Universal Property Group Pty Ltd v Blacktown City Council

Land and Environment Court (NSW)|2013-10-11|Before: Ex P

Background 1COMMISSIONER: This appeal was lodged against the deemed refusal of a development application for a medium density housing development comprising 88 x 2 - storey townhouses and 14 villas, each with 3 or 4 bedrooms. The application includes associated open space, parking and a road system relying on 'Shared Zone' accessways. The proposed accessway will be privately controlled by some form of community or strata body corporation. The site is located at No 236 Richmond Road, Woodcroft. 2This Shared Zone road concept for the proposed internal accessways is derived from the RMS "Shared Zone Policy" (Policy). The Policy contains design guidelines and specifies the appropriate locations for this concept where all pedestrians and vehicles can safely use the road area. Another key requirement of Shared Zones is that they are attractive and interesting places that reflect local needs and activities. 3Insofar as a number of contentions were initially raised, the Applicant undertook amendments, which resulted in the satisfaction of a number of the contentions. These amendments include a revision of the buildings presentation to Richmond Road as suggested by the planners. The remaining issues include:

Traffic impacts; in terms of external impacts arising from the development, internal road design and traffic control, management of on - site parking, pedestrian path provision/ safety and the general access amenity associated with the 'shared zone' access ways.
Car parking; in terms of the convenience of the location of secondary private car spaces that are separated from the main dwelling. Also, the acceptability of the distribution of the visitor car parking throughout the development.
Common open space; whether the secondary common open space area adjacent to Units 38 and 39 is well placed. 4However, during the appeal a number of detailing matters arose, which resulted in the submission of further amended plans (marked Ex P) and supplementary documents (marked Ex O). These amendments include the provision of a pedestrian path along the two sections of the main access road (Vasanta Crescent). I deal with these amendments subsequently.

The site 5The subject site is described as Lot 1 in DP 786901 and it has an area of 2.82ha. It is situated on the south-western corner of Richmond Road with a 223m frontage and Eucumbene Drive with a 127.48m frontage. 6The site is within the Woodcroft neighbourhood where the surrounding land is predominantly residential, comprised of a mix of single dwellings and duplex developments of single and 2 - storey construction. Adjoining to the west is a church facility. The site is grassed with established native trees and was previously used as a Public Works facility

Planning controls 7The following controls apply:

Blacktown Local Environmental Plan 1988: under which the subject land is zoned Residential 2(a). The proposed development is permissible with consent.
Draft Blacktown Local Environmental Plan 2013. The land is proposed to be zoned R2 Low Density Residential. The proposed development would be prohibited. However the Court was informed that this is neither imminent or certain.
Blacktown Development Control Plan 2006;
Part A - General Guidelines
Part C - Development in the Residential Zones.

The evidence 8Detailed evidence was presented by:

Mr C McClaren; council's traffic consultant
Mr R Varga; applicant's traffic consultant
Mr R Finlay; applicant's traffic auditor
Mr G Apps; council's town planner
Mr P Grech; applicant's consulting planner.

Traffic and Access 9The access arrangements for most of this development (95 dwellings) rely on private internal roads (accessways), which are predominantly 6m wide and without conventional kerb and gutter. These accessways are to operate on the basis of a 'shared zone' for pedestrians and vehicles. The main accessway is a loop road (Vasanta Crescent) with a length of approximately 580 m that connects onto the public road system at Eucumbene Drive. It is noted that the RMS has denied direct access to the sites Richmond Road frontage. 10In response to the contentions, both Mr Varga and Mr McClaren assessed the adequacy of the car parking arrangements, the likely external traffic impacts and adequacy of the road design and traffic arrangements. Mr Finlay undertook a separate Road Safety Audit and these three experts presented their opinions in a joint traffic report (Ex K). 11The traffic consultants assessed the contention concerning the broader traffic impacts of the proposal, particularly the increased traffic at the intersections of Woodcroft Drive junctions with Richmond Road, Power Street and Bricketwood Drive due to the restricted accessibility arrangements at the Eucumbene Drive/Richmond Road junction. 12They agree that the access arrangements serving the site (including the prohibition on right-turn movements at the Richmond Road/Eucumbene Drive intersection) are the same as the traffic restrictions, which applied when the former Works Depot on the site was operational. As such, they agree that trucks approaching this former Works Depot from the north would follow the same routes to access the site as the residents of the proposed development and this is satisfactory. 13In addition to this, they also agree on the basis of the traffic modelling that the proposed residential development will not have any unacceptable traffic/amenity implications on the adjoining external road network. This includes the increased traffic on the residential streets likely to be attracted to the nearby neighbourhood shopping centre. 14Consequently, the main access contention concerns the safety and amenity impacts arising from the design of the internal road system. Mr Varga confirmed that the proposed internal roads will operate as a shared zone where vehicles and pedestrians have equal right-of-way and will be subject to a speed limit of 10 kph. In addition, it is proposed that traffic calming devices/paving treatments, particularly speed humps or cushions be provided at regular intervals to reinforce the shared nature of the internal roadway and to slow traffic. The traffic modelling forecast a peak hour traffic generation 66 vph at the Eucumbene Drive intersection. 15Insofar as approval is sought for this "shared zone" concept, the traffic consultants referred to the guidelines in the RMS "Shared Zones" policy, published in July 2012. They say the guidelines can be readily applied to the private accessway circumstances as in the proposed development. However, there was no specific justification or reasons presented for this approach. 16This policy provides guidelines for the identification and installation of 'Shared Zones' so that pedestrians and vehicles share the road space on the basis that the road systems:

