SFS West Pty Ltd v Blacktown City Council

Catchwords: DEVELOPMENT APPEAL – centre based child care facility – development fronting classified road – all merit contentions resolved – satisfaction of jurisdictional prerequisites – statutory construction - meaning of the protean expression “adversely affects” - orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Roads Act 1993 (NSW), s 138
Blacktown Local Environmental Plan 2015, cll 2.7, 4.3, 4.4, 7.5, 7.7, 5.10, 5.21
Environmental Planning and Assessment Regulations 2021 (NSW), s 23
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9
State Environmental Planning Policy (Transport and Infrastructure) 2021, Pt 3.3, ss 2.119, 2.120, s 3.25
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited: Antoine Street Holdings Pty Ltd v Parramatta City Council [2019] NSWLEC 1317
Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242
Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349
Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14
Iris Hotels Wentworthville Property Pty Ltd ATF Iris Hotels Wentworthville Property Trust v Cumberland Council [2024] NSWLEC 1023
PC Infrastructure Pty Ltd v Wentworth Shire Council [2024] NSWLEC 1139
Thunderbirds Are Go Pty Ltd v Council of the City of Ryde and Transport for NSW [2024] NSWLEC 1558

Texts Cited: Ausroads, Guide to Road Design Part 3: Geometric Design, February 2021
Blacktown City Council Child Care Centre Guide, 2016
Blacktown Development Control Plan 2015
Department of Planning, Development near rail corridors and busy roads – interim guideline, December 2021
NSW Government, Childcare Planning Guidelines, September 2021

Category: Principal judgment

Parties: SFS West Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation: Counsel:
E Flemming (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)
Solicitors:
Macpherson Kelley (Applicant)
Sparke Helmore (Respondent)

File Number(s): 2024/353843

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application DA-24-00040 seeking consent for the partial demolition and alterations and additions to the existing dwelling to convert the existing dwelling house to a 2 level childcare centre for 44 children, with on-site parking, excavation works, landscaping and tree removal (Proposed Development) at 250 Prospect Highway Seven Hills, legally described as Lot 14 in DP 251934 (the Site).

2. The Site has a single frontage onto a classified road within the R2 Low Density Residential Zone of the Blacktown Local Environmental Plan 2015 (BLEP) and centre-based childcare facilities are permissible with consent. The Proposed Development involves partial demolition of the existing dwelling on the Site and development for the purposes of demolition is permissible with consent pursuant to cl 2.7 of the BLEP. The Applicant has also obtained owners consent for a 1m wide easement for drainage to be registered over 10 Endeavor Street, Seven Hills, (legally described as Lot 12 in Deposited Plan 26248.

3. All merit contentions have been resolved between the parties and an agreement as to Proposed/Draft Conditions was reached (Ex J). I find that on merit, the Proposed Development warrants the grant of development consent subject to the agreed conditions of consent filed by the parties on 26 September 2025 (Ex J).

4. The disagreement between the parties is confined to the suitability of the Site because of the Proposed Development’s impact on the classified road pursuant to s 2.119(2)(b) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) as set out in the Amended Statement of Facts and Contentions (ASOFAC) filed by the Respondent on 12 August 2025 (Ex 4) at Contention 2. This disputed impact is the only outstanding traffic contention and imposes a jurisdictional prerequisite which needs to be satisfied in order for the Court to be able exercise the function pursuant to s 4.16 of the EPA Act to grant consent to the Proposed Development.

5. The jurisdictional prerequisite relates to the location of the Site not just because it fronts onto a classified road, but because of the intersections nearby. The parties do not agree as to the satisfaction of the terms of s 2.119(2) of the Transport and Infrastructure SEPP. I will come back to the satisfaction of this provision below at [15].

6. The Site’s frontage and only vehicular access is from Prospect Highway, which is zoned SP2 Classified Road. The Site is located on the north-western side of that road between Wall Park Avenue and Federal Road, 450 metres from Seven Hills Station, within an area characterised by a mixture of uses. To the south of the Site is a used car sales, repair and spares business. To the north of the Site there are two storey town houses and to the west are single storey dwelling houses on Endeavour Street. Opposite the Site to the west and separated by Prospect Highway, are dwelling houses and commercial uses.

7. Between 20 February 2024 and 5 March 2024, the DA was advertised and notified to surrounding properties. The Amended DA was renotified from 18 August 2025 to 1 September 2025. No submissions were received during either notification period.

8. A maximum height of building (HOB) of 9m applies to the Site under the HOB Map referred to in cl 4.3 of the BLEP. The Proposed Development has a compliant maximum HOB of 7.25m (DWG A07b)

9. No maximum floor space ratio applies to the Site under the Floor Space Ratio Map referred to in cl 4.4 of the BLEP. A maximum Floor Space Ratio of 0.5:1 applies under Pt 3.3, s 3.25 of the Transport and Infrastructure SEPP. The Proposed Development has a compliant FSR of 0.3:1.

10. There is a requirement to consider site suitability pursuant to the Child Care Planning Guideline (CCPG) dated September 2021. At Part 3 the CCPG deals with the matters for consideration and at Section 3.1 titled “Site selection and location” includes the following relevant objectives:

11. To ensure that appropriate zone considerations are assessed when selecting a site and specifies at C1 that when the proposed development is in a zone for low density residential use, should consider “traffic and parking impacts of the proposal on residential amenity and road safety.”

