The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council

6] NSWLEC 133; (2006) 67 NSWLR 256; (2006) 146 LGERA 10 Vinson v Randwick Council [2005] NSWLEC 142; (2005) 141 LGERA 27 Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589; (2001) 115 LGERA 373 Category: Principal judgment Parties: The Presbyterian Church (New South Wales) Property Trust (Applicant) Woollahra Municipal Council (Respondent) Representation: Mr T Hale SC (Applicant) Mr J Lazarus, barrister (Respondent) CBP Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 10198 of 2014

Introduction 1SENIOR COMMISSIONER: Scots College Preparatory School (the preparatory school) is located in Bellevue Hill. The preparatory school campus is, currently, divided into two distinct segments. The first of them is located at 5 and 7 Mansion Road. This element of the campus has an access handle extending from these properties to Kambala Road to the west. The access handle is located between 19 Kambala Road and 17 Kambala Road. Both of these properties are owned by Scots College (the college). Both these properties are currently zoned residential under the Woollahra Local Environmental Plan 1995 (the LEP). 19 Kambala Road is to the north of the access handle whilst 17 Kambala Road is to the south of it. Whilst the width of the access handle is that of a conventional suburban driveway, it is my understanding that it is primarily (if not virtually entirely) used as a point of pedestrian access from Kambala Road to this element of the preparatory school's campus. 2The second element of the preparatory school is located between Mansion Road and Victoria Road and is, at its Mansion Road frontage, opposite the first element of the campus. 3It is convenient, for the purposes of this judgment, to refer to the first element of the campus as the Mansion Road campus whilst referring to the second element of the campus as the Victoria Road campus. 4The preparatory school has, for several years, accepted enrolments from very young pupils. On the Mansion Road campus are presently accommodated two cohorts of preschool pupils (three year olds designated as Cubs and four year olds designated as Lions). Kindergarten and Year 1 pupils are also accommodated on the Mansion Road campus. The remainder of the preparatory school pupils are accommodated on the Victoria Road campus.

The development application 5The present development application (DA 559/2013) to be determined in these proceedings was lodged with Woollahra Municipal Council (the Council) in November 2013. It primarily concerns the property owned by the preparatory school at 19 Kambala Road but also, to a lesser extent, involves works proposed to be undertaken on the existing Mansion Road campus property. It does not concern 17 Kambala Road. 6The scope of the development application is described in the Statement of Environmental Effects (Exhibit 1 [commencing at folio 161] at folio 165) that accompanied the application. The description is in the following terms:

• a change of the land use of a dwelling from 'Residential' to 'Educational Establishment' (kindergarten) at 19 Kambala Road, Bellevue Hill;
• minor internal and external works to facilitate the change of use;
• minor alterations to allow pedestrian access between 19 Kambala Road and 5-7 Mansion Road;
• landscaping works and creation of an outdoor education garden;
• upgrade of the boundary fence treatment to Kambala Road, including new vehicular and pedestrian gates;
• Provision of a formal lay-by to the Kambala Road street verge, including removal of one street tree; and
• Associated upgrades to stormwater infrastructure. 7Although this description of the elements said to be encompassed by the development application includes the element of a lay-by in Kambala Road, the position is that this cannot be encompassed within a development application made pursuant to the Environmental Planning and Assessment Act 1979 (the Act) but would require a separate application pursuant to s 138 of the Roads Act 1993 (the Roads Act) to be made to the Council as the local roads authority. There is no such application. It is settled that, in my exercising the jurisdiction of the Court to determine an appeal made pursuant to s 97 of the Act solely concerning a development application made pursuant to the Act, I do not have jurisdiction to exercise the function of the Council with respect to work requiring a Roads Act application (see Australian Leisure and Hospitality Group Limited v Manly Council [2008] NSWLEC 312; (2008) 167 LGERA 1). 8However, Mr Hale SC for the applicant (although the Presbyterian Church Property Trust of New South Wales is the formal applicant as the owner of the real estate, it is convenient to refer to the applicant as the preparatory school for the purposes of this decision) has indicated that the preparatory school is prepared to accept a condition of consent requiring it to lodge a Roads Act application with the Council for the lay-by within a fixed period of time and for this to be accompanied by a further condition requiring that, if approved by the Council, the lay-by would be required to be constructed by the preparatory school within a further fixed period of time. 9The utilisation of 19 Kambala Road is solely intended, on both the written evidence and the oral evidence of Mr Crerar, the principal of the preparatory school, to enable the space presently occupied by the element of the pupil cohort proposed to be transferred to 19 Kambala Road to be converted into dance and music spaces and not to increase the pupil carrying capacity of the Mansion Road campus. In this context, I note that, although the broader Scots College community has recently expanded to cater for boys younger than those presently accepted as Cubs at the Mansion Road campus, this expansion has taken place by utilising other premises owned by the college at Rose Bay. 10As matters of detail arising from the Council's without prejudice proposed conditions of consent were not dealt with during the course of the hearing (the hearing being confined to the substantive issues that might potentially warrant refusal rather than matters of detail attaching to the conditions of consent that would need to be attached if the broad issues were resolved in favour of the preparatory school), the periods of time for application for or construction of the lay-by were deferred for later consideration with other matters arising concerning the conditions of consent (if the application were to be approvable).

The site inspection 11At the commencement of the hearing, I inspected the Kambala Road to Mansion Road campus access handle, walking along the access handle and then through 5 and 7 Mansion Road to Mansion Road itself. It was not necessary for me to inspect, in any substantive fashion, any of the buildings within the Mansion Road campus nor any elements of built form presently on 19 Kambala Road. I walked along Mansion Road toward the north to the northern boundary of the Mansion Road campus and observed Mansion Road where it turned to the east at that point. During the course of this transit, I observed the physical parking arrangements in Mansion Road outside the Mansion Road campus. 12The Mansion Road drop-off/pick-up zone has at least two (2) distinct differences when compared to the present arrangements in Kambala Road. First, there is an extensive lay-by constructed on the western side of Mansion Road in front of the Mansion Road campus. Second, as the preparatory school designates that the Mansion Road facility is only to be used for the Cubs and Lions (disclosed in the traffic survey analysis as being a restriction ignored by a significant number of parents), parents with these younger children are expected to park there for a longer period of time as these children are required to be signed in or out by a parent at a designated location within the Mansion Road campus. 13It is apposite to observe that, in Mansion Road to the south of the Mansion Road and Victoria Road elements of the preparatory school, Mansion Road terminates in a cul-de-sac turning head. There are a number of residences with frontages to Mansion Road to the south of the two campus elements. 14During the course of this inspection, I observed the Victoria Road campus of the preparatory school across Mansion Road but it was not necessary to visit that campus. 15I also walked Kambala Road on its eastern side, for 50 m or so, to the north of the access handle exit onto Kambala Road; crossed the road at that point and walked to the south along Kambala Road (incorporating, in this process, walking along a service road element of Kambala Road - lower than the main thoroughfare - that provides access to a small number of Kambala Road frontage properties on the western side of that road); at the southern end of the service road, I crossed the road and returned to the access handle before departing from the site. 16During the course of the site inspection, I was accompanied by Mr Hale and by Mr Lazarus, barrister for the Council, and those instructing and advising each of them. A number of residents also accompanied me during the course of the site inspection.