are safe for all road users, particularly pedestrians
reduce the risk of crashes between vehicles and pedestrians
require lower vehicle speeds
enhance the quality of the street environment. 17The guidelines include the following: "4 Shared Zone
A Shared Zone is a road or network of roads where the road space is shared by vehicles and pedestrians (NSW Road Rule 24).
All Shared Zones in NSW must display a speed limit of 10 km/h. No other speed limit is allowed.
Drivers must give way to pedestrians at all times (NSW Road Rule 83). A 'Shared Zone' sign in combination with 'Give Way to Pedestrians' sign must be installed on each entry road into the area.
An 'End Shared Zone' sign must be installed on each exit road from the area.
Pedestrians must not cause a traffic hazard by moving into the path of a driver and must not unreasonably obstruct the path of any driver or another pedestrian (NSW Road Rule 236).
A driver must not stop in a Shared Zone unless the driver stops in accordance with a parking control sign; or in a parking bay; or dropping off or picking up passengers or goods; or the driver is engaged in the door to door delivery or collection of goods, or in the collection of waste or garbage (NSW Road Rule 188).
If 'Parking in Bays Only' signs are used, they must be installed on each entry road in the area. Where permissive parking control signs are used, they must be installed in accordance with standard practice.
The street environment of a Shared Zone must ensure that the drivers and pedestrians are made aware that they are entering a location that has different driving conditions.
In Shared Zones any delineation, kerb and gutter shall be removed to enhance the sense of equality between pedestrians and vehicles, and to ensure that the Shared Zone is a road related area under NSW legislation.
In special circumstances, kerbs and gutters may be retained, but only if approved by RMS. In such cases the existing footway must be treated so that it cannot be used by pedestrians to ensure that the existing road becomes a road related area." 18Consequently, it is apparent that the 'Shared Zone' policy is directed towards limited situations on existing public roads where the NSW Road Rules apply and which requires RMS approval. Section 7 of the policy lists appropriate locations for shared zones and that does not include new 'greenfield' developments with private accessways, as in the subject case. 19Mr Finlay says that the principles of the shared zones policy are applicable to the proposed internal roads of the subject development, especially the absence of kerbs and priority of pedestrians. He says that the only potential point of conflict with the policy is the maximum road length of 400 m. However no substantive details were provided as to how the pedestrian priority would be achieved. 20Mr McClaren says that the "shared zone" approach is not his preferred option in the subject circumstances because he considers this approach has limited applications and is mainly used to retro -fit poor traffic/pedestrian situations on public roads. It is generally not applied in new developments where good design principles should initially be adopted. Furthermore, he says that the Road Safety Audit (RSA) should fully canvas alternatives available so that the risks associated with the development are consistent with the 'safety conscious planning' approach outlined in Austroads "Guide to Road Safety Part 6: Road Safety Audit". 21According to Mr McClaren, the logical alternative for assessment would be a conventional street layout with separated footpath and carriageway for pedestrians and vehicular movement/parking resulting in lower risk outcomes. Notwithstanding this, Mr McClaren says that in the subject circumstances adequate footpath provision needs to be provided, which is physically separated by at least a raised kerb from the vehicular travel lanes within the site. 22Following discussions between the parties, the Applicant elected to amend the proposal so as to include separate footpaths partially along one side of the loop road, as shown in Attachment A. The amended plans were accompanied by other documentation including the Blacktown Council "Engineering Guide for Development 2005" and parts of Austroads Guide to Road Design 2010 Part 5 - Drainage Design. 23I firstly note that in assessing the amended proposal, a fairly common situation arises where the amendment of one element (i.e. path paving inclusion in this case) often creates other issues. Therefore one of the main challenges is to identify an appropriate evaluation procedure for this form of development and accessway because the RMS does not specify minimum numerical standards, except the overall 400m length and carriageway width of 2.8m. I note that it was not suggested to the Court that this minimum width standard is appropriate in the circumstances. 24Although, the RMS does specify some qualitative guidelines such as enhancement of the street environment, as previously stated. Apart from this, the Council DCP does not have specific controls for accessways servicing around 100 unit developments. 25Accordingly, the various controls derived by the consultants result in a set of "hybrid" guidelines that appear to be based on their experience rather than current policy references. Therefore the derived evaluation criteria should be appropriate to apply to the various elements of medium density developments, particularly those of larger scale, so they can be integrated with the qualitative goals and the cumulative effect determined. This will includes whether a safe and "enhanced quality of the street environment" (RMS) outcome is achieved. 26The amended proposal is to provide a 1.2 m wide pathway along parts of the major loop road, which is adjacent to a roll kerb (see Attachment C - cross section). This puts the proposal into the category of special circumstances because the RMS guidelines specify that kerb and gutter is to be removed to "enhance the sense of equality between pedestrians and vehicles and to ensure that the Shared Zone is a road related area under NSW legislation". Only in special circumstances can kerb and gutter be retained with RMS approval. These special circumstances are not identified. 27It seems relevant that the effects of the pathways should be adequately considered due to the pathway location along the main entry/exit access loop road. One of the significant effects of the pathway is to reduce the road carriageway element to about 5m wide. 28Insofar as the RMS policy does not specify relevant road widths or other numerical guidelines, there is a direct reference in the Blacktown DCP to accessways as follows: 6.13 Accessways An "accessway" is defined as an area or road for the access and manoeuvring of vehicles within the boundaries of a development, but does not include car parking spaces. The common accessway pavement shall be 6m wide from the street to the building setback and may reduce in width onto the site thereafter depending upon the scale of the development and providing that an accessway must remain at least 5.5m wide to a bin-standing area where such is provided away from the street frontage. No accessway pavement width shall be less than 4m for developments up to 5 lots and 5m for developments up to 15 lots. (my emphasis) All accessways shall be constructed to Council's standards appropriate to the type and volume of traffic it is assessed they will carry. Council will access the suitability of vehicular accessways for cars and garbage trucks by reference to the standard vehicle turning templates for a car and a large rigid truck which appear in Figures A.3a and A.7a respectively of the Roads and Traffic Authority publication "Policies Guidelines and Procedures for Traffic Generating Developments". 