12. To ensure that the site selected for a proposed child care facility is suitable for the use specifies at C2, “when selecting a site, ensure that:

(a) […] there is suitable and safe drop off and pick up areas, and off and on street parking (b) The characteristics of the fronting road or roads (for example its operating speed, road classification, traffic volume, heavy vehicle volumes, presence of parking lanes) is appropriate and safe for the proposed use (c) The site avoids direct access to roads with high traffic volumes, high operating speeds, or with high heavy vehicle volumes, especially where there are limited pedestrian crossing facilities […]”.

11. The Applicant gives the following 11 reasons why the Site is suitable for the Proposed Development:

12. Traffic experts agree that the sight lines are adequate (Contention 2(a)) – see below at [23];

13. The traffic in the adjoining road is a low speed environment with vehicular traffic speed during the peak child drop-off and pick-up periods at 28.5 to 34.7km/hr (Ex 2, p 12);

14. The SIDRA modelling for the impacts on intersection operation has concluded that the “existing Levels of Service at both intersections near the site will remain the same, with insignificant changes to the average delays and queuing.” (A Traffic and Parking Impacts Report by TEF Consulting dated 20 November 2023, Ex A, Tab 9, p 19);

15. The width of the Site is such that it allows for a carpark design to facilitate vehicles to enter and exit the Site in a forward direction (Contention 1);

16. The crash history at this location does not support the notion that drivers are travelling at unsafe headways (JER Traffic at [82] dealing with Contention 2(b) and (c);

17. All parking is accommodated on Site including waste collection and delivery vehicles. In any event there is on-street parking available within walking distance (Letter from TEF Consulting dated 13 July 2025, Ex B, Tab 9 at para 3);

18. There are good footpaths and availability of public transport (see detailed description in the Traffic and Parking Impacts Report by TEF Consulting dated 20 November 2023, Ex A, Tab 9 p 3-6) within close location to the Site such to provide support for a Green Travel Plan (POM, Ex 6) consistent with Clause C3 of the CCPG as well as Clause 1.1(b) of the Blacktown City Council Child Care Centre Guide, and is also located near employment areas and shops pursuant to C3 of the CCPG;

19. TfNSW has raised no road capacity or safety issues (see [22] below);

20. The design of the driveway of the Proposed Development provides for the passing of two large B99 vehicles, which allows for vehicles to enter and exit without causing a conflict or any congestion within or external to the Site;

21. The kerbside lane fronting the Site is “under-utilised”, carrying only 17-20% of the total traffic flow. The Applicant refers to this as being of benefit to the Site because it serves as a de facto deceleration lane with traffic flow well below capacity featuring frequent long gaps.

(a) The two centre lanes also present regular shorter gaps occurring during almost every signal cycle at the Prospect Highway/Wall Park Avenue intersection (TEC Consulting letter dated 13 July 2025, Ex B, Tab 9 at para 4). (b) The immediate road network is also beneficial to the Site to the extent that The Hills Crescent underpass is available as a preferred alternative route to using Olive Street, if required (Contention 2(c)).

11. The topography of the Site adjacent to the classified road has permitted the placement of the outdoor play area at the rear of the Site so as to be shielded from air pollution consistent with the evidence in the Applicant’s Supplementary Air Quality Report dated 30 June 2025 in Fig 2-4 (Ex B, Tab 15). The setbacks of the southern and northern play areas from the kerb are over 25 m and 30 m respectively.

12. The Respondent’s case is that consent cannot be granted because of the failure to satisfy the jurisdictional prerequisite that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of the design of the vehicular access to the land or the nature, volume or frequency of vehicles using the classified road to gain access to the land. The Respondent submits that the Court must refuse the application that and the Court must achieve a positive opinion of the satisfaction to have the power to grant consent applying the reasoning in PC Infrastructure Pty Ltd v Wentworth Shire Council [2024] NSWLEC 1139 (PC Infrastructure). The Respondent further submits that the Proposed Development “also ought to be refused under s 4.15(1)(c) of the EPA Act, having regard to the lack of suitability of the Site for the development, in accordance with the decision in Antoine Street Holdings Pty Ltd v Parramatta City Council [2019] NSWLEC 1317, at para 5” (Antoine Street*)* (Transcript of closing submissions, 26 September 2025, p 82 at para 10). I note that in the decision of Antoine Street, Dixon SC set out the multiple merit reasons for the lack of suitability of the Site as contended by Parramatta City Council at par [8], whereas in these proceedings, all merit contentions are resolved therefore I am not greatly assisted by that decision.

13. The Applicant submits that the design of the vehicular access to the Site is appropriate and does not pose any unacceptable safety risks. The Applicant’s case is that based on the Traffic Assessments, there will be no adverse impact on the existing road network as a result of the Proposed Development.

14. I have already found that the Proposed Development has merit and I now set out my reasons why I conclusion that I have the requisite state of satisfaction to be able to exercise the court’s function to grant consent.

Traffic contention and whether the jurisdictional prerequisite can be satisfied regarding the affect of the Proposed Development on the Prospect Highway

15. The Respondent contends in the ASOFAC (Ex 4) at Contention 2 that “the additional vehicle trips entering and exiting the Site will adversely impact the safety of the road.”