The resident objector evidence 17Prior to the commencement of the site inspection, I heard evidence given, informally, by six local residents who objected to the proposed change of use. 18It this appropriate to note at this point, in light of a suggestion made by Mr Hale during the course of the subsequent in court proceedings that less weight should be given to the onsite evidence of the objectors (a proposition I reject, absolutely) because it was unsworn, that, as is my habit in such circumstances, I advised those who were to give on-site evidence to me that I would not be producing any holy book and swearing them in but that, nonetheless, they were under exactly the same obligations as if they were giving their evidence under oath or affirmation in court and their evidence would be treated, to the extent that it was relevant to the matters requiring determination in the proceedings, as if it had been given under oath or affirmation in the witness box. 19This proposition from Mr Hale was a reprise of the position advanced by him to me nearly a decade earlier (see Khattar v Holroyd Council (No 2) [2005] NSWLEC 359 at [12] to [17]), but, when I referred four propositions of law to the then Chief Judge, McClellan CJ, Mr Hale elected not to pursue the submission (see Khattar v Holroyd City Council [2005] NSWLEC 411 at [6]). 20I am fortified in this view by Craig J's observation in H & J Standen Pty Ltd v Minister for Planning and Infrastructure [2014] NSWLEC 113 at (84), in response to such a proposition, that: The practice of this Court in hearing evidence from lay witnesses onsite is a practice that has been followed in the determination of almost all merit appeals for many years. Although those giving evidence onsite are not sworn, the evidence has always been treated as if given in court and intending witnesses are usually so advised. As in the present case, witnesses in that category are almost always called by the consent authority. Representatives of any other party present onsite are entitled to question each witness whose evidence is given. Assuming both counsel and solicitors for the parties to be present, each solicitor notes the evidence given by each witness, compares those notes with those taken by his or her counterpart and upon agreement being reached between them, the summary of evidence is later tendered in the course of the hearing. That is what occurred in the present case. 21I note, in passing, that if this were not to be the case, the vast majority of merit appeals in the Court's jurisdiction would be required to be run in an entirely inefficient and cumbersome fashion, a fashion totally inconsistent with the obligation imposed on the Court by s 56 of the Civil Procedure Act 2005 to foster the just, quick and cheap resolution of the issues genuinely in dispute between the parties. It would also be contrary to the provisions of s 38(1), (2) and (4) of the Land and Environment Court Act 1979 which, relevantly, provide: 38 Procedure (1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit. (2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. (3) ................. (4) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing. (5) ..................... 22I also observe that, although at one stage Mr Lazarus put the proposition to me that I ought have regard to the fact that as Mr Hale was afforded the opportunity to crossexamine the resident witnesses during the course of their onsite evidence and did not elect to do so, I should have greater confidence in the evidence because of that lack of testing on behalf of the preparatory school. I did not (and do not) accept that proposition. It is, in my experience, now comparatively rare for advocates on behalf of development proponents to cross-examine objectors during the course of onsite evidence from those objectors. It is my observation that, on the rare occasions it occurs, the likelihood of such cross-examination eliciting anything of utility for a proponent is usually illusory (at its highest) and, much more often than not, entirely fruitless. Experienced advocates such as Mr Hale nowadays do not do so and, in not doing so, make a quite proper forensic decision - one that should not be taken to disadvantage their client. 23There are a number of matters to be observed concerning the resident evidence given orally onsite; the text, pictorial and graphic materials presented in support of that oral evidence and the broad range of resident submissions that were made in writing to the Council as part of the development assessment process. 24The text, pictorial and graphic materials were tendered and became Exhibit 8 whilst the written submissions lodged with the Council were tendered and became Exhibit 2. I am required to consider these earlier submissions, to the extent that they raise matters validly within the jurisdiction of the Court (s 79C(1)(d) of the Act). 25To the extent that these submissions and/or the oral evidence of the objectors raise matters that are not pressed by the Council in its contentions, it is appropriate for me to deal with them to the extent that they give rise to issues I consider potentially could act adversely to the position of the preparatory school. However, where such an issue arises from the objector material, as I am required to accord procedural fairness and natural justice to the parties, it is incumbent on me to put the parties (particularly the preparatory school as the party potentially adversely affected) on notice of such issues. 26Two matters arose during the course of the objectors' evidence that potentially fell in this category. The first was an acoustic impact concern raised by the neighbour to the north of 19 Kambala Road. 27The second was the suggestion, not specifically particularised in the Council's contentions (although, perhaps, on a broad reading, implicit in them - a matter I need not determine) that the proposed relocation of the Early Learning Centre children to 19 Kambala Road would exacerbate impacts in Kambala Road by transferring a centre of activity currently located elsewhere in the Mansion Road campus to a greater proximity to Kambala Road by having their classrooms located in 19 Kambala Road. 28With respect to the second of these points, I indicated to Mr Hale toward the conclusion of the first of the hearing days that this was a matter that was potentially of concern to me and needed to be addressed during the course of the remainder of the hearing, particularly in the concurrent evidence of the traffic experts, evidence that was to be taken on the second day of the hearing. 29I did not give him notice of that nature with respect to the acoustic impact issue raised with respect to the property to the north of 19 Kambala Road as I was of the opinion (necessarily implicit, in my view, from the terms of on-site evidence of the objector who spoke on that point) that that issue, to the extent necessary, could be dealt with through the conditions of consent process if the application were to be approvable.

The planning framework 30As earlier noted, 19 Kambala Road is zoned residential by the LEP. Use of this property for the purposes of an educational establishment is prohibited in the zone by the provisions of the LEP. 31However, in 2007, State Environmental Planning Policy (Infrastructure) 2007 (the Policy) came into effect. The Policy is a beneficial and facultative one that has the effect, in a variety of circumstances prescribed in it, of permitting development that would otherwise be prohibited, amongst other things. In the particular circumstances of this application, cl 28(2)(b) of the Policy deals, amongst other things, with the expansion of educational establishments. It does so by permitting development for the purpose of the expansion of existing educational establishments-on land adjacent to the existing educational establishment even where prohibited. 32The consequence of this provision, in the context of the preparatory school's application, is to set aside the prohibition contained in the LEP and make it possible for the present application to be approved despite the prohibiting effect of the zoning of 19 Kambala Road. 33However, the operation of the policy to set aside the prohibition does not have the effect of removing the necessity for a proper merit assessment of the proposal as required by s 79C of the Act. This includes, in addition to consideration of public submissions as earlier noted is required by this section, the provisions of any relevant development control plan (s 79C(1)(a)(iii) of the Act). 34There are two relevant development control plans that have been adopted by the Council. The first of these is the Educational Establishments Development Control Plan 2012 and the second is the Council's Parking Development Control Plan 2011. Both of these development control plans have provisions that have been pleaded by the Council as providing a foundational basis for refusing this application. 35Prior to setting out the relevant provisions of these development control plans, it is appropriate to note two further matters concerning my consideration of the impact of the pleaded provisions in my assessment of the application. 36It is necessary to set out a further element of the development application history concerning 19 Kambala Road before noting the first of these points. In November 2011, the preparatory school lodged a development application for 19 Kambala Road that was, at least for the purposes of this notation, in similar terms to the application lodged in November 2013 and now the subject of these proceedings. In the intervening period of time, the Council adopted the Educational Establishments Development Control Plan that adopted a provision concerning pupil drop-off and collection arrangements that is now pleaded as giving rise to a basis for refusal of the application. 37I invited Mr Hale to make any submissions that he might wish to advance (should he wish to do so) that the pleaded element of this development control plan had been adopted by the Council for the purposes of defeating this application (this being a basis for considering whether to disregard a council policy as discussed by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 492; (2004) 136 LGERA 254 at (91) with this discussion necessarily applying, by analogy, in my view, to development control plans). Mr Hale made no submission of this nature. 38Second, the current application had been made to the Council after the coming into effect of s 79C(3A) of the Act (a provision designed, as I understand it, to soften the strictures of the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589; (2001) 115 LGERA 373 as to how provisions of a development control plan are to be considered during the course of assessment of development applications). Although this was pointed out to him, Mr Hale made no submission that this provision had any relevance to my consideration of the present application.