29Of some relevance, the accessway is defined as an area for the "access and manoeuvring of vehicles ...". The width of the accessway depends on the scale of the development with a minimum 4m width for up to 5 lots and 5 m width specified for up to 15 lots. Where there is common entry for 2 - way traffic over the footpath into the development, the minimum pavement width is 6m. Unfortunately, there is no specification for a development up to 100 lots. Presumably it would not be less than 5 m and probably somewhat wider, otherwise the controls may not contemplate such large developments serviced by private accessways. 30Applying these local guidelines to the subject application would most likely require a minimum pavement width of 6m for the 2 - way traffic section in the perimeter road, which has an overall length of approximately 580 m. However, the controls also specify a minimum width of 5.5m is required adjacent to any garbage bin standing areas. 31It appears that most of the perimeter accessway carriageway is nominally 5m wide when the 1.2m wide footpath is excluded. There are 5 significant garbage bin standing areas adjacent to lots 67, 91, 96, 73/74, 79/90 where the width is only 5m. Taking into account the potential traffic circulation on this 580m long accessway, the proposed the proposed accessway widths seem inadequate, particularly at bin standing areas, based on the DCP controls. In this regard, it is also likely that other similar sized vehicles will park in the accessways for a range of deliveries and furniture removals. 32Despite the apparent lack of specific controls for accessway widths in larger (e.g. 100 unit) medium density developments, the DCP refers to the RTA "Policies Guidelines and Procedures for Traffic Generating Developments". As a check on appropriate accessway widths, Table 6.4 recommends minimum circulation widths for 2 - way traffic in a slow speed (10 kph) environment, for the connection of parking spaces to the public road environment. This width increases depending on the number of spaces serviced with a requirement for 6 - 6.5 m for 55 spaces. 33Recognising that the subject proposal is for a different form of development, nevertheless there are some 95 units within the subject development, all with 2 - car spaces generating an estimated 66 vph frequency in the peak hour. I think a conservative extrapolation of the RTA guidelines would be for the pavement width to be in the order of 6 - 6.5 m wide, so as to achieve a reasonable level of safety and amenity. Accordingly, the proposed accessway carriageway widths of 5 m are deficient by this measure. 34A further check on the current road standards is found in the supporting documentation filed with the amended plans as contained in the Blacktown Council's "Engineering Guide for Development". Section 3 deals with "Road Design" and refers to a number of other standards, including various AUSTROADS manuals. Attachment B shows the Table 3.1 local road hierarchy and carriageway. 35This road hierarchy has apparently been developed to cater for the various functions that need to be performed by roads within the local road network. Interestingly this confirms the aforementioned council carriageway standards for smaller private/community title roads with the proviso that a 1.5m footway (buffer) is required on each side of the road. The 1.5m buffer strips are to provide for services and landscaping. One - sided access roads require a 5.5m carriageway for short lengths up 8 dwellings. 36The road hierarchy shows that the carriageway and overall road reserve increases for a larger catchment area. For example, a "local street" includes a loop road or cul-de-sac serving more than 30 dwellings. In this example, a total road reserve of 16m with a carriageway of 9m is specified, which is wider than that specified for a lower volume accessway. I accept that this allows parking along the road, which is to be prohibited in the subject development. 37Notwithstanding this, I think that there could be a reasonable expectation for some increase in the carriageway width over the 5m width specified for a private road serving up to 15 dwellings circumstances, considering the proposed loop road will potentially service up to 95 dwellings via its 580m length. In this regard, I consider it significantly exceeds the RMS guideline for a maximum length of 400m for an accessway application. 38It seems to me that the 580m loop road should be interpreted on the basis of a series of sections that are less than 400m, in the absence of specific travel desire lines. I also consider that the preferred traffic desire lines will be complicated by the traffic flow restrictions arising from the one - way traffic roads, which are an essential traffic management control, mainly due to the narrow carriageway widths. 39As noted, the separate footpath element was introduced late in the hearing as shown in Attachment A. The proposed footpath is 1.2m wide and its front alignment is connected to the roll top kerb. Due to the other constraints of the site, the back alignment of the path has variable offsets from the property boundaries ranging from approximately 0.5m to about 1.5m. 40In response to the concerns raised by Mr McClaren about pedestrian safety, it is apparent that there are a number of dwellings where the back of the footpath is less than 1m from the garage door and there are units No 9, 12, 13, 15, 18, 20,23 and 41 where the offset is about 0.5m. This means that the pedestrians will be relatively close to vehicles entering/exiting the garages, and in many cases the dwellings adjoining open parking space. In these circumstances the sight distance is minimal, particularly for reversing movements. 41Considering the more conventional practice of setting back garages from the street alignment, I do not consider the proposal would adequately satisfy the RMS guideline for being safe for all users, particularly pedestrians. In this regard I also note that Part 6.11 of the DCP requires: (c) The main building walls shall be setback from the pavement of a common accessway by at least 3m. 42In my assessment, the proposal does not generally satisfy this control and therefore I consider a possible safety issue arises. As the path paving was added after the safety audit, it does not assess these actual risks. 43In terms of the weight to be given to the traffic audit, Mr Varga explained that: "23. A Stage 3 (Detail Design) Road Safety Audit requires an assessment of the detailed engineering drawings which have been prepared for construction. These plans are prepared prior to issue of the Construction Certificate, after the Development Consent has been issued and any changes arising from the development assessment process have been finalised. Due to the level of detail required, it is not viable to prepare the type of detailed design plans required by a Stage 3 (Detail Design) Road Safety Audit prior to issue of the Development Consent. 