16. The parties’ expert traffic engineers Mr Tom Steal (TS) of McLaren Traffic Engineering, traffic expert on behalf of the Respondent, and Mr Oleg Sannikov (OS) of TEF Consulting, traffic expert on behalf of the Applicant prepared a Joint Expert Report (Traffic JER) filed 22 September 2025 (Ex 2). Mr Steal and Mr Sannikov also gave oral evidence during the hearing. I have taken into account their evidence and the observations made during the onsite view.

17. The Respondent submits that “the evidence of its traffic expert, Mr Steal, would establish that there is an increased risk of vehicular collisions on Prospect Highway because of the proposal for vehicles to access the site therefrom which will mean that the impact of the safety, efficiency and operation of the highway will be adversely affected. Accordingly, the Council submits that the site is unsuitable for the proposed development.” (Transcript 26 September 2025, p 81 at par 43)

18. The Contention 2 of the ASOFAC includes particulars (a) to (c). Particular (a) of Contention 2 regarding exiting vehicular sight lines is resolved because the experts agree at par 27 of the Traffic JER that based on the newly obtained independent speed survey data, the sight lines are adequate and there is no deficiency in this regard.

19. Particulars (b) and (c) of Contention 2 relate to the positioning of the driveway in close proximity of two signalised intersections and the Respondent contends in particular 2(b) that “the additional traffic entering the driveway will result in a greatly increased chance of rear end collisions, which is an unacceptable safety outcome”. I will come back to particular 2(b) after dealing with particular 2(c) which I refer to as the Olive Street concern.

20. However, it is relevant and helpful to set out the statutory context of these remaining concerns. This case revolves around the application of the terms of s 2.119 of the Transport and Infrastructure SEPP.

21. Section 2.119 of Transport and Infrastructure SEPP precludes the approval of any development fronting a classified road, which adversely impacts the safety, efficiency or ongoing operation of a classified road. I set out the provision below with emphasis added:

“2.119 Development with frontage to classified road

(1) The objectives of this section are—

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.”

22. Within this statutory context, the DA was referred by the Respondent to Transport for NSW (TfNSW) for comment under s 2.119 of the Transport and Infrastructure SEPP, and for concurrence required under s 138 of the Roads Act 1993 (NSW) (Roads Act). TfNSW provided a letter dated 14 May 2024 (Ex 3, Tab 9) with its concurrence pursuant to s 138 of the Roads Act subject to the imposition of TfNSW conditions. That same letter also provided “advisory comments for consideration in determining the DA” as follows:

“1. TfNSW recommends that the visitor parking spaces 1, 2 and 3 near the Prosect Highway along the northern boundary are to be removed and relocated onsite to ensure that the parking manoeuvres not result in vehicle queuing back to Prospect Highway.

2. A Plan of Management (PoM) should be prepared by the Applicant to ensure that the operation of the development will not impact on the safety and efficienty of Prospect Highway. PoM should includes service deliveries and on-site management of vehicular traffic.”

23. The Proposed Development complies with both of the TfNSW recommendations and the Applicant draws to the Court’s attention that TfNSW limits it recommendations to minor car park and access design improvements together with internal management measures and does not raise any road capacity or safety issues that would preclude approval of the Proposed Development. I come back to this at [35] in the context of Contention 2(b) and the satisfaction of s 2.119(2)(b) of the Transport and Infrastructure SEPP.

24. The Applicant explains that as s 2.120 of the Transport and Infrastructure SEPP applies to the Proposed Development relating to the impact of road noise or vibration on non-road development, the consent authority must take into consideration the Department of Planning’s “Development Near Rail Corridors and Busy Roads – Interim Guideline”. The Applicant sets out the following in the Applicant’s Opening and Jurisdictional Submissions provided to the Court:

“(a) The proposed development provides sufficient separation from Prospect Highway. The play areas are located at the rear of the Site as far as practicable from Prospect Highway and the siting of the building acts as a buffer to the road.

(b) The Acoustic Assessment includes an assessment against the Guideline. Attended traffic noise measurements from Prospect Highway were collected to measure road traffic noise levels at the Site. The Acoustic Assessment confirms that traffic noise levels at the outdoor play areas have been calculated to comply with the necessary requirements, subject to the treatments and recommendations outlined in Section 7 (Acoustic Assessment, Ex B, Tab 19, Section 5) Such recommendations have been incorporated in the Further Amended DA and conditions of consent.

(c) The Air Quality Reports confirm that there are no adverse air quality impacts to the proposed development from Prospect Highway. As demonstrated in Figure 2-4 of the Supplementary Air Quality Report (Ex B, Tab 15), the setback of the southern and northern play areas from the kerb are over 25 metres and 30 metres respectively. This has been accepted by Council to be acceptable in terms of air quality with the application of suitable mitigation measures (Amended SOFAC, Contention 5(g)).

(d) The stormwater management for the proposed development is proposed to discharge to the rear of the Site to Endeavour Street, avoiding discharge onto Prospect Highway (Stormwater Plans, Ex B, Tab 3).

(e) The Traffic Assessments confirm that the proposed driveway is acceptable and the sight lines comply with the relevant Australian Standard.

(f) The proposed development does not include any significant excavation or earthworks which would impact Prospect Highway. TfNSW has granted concurrence for the associated civil works on Prospect Highway for the modified vehicular crossing.”