The 2009 development consent 39The school operates within a development consent (DA 758/2008/1), presently relevant, given by the Council in May 2009. That development consent (Exhibit B, Tab 2) includes, within the conditions that attach to it, two provisions relevant in these proceedings. The first is condition D.12 - a condition that requires the preparation of a traffic management plan. Such a traffic management plan was prepared to satisfy the condition. A copy of that traffic management plan became Exhibit E. 40The second relevant aspect is the limit on the preparatory school's population, both pupil and academic, contained in condition I.1. This condition limits the preparatory school to a maximum of 500 pupils and 65 staff members at the preparatory school.

The preparatory school's pupil population 41Although there was some discussion as to whether the limit on pupil numbers was a limit strictly based on a headcount or was to be calculated as a full-time equivalent number (thus potentially permitting a higher headcount), I do not consider that it is necessary to resolve that tension for the purposes of these proceedings. 42Two factual matters arise with respect to the preparatory school population. The first is that preparatory school has not, on the evidence, exceeded the cap on pupil numbers since the cap was imposed (although the preparatory school also does not seem to have breached the cap on staff numbers, staff numbers are not an issue in the proceedings). 43Second, there has been both demographic and numerical change in the composition of the pupil population. I have earlier set out the shift in the demographic cohort at the preparatory school to an earlier aged profile and it is unnecessary to repeat that description. However, pupil numbers have also increased, approaching but not breaching the numerical limit. From the documents in evidence, the pupil numbers at the preparatory school over recent years can be shown in the following table: Year Pupil numbers Source 2014 491 Exhibit 1, Folio 12 2013 483 Exhibit 1, Folio 175 2012 484.2 FTE Exhibit B, Tab 1, Page 9 2011 484 FTE Exhibit B, Tab 1, Page 9 2010 486 FTE Exhibit B, Tab 1, Page 9 2009 461 Exhibit 1, Folio 13

General comment concerning parking and traffic matters 44The Statement of Environmental Effects prepared by JBA Urban Planning Consultants (Exhibit 1, commencing at Folio 161) deals with the question of access, parking and traffic in s 3.6 (Folio 177). It does so in the following terms: There are no changes to existing access and general parking arrangements associated with the ELC (incorporating the proposed relocated kindergarten). In terms of pedestrian access to the proposed relocated kindergarten, it will be provided: From Kambala Road via the existing access way along the southern side of 19 Kambala Road, where pedestrians will be able to access the rear of the building which accommodates the main entry to the kindergarten; or Through Mansion Road via the existing main ELC entry connecting through to the rear of 19 Kambala Road. No direct access to the relocated kindergarten is proposed off Kambala Road. 45As part of the documents lodged with the Statement of Environmental Effects, there was included a traffic and parking assessment prepared by Mr Morse of Parking and Traffic Consultants (Exhibit 1, Tab D commencing at Folio 247). This document, dated December 2013, includes a diagram (on Folio 256). The diagram is described in the report as summarising the results of the travel surveys in indicating where each group of pupils is being set down. An image of the diagram appears below: 46It is clear from what is shown in this diagram that the drop off and pick up patterns of parents as shown in this survey analysis do not reflect what the preparatory school has repeatedly advised parents should be the pattern of such activities set out by the preparatory school as the appropriate locations to be used by parents for these activities. The unsafe aspects of this behaviour in Kambala Road and the preparatory school's genuine (but futile) attempts to remove child safety risks are discussed in detail later. 47In particular, it is to be observed that for the pupil cohort the school intends should use Kambala Road (K-1). 134 cars were counted in the survey of which only 113 used Kambala Road. However, in addition, 48 cars (41 Cub and 7 preparatory school) also used Kambala Road. This reflects an aspect of the impacting behaviour in that the 41 Cub-related movement cars will require parents to park the vehicle and escort the child to or from the sign-in location within the Mansion Road campus. 48In analysing the material that follows, it will be necessary to consider not only the qualitative response from Mr. Morse, the preparatory school's traffic expert, but also such quantitative material as is available concerning the actual pick-up and drop-off operation in Kambala Road, Mansion Road and Victoria Road. This analysis will also need to comprehend the evidence given by the preparatory school's principal, Mr Crerar, and the relevant matters that may be gleaned from the 2009 consent traffic management plan; publications to parents of pupils at the preparatory school concerning traffic and parking matters; and matters contained in the college's draft master plan concerning the preparatory school.

The 2013 master planning exercise 49In 2013, the preparatory school formed part of a substantial master planning exercise undertaken on behalf of the college - the elements of this process with respect to the preparatory school included both the anticipated use of 19 Kambala Road for the purposes now proposed and some elements relevant to traffic management issues. 50The master plan that resulted remains in draft only. However, to the extent that it foreshadowed some utilisation of the property owned by the college at 17 Kambala Road, I have disregarded that as 17 Kambala Road remains residential and there is no evidence of any application to incorporate it within the preparatory school campus or the broader college at this time. Indeed, the ownership of 17 Kambala Road is and must be a matter of complete irrelevance in these proceedings. I have paid no regard to it in any aspect of my merit assessment.

Communication with parents about parking and traffic arrangements 51The school communicates with parents or prospective parents about a range of matters (including traffic and parking management issues in the vicinity of the two elements of the preparatory school's campuses). This is done through newsletters that are distributed electronically and/or physically to parents. There are two newsletters for this purpose - The Clansman is solely directed to preparatory school parents whilst The Flying Scotsman is for the whole college community. 52Although there was no specific evidence as to their frequency, it is reasonable to infer from the edition dates of the extracts that were in evidence that they are produced on a regular basis (whether weekly or fortnightly or on some irregular basis being irrelevant) at least during term time. 53The extracts that were in evidence from the newsletters were in two forms. Some material (Exhibits J and 10) was photocopies of pages from the printed document whilst other extracts had been obtained by an electronic data search and extraction process and were produced as a single compilation document of elements from the two newsletters dealing with traffic and parking matters (Exhibit G). 54The school also conducts information sessions for parents during the evening time with separate sessions for parents of different age elements within the preparatory school cohort. Finally, the preparatory school produces, annually, a handbook for parents. A copy of the 2014 edition of the handbook was Exhibit H. 55The 2014 preparatory school handbook for parents deals with arrival at school on page 22 and, relevantly, does so in the following terms: The only boys to be delivered and collected in Mansion Road are transition boys, their brothers, players of the double bass and those with an injured leg. Boys in years K-1 are to be dropped off at the Lane in Kambala Road. Boys in years two to four are dropped off and collected at the Lane in Kambala Road or at the laneway in Victoria Road. Boys in years five and six are dropped off and collected at the laneway to Kambala Road halfway between Mansion Road and the senior school 56Under the heading ELC, on this page, the following relevant elements appear: The only boys to be delivered and collected in Mansion Road are transition boys and their brothers. Boys in Kindergarten and year one are to be dropped off at the top of the lane in Kambala Road. 57Commencing on page 40, under the heading parking, the 2014 handbook says: Your son's safety may be affected adversely by thoughtless driving and parking habits. It is important, also, that we maintain cordial relations with our neighbours and not cause them inconvenience by obstructing driveways. Parents are asked to observe the following: Transition boys' parents only should use Mansion Road. Parents are asked to depart as soon as possible after delivering or collecting their sons in orders that others may use the parking spaces. 8:30- 9:00am staggered start time to the day and 2:30pm-3 pm staggered collection times. Boys in Kindergarten and Year 1 should be dropped-off and picked-up in Kambala Road using the pedestrian access lane to the school grounds. 8:20 to 8:40 am drop-off and 3:05 to 3:25pm collection. Year 1 boys carrying large musical instruments may be dropped off in Mansion Road. Boys in Years 2 to 4 should be dropped-off and picked-up on Kambala or Victoria Road using the pedestrian access lane to the school grounds. 8:00 to 8:25am drop-off and 3:05 to 3:25pm collection. Boys in Years 5 and 6 should be dropped-off and collected in Victoria Road, near the bus stop and laneway to Kambala Road. 8am to 8:25am drop-off and 3:05 to 3:25pm collection. Boys carrying large musical instruments or with an injured leg may be dropped-off in Mansion Road. In the interests of boys' safety, observe all parking signs. Please take particular care not to park in the bus or no stopping zones in Victoria Road. Vehicles parked in these zones obscure the view of pedestrians crossing at the Mansion Road intersection and that of vehicles approaching the crossing. Please do not leave your car unattended in the Kambala Road morning drop-off.