24. A Stage 2 (Concept Design) Road Safety Audit would be more appropriate at Development Application stage. Accordingly, a Stage 2 (Concept Design) Road Safety Audit has been undertaken by Parking and Traffic Consultants Pty Ltd in association with Bitzios Consulting Pty Ltd and is reproduced at Attachment B. 25. The Road Safety Audit concluded that there are no major safety issues arising from the proposed works, noting that: • the proposed internal roads do not have footpaths or kerbs, and • driver sight distances/visibility at the driveways and the main site access proposed in Eucumbene Drive were satisfactory. 26. The Road Safety Audit made a number of recommendations, as follows: • the internal roads should have a 10 km/h speed limit applied to provide a lower speed environment • traffic calming measures such as speed humps or speed cushions should be installed at suitable locations along the long straight east-west sections of the internal roadway • a holding line (ie; a "Give Way" line) is required to indicate the minor movement at the entry exit driveway intersection with Vasanta Crescent • a pedestrian path be provided along the Eucumbene Street frontage of the site to connect with the footpaths in Richmond Road 44However, the assumptions on which the audit is based i.e. no internal pathways, are not consistent with the amended proposal. The audit did not require any particular controls for pedestrians on the internal accessways (refer CAR No 3). Also, it did not consider any special controls were required for shared pedestrian/cycle facilities and states that this is N/A. In these circumstances, I think the supporting audit should be given little if any weight. 45Apart from this, another essential feature of the accessway system is to safely and effectively control and convey stormwater so as to minimise flooding nuisance. In the subject application it is proposed to provide a piped -system generally under the low side of the road pavements with integrated pits. Initially some road cross sections were produced during the hearing (Exhibits M & N), which showed a "sag dish" road profile, with a partial 1 - way cross fall. This being somewhat unconventional compared to the more usual crowned road profile. This design concept was of interest to the Court because the RMS shared zone guidelines specify that kerbs must usually be removed except where authorised by the RMS. 46Consequently five amended cross sections (CS) were subsequently provided as shown in part in Attachment C. Cross sections A, B and C are on the loop road (Vasanta Crescent) and cross sections D and E are on the intermediate accessways. They show the 1 - way cross fall over 4m from the kerb to a low point, which then rises over the remaining 1m to the garage by 0.13m @ CS A and 0.1m @ CS B. 47Cross section C is on eastern arm of the loop road where the path paving is on the low side adjacent to Unit No 9. This cross section shows an overall 1 - way cross fall over 5m from the garage level on the western side to the kerb on the low side. There is a transition in the cross fall at about 4m from the kerb. 48Insofar as these cross sections are somewhat uncommon, Dr Martens provided the following response: 1 Public roads most commonly have sections profiles which are either centre crest high (i.e. a 'crowned' road), with drainage going to either side of the road, or a one way cross-fall ('on-way crossfall' road), with drainage going to only one side of the road. The alternative to this is a centre low design, with drainage to the centre of the road ('dished' road). The choice is typically made on the basis of design and economic constraints. 2 The Northern Rivers AusSpec Guideline (2006) (used in the high rainfall Councils areas of Byron, Ballina, Lismore and Kyogle) shows typical profiles for both crowned and dished roads (see Attachment A). Blacktown Council does not rely on the AusSpec Guidelines (which most Councils in NSW have adopted), having developed their own engineering standards (see below). The Austroads Guide to Road Design (2010) (National Standard) Part 5: Drainage Design Figure 4.5 provides an example of a one-way crossfall road (see Attachment B). 3 In respect of Blacktown City Council, the relevant engineering design standard is the Blacktown City Council Engineering Guide for Development (2005). This standard does not nominate a preference for any particular road section type (i.e. crowned, on-way or dished). Rather, the standard provides a number of specifications which govern the section profile... 4 It is my experience that the approach adopted by Blacktown City Council for road design, which utilises design performance specifications, is the norm in NSW. 5 I note that the Blacktown City Council Engineering Guide does not provide any additional cross-sectional design requirements for shared or internal driveways over and above those specified for public roads. 6 It is worth noting that the drainage pit frequency for shared driveways / common internal driveways in medium density developments is usually much more frequent than on a public road system. Also, stormwater flows on shared driveways / common internal driveways are typically much smaller than on a public road system owing to their reduced size and extent (i.e. smaller catchments). This is why a one-way crossfall or dished drainage system is commonly adopted in medium density developments where shared driveways / common internal driveways are used 49Having considered the details associated with this opinion, I accept why the Northern Rivers rural - residential cross sections have not been adopted for medium density residential subdivisions in Blacktown. It also appears that the proposed road section is not a "centre low design" because the low point is offset. Therefore, in the absence of any specific controls for road design/sections in private accessways, and any evidence to the contrary, I assume the road design levels shown in these cross sections is adequate to convey stormwater so as to prevent the ingress of stormwater into the garages over the entire development and create a satisfactory visual presentation in the absence of any long sections. 50But what these cross sections also show is that the effective carriageway width is reduced. Reference to CS 'B' shows there is 5m width from the roll top kerb/path to the opposite garage door. Assuming vehicles keep off the path and clear the garage doors by approximately 1m and the small, front open space areas, then the effective carriageway width reduced to the order of 4 - 4.5m. Considering this is to a 2 - way traffic road, this width is that prescribed for a much smaller development of up to 5 lots. Accordingly, I consider the effective width of the proposed accessway is insufficient and would not result in an acceptable environmental outcome. 51Another function of the accessway is to provide adequate space for landscaping. This is a fundamental consideration in this development where a balance is required between the number of mature trees on the site to be removed and the optimisation of the residential development, as stated by Mr Grech. Part 6.10 in the DCP contains the landscaping controls, including:

