Al-Faisal College Limited v Campbelltown City Council

[2023] NSWLEC 1014

Land and Environment Court

New South Wales

Medium Neutral Citation:

Al-Faisal College Limited v Campbelltown City Council [2023] NSWLEC 1014

Hearing dates:

19, 20 and 21 September 2022

Date of orders:

13 January 2023

Decision date:

13 January 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

(1) The appeal is dismissed;

(2) Development Application 3527/2021/DA-U, seeking approval for an increase in student numbers from 600 to 900 students at the Al-Faisal College, along with the demolition of existing structures, and construction of a designated staff car park, at 10 Benham Road and 20-22 Kitson Place, Minto, is determined by way of refusal;

(3) The exhibits are returned, with the exception of Exhibit 1.

Catchwords:

DEVELOPMENT APPLICATION – educational establishment – proposed increased student numbers – whether proposed parking and student collection and drop-off arrangements are acceptable – Proposed Development unable to satisfy are potential noise impacts of proposal acceptable

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55, 77

Campbelltown Local Environmental Plan 2015, cl 2.3

Land and Environment Court Act 1979 cl 39

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 35, 57, Sch 4

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) Amendment 2021, cl 3

State Environmental Planning Policy (Transport and Infrastructure) 2021 cl 2.122

Cases Cited:

Al-Faisal College Limited v Campbelltown City Council [2015] NSWLEC 1083

Texts Cited:

Campbelltown City Council, Community Participation Plan 2019

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

Category:

Principal judgment

Parties:

Al-Faisal College Limited (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
A Galasso (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/38139

Publication restriction:

No

Judgment

1. COMMISSIONER: Al-Faisal College Limited (the Applicant) has appealed the refusal by Campbelltown City Council of its development application 3527/2021/DA-U, made with owners’ consent, seeking approval for an increase in approved student numbers from 600 to 900 students at the existing Al-Faisal College, along with the demolition of existing structures, and construction of a designated staff car park (the Proposed Development) at 10 Benham Road (the location of the college) and opposite the college at 20-22 Kitson Place, Minto (with the Benham Road and Kitson Place lots together forming ‘the Subject Site’).

2. The Applicant’s appeal comes to the Court pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act), and they are determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Proposed Development as originally proposed included:

1. an increase in enrolled students from 600 to a maximum of 900 students, comprising 630 primary students and 270 high school students;

2. at 10 Benham Road - internal line marking changes, including 9 spaces designated for staff parking along the access handle and changes to operational, traffic and pedestrian management procedures.

3. at 20-22 Kitson Place - demolition of existing dwellings and ancillary structures, construction of an at-grade staff car park providing 43 car parking spaces (including 1 accessible space) with one-way ingress, internal circulation and egress, a minimum 1.1 metre grassed setback area to the north, east and southern property boundaries and stormwater works including a detention basin;

4. a total of 52 designated staff parking spaces to be provided across both the 10 Benham Road property and the properties at 20-22 Kitson Place;

5. an increase from the currently approved 49 staff working at the school on a full-time basis, at any one time, to 56 staff, noting that the school presently advises that it has 51 staff working at the school;

6. removal of one (1) street tree and the proposed planting of 4 street trees along the frontage to the Kitson Place properties;

7. a footpath providing pedestrian access from the proposed car park on Kitson Place to the existing pedestrian crossing on Kitson Place.

4. The location of the lots forming the Subject Site (outlined in red) on Kitson Place and Benham Road, are illustrated in the following figure taken from the Respondent’s amended Statement of facts and contentions filed with the Court.

The Applicant’s existing consent

5. The Applicant currently benefits from a consent granted by the Court in Al-Faisal College Limited v Campbelltown City Council [2015] NSWLEC 1083 which established the maximum student enrolment and operational parameters, including staffing levels, for the existing school.

