54] and Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247, at [72]. I have done so notwithstanding that the Respondent did not raise any contention or call any evidence from anyone qualified to say that the POM did not meet the requirements of the Renaldo planning principle.
10. I find that the POM relied on by the Applicant is consistent with the planning principle because the POM is clear and able to be complied with. Parents will be required to sign the POM accepting its terms. Further, there is a clear and defined method and process for enforcement by the centre including the provision of CCTV, daily incident book recordings of any non-compliance and consequences for parents and staff. There is also a process and method of enforcing compliance against the centre itself because the conditions of consent require compliance by the Centre operator with the terms and provisions of the POM. Failure to comply with a development consent, namely failure to comply with the provisions of the POM, including the CCTV recordings, checking them daily and recording any breaches in an incident book and the requirement to issue warnings, can be dealt with by way of an infringement notice issued against the Centre operator.
11. I conclude that the design of the on-site carpark is compliant and sufficient and will not have any impact on the safety of motorists or pedestrians.

Does the proposal maintain a safe environment for pedestrians, motorists and cyclists around the centre? (Topic 2)

1. This second topic overlaps to some extent with the first topic however it is more focused on the overall safety for pedestrians, motorists and cyclists around the centre compared with any safety concerns arising from the design of the centre.
2. The Respondent's concerns that the Proposed Development does not meet Section 3.1 "Site selection and location" in Part 3 of the Child Care Planning Guideline because of the down grade slope in the westbound direction of Hammers Road (Particular (e) FASOFAC) is addressed by Mc McCarthy in the JER at par 96 to 100. I accept his conclusion that the available sight distance to the east of the driveway is in excess of 90m and "hence, there are no road geometry concerns based upon the minor exceedance of the signposted speed limit."
3. The experts agree that the existing design of the road is not consistent with the Safe System Approach (Transcript 17 May 2024, p 75 and 76). Mr McCarthy suggests the installation of flexible bollards (JER at par 58 and 103) which is not supported by Mrs Sharmeen during joint conferencing because "they would require frequent maintenance and would be a financial burden to council." (JER at par 104).
4. Mr McCarthy identifies two safety issues being the illegal manoeuvres by vehicles (the cutting corner issue) and the ability for pedestrians to cross Hammers Road within proximity of the Site (the pedestrian issue) (JER, par 41)
5. Dealing with the cutting corners issue, the concern arises from the observation of the occurrence of vehicles cutting the corner or even crossing onto the wrong side of the road in order to turn right from Hammers Road to Hemsworth Avenue (Transcript 17 May 2024, p 74) (JER par [29], [44] - [47] and [52]
6. Mr McCarthy's evidence is that he observed vehicles cutting the corner regardless of whether there was a queue on Hammers Road on approach to Hemsworth Avenue. His evidence is that the only time he observed someone drive on the wrong side of the road on Hammers Road to turn right onto Hemsworth Avenue was the date there was a car accident on Windsor Road in the afternoon of 14 December 2022 where one or two northbound lanes were closed starting at 2.05 pm and finishing at 7.13 pm and caused longer queue and delays. There is no history of accidents at the intersection of Hammers Road and Hemsworth Avenue (JER, par 53).
7. In relation to the pedestrian issue, McCarthy's view is set out at par 42 of the JER, namely that "it is already difficult for pedestrians to cross Hammers Road unassisted" and it is his view that "risk of this is not being intensified by the development" due to three reasons being: 1. The RTA Guide outlines 7% of visitors travel to a child care centre via walking which is a low percentage; 2. There are safe walking routes to the Site across Hammers Road via an existing pedestrian crossing located at the roundabout of Hammers Road and Kleins Road; and 3. Not only is it unlikely that any visitors would park on the northern side of Hammers Road because of the difficulty in completing the walk across the road, but, it is unlikely that any visitors would park on the northern side of Hammers Road because the compliant car park provides for on-site visitor parking "so there is little reasons for visitors to park on the northern side of Hammers Road."
8. Nevertheless, the parties attempted to resolve the pedestrian and vehicular safety concerns raised by Council by conditions, the terms of which are not entirely resolved.
9. The Draft/Proposed Conditions of Consent (Ex 11) are agreed except to the extent set out below. The disagreement results from the Respondent seeking a deferred commencement condition for the Applicant to obtain approval for the installation of a pedestrian refuge. The disagreements between the parties are identified in mark up tracked changes with respective submissions made in blue and green text. The disagreements relate solely to the deferred commencement condition sought by the Respondent and the alternative condition 23 put forward by the applicant as well as condition 84, otherwise the conditions are agreed.
10. The Respondent explains that the deferred commencement condition requires the Applicant to obtain approval to install a pedestrian refuge in Hammers Road before the consent would operate and an operative condition which requires the construction of the pedestrian refuge prior to the issue of an occupation certificate. The Respondent submits that these conditions arose as a result of a discussion on Site on the morning of the first day of the hearing and Mrs Sharmeen indicated that it would be preferable to have a refuge to minimise the risks associated with crossing the road (Transcript 16 May 2024, p 16 at 41). However, in cross examination, Mrs Sharmeen gave evidence under oath that there was no warrant for a pedestrian refuge at the time it was sought by a resident a few years ago (Ex 6) and that there is no warrant "not even now, there is no warrant any time." (Transcript 17 May 2024, p 80 at par 40)