Parking 56Apart from the overall suitability and amenity of the shared accessway, other concerns were raised about the suitability and convenience of the visitor parking space locations and the separation of some of the secondary parking spaces, which are displaced from the actual dwelling. This applies to:

Unit 64 whose second car space is approximately 39 m from the dwelling, and
Unit 87 whose second car space is approximately 30m from the dwelling. 57On the first matter, Mr Grech says that there is a is a reasonable distribution of visitor parking spaces because the front car park area contains 19 spaces together with 4 other smaller car park areas that provide a total of 14 visitor car parking spaces. He believes that this results in a good distribution and whilst there may appear to be a slight disproportional increase in the front entry car park, this will enable visitors to enter the estate and then filter through the site by walking to their destination. The provision of a directory board located at the entry to the estate would facilitate this. Mr Apps agreed to the distribution subject to the provision of a suitable directory board at the entrance. 58The second parking issue concerns the displaced second parking space for units 64 and 87. Mr Apps acknowledged that this related to only 2 car spaces within the development context of the other 202 acceptable spaces. His concern is that the car spaces for these units is separated by approximately 30m, which is impractical, inconvenient and a potential safety risk, because of the lack of surveillance. 59Mr Grech says that in his view the 30m separation to the secondary space is acceptable because each of the units have a lockable garage and he considers the 30m separation satisfies the DCP requirement as a convenient location. He says that while it is possible to design a site in many different ways and achieve different outcomes, it is more of an issue in regard to marketing as to whether the proposal is acceptable or not. 60Against this, Mr App's opinion is that a development of this scale should be capable of being designed so that there's a better integration of the secondary space to the respective dwelling. Nevertheless he notes that the proposal is now to have lockable bollards installed for these designated private car spaces, which are located adjacent to other visitor spaces. Also that there can be sign posting showing the reserved spaces. I understand his opinion is this situation is less than ideal but not sufficient to warrant refusal of the application. 61In order to assist the Court with the ultimate determination of the various issues and opinions, the planners were asked what they considered to be appropriate authorities, references and evaluation criteria to assess the merits of access to larger scale medium density developments, particularly where Shared Zone access is proposed. 62Mr Apps says that he places a lot of reliance on the engineering guidelines and referenced the DCP Part 6.13, which only contains numerical controls for up to 15 lots. He confirmed there are no other specific access controls for large medium density developments. 63Mr Grech says he relies on his own experience in dealing with many medium density developments over the past 30 years. Accordingly he says that it is a different form of development that doesn't rely on public road frontage, which is integral to the choice of that housing type because you want to achieve a certain planning outcomes of which the first is maximise the density. 64Mr Grech's second principle is: "you want to be able to purposely design the internal arrangements so you're not designing a new suburb to the extent that you're providing a public road system where development will occur off that public road system by individuals at a later date, you're designing a package up front. So it's providing you with the opportunity to deal with issues such as manoeuvrability into exactly designed locations for car parking, for manoeuvring of trucks for garbage collections, for the placement of garbage bins and et cetera. So understanding that principle in my experience has always been done in the way that as a total design package you find the location of, you place the location of dwellings as part of the overall design process. You provide an internal driveway that meets the requirements depending on how big the development is. So if there's a small development you might only provide for one vehicle to move in one direction at once whether there is passing bays or not. In this case there's an internal hierarchy of sorts because the external ring road provides for two way movement and then the smaller internal lateral driveway. " 65When pressed on actual evaluation criteria or references relevant to servicing/access to larger scale medium density development, Mr Grech did not identify any. Based on his experience, Mr Grech supports the proposal without the path paving. 66In these circumstances then, no relevant access controls for this type and scale of development were presented to the Court, except for the DCP controls. This causes me some concern because the RMS guidelines require any accessway to be safe and functional and also to:
" ... reflect local needs and activities ...
Implementation of this policy must go hand in hand with community involvement and participation."