6. In the judgment granting consent for an increase in student numbers at the school from an approved 250 students to an approved 600 students, the Court noted that:

1. it was common ground that the school at that time was exceeding its approved student capacity of 250 (at [11]);

2. the Applicant had conceded that the enrolment of the school at that time was 486 students (at [11]);

3. a traffic and pedestrian management plan (TPMP) was required to address traffic and parking issues associated with the development, that is the proposed increase in student numbers (at [27]); and

4. that Applicant had provided a TPMP that was referenced within the conditions imposed with the consent approving the increase the student numbers at the school from 250 to 600, and that “it is important that the school and its parent community population recognise the importance of complying with the plan” (at [55]).

The Applicant amends its application

7. By notice of motion on 19 September 2021 at the commencement of the hearing, and without objection, the Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Campbelltown City Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), agreed to the Applicant amending the development application DA3527/2021/DA-U filed with the Court on 9 February 2022 as part of the Applicant’s Class 1 Application in accordance with the following plans:

1. an amended plan of management prepared by Al-Faisal College and dated August 2022;

2. an amended landscape plan prepared by Fuggle Associates (Issue B) and dated 9 September 2022;

3. amended site plans prepared by Obliq Design and dated 9 and 14 September 2022;

4. e-mail advice on parking and landscaping relationships, prepared by Stantec and dated 14 September 2022;

5. traffic flow diagrams prepared by Stantec and dated 15 September 2022;

6. vehicle swept path assessment prepared by Stantec and dated 13 September 2022;

7. a fire engineering statement of support prepared by Innova Fire Safety Specialists and dated 12 September 2022; and

8. a supplementary acoustic report prepared by Renzo Tonin and Associates and dated 14 September 2022.

8. The Applicant was directed to upload the Further Amended Application on the NSW Planning Portal by 26 September 2022, being seven days from the date on which the Court agreed to the Applicant amending its application.

9. The Applicant was also granted leave to rely on its Further Amended Application in these proceedings.

10. Pursuant to the provisions of cl 2.3 of Campbelltown Local Environment Plan 2012 (CLEP) the properties at 20-22 Kitson Place are zoned R2 Low Density Residential and the property at 10 Benham Road is zoned B1 Neighbourhood Centre. The elements of the Proposed Development to be located at 20-22 Kitson Place are permissible within the R2.

11. Notwithstanding that under the B1 zoning of lot at 10 Benham Road, the use of the Subject Site for a school is not permissible, by dint of the provisions of subcl 35(1) of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the Education SEPP) (see below at [21(1)]), the Proposed Development is permissible with consent on that lot.

12. The Applicant’s development application had been notified between 3 and 25 February 2022, consistent with the provisions of Campbelltown Community Participation Plan 2019. Three submissions had been received in response to that notification.

13. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, a site view was undertaken prior to the commencement of the hearing and no objectors sought to provide oral submissions to the Court during the site view. However, the Respondent’s bundle included copies of the three submissions received in response to notification of the application, and these have been reviewed by the Court.

14. At the commencement of the hearing the Respondent advised that, as a consequence of the Applicant’s amended application and the documents that accompany it:

1. contentions relating to the following matters had been resolved:

1. potential contamination on the Subject Site;

2. the capacity of the existing school to accommodate the proposed additional students;

3. the management of waste and the requirement for a waste management plan;

4. the provision of adequate security, including lighting, to prevent crime;

5. the design of landscaping for, and streetscape presentation of, the Proposed Development;

6. the provision of certain information, including in relation to a plan for management of parking and traffic associated with the Proposed Development;

2. the remaining contentions in the appeal concerned matters relating to assessment and management of potential traffic impacts traffic and the acceptability of potential noise impacts associated with the Proposed Development, and more specifically:

1. in relation to potential traffic impacts:

1. whether the Applicant’s assessment of potential traffic impacts is adequate;

2. whether the Applicant’s proposals for management of potential traffic impacts, including in relation to parking and the drop off and pick up (DOPU) of students, is acceptable;

2. in relation to potential noise impacts:

1. whether Applicant’s assessment of potential noise impacts of the Proposed Development is adequate;

2. whether the Applicant’s proposed increase in students from 600 to 900 was acceptable in terms of the potential noise impacts on the amenity of the local neighbourhood; and

3. whether the Proposed Development had incorporated appropriate noise mitigation measures to maintain the amenity of the staff and students at the school.