25. I will now deal with Contention 2(c), being the Olive Street concern and then I will follow with addressing Contention 2(b) as to the satisfaction of the jurisdictional prerequisite of s 2.119(2)(b) of the Transport and Infrastructure SEPP, giving my reasons why I conclude that the jurisdictional prerequisite is satisfied and consent to the Proposed Development can be granted.

The Olive Street concern (Contention 2(c))

26. Contention 2 is framed within the statutory context of s 2.119 of the Transport and Infrastructure SEPP and Particular (c) provides as follows:

“The driveway is positioned in close proximity to two signalised intersections, with the intersection to the north providing for a right turn movement into Olice Street. Drivers exiting the centre may attempt to merge across three lanes of traffic to turn right into Olive Street, which increases the chance of collisions and is an unacceptable road safety outcome.”

27. The traffic experts were unable to reach agreement in relation to the Olive Street concern. Their evidence is as set out from par 31 in the Traffic JER where Mr Steele explains that:

“The site is located on the Prospect Highway between the intersections of Prospect Highway/Wall Park Avenue and Prospect Highway/Federal Road/Olive Street. These intersections are closely spaced, being located approximately 130m apart.”

28. I reproduce below an aerial photograph marked up by Mr Steele in the Traffic JER at p 10. Olive Street is not marked in the photograph however it is clearly visible to the right of the photograph. I also reproduce “SIDRA Intersection 9.1” from the Traffic and Parking Impacts Report at Fig 2 below.

Fig 1: Aerial photograph marked up by Mr Steele in the Traffic JER at p 10 (Ex 2)

Fig 2: Site Layout of Olive St S**idra Intersection 9.1 (Ex A*, Tab 9**)*

29. The traffic experts agreed that “if a Transport Access Guide is implemented and instructions given to parents/carers under a Plan of Management at the commencement of their enrolment and regularly through correspondence […] the number of drivers likely to make a right turn at Olive Street will be either reduced to a small number (TS’ position) or not occur at all (OS’ position), which represents a low risk”: Traffic JER, par 83. The Applicant has provided a Transport Access Guide in the updated the Plan of Management (POM) (Ex H) in accordance with par 83 of the Traffic JER.

30. The Respondent confirmed on the second day of the hearing that Council's position is that that Contention 2(c) should be pressed on the basis that the POM that has been updated and which is now tendered as Ex H in the proceedings is “inadequate to provide sufficient direction to road users about that right-hand turn”. (Transcript 26 September 2025, p 36 at par 1)

31. Mr Steal’s concern about the risk was further reduced during cross examination when he was asked about the catchment of the child care centre and likelihood of parents/carers actually residing in the dwellings in the vicinity of the Olive Street turn off because there is only a small number of dwellings in the green area as depicted in Ex 2, p 28 (Transcript 26 September 2025, p 50 at par 21). Mr Steal concedes in cross examination as follows:

32. There is nothing illegal about performing the manoeuvre of exiting the Site, indicate and change lanes in a gap and turn right into Olive Street (Transcript 26 September 2025, p 46 at par 23);

33. There is no crash history of someone having an accident as a result of doing that manoeuvre (Transcript 26 September 2025, p 46 at par 30);

34. Of all the traffic that uses this portion of the Prospect Highway, only 5-7% actually turn right into Olive Street (Transcript 26 September 2025, p 48 at par 23); and

35. A parent/carer from the Olive Street vicinity would not take the Olive Street turn off if they are going to work after dropping of the child at the Site ((Transcript 26 September 2025, p 49 at par 43).

36. I accept the Applicant’s submission that on a proper reading of s 2.119(2)(b)(iii) of the Transport and Infrastructure SEPP, the concern as contended in Contention 2(c) does not fall within the purview of that section because the manoeuvre of turning right into Olive Street takes place after leaving the Site.

37. To the extent required, I find that the number of drivers likely to make a right turn at Olive Street to be, at worst, miniscule and at best, none. Put another way, I find that, and the evidence supports that, the manoeuvre is not sufficiently probable to be relevant. Accordingly, the Olive Street concern does not result in any finding or conclusion to refuse the consent.

38. I now move on to the satisfaction of the jurisdictional prerequisite to satisfy the terms of s 2.119(2)(b) of the Transport and Infrastructure SEPP.

Increased chance of rear end collisions (Contention 2(b)) and s 2.119(2)(b) Transport and Infrastructure SEPP

35. The Applicant submits in opening as follows:

“As a matter of statutory construction, it naturally has to be read in context. The context of the word "adversely affect" in 2(b) would be assisted by reflecting on the objectives of the clause, in particular objective 1(a) is to ensure that development does not compromise. So when one looks at the scope of adversely affecting, it is within the objective of ensuring it’s not compromised, and we would say that would assist in this case because of the data and, in particular, compliance with the Australian Standards shows there is no adverse effect but certainly no extent of the operation of the function of the classified road being compromised.” (Transcript 25 September 2025, p 12 at para 25)

36. "Adversely affect" is a protean expression. (Independent Commission Against Corruption v Cunneen [2015] HCA 14; 256 CLR 1 (Cunneen) at [2]). Protean expression is a scientific concept using the adjective “protean”, meaning capable of assuming many different forms or roles.