The Traffic and Parking Management Plan 58The October 2009 Traffic and Parking Management Plan (Exhibit E) is a document of a little over 11 pages of double-spaced text. On page 5, it sets out overall principles of traffic management. There are 11 such principles. It is to be observed that this Traffic Management Plan was prepared in response to the requirement to do so in condition D.12 of the 2009 development consent and was prepared prior to the preparatory school's implementation of its Cubs and Lions transition programs. Of the principles set out on page 5, the following are relevant:

• minimise impact of on street parking in the vicinity of the site, particularly during the morning and afternoon peak periods (Third principle);
• separate to set down and pick-up areas of the preparatory school and the early learning centre (Fifth principle);
• preparatory school set down in pick-ups to occur from Kambala Road (Kindergarten to Year 1) and from Victoria Road (Year 2 to Year 4) (Sixth principle);
• early learning centre set down in pick-ups to occur from Mansion Road (Seventh principle). 59Page 7 of the Traffic Management Plan describes the results of a traffic count survey undertaken. The results are set out in table 2.1 of the document. For the purposes of these proceedings it is sufficient to note that no traffic count was undertaken in Kambala Road. Page 10 of the document commences with the heading Traffic and Parking Management Plan. At 2.20, the document sets out what I describe as the main aspects of the Traffic and Parking Management Plan. Of those matters there set out, the third point is relevant in these proceedings. It is in the following terms:
• Maintain existing student set-down and pick-up operation in Kambala Road for Kindergarten and Year 1 of the preparatory school. 60The next point notes the intention to construct an indented parking bay in Mansion Road, works that have been undertaken and were inspected during the course of the site inspection. 61At 2.21, the document concludes by saying: The proposed Traffic and Parking Management Plan is considered appropriate to cater for set down and pick-up operation for the Scots Preparatory School and Early Learning Centre.

The Statement of Facts and Contentions in Reply 62The preparatory school filed and served a response to the Council's Statement of Facts and Contentions. This document became Exhibit C. With respect to the particularisation of the Council's contentions (at 2.4) concerning, inter alia, the interaction of school-aged pedestrians and traffic on Kambala Road, the preparatory school's response was: Disagree. Under the current arrangement, students have no interaction with traffic on Kambala Road, provided the parents use the drop-off/pick-up area and the student uses only the passenger side doors of the vehicle (emphasis added). 63With respect to Objective O2 of the Educational Establishment's Development Control Plan, the objective being to minimise conflict between vehicles and pedestrians, particularly at entrances, the preparatory school's formal response (in Exhibit C page 11 at 2.5) was that the proposal is consistent with these objectives because: There is no material conflict between pedestrians and vehicles under the current arrangement. The only instance where conflict may occur is when a parent parks on the western side of Kambala Road or if a student exits a car in the drop-off area from the driver's side. Both of these actions are actively discouraged by the applicant. 64A bundle of extracts from The Clansman were tendered and became Exhibit J. I do not propose to set out, in full, the various relevant extracts from the newsletter where messages are given either by the principal of the preparatory school (Mr. Crerar) or the principal of the college (Dr Lambert) concerning traffic and parking matters. 65It is sufficient to note, as a general proposition, that I have been provided with extracts from seven newsletters within the period 27 February 2014 to 24 July 2014 where material relating to traffic and parking is addressed. Although not specifically reproduced in total, I consider it a fair summary to observe that there are consistent themes of setting out the times and locations for drop-off/pick-up are expected to occur for the various elements within the Preparatory school pupil cohort. 66It is also fair to observe that there is a consistent theme of addressing the need to obey road rules and to behave in a neighbourly fashion toward residents in the vicinity of the various drop-off/pick-up locations. 67It is appropriate to reproduce what is contained in the first of the extracts in Exhibit J (Term one, week five-Thursday 27 February 2014) where, under the heading Road Behaviour Around the College, the following appears: The college would like to remind parents of their road behaviour during drop-off and pick-up times. The following behaviours must be avoided: o Please do not use the resident's access road off Kambala Road for parking or driving through. o Do not speed through the area at any time. o Please show appropriate consideration for our neighbours by parking only in legal parking bays and do not obstruct driveways. o Stopping in no stopping zones. o Allowing boys to exit vehicles in an unsafe manner. Please be aware that these behaviours will not be tolerated by the College. It should also be noted that Council traffic infringements and harsh penalties apply in school zones, particularly for double parking, parking on a pedestrian crossing or children's crossing and illegally parking in no stopping, no parking and bus zones. It is extremely important to be conscious of the impact our driving habits have on our neighbours and the safety of our boys. It is very important as we continue through 2014 that you model positive road behaviours for your sons and be courteous to all of our neighbours. Your actions speak louder than words, so please model good behaviour.