15. The Court was assisted in its consideration of these matters by the joint reports and oral testimony of the following experts:

1. the Parties’ traffic engineering experts, Mr Brett Maynard, for the Applicant, and Mr Paul Corbett, for the Respondent;

2. the Parties’ expert acousticians, Mr Thomas Taylor, for the Applicant, and Mr Stephen Gauld, for the Respondent;

3. the expert town planners, Ms Julie Horder, for the Applicant, and Ms Glenn Apps, for the Respondent;

Statutory context

Environmental Planning and Assessment Act 1979

16. Section 4.15(1)(a) requires:

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

17. Section 4.15(3A) of the EP&A Act provides as follows:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a)  if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b)  if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c)  may consider those provisions only in connection with the assessment of that development application.

Environmental Planning and Assessment Regulation 2000

18. The following provisions of the EP&A Regulation are of relevance in this appeal:

1. clause 49(1), which requires that, inter alia, a development application must be made by an owner of the land that is the subject of the application or with the consent of the owner of the land;

2. clause 77(1), which concerns notification of development applications as follows:

(1) As soon as practicable after a development application is lodged with the consent authority, the consent authority must -

(a) publish notice of the application on the consent authority’s website, and

(b) give notice of the application to -

(i) the public authorities (other than relevant concurrence authorities or approval bodies) that, in the opinion of the consent authority, may have an interest in the determination of the application, and

(ii) in the case of a development application other than designated development - the persons that, in the opinion of the consent authority, own or occupy the land adjoining the land to which the application relates (unless the notice is in respect of an application for public notification development).

Campbelltown Local Environmental Plan 2015

19. The Subject Site is zoned B1 Neighbourhood Centre (10 Benham Road) and R2 Low Density Residential (20-22 Kitson Place) under the provisions of cl 2.3 of CLEP, the objectives of which are:

1. for the lot zoned B1 Neighbourhood Centre:

To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.

To support public transport patronage and encourage walking and cycling.

To achieve an accessible, attractive and safe public domain.

To allow small-scale residential development in conjunction with retail, business and commercial uses in a manner that increases the vitality of the surrounding neighbourhood.

To provide healthy, attractive, vibrant and safe neighbourhood centres

2. for the lots zoned R2 Low Density Residential:

To provide for the housing needs of the community within a low-density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To enable development for purposes other than residential only if that development is compatible with the character of the living area and is of a domestic scale.

To minimise overshadowing and ensure a desired level of solar access to all properties.

To facilitate diverse and sustainable means of access and movement.

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

20. It was common ground between the Parties that, as a consequence of the savings provisions in cl 3 of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) Amendment 2021, determination of the Applicant’s development application in this appeal is subject to the provisions of the Education SEPP, which aims to facilitate the effective delivery of educational establishments and early education and care facilities across the State of NSW.

21. Part 4 of the Education SEPP provides specific development controls in relation to schools, the following of which are of relevance to this appeal:

1. subclause 35(1) of the Education SEPP which provides that development for the purpose of a school may be carried out by any person with development consent on land in a prescribed zone, and which forms the basis for the Proposed Development being permissible within the B1 zoning of the lot at 10 Benham Road, as land zoned B1 is a prescribed zone under the SEPP;

2. subclause 35(6) which provides as follows:

“Before determining a development application for development of a kind referred to in subclause (1), (3) or (5), the consent authority must take into consideration:

(a) the design quality of the development when evaluated in accordance with the design quality principles set out in Schedule 4, and

(b) whether the development enables the use of school facilities (including recreational facilities) to be shared with the community.”