37. I have considered Cunneen, to determine the meaning of “adversely affect” as used in s 2.119(2)(b) of the Transport and Infrastructure SEPP. The High Court has emphasised that the meaning of “adversely affect” is context dependent and must be construed in light of statutory purpose and structure.

38. The context is found in the objective at s 2.119(1)(a) of the Transport and Infrastructure SEPP:

“to ensure that new development does not compromise the effective and ongoing operation and function of classified roads.”

39. Therefore, I find that the meaning of “adversely affect” is limited to the operation and function of Prospect Highway, and specifically, as listed in s 2.119(2)(b) to its safety, efficiency and ongoing operation and limited again to that affect being the result of, relevantly here, the nature, volume or frequency of vehicles using the classified road to gain access to the land (s 2.119(2)(b)(iii)).

40. I have already found above that the evidence supports a finding of satisfaction that the design of the driveway does not adversely affect the safety, efficiency and ongoing operation of the Prospect Highway (s 2.119(2)(b)(i)). In the JER Traffic, the evidence of the traffic experts allows me to conclude that there is no issue in these proceedings with regard to the satisfaction of s 2.119(2)(b)(i) of the Transport and Infrastructure SEPP in that the design of the proposed driveway provides for the passing of two B99 vehicles, allows vehicles to enter and exit in a forward direction and otherwise complies with sign distance requirements.

41. The Proposed Development does not evoke the terms of s 2.119(2)(b)(ii) regarding emission of smoke or dust from the development.

42. The Applicant submits that this case “is very different to some of the very large-scale developments the Court has had the opportunity to consider previously” (Transcript 25 September 2025, p 12 at par 16) and refers to my previous decision PC Infrastructure. It is also the case that in PC Infrastructure*,* I was grappling with expert evidence that there would be ‘minimal’ impact resulting in ‘slight delays’ or a ‘decline in operation’ of the classified road: PC Infrastructure at [91]. PC Infrastructure also had elements of the design of the vehicular access which resulted in an adverse impact on the safety, efficiency and ongoing operation of the classified road: PC Infrastructure at [105]. In this case, the evidence is not of a minor increase of risk but of a minor increase in volume of traffic and it is the Applicant’s expert’s opinion that “the risk of a rear-end collision is no greater than for existing movements.” (Traffic JER at par 65)

43. I also dealt with s 2.119(2)(b) of the Transport and Infrastructure SEPP in some detail in Thunderbirds Are Go Pty Ltd v Council of the City of Ryde and Transport for NSW [2024] NSWLEC 1558 at [109] and [110]:

“109 Fourthly, the Second Respondent submits that the results of the modelling demonstrate that the Proposed Development, even with the implementation of mitigation measures comprising Option 1, Option 2 and Option 3, will have clear adverse effects on the safety, efficiency and ongoing operation of the M2 Motorway and Lane Cove Road as a result of both the design of the vehicular access to the land, and the nature, volume or frequency of vehicles using the classified road to gain access to the land.

110 It is this fourth reason, with which I agree, which leads me to find that I am unable to be satisfied that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of the design of the vehicular access or the nature, volume or frequency of vehicles using Lane Cove Road or the M2 Motorway and as such I must not grant consent to the development.”

44. Coming back to the ‘increased chance of rear end collisions’ as set out in Particular (b) of Contention 2, it is an agreed fact that as a result of the Proposed Development there will be 18 additional vehicle movements during peak times to the classified road which already has an annual daily traffic volume of more than 20,000 vehicles. One question is whether the 18 additional vehicle movements, being the nature, volume or frequency of vehicles using the classified road to gain access to the land result in the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development?

45. Mr Steal does not raise any concern regarding the efficiency and ongoing operation of the Prospect Highway.

46. The Traffic and Parking Impacts Report prepared by TEF Consulting dated 20 November 2023 at p 19 (Ex A, Tab 9) concludes that

“additional traffic generation will have no detrimental impacts on the existing road network operation nor on road safety.”

47. Mr Steal raises no criticism in the JER Traffic in relation to the SIDRA modelling undertaken by the Applicant in the Traffic and Parking Impacts Report set out at [11(3)] above.

48. I accept the findings of the Traffic and Parking Impacts Report consistent with my finding in Iris Hotels Wentworthville Property Pty Ltd ATF Iris Hotels Wentworthville Property Trust v Cumberland Council [2024] NSWLEC 1023 at [15]-[18]:

“15. The Applicant relies on the Traffic Impact Assessment prepared by TTPP dated 5 July 2022 filed with the Class 1 Application at Tab 19. The Traffic Impact Assessment concludes that if consent is granted, the Great Western Highway intersection will continue to operate at similar levels of service to existing conditions.

16. The Applicant has also filed and relies on the letter from TfNSW dated 13 December 2023 together with consent condition 3 which incorporates the conditions in that letter.

17. The Applicant will prepare a detailed Construction Traffic Management Plan prior to the commencement of construction in accordance with consent condition 22.

18. Accordingly, I have reached the required state of satisfaction required by s 2.119 of the Transport and Infrastructure SEPP insofar as the Proposed Development having frontage on a classified road.”