The planning principle in Randall? 68In Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277, Tuor C published a planning principle concerning the expansion or intensification of an existing use. Although this planning principle was subsequently expanded in the particular context of licensed premises by the decision in Vinson v Randwick Council [2005] NSWLEC 142; (2005) 141 LGERA 27, in these proceedings Mr. Lazarus has sought to invoke the principle in Randall as a reasoning process warranting refusal of the application. The planning principle in Randall is in the following terms: 25 Principles for the assessment of an extension or intensification of a use which may have an adverse impact on residential amenity, such as a hotel, are: ● First, is the impact of the operation of the existing use on residential amenity acceptable? If the answer is no, then an extension or intensification, would be unacceptable unless there is no overall increase in impact or there are measures proposed which would mitigate the existing impact. ● Second, if the answer is yes, is the impact of the proposed extension or intensification still acceptable? 26 In answering the first question, it is not sufficient to assume that a use operating in compliance with its approval has an acceptable impact. A hotel could be approved without limits on patron numbers or hours of operation and, while its operation complies with this approval, may not achieve an acceptable impact. Moreover, the surrounding area may change and the attitudes of the community as to what is acceptable may also change. An extension or intensification of use may provide opportunities to reduce the impact of the existing operation through limiting numbers or hours of operation. The overall impact of the development may then be neutral or result in a lesser impact. 69There are three matters that warrant consideration in this context. The first is the continuing relevance of Randall and Vinson; the second is the approach to be undertaken in considering the terms of planning principles generally; and the third is whether or not, properly understood, Randall has any application to the circumstances here to be considered. 70First, I turned to the continuing relevance of the planning principles in Randall and Vinson. As I observed recently in Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167 at (30), the Commissioners of the Court have undertaken a review of the published list of planning principles in order to assess which remain relevant in their original form; which, if any, might warrant revision or replacement (as was undertaken in Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187); or which principles, if any, were no longer relevant and should, for the future, be disregarded. 71This latter course has been followed by O'Neill C in Comino v Council of the City of Sydney [2014] NSWLEC 1211 where she noted that the planning principle in Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353; (2003) 139 LGERA 231 should no longer applied and the reasons why the principle was no longer appropriate. 72As part of that process, the Commissioners have considered, through the collegiate system used within the Court for the consideration of planning principles, the continuing relevance of the planning principles in Randall and Vinson. The Commissioners have concluded that each of these principles remains relevant and neither requires revision. 73I now turn to the general question of consideration of planning principles and their applicability. In this context, it is important to note the limitations on their use. I set out the correct approach to planning principles several years ago in Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126. That which I wrote on that occasion remains relevant today and is in the following terms: 54 On the other hand, equally importantly, there are a number of matters that planning principles are not. 55 First, planning principles are not immutable. Planning principles are evolutionary and can change or grow as circumstances in particular cases give rise to matters where members of the Court collectively consider a further statement of generality (either by revision to or expansion of an existing planning principle) is desirable rather than merely the making, by those to whom the matter has been assigned by the Chief Judge, of a simple determination confined to the specific merits of the individual application. 56 For example, further consideration of the original planning principle dealing with the impact of extending trading hours of licensed premises (published in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277) led to the refined and expanded planning principle subsequently published in Vinson v Randwick Council [2005] NSWLEC 142; (2005) 141 LGERA 27. 57 Second, planning principles are not intended to be exhaustive. This is, perhaps, a corollary of the first proposition. Just as members of the Court will consider whether particular cases give rise to general matters which might expand or otherwise build upon an earlier planning principles, so the Court may invite the advocates for the parties, in appropriate cases, to suggest modification or evolution of an already published planning principle. Indeed, a case may canvass whether the establishment of a new principle should be contemplated and, if so, the approach that should be considered to that topic. 58 Third, planning principles are not binding. They are not the stone-inscribed commandments that Moses is described, in Exodus Chapter 20, as bringing down from Mount Sinai. 59 Planning principles published and adopted by the Court are intended to provide guidance to those who bring similar cases to the Court for determination and are also intended to provide assistance and guidance for local consent authorities. They do not and cannot have the same force as some form of statutory prescription. They certainly cannot automatically displace or override the provisions of a local environmental plan or a development control plan that deals with the topic of a particular planning principle in a fashion differing from that enunciated by the planning principle itself. 60 Fourth, planning principles are not statutory instruments and are not intended or expected to be the subject of the same statutory interpretation and construction of the words and phrases contained within them as if they had the force of law and were subject to the requirements for statutory interpretation of their intention. 61 Finally, they speak for themselves. Croesus asked Pythia, the sibyl or oracle at Delphi, if he should make war on the Persians and if he should take to himself any allied force. The oracle gave the response, that if he made war on the Persians, he would destroy a mighty empire. Croesus declared war and, indeed, succeeded in destroying a mighty empire - his own. Planning principles are not statements replete with hidden meaning or calculated ambiguity - unlike Delphic prophecies habitually were. 74Finally, I turned to the question of whether or not the planning principle in Randall has any relevance in the present proceedings. 75I do not consider that it does and that to seek to apply it here would effect a significant distortion of the underlying reasoning that led to its promulgation. 76The critical word, in this context, is "extension". 77Mr Lazarus puts the proposition that, because there is a geographic extension proposed of the activities of the Mansion Road campus into 19 Kambala Road, this is sufficient to trigger engagement of the assessment of the existing impacts of the preparatory school in Kambala Road and that, as they are unacceptable, the geographic extension should not be permitted. In advancing this proposition, Mr. Lazarus specifically relies on Tour C's first question and the comment upon it: First, is the impact of the operation of the existing use on residential amenity acceptable? If the answer is no, then an extension or intensification, would be unacceptable unless there is no overall increase in impact or there are measures proposed which would mitigate the existing impact. 78This represents a misunderstanding of the words "extension or intensification" used in the planning principle. The planning principle is clearly intended to apply where there is an increase in the quantum of the activity whether that quantum of activity is conducted across a larger geographic area (extension) or conducted within the confines of the existing area of activity (intensification) 79What is sought by the application to use 19 Kambala Road is not an "extension" of the activities of the preparatory school in the sense that that word is used in Randall. It is merely a spreading of the existing level of activity, without any increment in the quantum of the activity, over a wider geographic area. 80The consequence of this, therefore, is that the present impacts of driving and parking activities of parents in Kambala Road when using the access way to the Mansion Road campus, although unsafe and unsatisfactory, cannot be used as a basis to refuse the application to convert and use the existing dwelling at 19 Kambala Road solely in reliance on construing the wording of the planning principle in Randall. 81However, as dealt with later, the question of whether or not there is a likelihood of an increase in the safety risks arising from the application is a separate question - one distinct from that arising from any application of Randall.

The provision of onsite parking 82The Council contends that the inadequacy of onsite car parking and the failure of parking provision to comply with that which is required by the Parking Development Control Plan warrants refusal of the application. 83This arises because the Council says that this application engages consideration of the adequacy of parking across the whole of the Mansion Road campus and 19 Kambala Road as an aggregated site. 84This arises, the Council says, because the development application lodged with the Council specifies that the application is made with respect to not only 19 Kambala Road but also 5 and 7 Mansion Road. This is necessary as there are works proposed to be undertaken to the existing Mansion Road campus. Those works comprise (1) the relocation of the present security gates (these are now located some distance from Kambala Road down the access way) to the property boundary at the mouth of the access way and (2) the creation of a pedestrian access aperture in the dividing fence between the rear of 19 Kambala Road and the existing Mansion Road campus. No access is proposed through the fence between 19 Kambala Road and the existing access way (a matter of relevance, Mr Hale submits, in my subsequent consideration of how to deal with traffic and parking issues in Kambala Road). 85Although Mr Hale suggested, during the course of the in court hearing, that the spread of the development application to encompass the combined area of 19 Kambala Road and Mansion Road could be cured by the deletion of the proposed relocation of the security gates in the access way, no application was made to amend the proposal in this regard. 86In any event, to the extent that the Mansion Road campus needs to be engaged, even had these gates been deleted, I am satisfied that the creation of a pedestrian access through the rear fence of 19 Kambala Road necessarily engages the remainder of the Mansion Road campus in this application. It is in this context that I turn to consider the Council's submission that inadequate parking provision warrants refusal of the application. 87The Parking Development Control Plan contains a table (Table 2.1) that enables the calculation of the parking requirements for various classes of development. The table uses the gross floor area of a development as the measure with different rates of parking required for different types of development when calculated against the gross floor area of the relevant development. 88The differences that arise in this instance are occasioned because the Council says that the aggregated gross floor area of the existing Mansion Road campus should be added to the gross floor area sought to be utilised for school purposes on 19 Kambala Road and that then the educational establishment parking rate of one (1) space per 100 m² gross floor area should be applied to that total gross floor area. This would necessitate the aggregated development providing a total of seventeen (17) onsite parking spaces. 89At the present time, there are only two (2) onsite parking spaces provided on the Mansion Road campus whilst it is proposed that the existing vehicle parking location on 19 Kambala Road be utilised to provide four (4) parking spaces. The resultant total parking space provision, after the proposed development (if approved) would be eleven (11) spaces short of that which the Council says should be provided, thus warranting refusal of the application because of the significant extent of the discrepancy. 90On the other hand, it is the preparatory school's position that, judged against the gross floor area of the building on 19 Kambala Road now proposed to be used for educational purposes, that which is required to be provided by this utilisation when assessed against the gross floor area of that building is entirely satisfied by the provision of the four (4) additional parking spaces on 19 Kambala Road itself (indeed, for 19 Kambala Road, with a surplus of one (1) space - Exhibit C page 9 response to 1.4). 91It is convenient, in my view, to approach my consideration of this contention on behalf of the Council by assuming that the Parking Development Control Plan is engaged in the fashion advocated by the Council and, by doing so, assessing the Council's case at its highest on this point. 92Only if I were to be satisfied of the validity of the Council's contention on its merits, on this basis (which I am not for the reasons that follow) would it then become necessary to consider broader historical matters including what might be the position flowing from the 2009 development consent or any earlier planning history for the preparatory school campuses. 93As to the emphasis I should give to a development control plan, Zhang deals, inter alia, with the issue of consideration of relevant provisions of a development control plan in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at (75), three propositions emerge:

An onsite drop-off/pick-up facility? 101The second contention put by the Council as warranting refusal of the application is that the preparatory school does not have and does not propose to establish an onsite drop-off/pick-up facility. The Council's position is that such a facility is now required by virtue of the Educational Establishments Development Control Plan. This is said to arise from the provisions of Part 2.6 Arrival and Departure. This section has four objectives, three of which are engaged in this context. They are:

• O1 To provide a safe and effective circulation network that prioritises pedestrians and provides for cars, disabled access, emergency vehicles and servicing vehicles;
• O2 To minimise conflict between vehicles and pedestrians, particularly at entrances;
• O3 .....................;
• O4 To minimise the impact of students arriving and departing on the surrounding community. 102Of the controls in support of this objective, the Council invokes C 5, a provision in the following terms: Major development of existing establishments should wherever feasible provide an internal driveway for vehicles that are picking-up and dropping-off students. 103One of the resident objectors, an architect who has lived in the vicinity of the preparatory school for several decades, produced a concept plan that was incorporated in the folio of visual material produced during the course of the onsite resident evidence. This folio together with written material from the residents became Exhibit 8. 104This plan, prepared as an outline concept, was intended to demonstrate that it was possible to design a route for such an onsite facility with that route operating on an east to west basis debouching onto Kambala Road via the present access way. The concept plan included a long section to demonstrate the grades that would be involved along such a route. 105I should also observe that the resident author of the east to west option also produced a marked-up air photo proposing an alternative location for an onsite facility, this being within the Victoria Road campus of the preparatory school. This was accompanied by no detail of the nature attendant upon the east to west plan but, for the reasons that follow, nothing turns on this. 106Finally, it is appropriate to note that one of the other resident objectors postulated that an onsite facility could be accommodated on 17 Kambala Road, the property owned by the college adjacent to the Kambala Road access way but on its southern side. This property is currently zoned residential and is not the subject of any application in these proceedings for its incorporation into the Mansion Road campus of the preparatory school. This property is, however, incorporated in the draft master planning process undertaken by the college in 2013 (but nothing turns on that in my view). 107In response to this resident proposal, the preparatory school commissioned:

The resident evidence of concerning parking and traffic matters 124I have earlier set out the contentions that have been raised by the Council concerning non-compliance with controls that arise from the Council's development control plans. There is no need to canvas them here in the context of the factual material raised by the resident objectors (save to note that that element concerning possible designs for an on-site pickup and collection regime for pupils attending the Mansion Road campus was dealt with above). 125What is of particular relevance, in this consideration, is the present behaviour patterns demonstrated by parents using the Kambala Road access handle to the Mansion Road campus for the purposes of delivery to or collection from the preparatory school of children attending one or other of the preparatory school's campuses. 126I set out, below, a distillation of what I understand to be essential elements, in short point form, of the residents' complaints about the operation of the Kambala Road access point to the preparatory schools campuses for drop-off and pick-up purposes. In summary, the resident concerns are:

• Parking on the western side of Kambala Road above the service road (including stopping in an area directly opposite the Access handle that is a designated No Stopping area) creates significant safety risks (particularly but not only) for young children;
• Use of the service road as a stopping location for drop-off or pick-up of pupils creates significant safety risks for those engaged in such activities as well as for occupants of the houses accessed by the service road;
• Use of the service road by north travelling vehicles as a method to facilitate a U-turn at the northern end of the service road for the purposes of effecting pick-up or drop-off on the eastern side of Kambala Road in the vicinity of the access point (or simply to return toward the south) is not only unsafe for the same reasons as is use of the service road for pick-up and drop-off purposes but is also, separately, unsafe at the point of exit from the service road to make the turn to the south;
• The queuing of northbound vehicles past vehicles (including drop-off/pick-up parents vehicles) parked to the north of the time-limited stopping area in the vicinity of the Kambala Road access point causing adverse effects - these adverse effects being a disruption to traffic flow for vehicles seeking through passage along Kambala Road to the south and, second, the risk of collision to or delay for vehicles travelling to the north on a through passage along Kambala Road past the Kambala Road entrance to the campus;

Conclusion about traffic and parking behaviour 165It is clear from that which I have set out that, based not only on the resident objector evidence but also from the preparatory school's own limited traffic survey, that a significant number of parents dropping off and/or picking up children from the preparatory school pay no regard to the law, child safety or the instructions given by the preparatory school. In summary:

• As far as observing the schools instructions as to where such activities are to take place for the different elements of the pupil cohort, parents do not obey the preparatory school's instructions. Although the information demonstrating this comes from a limited traffic survey, it was not suggested on behalf of the preparatory school that there was some reason that the recorded behaviours were atypical. It is reasonable to assume, in my view, that parents regularly choose the drop-off and/or pick-up location that is most convenient for them for that activity whether or not the location they choose to use is that which has been designated as appropriate; and
• At least with respect to parental parking and drop-off/pick-up behaviour in Kambala Road, parents regularly and repeatedly perform these activities in a fashion that is unsafe, illegal and/or antisocial. As with parents choosing where to drop-off and/or pick-up their children, it is reasonable to assume, in my view, that the parental behaviours demonstrated in Kambala Road are those chosen as the most convenient under the circumstances on any occasion without having any regard, whatsoever, for the appropriateness and/or lawfulness and/or safety of the location chosen for that purpose. This, too, is a behaviour pattern adopted despite the best endeavours of the Preparatory school to influence parents not to behave in this fashion.