11. There is limited evidence available to the Court regarding the pedestrian refuge.
12. I will consider the deferred commencement condition first and give my reasons why I find that the Applicant's operative conditions are preferred in this circumstance.
13. The Respondent's Deferred Commencement Condition reads as follows: "SCHEDULE A Deferred Commencement Pursuant to Section 4.16(3) of the Environmental Planning and Assessment Act 1979, this consent does not operate until: A. Pedestrian Refuge (i) The Applicant shall obtain approval to install a pedestrian refuge island in Hammers Road west of Hemsworth Avenue, Northmead. (ii) The detailed design is to be undertaken in accordance with the relevant Standards, guidelines and technical directions, and submitted to Council's Traffic and Transport Services for organising approval. (iii) All cost associated with the construction including relevant Council fees are to be paid by the applicant at no cost to Council. (iv) The Applicant shall engage a suitably qualified street lighting consultant to undertake a review of the existing street lighting in the vicinity of the centre based child care facility, and if required, to design modifications to the existing street lighting to ensure it complies with Figure 7 of Australian Standard AS1742.10:2009 having regard to the proposed pedestrian refuge. Any modifications to the street lighting are to be included with the application to install the pedestrian refuge island. Period within which evidence must be produced This consent does not become operative until the Applicant has satisfied the deferred commencement conditions in Schedule "A". If the deferred commencement conditions in Schedule "A" are not satisfied within 24 months of the date of determination, the consent lapses. If the conditions are satisfied prior to 24 months from the date of determination, the consent will then become operative. Upon Council's written satisfaction of the above information, the following conditions of development consent apply: SCHEDULE B"
14. On the other hand, the Applicant seeks deletion and relocation of the deferred commencement condition to an operative condition, being the proposed condition 23 together with the proposed condition 84, both addressed below. It is the Applicant's case that parents and carers travelling to the centre by car will use the basement car park and that parents and carers travelling to the centre by foot will use the pedestrian crossing at the roundabout intersection with Kleins Road. I have found above that the evidence does not support the assertion by Mrs Sharmeen that many parents will choose to park on-street although I come back to the evidence regarding the pedestrian refuge below at [61].
15. It follows that the Applicant is prepared to make the necessary application to the Council which will go to the Local Traffic Committee to install the refuge and if that application is approved the Applicant will install the refuge at its costs. Accordingly, the condition has been re-worded by the Applicant and relocated to the prior to Construction Certificate (CC) section for the application for approval to install a pedestrian refuge (condition 23) and the prior to Occupation Certificate (OC) section for construction of the pedestrian refuge (condition 84).
16. The Respondent has previously assessed the road at the location where Hammers Road intersects with Hemsworth Avenue and found that it did not meet the technical requirements for a pedestrian crossing in this location based on traffic and pedestrians' surveys undertaken (See Ex 6), that is, there were not enough pedestrians to satisfy the relevant Australian Standard for the implementation of a pedestrian crossing. The approval of a childcare centre at the Site is a change in circumstances which may give rise to the need for a pedestrian refuge, and any application for a refuge would be assessed by the Traffic Committee having regard to those circumstances. There was no evidence as to whether there are any controls or standards applicable to a pedestrian refuge.
17. The Applicant argues that there is no obligation on the Parramatta Local Traffic Committee to approve the application for a refuge and it may very well be refused, even if all the requirements set out in the condition are met. Therefore, the Applicant argues that approving this application with a condition that requires further approval from Parramatta Traffic Committee for a refuge is tantamount to a refusal as it may be blocked by the Traffic Committee with no rights to appeal or other recourse to ensure the development can go ahead.
18. The Respondent does not agree that there is no other recourse available to the Applicant if its application for a pedestrian refuge is not approved by the Local Traffic Committee. In the unlikely event that the pedestrian refuge is not approved, the Respondent submits that the Applicant can lodge a modification application either with the Respondent, or with the Court directly pursuant to s 4.55(8) of the EPA Act. The Respondent submits that the power to modify the consent to delete the requirement to obtain approval for and construct the pedestrian refuge is available in circumstances where those works form part of the development for which the consent is granted (by dint of the conditions requiring the works).
19. In relation to the suggestion from Council that a modification application could resolve this concern, the Applicant says that it seems likely that Council would raise that any such application is not substantially the same and suggest that this condition was essential or material to the consent, given the submissions otherwise put forward in relation to this condition.