49. On 7 March 2024, Nadeem Shaikin, the Respondent’s employed traffic engineer, who relevantly has a career spanning 27 years as a traffic engineering and transport planning specialist and holds a Master of Engineering (majoring in Traffic Engineering, Road Safety and Transportation Engineering) (Ex 3,Tab 7) raised no objection to the Proposed Development as it then was, based on a number of matters including that “additional traffic generated by the proposed development is likely to be accommodated within the existing road network capacity.” The Applicant notes that since then, the number of children has decreased from 48 to 44 resulting in less traffic movements than when Mr Shaikin formed his conclusion and that relevantly the location of the driveway has remained unchanged. I understand that the summary of internal referrals reproduced in the ASOFAC includes Mr Shaikin’s concern in relation to Traffic and the entire comment in the ASOFAC reads as follows:

“No objection however it is noted that provision for adequate sight distance needs to be made for both pedestrian and vehicular movement at the proposed driveway in accordance with Section 3.2.4 AS2890.1 and Figure 3.2 of AS 2890.1 to ensure safety of pedestrians on the footpath system and motor vehicles along the driveway.”

50. The sight distance concern is resolved and no longer pressed by the Respondent.

51. The remaining issue is limited to s 2.119(2)(b)(iii) of the Transport and Infrastructure SEPP being whether the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of the nature, volume or frequency of vehicles using the classified road to gain access to the land*.* In light of the resolution of Contention 1 of the ASOFAC and the agreement of the traffic experts in the JER Traffic, there is no issue with waste collection and deliveries.

52. The Applicant submits that the issue is even further limited in that no issue it taken with any vehicle leaving the Site, it is simply the staff and visitors gaining access to the land. However, I note that staff will arrive early and gain access to the land before the peak so Mr Steal’s concern of a rear-end crash by a following vehicle can be seen as being applicable only to visitors accessing the Site.

53. The Applicant relies on the evidence of TfNSW detailed above at [22], Council’s employed traffic engineer, Mr Shaikn, detailed above at [47], and the Applicant’s expert Traffic Engineer Mr Sannikov and submits that the Court would be comfortably satisfied that the Proposed Development will not adversely affect the safety of Prospect Highway by the nature, volume or frequency of vehicles using the classified road to gain access to the land because:

“(a) The slow prevailing speeds, being the 85th percentile speed along the Site frontage as 41.4km/h and the average speed was 24.5 km/h, allows following drivers to be in a good position to perceive a vehicle in front as slowing down for a turn and to respond accordingly (JER Traffic, para 16)

(b) Because of the slow prevailing speeds, the braking distances are short and training drivers are in a good position to perceive a vehicle in front as slowing down for a turn and to slow down accordingly (Ex B, Tab 9, TEF letter dated 13 July 2025 at par 28)

(c) The video surveys indicate that vehicles in the kerb side land are, in most instances, not followed by other vehicle closely [ie evenly spaced] and there are very low traffic volumes kerbside lane. This will remain the case for additional vehicles generated by the child care centre, and therefore the risk of a rear-end collision is not greater than for existing movements (JER Traffic, para 56). The risk of collisions due to confusion regarding the turning indicators would be of concern in a higher speed environment, 70 km/h and above (Ex B, Tab 9 TEF letter dated 13 July 2025 at par 28).

(d) Neither the child care centre driver nor the following driver is required to change lanes if coming from Wall Park Road, as both vehicles continue along the kerbside land, which is demonstrated in video records to show significant gaps between them (Traffic JER at par 62)

(e) The child care centre driver is not likely to abruptly “break to an almost stop”. The turning speed into the Site is likely to be in the order of 10 km/h, slowing down from around 36-42 km/h at the upstream intersection, which a typical driver would likely decelerate gradually for a following driver to have ample time to adjust their speed (JER Traffic at par 63)

(f) The kerbside lane of Prospect Highway is underutilised, which provides frequent additional safe opportunities for vehicles entering the Site.” (quote extracted from Applicant’s Outline of Closing Submissions at para 24 and Transcript 26 September 2025, p 72)

54. The Applicant submits that Mr Steal’s concerns are based on a hypothetical scenario of a following vehicle colliding with a vehicle in front as it slows down to gain access to the Site. The Applicant submits that “the single hypothetical scenario will simply not arise or in any event of sufficiently low probability so as to not be a likely impact from the development”. The Applicant relies on Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 per Biscoe J which was appealed to the Court of Appeal, Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 per Giles JA, Basten JA and Macfarlan JA at [44] and [46] as follows:

“44. The resolution of this issue turns on the scope of the phrase "the likely impacts of that development" in s 79C(1)(b). The impact must be one flowing from the development the subject of the development application: the question is how remote a "likely" impact must be, in order to disqualify it from the scope of the consideration. This requires an evaluative judgment which will often not involve any bright-line boundary. An antecedent question may, therefore, be, who is to determine the point at which a particular impact is too remote to demand consideration? That question was not addressed in the submissions of this Court, it being assumed that it was a matter for the courts to answer. In the language of administrative law, whether a particular impact was required to be taken into account or not was a jurisdictional fact. On one approach, the issue can be avoided by accepting the common approach of the parties.”

“46. Once it is accepted that the primary judge was entitled to consider for himself whether the bridge was "likely" to be constructed as a consequence of approving the development application, and once the challenge to that decision is rejected, the respondents must show some implied restriction on the remoteness of the chain of likely consequences. Some such limitation must follow from the concept of "impact": as remoteness from the development increases, impact is likely to decrease, until it no longer has practical significance in terms of approving or refusing to approve the application. Further, the likelihood of a particular impact may diminish with remoteness. "Likely" in this context has the meaning of a "real chance or possibility" rather than more probable than not: Randwick Municipal Council v Crawley (1986) 60 LGRA 277 at 279-281; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 193.”