Use of 19 Kambala Road and future parental behaviour 166The question requiring my consideration in these proceedings is not whether the present traffic and parking behaviours in Kambala Road of preparatory school parents are acceptable or not. They are clearly dangerous and unacceptable - posing significant pedestrian safety risks (particularly to young children). 167The proper question to which I am required to turn my attention is "Can I be satisfied, to the degree of comfortable satisfaction necessary in light of the potential consequences if I am wrong, that there will be no increase in the exposure of pedestrians (particularly young children) to the unsafe parental driving behaviours in Kambala Road?" 168Whilst some aspects of the driving behaviours in Kambala Road are illegal and/or antisocial (parking in driveways and parking at illegal locations), they are not of critical importance in this assessment. For the current purposes, I do not consider that the possibility of increases in these behaviours could potentially be so great as to warrant refusal of the application. I therefore do not propose to consider, further, those aspects of parental driving and parking behaviours in Kambala Road as, whilst they may or may not increase, in themselves, for the purposes of the incremental potentiality I need to assess, they are irrelevant. 169On the other hand, despite the fact that there has not been, on the evidence before me, any accident to a child and/or parent that has warranted recollection for the purposes of these proceedings, the unsafe behaviours are such that the potentiality for this to occur arises as an ever present and unacceptable risk from the unsafe parental behaviours in Kambala Road. 170As earlier noted, the preparatory school also commissioned the Monash report. This report was based on a limited site inspection - one described in the document (Folio 73) in the following terms: 5 Investigation Site inspections were undertaken on Thursday the 20th of February during the afternoon pick-up period and Friday the 21st of February during the morning drop-off period. The aim of the site inspections was to gain an understanding of existing conditions at the site and observe the operation of the existing drop-off and pick-up areas. Additionally the site inspection of the Scots College grounds to help assess the feasibility of the proposed changes to the access lane, to gain an understanding of the internal pedestrian movements within the site and to assess the potential impact of the proposed changes on pedestrian safety. 171The report set out that which had been observed by the authors concerning the various aspects of the preparatory school's drop-off/pick-up activities. Those relevant to Kambala Road are described (Folios 74 and 75 - omitting two photographs not included due to poor reproduction in the Exhibit copy [nothing turns on these photographs]) as follows: 5.1.1 Kambala Road Kambala Road is a local road with on-street parking provided on both sides. Kambala Road has a default urban speed limit of 50km/h with a 40km/h school zone on the approach to the Early Learning Centre entrance. Parallel to Kambala Road is a service lane around three metres below road level and approximately 100m in length on the opposite side of the school, along which the houses on this side of the road are built and can be accessed. The service lane comprises a single, narrow paved lane and a concrete footpath. The footpath is at the same level as the road and is traversable by vehicles (Figure 3). [omitted photos] Limited on-street parking is available during the afternoon pick-up and morning drop-off periods. This is largely due to parents parking cars on-street and walking into the Early Learning Centre campus. Generally parking appeared in accordance with parking restrictions, however several vehicles were observed to stop and or park in no-stopping zones or very close to driveways. While no serious safety issues were observed with this practice, it was noted that this may result in restricted sight lines for vehicles exiting driveways, which in turn may increase the potential for vehicle to vehicle and vehicle to pedestrian conflicts. A possible solution to this problem would be the installation of driveway clearance line markings to assist residents in maintaining access to their properties and by guiding drivers to park within an acceptable distance from driveways, During both the morning and afternoon site inspections it appeared that a significant proportion of vehicles were travelling faster than the posted 40km/h school zone speed limit, while speed measurements were not undertaken during the site inspection it is estimated that approximately a quarter of vehicles would have travelled over the posted speed limit. As noted above, speed is a critical determinant of collision and injury risk: the risk of serious and fatal pedestrian injuries has been shown to significantly increase when vehicles speeds are in excess of 30-40km/h. Moreover, vehicles travelling at high speeds require longer distances to safely stop, increasing the risk of serious pedestrian injury. Therefore, pedestrians are only safe when vehicle speeds are in the order of 30-40km/h. Due to the high number of young pedestrians during school periods there is a need to ensure that vehicles are compliant with the speed limit. In order to further reinforce the speed limit it is recommended that traffic calming measures be implemented on Kambala Road. Due to the high demand for on-street parking and the desire to maintain two-way vehicle flow it is recommended that vertical deflection should be considered, in particular the installation of two sets of speed humps near the school entrance designed to slow vehicles to 40 km/h or less in the vicinity of the Early Learning Centre. The service lane located on the west side of Kambala Road providing access to several residential properties was observed being used as a parking area during the morning site inspection, particularly for those parents accompanying their students into the campus on foot. Due to the narrow width of the service lane, in order for vehicles to pass parked cars they were forced to drive on the at-grade footpath. This creates a dangerous situation for pedestrians using the footpath and has the potential to result in a collision. Although speeds were observed to be very low in the lane, it is recommended that parking should be banned in the service road as there is insufficient space to accommodate a mix of vehicle parking, through traffic and pedestrian activity. It was also observed that Kambala Road was the subject of moderate levels of U-turn activity, with vehicles frequently entering driveways in order to turn around and pass back in front of the school, either in search of the limited parking spaces or in order to leave in the opposite direction subsequent to dropping off their children. While this activity presents less risk to accompanied children than vehicles reversing from driveways, it does increase traffic in the immediate school area and it is recommended that parents be discouraged from U-turning. 172In addition to the behaviours of parents, the above observation concerning speed of other vehicles is also a matter for safety concern. 173The Monash report sets out, on particular, the specific risks to child pedestrians. The relevant portion of the document says (Folio 70 - footnote reference numbers omitted): 3 Risk Factors to Child Pedestrians The following is a brief discussion of the evidence regarding risk factors to child pedestrians. Included in the discussion is a review of the factors that contribute to an increased risk of serious injury for child pedestrians including child behaviour, driver behaviour and the impacts of the road environment. Child pedestrians are one of the most vulnerable road user groups, experiencing an increased crash and injury risk relative to other pedestrian age groups. In Australia, crashes involving young children constitute a substantial proportion of all pedestrian fatalities and serious injuries, with children below the age of 10 years of age shown to have four to 11 times greater risk of collision compared to other pedestrians. In fact, vehicle collisions involving children pedestrians are considered as the most serious health risk facing children in developed worlds. Pedestrian crashes involving children tend to occur in local streets, as well as on arterial roads, often when the child is unsupervised. Young children's safety as pedestrians is of particular concern in view of their vulnerability in traffic situations and the special value society places on children. Young children (below the age of 12 years) are particularly vulnerable as pedestrians for a number of reasons, including: ● They are immature and have less developed cognitive, attentional, perceptual and visual skills; ● They are more likely to be distracted by irrelevant information and experience more difficulty controlling impulsive reactions compared with older children and adult pedestrians; ● They are inexperienced in traffic and are unable to independently make safe judgements concerning the speed and distance, and therefore time of arrival of approaching traffic when crossing vehicle paths. This ability to recognise and respond safely to traffic hazards remains under-developed, for the most part, throughout their primary school years; ● Experience difficulty choosing a safe crossing location (often involved in 'dart out' collisions from in between parked vehicles); ● They are small in stature and, therefore, have greater difficulty seeing hazards in traffic and being seen by motorists; ● Because of their small stature, in a crash they are more likely to be struck in the head or upper body, both areas having an elevated risk of producing severe injury. Additionally, their size makes them more likely to be driven over in a vehicle impact. ● Thus, even at low impact speeds, when the risk of serious injury is relatively low for pedestrians in general, injury risks to young children remains high due to their greater susceptibility to being run over by an impacting vehicle. 174It is in this context of these risk factors that I turned to address the limited evidence in the proceedings concerning whether or not there is some potentiality if the use of 19 Kambala Road were to be approved for any increment in exposure of pedestrians (particularly young children) to the unsafe and risky parental behaviours in Kambala Road. 175Unsurprisingly, there was a stark difference in overall opinion on these matters between Mr Morse and Ms Edwards Davis. 176For the preparatory school, Mr. Morse expressed the opinion that there would be no such change. He reached this conclusion on the basis that the location at which the pupils are collected in the morning prior to being taken to their classrooms at the commencement of the school day will remain unchanged. There is, therefore, in his opinion, no practical reason why any existing parental choice as to drop-off and/or pick-up location would change. Mr. Hale submitted, in effect, that this was a self-evident and rational conclusion that should be adopted. Adopting it, in his submission, should lead me to a position of satisfaction in concluding that there would be no rational potentiality of an increased safety risk. 177Mr. Morse's written statement of evidence was silent on this point whilst, in the joint expert report of Mr. Morse and Ms Edwards Davis, he said (Exhibit 5 at response to particular 2.4), relevantly - although in response to the through site proposal: Under the current arrangement, students have no interaction with traffic on Kambala Road, provided that parents use the drop-off/pick-up area and that the student uses only the passenger side doors of the vehicle. As part of this study, a video survey has been undertaken at the drop-off area, which highlights that the capacity of the drop-off area is able to accommodate the vast majority of the activity, but also that some improvements can be made in relation to the management of the drop-off activity. For example, a small number of students were observed to exit the vehicle on the driver's side and some vehicles stopped halfway along the drop-off area rather than stopping at the southern end, thereby reducing the usable capacity. A Traffic Management Plan has been prepared specifically for the ELC, which includes an information sheet to be provided to parents. The information sheet explains the correct use of the drop-off area including how to approach the area without using the service lane to the west of Kambala Road. The plan in conjunction with the use of an accredited traffic controller and continued communication with parents will largely alleviate the concerns raised by the Council. 178I observe that the suggestion of an information sheet for parents would be of no assistance given the reception given to past exhortations seeking behaviour modification. The provisos in the first quoted paragraph can also be regarded as wishful thinking, at best, in light of the evidence of actual behaviour patterns. 179During her oral evidence, Ms Edwards Davis said that there were two bases, as I understood her evidence, why I could not be so satisfied. The first was that the preparatory school, whether by Mr. Morse or otherwise, had not conducted a future parking intentions survey of parents to ascertain whether or not the relocation of children from the present Mansion Road campus to 19 Kambala Road could be expected to change behaviour patterns leading to an increase in use of Kambala Road. Her second concern was, effectively, a psychological one - namely that she could not conclude (and therefore, she implied necessarily that I should not conclude) that the psychological impact on parents of pupils being moved to 19 Kambala Road, a location more proximately Kambala Road would not trigger a change in parental behaviours leading to a greater use of Kambala Road as a drop-off/pick-up location. 180The Council also asked from the preparatory school to provide a wide range of additional traffic related information. The nature of the material requested is set out in Exhibit 3, pages 7 and 8. It is unnecessary to repeat the list of that which was requested because the preparatory school chose not to provide it. Whether or not this information would have assisted, I cannot know because it is not available to me as a consequence of that decision. 181In addition, during the course of oral evidence, Ms Edwards Davis observed that the preparatory school could also have undertaken what she described, as I noted it, as a "parking destination survey" but have not done so. Whether such a survey would have assisted the preparatory school is, again, an unknown. 182Mr Lazarus submitted (written submissions at 20 - 22), on this point: Has the applicant actually demonstrated to the satisfaction of the Court that there will not be any overall increase in impact? The answer is "no", because it has not even essayed that task. Its consultants have all blithely assumed that there will be no change in traffic conditions on Kambala Road as a result of approval of this DA. However, the applicant has not even conducted a basic survey of parents to see whether their drop-off and pick-up behaviour would change as a result of the expansion of the school to the Kambala Rd site, which Mr. Morse conceded would have been a very easy thing to do. There is every possibility that parents who currently use Mansion Rd will now use Kambala Road, knowing that their children will be there, rather than on the Mansion Rd part of the ELC campus (and so leaving the children with a shorter distance to travel), and given the existing congestion on Mansion Rd compared to Kambala Rd. That is the view of Ms. Edwards Davis - hence the requests for further information which were declined by the applicant. The applicant has therefore not demonstrated that there will be no increase in traffic impacts as a result of the proposal. 183Although there is no relevant accident history, the potential consequences of a vehicle colliding with someone, particularly a very young child, are potentially catastrophic. Their vulnerability is very high as discussed in the extract from the Monash report reproduced earlier. 184In Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256; (2006) 146 LGERA 10, Preston CJ set out (at 125 to 183), as part of his analysis of the role of and principles underpinning the concept of ecologically sustainable development, a discussion of the precautionary principle. Whilst, in its strictest terms, the precautionary principle does not apply in these circumstances, the threshold tests underpinning it are ones to which it is appropriate to have regard, in my opinion, to set the parameters for a precautionary approach to be taken to considering the potential impacts of the dangerous parental behaviours in undertaking drop-off/pickup activities at the Kambala Road entrance to the Mansion Road campus. 185In Telstra His Honour set out, in the context of a proper consideration of the precautionary principle, two conditions precedent or thresholds that were necessary to be satisfied (at paragraph 128). These are: A threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. 186His Honour continued to say: These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage but it should be proportionate (reference omitted). 187In the present context, I have considered whether it is appropriate to take a precautionary approach based on this process when considering the nature of and potential consequences from the dangerous and risky parental behaviours at the drop off/pickup facility in Kambala Road. Put in the structure that His Honour has referred to, the first of the conditions precedent or thresholds arising in these proceedings can be described as follows:

Conclusion 198In light of the matters that have been set out in the body of this judgment, I have reached the following conclusions:

• Non-compliance with the numerical control set out in table 2.1 of the Parking Development Control Plan for the number of parking spaces required for the Mansion Road campus with the addition of 19 Kambala Road does not provide any basis to refuse the application;
• There is no need to comply with control C5 in part 2.6 of the Educational Establishments Development Control Plan requiring the provision of an onsite drop-off/pickup area for pupils as that which is proposed in this application does not constitute major development and therefore does not attract the operation of the control; however,
• If I am wrong in concluding that the development is not major development and that, on the first of the tests in control C5, that control is engaged, then it is feasible to provide an onsite drop-off/pick-up facility and thus the failure to do so would warrant refusal of the application; 199Despite being satisfied that, properly considered, neither the Parking Development Control Plan or the Educational Institutions Development Control Plan pose any impediment to approval of the application, the present parking, traffic and road safety risks from parental behaviour in Kambala Road are unacceptable (despite the hortatory endeavours of the preparatory school to prevent them) and I am unable to be satisfied that there is no likelihood of any increase whatsoever in the safety risks to pupils and parents arising from the present application. Any increase in risk to young children because of risky and/or illegal behaviours (ones regularly warned about and counselled against by the preparatory school and the college) is completely unacceptable. There is no incremental threshold as any such possibility (if there be one - a proposition I would reject) has long been exceeded. 200Therefore, on prudent, precautionary grounds, it is not appropriate to approve the application as it is contrary to the public interest in child safety to do so.

Orders 201The orders of the Court, therefore, are: (1)The appeal is dismissed; (2)Development Application DA 559/2013 to incorporate 19 Kambala Road into the Scots College Preparatory School together with associated internal and external works to facilitate that incorporation is determined by the refusal of development consent; and (3)The exhibits, other than Exhibits 3, A and C, are returned. Tim Moore Senior Commissioner 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: 28 October 2014