20. The Respondent submits that the Applicant's version of the condition only requires that an application for a pedestrian refuge be lodged, and does not require that application to be approved. Consequently, the Respondent is concerned that the Applicant will be able to commence construction without there being any certainty to future parents/carers of the Centre, and to the community as to whether a pedestrian refuge will be provided to service the development. The Respondent says that certainty is particularly important noting that enrolments or expressions of interest are typically made by parents/carers before construction of the Centre is finalised, in anticipation of the planned opening date.
21. I accept that the Applicant's version of the conditions only requires lodgement of an application however it is appropriate that the Local Traffic Committee assess and determine whether it is required. The court takes some comfort from the balance of the obligations in condition 23 that the Applicant must undertake in order to lodge the application. Put another way, the conditions do not simply require a mere application for the installation of a pedestrian refuge. Instead, the condition requires a substantiated application with detailed designs and a report by a qualified street lighting consultant in accordance with the Australian Standards as to whether any modifications to the street lighting is required as a consequence.
22. If a pedestrian refuge, and any modification to street lighting, is determined by the Local Traffic Committee to be required, the public has the certainty that Applicant must construct the pedestrian refuge in accordance with condition 84, that is prior to the operation of the centre. However, in the event that the Local Traffic Committee determines that a pedestrian refuge is not warranted then the Applicant, and the public more broadly can be confident that the matter has been considered and that a pedestrian refuge is not considered to be required.
23. In addition to the evidence at [32], Mr McCarthy gave evidence that crossing the road in front of the Site is unlikely to occur as there is a proximate safe pedestrian crossing that can be utilised (paragraph 42ii of the JER), the number of expected pedestrians walking to the site is low (paragraph 42i. of the JER) and the basement parking is safe and convenient (paragraph 42iii of the JER) and the POM encourages its use.
24. It was Mr McCarthy's evidence that parents travelling east will continue to the roundabout and turn back to the west and use the left in / left out driveway. Mr McCarthy gave further evidence that parents are likely to modify their travel routes to suit the left in / left out arrangement and or avoid the peak hour drop off so they are not inconvenienced by eastbound queuing.
25. The Respondent's traffic engineer, Mrs Sharmeen, agreed in cross-examination that the design of the car park was compliant with all the relevant standards and that the requisite number of car parking spaces will be available to accommodate the parking demand of parents and carers.
26. Mrs Sharmeen also agreed with Mr McCarthy that the volume of pedestrian traffic both with and without the proposed centre did not reach the level to warrant for either a pedestrian crossing or a pedestrian refuge as required by the proposed conditions. Mrs Sharmeen explains in cross examination that the reason the refuge island is proposed and not a pedestrian crossing is because this location would not meet the warrants for an installation of a pedestrian crossing. (Transcript 17 May 2024, p 73 at 24)
27. The Court also has regard to the correspondence in Exhibit 6 where a local resident requested a pedestrian crossing for convenience in the same location as the proposed pedestrian refuge and that the Council declined the request (after carrying out traffic surveys which showed similar volumes to those in the surveys commissioned by Mr McCarthy) on the basis that the volume of pedestrians did not warrant a crossing and that there was a marked pedestrian crossing at the roundabout at the intersection with Kleins Road.
28. The Applicant acknowledges that the pedestrian refuge if approved will provide the following two broader public benefits which will increase safety in proximity to the proposed centre: 1. it will prevent the illegal manoeuvres by cars turning right into Hemsworth Avenue by either cutting the corner or crossing onto the wrong side of the road to make the turn to avoid queuing cars in front (see paragraph 17 of the Supplementary JER); and 2. it will provide a more convenient crossing location for the general public (see paragraph 24 of the Supplementary Joint Report).
29. Mrs Sharmeen agrees that the effect of the pedestrian refuge will prevent vehicles travelling east cutting the corner or even prevent them from going on the wrong side of the road as they seek to turn right into Hemsworth Street (Transcript 17 May 2024, p 79 at 49). Mrs Sharmeen and Mr McCarthy also agree that the effect of the pedestrian refuge would not just serve for the child care centre, it would provide a broader public benefit for people wanting to cross the road (Transcript 17 May 2024, p 80 at 5).
30. The Respondent submits that the traffic experts agree at par 8 of their Supplementary JER (Ex 9) that a refuge would improve safety of pedestrians crossing Hammers Road, compared to the existing condition where there is no refuge. Mr McCarthy expert also states at par 25 of the Supplementary JER "I see the installation of the refuge, a safer outcome for pedestrians crossing Hammers Road in comparison to not providing one."
31. The Respondent submits that having regard to the serious consequences of pedestrian/vehicle conflicts, it is the Respondent's case that this development should not proceed unless a pedestrian refuge is approved and installed by the Applicant. For this reason, the Court accepts that should the Local Traffic Committee approve the installation of a pedestrian refuge, the conditions of consent proposed by the Applicant will ensure that it is installed prior to the operation of the child care centre.