55. During cross examination Mr Steal ultimately accepted that in relation to vehicles entering the Site:

56. In order to slow down to enter the Site a motorist would apply the brake and the driver in the following vehicle would see the red lights of the braking vehicle and understand that the driver in front was slowing.

57. The second and subsequent times a driver visits the Site, the location and nature of the driveway is known and that driver would know to slow down, as opposed to stopping suddenly.

58. Drivers in the vicinity of the Site are driving at much lower than the signposted speed such that the concern for the drivers with habits of suddenly stopping is less important than when cars are driving at high speeds.

59. Drivers would use the kerbside lane for opportunistic acceleration only in circumstances where the kerbside lane is empty. That is that a driver will only merge into the kerbside lane if they are trying to find an opportunity to accelerate. A driver would not be able to make the opportunistic acceleration if they see that there is a car in the kerbside land seeking to enter the Site.

60. In that circumstance, the following driver would then see (when looking for merging opportunities) that there is a driver with their brake lights and indicator on and not accelerate.

61. Mr Sannikov for the Applicant concedes that the left hand turning lane in front of the Site is not a ‘slip lane’ but instead defines it as a de facto deceleration lane (Transcript 26 September 2025, p 55 at par 11). In the context of safety and Mr Steal’s concern of the increased risk of rear end collisions, Mr Sannikov gave evidence of a driver’s field of vision as they drive along the relevant portion of the Prospect Highway approaching and past the Site. Mr Steal for the Respondent does not disagree with:

“Mr Sannikov’s interpretation of how the eye works and the ability of people to discern objects and features within a certain focus region of their vision rather than more broadly. In this location, my view is that there are a lot of features within the road environment on which a driver will need to focus and that there’s a high chance that a driver is going to be focused much more on the features within the road environment in front of them rather than looking into the adjoining land.” (Transcript 26 September 2025, p 57 at par 14 - 20)

57. Nevertheless, Mr Steal did concede that it was more likely than driving past a forest that a driver would observe the car dealership such that there are land uses that would require cars to enter a site. (Transcript 26 September 2025, p 57 at par 46)

58. I am satisfied that Prospect Highway is designed for car breaking on a wet road because stopping sight distances is defined in Clause 5.3 of the Austroads Guide to Road Design Part 3, as the distance to enable a normal alert driver travelling at a design speed on wet pavement to perceive, react and brake to stop before reaching a hazard on the road ahead (Ex G).

59. Having carefully considered all the evidence I accept the evidence of Mr Sannikov in the Traffic JER at par 66, and I find that the increase of 18 vehicles per hour, being 1.2% of the existing northbound peak hour traffic flows of approximately 1,500 vehicles per hour, is indiscernible and would have no measurable impact on network efficiency, particularly in this section of the Prospect Highway where traffic speeds are already low.

60. The Applicant submits that on the facts, with such a small number of proposed vehicle movements entering the Site and in the absence of any actual crash history of accidents occurring (JER Traffic at par 82), there is limited (if any) probability of Mr Steal’s hypothetical scenarios arising let alone a real chance or possibility. I accept the Applicant’s submission and accordingly, I find that the Proposed Development could not be seen to have any such impact as to cause an adverse effect to the safety of the classified road.

61. I adopt the reasons given by the Applicant as to the suitability of the Site for the Proposed Development and satisfaction of the jurisdictional prerequisite of s 2.119(2) of the Transport and Infrastructure SEPP.

Satisfaction of other jurisdictional prerequisites

62. The Applicant explained how the other jurisdictional prerequisites have been satisfied which I adopt as reasons for my satisfaction, and I also note that the Respondent also agrees with the Applicant’s explanation. I set out below the relevant summary as to how I reach the requisite state of satisfaction for each jurisdictional prerequisite.

63. Owner’s Consent by the registered proprietor of the Site accompanied the DA in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW): Class 1 Application at Tab 3. Owner’s consent for 10 Endeavour Street has been provided in relation to the creation of the easement (Ex B, Tab 8). The Applicant and the owner of 10 Endeavour Street have entered a Deed to permit the drainage works and grant of the easement.

64. The Site contains a dwelling house and is in a long established urban area. It has an existing supply of water, electricity and sewerage and will have suitable vehicular access for the Proposed Development. The Court can be satisfied that relevant essential services are available for the Proposed Development as required by cl 7.5 of the BLEP. In relation to stormwater drainage, the development proposes to discharge stormwater through the rear of the Site, and through 10 Endeavour Street, to drain the stormwater into the Council’s gutter in Endeavour Street.

65. In circumstances where the proposed development is located land identified as “Design excellence” on the Design Excellence Map then cl 7.7 of the BLEP applies such that the Court is required to considers that the development exhibits design excellence. Further the purposes of cl 7.7(3) of the BLEP the Court is satisfied as follows:

66. The proposed building design and materials complement the existing developments in the streetscape, providing a well separated building mass, of muted tones and colours, that is supported by functional landscaped areas.