3. subclause 35(7) which provides

Subject to subclause (8), the requirement in subclause (6)(a) applies to the exclusion of any provision in another environmental planning instrument that requires, or that relates to a requirement for, excellence (or like standard) in design as a prerequisite to the granting of development consent for development of that kind.

4. subclause 35(9) which provides:

A provision of a development control plan that specifies a requirement, standard or control in relation to development of a kind referred to in subclause (1), (2), (3) or (5) is of no effect, regardless of when the development control plan was made.

22. Part 7 of the Education SEPP provides general development controls and cl 57 within that part concerns traffic generating developments and provides:

(1) This clause applies to development for the purpose of an educational establishment:

(a) that will result in the educational establishment being able to accommodate 50 or more additional students, and

(b) that involves: (i) an enlargement or extension of existing premises, or (ii) new premises, on a site that has direct vehicular or pedestrian access to any road.

(2) Before determining a development application for development to which this clause applies, the consent authority must:

(a) give written notice of the application to Roads and Maritime Services (RMS) within 7 days after the application is made, and

(b) take into consideration the matters referred to in subclause (3).

(3) The consent authority must take into consideration:

(a) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, RMS advises that it will not be making a submission), and

(b) the accessibility of the site concerned, including:

(i) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and

(ii) the potential to minimise the need for travel by car, and

(c) any potential traffic safety, road congestion or parking implications of the development.

(4) The consent authority must give RMS a copy of the determination of the application within 7 days after the determination is made.

23. Schedule 4 of the Education SEPP, provides design quality principles for schools and of these the following principles 1 and 5 are of particular relevance in this appeal:

Principle 1—context, built form and landscape

Schools should be designed to respond to and enhance the positive qualities of their setting, landscape and heritage, including Aboriginal cultural heritage. The design and spatial organisation of buildings and the spaces between them should be informed by site conditions such as topography, orientation and climate.

Landscape should be integrated into the design of school developments to enhance on-site amenity, contribute to the streetscape and mitigate negative impacts on neighbouring sites.

School buildings and their grounds on land that is identified in or under a local environmental plan as a scenic protection area should be designed to recognise and protect the special visual qualities and natural environment of the area, and located and designed to minimise the development’s visual impact on those qualities and that natural environment.

….

Principle 5—amenity

Schools should provide pleasant and engaging spaces that are accessible for a wide range of educational, informal and community activities, while also considering the amenity of adjacent development and the local neighbourhood.

Schools located near busy roads or near rail corridors should incorporate appropriate noise mitigation measures to ensure a high level of amenity for occupants.

Schools should include appropriate, efficient, stage and age appropriate indoor and outdoor learning and play spaces, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage and service areas.

State Environmental Planning Policy (Transport and Infrastructure) 2021

24. Clause 2.122 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) in relation to traffic generating activities provides as follows:

(1) This section applies to development specified in Column 1 of the Table to Schedule 3 that involves—

(a) new premises of the relevant size or capacity, or

(b) an enlargement or extension of existing premises, being an alteration or addition of the relevant size or capacity.

(2) In this section, relevant size or capacity means—

(a) in relation to development on a site that has direct vehicular or pedestrian access to any road (except as provided by paragraph (b))—the size or capacity specified opposite that development in Column 2 of the Table to Schedule 3, or

(b) in relation to development on a site that has direct vehicular or pedestrian access to a classified road or to a road that connects to a classified road where the access (measured along the alignment of the connecting road) is within 90m of the connection—the size or capacity specified opposite that development in Column 3 of the Table to Schedule 3.

(3) A public authority, or a person acting on behalf of a public authority, must not carry out development to which this section applies that this Chapter provides may be carried out without consent unless the authority or person has—

(a) given written notice of the intention to carry out the development to TfNSW in relation to the development, and

(b) taken into consideration any response to the notice that is received from TfNSW within 21 days after the notice is given.