Common open space 67This issue concerns the offset location of the proposed common open space within the development as to whether an area should be located centrally within the site so that access to the common open space area is afforded to all residents of the development. Also, whether the secondary open space area would result in adverse acoustic impacts to adjoining properties in Blend Place. 68The proposal is to provide the main common open space area of 1534 sq m on the corner of Eucumbene Drive and Richmond Road. The secondary open space is located between Units 38 and 39 and has an area of 322 sq m. The planners agree that the overall provision of the common open space is numerically adequate and that the Eucumbene Drive area is satisfactory. 69Mr Apps expressed concerns about the secondary area because he considers that in developments of this size, the common open space is best provided as a central feature. He says that given the size of the site there is no reason to not be able to locate that common open space area as a central focus of the site. 70However Mr Grech explained that the location of this secondary open space is acceptable because it is: (a)Separated from the primary space so that all residents are proximate to one of the common open space areas (consequently all residents are within about 80m of one space); (b)Sited in a location that provides the opportunity for maximum retention of existing trees; (c)Located adjacent to the only boundary with existing residential properties to provide a break to the built form; and (d)Aligned to be at the terminus of a vista along one of the internal north-south streets 71In response to the concerns about acoustic amenity, Mr Grech said that management conditions could be imposed on the use of this open space, which include a 10pm curfew, management plan and appropriate signage. Following consideration of these proposed conditions Mr Apps considered this issue could be adequately addressed by the conditions.