67. The proposed building is well set back in the streetscape, both in horizontal and vertical dimension, with front and rear setbacks sufficiently landscaped.

68. The proposed design of the building does not cause adverse impact on views, public domain or landmarks.

69. The parties’ town planning experts also agree at [2.10] of the Joint Expert Report (Ex 1) that:

“.. the changes to the design of the building are positive as they respond to “design excellence” contentions raised in the original SOFAC, and the proposed contemporary design does not of itself raise any aesthetic or streetscape concerns”.

67. To that end, and with regard to the matters listed in cl 7.7(4), from the information provided in the architectural statement in the Statement of Environmental Effects (Ex B, Tab 13, p 13), the Court considers that the development exhibits design excellence.

68. Neither the Site nor the existing building on the Site is a heritage item, nor is it within a heritage conservation area: cl 5.10, BLEP. The Site is also not located within the flood planning area: cl 5.21, BLEP.

69. Section 2.119(2)(c) of the Transport and Infrastructure SEPP provides that the consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

“the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road”.

70. The DA Child Care Acoustic Assessment prepared by Acoustic Logic dated 21 July 2025 (Ex B, Tab 19) and Air Quality Reports prepared by Astute Environmental Consulting dated 22 August 2025 (Ex C), 18 March 2025 (Ex B, Tab 15) and 30 June 2025 (Ex B, Tab 16) confirm that no adverse acoustic or air quality impacts will arise from Prospect Highway. As mentioned earlier at [11(11)], the development has been appropriately designed to ameliorate potential traffic noise or vehicle emissions within the Site because the existing large front setback is to be maintained and the location of outdoor play area is generally situated to the rear of the proposed building.

71. The Site is considered suitable for the Proposed Development in the context of consideration of the contamination of land pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) which prevents a consent authority from granting consent to the carrying out of any development on land unless:

(a) It has considered whether the land is contaminated, and

(b) If the land is contaminated, it is satisfied that the land is suitable in its contaminated state for the purpose of which the development is proposed to be carried out or, if the land requires remediation to make it suitable, it is satisfied that the land will be remediated before the land is used for the relevant purpose.

72. The Site is currently a residential use in a generally residential context, with associated recreational, educational and commercial areas. The Further Amended DA includes a Stage 1 Preliminary and Stage 2 Detailed Site Investigation prepared by Sydney Environmental Group dated 10 February 2025 (Ex B, Tab 16). Based on this assessment, the Site is considered suitable for the proposed development subject to the recommendations being implemented. A Remedial Action Plan has been prepared by Sydney Environmental Group dated 2 November 2023 (Class 1 Application, Tab 14) which details the steps required to delineate and remediate the identified contaminants within the Site to a suitable level.

73. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the Proposed Development because the Site is located within the Hawkesbury-Nepean Catchment. The provisions in Ch 6 of the Biodiversity and Conservation SEPP which includes jurisdictional prerequisites to be satisfied that relate to the water catchment are contained in ss 6.6(2), 6.7(2), 6.8(2) and 6.9(2) relating to water quality and quantity; aquatic ecology; flooding; recreation and public access; and total catchment management. To satisfy these jurisdictional prerequisites, the Applicant relies on the stormwater drainage plans (Ex B, Tab 3) which have been designed in accordance with Part J (Water Sensitive Urban Design and Integrated Water Cycle Management) of the Blacktown Development Control Plan 2015 (BDCP) and is accompanied by Deemed to Comply certificates (Ex B, Tab 6). MUSIC and DRAINS models have been prepared to accompany the engineering design.

74. Accordingly, the Court is satisfied that the stormwater plans (which comply with the water quality standards in Part J of the BDCP and which include provisions for an appropriately sized onsite detention system and rainwater harvest system) ensure that there will be no impact on water flow and a neutral effect on the quality or water entering any natural waterbodies.

75. The Proposed Development also keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, will not have a direct, indirect or cumulative adverse impact on aquatic reserves or wetlands and otherwise minimises the erosion of land or the creation of sedimentation impacts.

76. Further, the Site is not located within immediate proximity of a natural waterbody and is therefore unlikely to impact on periodic flooding that benefits wetlands and other riverine ecosystems or otherwise affect recreational land use or public access to and from foreshores or natural waterbodies.

77. Having found that the jurisdictional prerequisites have been satisfied, the development application can now be determined by the granting of consent subject to the agreed conditions of consent.

Orders:

78. The Court orders:

79. The appeal is upheld.

80. Development consent is granted to development application DA-24-00040 for part demolition and alterations and additions to convert the existing dwelling house to a childcare centre for 44 children with on-site car parking, excavation works, landscaping and tree removal, and stormwater drainage works at 250 Prospect Highway, Seven Hills, NSW, 2147 (legally described as Lot 14 in Deposited Plan 251934) and 10 Endeavour Street, Seven Hills, NSW, 2147 (legally described as Lot 12 in Deposited Plan 26248) subject to the conditions of consent in Annexure A).

81. Exhibit 3 is returned and all other exhibits are to be retained.

E Espinosa

Commissioner of the Court

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Annexure A.633 KB.pdf

Architectural Plans_Part1.32.8 MB.pdf

Architectural Plans_Part2.33.0 MB.pdf

Architectural Plans_Part3.1.82 MB.pdf

Amendments

30 December 2025

Architectural Plans Uploaded