(4) Before determining a development application for development to which this section applies, the consent authority must—

(a) give written notice of the application to TfNSW within 7 days after the application is made, and

(b) take into consideration—

(i) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, TfNSW advises that it will not be making a submission), and

(ii) the accessibility of the site concerned, including—

(A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and

(B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and

(iii) any potential traffic safety, road congestion or parking implications of the development.

(5) The consent authority must give TfNSW a copy of the determination of the application within 7 days after the determination is made.

Contentions

25. The remaining contentions in the appeal were noted above (at [14(2)]), and require resolution of the following questions:

1. in relation to traffic management:

1. is the Applicant’s assessment of potential traffic impacts adequate?

2. are the Applicant’s proposals for management of potential traffic impacts arising from the Proposed Development, including in relation to parking and the drop off and pick up (DOPU) of students, acceptable?

2. in relation to potential noise impacts:

1. is Applicant’s assessment of potential noise impacts of the Proposed Development adequate?

2. is the Applicant’s proposed increase in students from 600 to 900 acceptable in terms of the potential noise impacts on the amenity of the local neighbourhood?, and

3. has the Proposed Development incorporated appropriate noise mitigation measures to maintain the amenity of the staff and students at the school?

26. These questions will be considered in turn.

Is the Applicant’s assessment of potential traffic impacts adequate?

27. As noted above (at [5]), the Applicant benefits from an existing consent granted by the Court in 2015 to operate a school at 10 Benham Road, Minto with up to 600 enrolled students.

28. The Applicant has proposed that:

1. its approved enrolled student population at the Al-Faisal College in Minto be increased from 600 students to 900 students, and that its approved staff numbers increase from 49 to 56;

2. its proposed increase in student and staff numbers be supported by, inter alia, additional car parking to be provided at 20-22 Kitson Place, Minto.

29. As already noted (see above at [11]), the Proposed Development is permissible as a consequence of cl 35(1) of the Education SEPP which provides that development for the purposes of school may be carried out with consent on land in a prescribed zone, and lands zoned B1 and R2 are lands in a prescribed zone for the purposes of the Education SEPP.

30. The Proposed Development is also a traffic generating development and so is subject to the provisions of cl 57 of the Education SEPP because, consistent with the provisions of subcl 57(1) of the Education SEPP:

1. it will result in the educational establishment being able to accommodate 50 or more additional students; and

2. it involves new premises, being the land at 20-22 Kitson Place, proposed by the Applicant for use as a new additional car park in support of the increased staffing associated with the increase in enrolled students.

31. The Respondent said that it may also be a traffic generating activity for the purposes of cl 2.122 of SEPP T&I (see above at [24]), the provisions of which, as they relate to determination of an application to which the clause applies, are similar to those of cl 57 of the Education SEPP.

32. As a consequence of the provisions of subcl 57(2)(b) of the Education SEPP (see above at [22]), before determining a development application for development to which cl 57 applies, the consent authority, or the Court on appeal, must take into consideration the matters referred to in subcl 57(3), which are:

1. any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, RMS advises that it will not be making a submission); and

2. the accessibility of the site concerned, including:

1. the efficiency of movement of people and freight to and from the site; and the extent of multi-purpose trips; and

2. the potential to minimise the need for travel by car, and

3. any potential traffic safety, road congestion or parking implications of the development.

33. The Proposed Development was referred to Transport for NSW (TfNSW) on 1 March 2022, and TfNSW provided its response dated 25 March 2022 which identified a number of matters for the consent authority’s consideration in the determination of the application.

34. In support of its application, and in response to the requirements of cl 57 of the Education SEPP, and the matters identified by TfNSW, the Applicant has provided a traffic impact assessment prepared by Stantec Australia Pty Ltd (hereafter referred to as ‘the Stantec Report’) dated 18 August 2022.