32. Chief Judge's decision in HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 Preston CJ at [104], [109]-[113]. I understand that HP Subsidiary deals with additional traffic management works such as traffic control devices (a No U-turn sign and a median island) and at [112] and [113] Preston CJ says the following: "112. I agree with HP Subsidiary that it is not necessary to impose a deferred commencement condition and it will be sufficient to impose an operational condition of consent that the traffic control devices must be installed before an occupation certificate can be issued for the proposed development. This will ensure that there will be no resident-generated traffic from the development before the traffic control devices are operational to control such traffic. 113. Any risk associated with carrying out construction of the development before the traffic control devices have been approved and installed, such as not being able to obtain or a delay in obtaining the necessary authorisation and approval of the traffic control devices, will be borne by HP Subsidiary. It must decide if it is inclined to or can afford to take that risk. If it does not wish to take the risk, it can defer commencement of construction of the development until it has obtained the necessary authorisation and approval of the traffic control devices."
33. In light of all the evidence, it is the Applicant's position and I also am satisfied that the pedestrian refuge is not essential to the safe operation of the proposed centre and, that in the event that the pedestrian refuge was not provided the proposed centre should be permitted to proceed.
34. The evidence before the Court does not support the deferred commencement condition because I am satisfied that the design of the Proposed Development complies with the Child Care Planning Guidelines in relation to traffic safety and any pedestrian refuge may have greater or broader public benefits by ameliorating the existing road design and preventing illegal manoeuvres as well as benefiting pedestrians more broadly.
35. I now consider the terms of the operative conditions 23 and 84, the terms of which are not wholly agreed between the parties. Again, the words struck out are words sought by the Respondent whereas the version sought by the Applicant is with the additional words and the struck out words deleted.
36. Condition 23 is not agreed in full. I reproduce it below as it appears in the exhibit: "PART B - BEFORE THE ISSUE OF A CONSTRUCTION CERTIFICATE (Note: Some conditions contained in other sections of this consent (including prior to occupation/use commencing) may need to be considered when preparing detailed drawings/specifications for the Construction Certificate.) 23. Pedestrian Refuge Prior to the issue of any construction certificate, Tthe Applicant shall lodge an application obtain approval to install a pedestrian refuge island in Hammers Road west of Hemsworth Avenue, Northmead. The detailed design is to be undertaken in accordance with the relevant Standards, guidelines and technical directions, and submitted to Council's Traffic and Transport Services for organising approval . All cost associated with the construction including relevant Council fees are to be paid by the applicant at no cost to Council. The Applicant shall engage a suitably qualified street lighting consultant to undertake a review of the existing street lighting in the vicinity of the centre based child care facility, and if required, to design modifications to the existing street lighting to ensure it complies with Figure 7 of Australian Standard AS1742.10:2009 (i.e. Road Lighting designed in accordance with AS/NZS 1158.4) having regard to the proposed pedestrian refuge. Any modifications to the street lighting are to be included with the application to install the pedestrian refuge island."
37. The Respondent does not agree to the pedestrian refuge condition being an operative condition. Notwithstanding this, if the Court is minded to impose the pedestrian refuge requirement as an operative condition, it is the Respondent's position that the Applicant's amendments shown in red should be rejected.
38. I reject the Respondent's submission because the language sought by the Applicant is consistent with the Local Traffic Committee being able to exercise its discretion to consider an application as outlined in condition 23. I find that the terms proposed by the Applicant are suitable.
39. Condition 84 is not agreed between the parties and appears in the section titled "Part E - Before the Issue of an Occupation Certificate" in Ex 11 as follows: "84. If the application made pursuant to condition 23 is approved, then the Applicant shall construct the pedestrian refuge island in Hammers Road at its own cost prior to the issue of an occupation certificate. Prior to the issue of any occupation certificate, the Applicant shall construct the pedestrian refuge island in Hammers Road approved pursuant to deferred commencement condition A."
40. The Respondent does not agree to the Applicant's version of Condition 84, and submits that its version of Condition 84 (shown struck out) should be preferred by the Court.
41. The Respondent's version of the condition requires the pedestrian refuge to be installed prior to the issue of any occupation certificate. The Respondent argues that it provides certainty to future parents/carers of the Centre, and to the community that a pedestrian refuge will be provided to service the development. Again, the Respondent's wording does not allow for the Local Traffic Committee to exercise its discretion in response to any application for the pedestrian refuge.
42. I agree with the Respondent that in the event that the Local Traffic Committee were to approve the application to install a pedestrian refuge then it should be installed prior to the issue of any occupation certificate. I adopt the reason given by the Respondent but acknowledge that the Applicant's wording achieves the same result in the event that the Local Traffic Committee were to approve the application for the pedestrian refuge.