Public interest 72There was considerable public interest in this matter with many objections lodged. These objections cover overdevelopment of the site, adverse traffic impacts, poor location of the secondary open space, fencing, pedestrian safety and non-compliance with council policies. 73Most of these objections coincide with the contentions and have considered concurrently. However one of the repeated objections concerns anti - social traffic and parking problems experienced by the neighbours, which does not seem to be confirmed by the traffic modelling, But the photos tendered do show some parking on the verge area over the roll top kerb. This is a situation that would have to be carefully controlled in the subject development because parking on the carriageway or on the roll top kerb is not permitted along any of the internal accessways.

Conclusion 74Having considered the evidence, the submissions and undertaken a view, the threshold issue concerns the adequacy and appropriateness of the internal road design in the context of it servicing some 95 medium density dwellings. One of the difficulties in the assessment concerns the circumstances of where it is appropriate to implement "shared zone " access. The planners and engineers were invited to assist the Court in this regard but there minimal response in terms of referenced current practice. 75Consequently, the 'shared - zone accessway' proposal is fundamentally based on the RMS Shared Zone Policy (Policy). This Policy applies to public roads in NSW with the following purposes that they:

are safe for all road users, particularly pedestrians
reduce the risk of crashes between vehicles and pedestrians
require lower vehicle speeds
enhance the quality of the street environment. 76Insofar as the traffic consultants agreed that the Policy guidelines could be applied to the subject development, there are significant variations to the policy provisions, which I do not consider have been adequately justified by the consultants. The critical issues arising concern:
New greenfield developments are not listed as appropriate locations
Non - compliance with the maximum length of the shared zone of 400m.
Provision of significant sections of roll top kerb and associated pathpaving, which delineates the pedestrians from the vehicles.
The subject application being classified as "special circumstances" thereby requiring RMS approval. But there was no identification of any special measures to be applied to these circumstances. 77Consequently, the evidence shows that whilst the proposal is based on the "shared zone" concept it does not comply with the aforementioned guidelines and it departs from other associated Blacktown DCP provisions. This process has resulted in a mixing of various controls to achieve a set of "hybrid" standards. In these circumstances, it seems reasonable to assess the cumulative effect of the various road elements so that a satisfactory street/road environment outcome is achieved and specifically to satisfy the qualitative goals stated by the RMS. As the respective consultants have not undertaken this task, I have adopted the following evaluation procedure for the assessment of the overall road design.

Evaluation procedure - Road Amenity/Streetscape 78The circumstances of this development, which proposes a relatively large medium density development comprising 102 dwellings, is that 95 dwellings rely on a "shared zone" accessway as the main road system for pedestrians, cyclists and vehicles. As there are a number of elements of the road design, I have adopted the following procedure to assess the road safety, amenity and streetscape outcomes in the absence of specific controls for this type of development that results in private road systems: (4)What reliance should be placed on the available and relevant street design and road hierarchy controls. Otherwise what represents current best practice? (5)What are the relevant elements that influence the road environment? These elements may include the road carriageway width and profile, provision of kerb and gutter, path paving, parking bays, utility infrastructure, landscaping and drainage, etc (6)What effect does any traffic studies have on the road/street environment? (7)Does the road rely on any traffic control arrangement or devices, such as one - way flows and speed humps etc.? (8)What signage is required to achieve a safe road outcome and acceptable visual impact of such signage within the development context? (9)Has appropriate provision been made for suitable landscaping and vegetation within the road reservation area, which suits the site and is of a scale compatible with the residential area? (10)What impact does the building line setbacks and any resultant buildings have on the safety and visual impact on the streetscape? (11)What impact does any boundary fencing have on the streetscape? (12)In the circumstances of privately controlled roads or accessways, what management and enforcement controls are proposed and how are they to be implemented?

Assessment summary 79Firstly, the primary control is the RMS 'Shared Zones' Policy. Whilst it allows shared zone accessways, it is mainly applied on a restricted basis to public road situations and new 'greenfields development are not identified as appropriate locations. Furthermore, the maximum road length is to be less than 400m whereas the proposed loop accessway is effectively 580m. Also, no kerbing or paving is preferred otherwise the proposal falls into the "special category" that requires the RMS approval. 80I do not consider that there was any compelling evidence to justify the significant variations to the policy, particularly the application to large, new private developments. I consider this a negative aspect of the proposal. 81Associated detailed road and street design controls are contained within the Blacktown DCP, which refer to appropriate parts of AUSTROADS standards and contains details for the local road hierarchy. Section 6.13 of the DCP requires a minimum pavement of not less than 4m for up to 5 lots and increasing up to 5m for 15 lots. There is no specification for up to 95 lots. 82However, the road hierarchy Table 3.1 indicates that the width of the pavement generally increases with the road type and the lots serviced. It confirms the widths for the less trafficked private and community title roads. The carriageways increase for local streets that serve more than 30 dwellings and I note that parking is allowed and footpaths are required. The proposal does not comply with the DCP controls. 83The second principle concerns the various street elements. The primary element is the shared carriageway. The evidence indicates that the effective carriageway is in the order of 5m. For the previous reasons, I consider that a minimum width of the carriageway should be in the order of and not less than 6m, excluding the pathway, to appropriately service this scale of development as stated in pt 6.13 of the DCP. This would enable comfortable compliance with specified minimum width of 5.5m at the garbage storage areas and allow for passing other stationary larger delivery vehicles e.g removal trucks. 84An associated element concerns the amended roll top kerb and pathway. Whilst the accessway reserve is in the order of 6m, the amendment to include 1.2m wide path paving reduces the carriageway to about 5m in significant areas. I consider this inadequate in the circumstances for the 2 - way traffic in the loop road for the aforementioned reasons. 85In this regard I note that the opinion of the traffic consultants to support the proposed carriageway widths was not fully justified by way of an accurate risk analysis that identifies the likelihood and consequences of traffic and pedestrian interaction, particularly the path location. For the aforementioned reasons I give the road audit little weight. 86The proposed road profiles were clarified during the proceedings. These sections show that in several places the garage setbacks to the public access boundary are minimal. It therefore seems that average drivers will allow for clearance to the garages, the designated planting areas and to the kerb, thereby reducing the effective carriageway to about 4.5m in several places. I consider this inadequate based on the DCP provisions. 87The other significant element in this proposal is that the road drainage follows a low - point along the road and is integrated with the underground system. In the absence of contrary evidence, I accept that this can be designed to an adequate standard to prevent water ingress into garages but the alignment of the low point will require particular care in the road design to achieve a common area that has high utility for all the shared users and which has satisfactory visual presentation. 88I note that various traffic surveys were undertaken and traffic forecasts made. Relevant to the accessway usage is the traffic forecast of 66 vph in the peak periods at the entry to Eucumbene Street. The busiest area is likely to be the at the loop road and Eucumbene Street where the carriageway is in the order of 7.5m wide to accommodate the vehicles and other users of the shared accessway. However there separate footpaths on both side and I rely on evidence of the traffic consultants that this is acceptable. 89In terms of traffic control, the loop accessway relies on the provision of spaced speed humps to restrict traffic to a minimum of 10 kph. Whilst Mr McClaren expressed reservations about the need to install such devices in a new development, I take it from the other traffic consultants that this is acceptable in terms of safety and convenient for all users of the accessway. Presumably the traffic devices/cushions are of a specification that do not result in noise nuisance for nearby residents. 90As the use of the accessway is dependent on maintaing a maximum speed of 10 kph, I have some concerns about the ability to enforce the required 10 kph speed limit on private roads. In this regard, I have not been taken to any provisions that show the NSW Road Rules apply on private roads. Where the RMS may approve shared zone accessways these rules apply. 91Another traffic control requires the use of the three intermediate accessways to be restricted to one - way traffic. As such effective sign posting will be required and enforcement arrangements made, particularly as this is on private property. 92It is apparent from the evidence that this development requires a significant level of signage to achieve a satisfactory level of operation. These signs include the entry direction board to show people the layout of the estate and where visitor parking is available. Other signs will include:

Share way signs at entry and exits to alert users to the different road use conditions.
Street signs
No parking signs along the accessways
One - way traffic and No entry signs/.
Visitor parking signage.
Restricted private parking signage for private lots adjacent to the visitor spaces.
Restricted usage signs for the secondary open spaces. 93It seems to me that this level of signage on the relatively narrow accessways will contribute to the visual clutter in the streetscape. I do not think that they will enhance the streetscape. 94The proposal includes landscaping along the accessways. This is mainly located in small landscaped strips about 3m wide. On the landscape plan it appears that the concept is to provide and an avenue effect along the accessways. But I have significant concerns about the ability of the designated vegetation to reach anything like their projected maturity, particularly where the (amended) path paving is proposed. It also appears that the growth potential of some of the larger trees will be restricted due to their proximity to the proposed 2 - storey dwelling. Accordingly, I consider that the contribution of the proposed landscaping will be compromised in achieving an enhanced streetscape. 95As noted, there are a number of dwelling where the garage and dwellings over at located with minimum setback to the accessway boundary. A significant number do not comply with pt 6.11 - 3m setback control for medium density developments. Whilst achieving the objective of dwelling optimisation, I think that the reduced setbacks, in combination with the other elements, is unlikely to result in an enhanced streetscape. 96The final point concerns management arrangements for the accessway use. I think this is an important matter because the shared zone concept is based on the RMS Policy where there are enforcement measures associated with the use of public roads. But the implementation of such schemes appears to be on a selective basis requiring RMS approval. Also these schemes are on public roads where operating conditions, particularly the essential 10 kph speed limit can probably be more effectively enforced. 97In my assessment, there was no substantive evidence to show that the traffic and other accessway usage can be effectively managed on the private/community land. It seems to me that there is likely to be a significant difference in the enforceability of the various traffic controls on this land. Apart from the critical 10 kph speed limit, management of the following aspects is important for the effective operation of the accessway scheme:
Control of the 2 -way and 1 - way traffic flows.
No parking along the accessways
Restricted parking for visitors 98As the proposed scheme falls into the RMS's "special category", presumably requiring additional attention, I think a satisfactory traffic management system requires up front rather than deferring this by conditions for some other body or the community association, which probably has little expertise in such matters. 99In the ultimate, I do not consider this 'shared zone' accessway proposal is satisfactory mainly because the accessway reservations are too narrow to accommodate the various road elements for the scale of development, particularly where the path paving is proposed. In my opinion, the proposal does not satisfy the RMS shared zone objectives to:

Court orders 102The Court orders that: (1)The appeal is dismissed. (2)Development application No DAP - 13 - 94 for a medium density development comprising 102 dwellings and associated uses at Lot 1, DP 786901, No 236 Richmond Road, Woodcroft is refused (3)The exhibits be returned except for 1, J, K, L, O and P. R Hussey Commissioner of the Court ATTACHMENT A ATTACHMENT B ATTACHMENT C 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 November 2013

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