35. The Stantec Report includes a revised TPMP in relation to the Proposed Development and:

1. it notes that the Al-Faisal College proposes a net increase of 216 enrolled students and an additional 5 staff members from existing operations, for a total of 900 students and 56 staff;

2. it concludes, inter alia, that:

1. while site observations and anecdotal evidence has identified queuing on Benham Road and Kitson Place during the afternoon college pick-up activities, such queuing does not extend to and/or affect intersection operation;

2. modelling of intersection performance using the SIDRA software tool indicated that there would be no operational issues at intersections in either the morning or afternoon peaks with or without the proposed increase in enrolled students at the college;

3. queuing analysis indicated that satisfactory operation of traffic and parking arrangements can be achieved with the current numbers of enrolled students and through “the removal of extended delays”, which is addressed through the Applicant’s revised TPMP;

4. queuing analysis indicated that a reduction in vehicle trips and/or service times will be required for satisfactory operation with 900 students, or alternatively further staggering of finish times, which are addressed through the revised TPMP.

36. The Respondent had contended that the Stantec Report provided an inadequate and unacceptable assessment of traffic impacts.

37. The Parties’ expert traffic engineers had considered the adequacy of the Stantec Report in relation to the assessment of potential traffic impacts of the Proposed Development, and had agreed that:

1. notwithstanding that the college has a current approval for 600 students, and the Stantec Report had assessed the potential traffic impacts of increasing student population from the 684 currently students to the 900 proposed students, the critical aspect for the purposes of assessing the traffic and parking impacts of the Proposed Development was to consider the circumstances associated with the 900 students proposed by the Applicant;

2. the Stantec report had undertaken the assessment associated with the potential impact of the school accommodating 900 enrolled students as proposed by the Applicant;

3. the provision by Mr Maynard of traffic survey data and traffic flow modelling and assessment to Mr Corbett had assisted in Mr Corbett’s consideration of the Stantec Report’s findings and conclusions;

4. the Stantec Report had not grossly underestimated the total traffic flows associated with the Proposed Development and the SIDRA modelling in the report was not incorrect as had been contended by the Respondent;

5. no changes were proposed by the Applicant to the existing length or location of kerbside DOPU parking zones in Kitson Place;

6. it was reasonable to assume that there would be no material change in the traffic distribution as a result of the Proposed Development and this assumption could be used to assess the traffic distribution and impacts of the Proposed Development;

7. the provision by Mr Maynard of sensitivity modelling of car park egress and SIDRA modelling files had assisted Mr Corbett in his consideration of the findings of the Stantec Report;

8. the Court relying on the assessment of potential traffic impacts in the Stantec Report along with the evidence of the experts in their joint report, would be able to consider adequately the matters identified in cl 57 of the Education SEPP as requiring consideration before determining the development application in this appeal.

38. Based on the agreements of the Parties’ traffic engineering specialists, I am satisfied that the Applicant’s assessment of potential traffic impacts, complemented by the evidence of the Parties’ traffic engineering experts, is adequate for the purposes of assessing the potential traffic impacts of the Proposed Development.

Are the Applicant’s proposals for management of potential traffic impacts arising from the Proposed Development, including in relation to parking and the drop off and pick up (DOPU) of students, acceptable?

39. The Respondent had contended that the Applicant’s Proposed Development should not be approved because the Applicant had been unable to demonstrate that the development incorporated safe arrangements for the DOPU of students as student numbers increased from 600 to 900.

40. As already noted (see above at [35(2)]), the Applicant’s traffic impact assessment had concluded that:

1. site observations and anecdotal evidence had identified queuing on Benham Road and Kitson Place during the afternoon college pick-up activities;

2. queuing analysis undertaken by Stantec had indicated that satisfactory operation of traffic and parking arrangements could be achieved with the current numbers of enrolled students and through “the removal of extended delays”; and

3. the Applicant’s revised TPMP has been prepared:

1. in response to the requirements to resolve the identified current queuing issues on Benham Road and Kitson Place particularly during the afternoon college pick-up activities; and

2. to guide future traffic management associated with the increase in enrolled students from the current approved 600 students to the proposed 900 students.