Conclusion and findings

1. I accept the evidence of Mr McCarthy and conclude that the Proposed Development has been designed in accordance with the Child Care Planning Guidelines and that design together with the measures detailed in the POM deals with the traffic concerns raised regarding queuing and avoids any traffic safety risk. The Proposed Development complies with all planning controls including the provision of on-site parking and the traffic safety contention pressed by the Respondent is not supported by the evidence as set out in this judgment.
2. I conclude that the appeal should be determined by the grant of development consent for the Proposed Development subject to conditions in accordance with Ex 11, that is, in the terms sought by the Applicant as follows: 1. Delete Deferred Commencement condition; 2. Condition 23 to read: "23. Pedestrian Refuge (i) Prior to the issue of any construction certificate, the Applicant shall lodge an application to install a pedestrian refuge island in Hammers Road west of Hemsworth Avenue, Northmead. (ii) The detailed design is to be undertaken in accordance with the relevant Standards, guidelines and technical directions, and submitted to Council's Traffic and Transport Services. (iii) All cost associated with the construction including relevant Council fees are to be paid by the applicant at no cost to Council. (iv) The Applicant shall engage a suitably qualified street lighting consultant to undertake a review of the existing street lighting in the vicinity of the centre based child care facility, and if required, to design modifications to the existing street lighting to ensure it complies with Figure 7 of Australian Standard AS1742.10:2009 (i.e. Road Lighting designed in accordance with AS/NZS 1158.4) having regard to the proposed pedestrian refuge. Any modifications to the street lighting are to be included with the application to install the pedestrian refuge island." 1. Condition 84 to read: "84. If the application made pursuant to condition 23 is approved, then the Applicant shall construct the pedestrian refuge island in Hammers Road at its own cost prior to the issue of an occupation certificate. "

Notations:

1. The Court notes: 1. That the Respondent council as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No 314/2023 made on 16 May 2024 to rely on the documents and plans filed in Court on 16 May 2024, specified as follows: 1. Signage Plans consisting of 2 sheets being Basement Plan Rev J dated 13 May 2024 and Ground Floor Plan Rev K dated 15 May 2024 (Ex C) 2. Plan of Management dated 15 May 2024, Version 9 (Ex D)

Orders:

1. The Court orders: 1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the application as agreed or assessed. 2. The appeal is upheld. 3. Development consent is granted to development application No. 314/2023 for demolition, tree removal and construction of a 72 place child care centre with basement parking at 52 Hammers Road, Northmead subject to the conditions of consent in Annexure A. I certify that this and the preceding 27 pages are a true copy of my reasons for judgment.

Amendments 03 October 2024 - Pursuant to r 36.17, of the UCPR 2005, para [74] amended the quote and "expert evidence" added as catch words. 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: 03 October 2024