37 Furthermore, it appears to me from the view that in addition to this 80m separation to the playground, there is an effective barrier imposed by the intervening, heavily trafficked Railway Road (20000 vpd). This presents an effective separation and limits access to this area. In this regard, I note the Senior Commissioner considered a similar situation in the matter of Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126, wherein he stated:
74 It is appropriate, first, to deal with a broad general issue concerning all three classes of young persons who might be on the eastern side of Old Northern Road. Old Northern Road, at this point, is a major arterial road carrying significant volumes of traffic. It is extremely unlikely, given the width of the road, traffic volumes and the comparatively short distances (some 50 m or so as a maximum to the north or south) to signalised pedestrian crossings, that there is any likelihood of any significant numbers of persons, whether young persons or otherwise, making a crossing of the road other than by the signalised crossings. It is therefore reasonable, in my view, to consider any young persons who might be passing the premises and being sourced from the eastern side of Old Northern Road, to be aggregated with those who might be passing the premises, in either direction, on the western side of Old Northern Road
75 The spatial separation and the nature of the road effecting that separation are relevant matters in my consideration of this impact. Taking them into account, there is no impact of any significance possible on these young persons simply by them being in the vicinity of (but separated by a major arterial road from) the proposed brothel.
76 As a consequence, I do not consider that there is any basis for concern about young persons who are simply walking along the eastern side of Old Northern Road from any of the three sources about which concern was expressed. A similar concern was expressed and similar conclusion should be reached, in my view, concerning users (of any age) of the park or the community facilities adjacent to it, to that with respect to young persons walking on the eastern side of Old Northern Road.
38 In the subject matter, Railway Road is busy road, with a relatively narrow 2m wide footpath along its southern side adjacent to the subject premises. It seems reasonable that any park users would generally avoid using this footpath and instead cross the road at either the traffic lighted intersection at Henry Street or Unwins Bridge Road, which would be a safer and more likely convenient access. In these circumstances, I consider there is unlikely to be any material impact on children in the vicinity of the proposed brothel.