41. The Stantec Report had also identified that:

1. the college currently experienced extended queuing and congestion issues, at times, in relation to student DOPU as a consequence of parent/carer vehicles remaining in the DOPU areas for extended periods; and

2. under the Applicant’s proposal for up to 900 enrolled students the queuing of cars in the afternoon pickup period might extend up to 102m in length which it noted was significant.

42. The Applicant’s revised TPMP had proposed that the efficiency of student DOPU arrangements could be improved through the school adopting a series of measures including:

1. use of a four-lane queuing arrangement for DOPU of students on the Benham Road school site, which the Applicant said had already been implemented;

2. improved communication with parents/carers about DOPU arrangements and associated expectations;

3. specific traffic guidance procedures to remove delays and bottlenecks in afternoon pick-up operations, including the use of traffic wardens, as well as to reduce the impact of traffic adjacent to the college;

4. implementing a third finish time for students to better spread afternoon pick-up activity and reduce pressure on available facilities;

5. having a second cohort of students use the internal DOPU area in the afternoon to reduce on-street pick-up demand.

43. The Applicant’s revised TPMP had also included a table identifying further potential traffic and pedestrian management measures that might be adopted should the management measures proposed in the TPMP not have the desired impact on the management of traffic at the school as student numbers grew under the Proposed Development.

44. Within the joint expert report of the Parties traffic engineering experts, and noting that the Respondent’s expert Mr Maynard had provided details of sensitivity modelling of the car park egress, the experts had disagreed in relation to the effectiveness of the arrangements proposed for the management of student DOPU in the Benham Road car park as student numbers increased, as follows:

1. Mr Maynard, for the Applicant, has stated that:

1. the departure of four lanes of traffic from car park through a single exit lane driveway would operate satisfactorily and there would be no benefit in providing two lanes for the exit of traffic to Kitson Place;

2. the site visits undertaken by both himself and Mr Corbett in May 2022 had confirmed the occurrence of blockages associated with the four lanes of traffic merging into a single lane for egress from the site;

3. management measures implemented through the TPMP could address the observed blockage issues; and

4. observations subsequent to the implementation of some of these management measures had improved the performance of the queuing system;

2. Mr Corbett, for the Respondent, had stated that:

1. he would not support the concept of a second exit lane from the four lane DOPU area within the Benham Road property to Kitson Place for safety reasons as this would raise the risk of a car to car to car to pedestrian incident occurring at the egress driveway;

2. the modelling undertaken by Stantec for the car park egress had not accounted for:

1. delays or blockages associated with the merging of the four queuing lanes into a single lane, and

2. delays experienced by exiting vehicles due to factors such as pedestrians walking across the egress driveway or queuing of vehicles on Kitson Place across the egress driveway a consequence of on-street DOPU activity;

3. he had observed and documented on 16 May 2022 a queue length of some 360m that extended back from the four land DOPU area on the school site, back into Benham Road and for a further distance down Benham Road towards its intersection with Guernsey Road;

4. he had also observed and documented on 16 May 2022 that the demand for DOPU space on Kitson Place had exceeded the capacity of that area during the afternoon pick-up period, with the queue from that pickup area extending back across the egress driveway from the Benham Road DOPU area and blocking vehicles seeking to exit the four lane DOPU area;

3. Mr Maynard, in reply to the points raised by Mr Corbett, noted that he had not observed queuing on the scale identified by Corbett in his evidence.

45. In response to questions from the Parties during the hearing, the Parties’ traffic experts provided the following further evidence:

1. Mr Maynard stated that:

1. since May 2022, and based on advice he had provided and which was included within the revised TPMP, the Applicant had instituted some changes to the management of the DOPU areas associated with school, including:

1. improved communications with parents and carers in relation to the DOPU of students;

2. the active management of the four lane DOPU area by traffic wardens, including though an increase in the number of wardens allocated to traffic management and the identification of positioning of those wardens and the specification of roles they should undertake;

3. vehicles were not allowed to linger in the DOPU area and were moved on to facilitate a flow of vehicles through the area;

2. he agreed that:

1. there had been an historic issue with traffic congestion associated with the DOPU areas at the school and he did not dispute the evidence provided by Mr Corbett related to this (see above at [44(2)(c)] and [44(2)(d)]);

2. the current traffic congestion issues had led to unsafe vehicle movements which he said was unacceptable;

3. notwithstanding a proposal for a traffic warden to be positioned to manage traffic on Kitson Place, there was no power under legislation available to such a person to stop vehicles on the road and so the management of traffic on the road as proposed within the TPMP could not be assured;

3. the TPMP should be revised on an annual basis to meet the changing needs of the enrolled student numbers, and this requirement should be subject of a condition imposed with any grant of consent;

4. while the TPMP identified potential future actions to address traffic management issues that may arise as student numbers increased towards the 900 student level, the actions identified were discretionary and the TPMP did not provide guidance as to what actions should be taken at various levels as the student population increased to its final maximum level;

5. there were no triggers within the TPMP that would guide when certain further management actions should be implemented but he had assumed the school would be guided by professional advice in implementing responses to future issues should they arise;

2. Mr Corbett said that while he had not seen a four land queuing system in operation prior to this appeal, he agreed that a four lane queuing system would be preferable to a two lane system in the circumstances of the Proposed Development.

46. During the hearing, the Applicant had tendered video, taken by aerial drone, of traffic in the vicinity of the Subject Site on 13 September 2022, and in relation to this the Parties’ traffic engineering experts provided the following evidence:

1. Mr Maynard stated:

1. he had not checked to confirm whether the video documented any illegal vehicle movements in relation to the school DOPU area or Kitson Road, but he would not be surprised if some had been detected as such movements were not uncommon;

2. he agreed that the video did show:

1. a silver vehicle queuing across the exit from the four lane queuing area to Kitson Place;

2. a minibus turning out of the driveway onto Kitson Place that he described as ‘unpalatable’;

3. a person directing a vehicle out of the DOPU area while standing on the roadway, which he said he would not advocate;

3. the implementation of his recommendations in the revised TPMP for improving traffic management at the school were a work in progress;

4. the situation with respect to vehicle movements recorded on the drone video footage was better than would have been the case in May 2022; and

5. he was confident that additional vehicles associated with the additional student numbers proposed could be accommodated on-site;

2. Mr Corbett said that:

1. the drone footage confirmed:

1. that the movement of vehicles recorded was inconsistent with the data provided by Mr Maynard in his traffic impact assessment;

2. that the waiting bays in the DOPU area were generally occupied by parked cars and so not available for use as waiting bays;

3. the difficulty that vehicles had exiting the Benham Road school site onto Kitson Place as shown in the video differed from the assumptions made by Mr Maynard in his traffic flow modelling which he said had assumed there was no impediment to vehicles exiting the site;

2. on the basis of his assessment:

1. he could not advise how long it would take vehicles to transit the internal DOPU area and exit to Kitson Road; and

2. he could not be satisfied that, given the increases in traffic that would be associated with the Applicant’s proposed increase in student numbers, that the traffic associated with the Proposed Development would operate effectively through the site; and

3. there was no analysis that had been made available to him that would allow him to confirm that the Applicant’s TPMP would succeed in managing traffic associated with the increased numbers of students proposed by the Applicant.

47. In closing submissions, the Respondent said, relying on the evidence of Mr Corbett (above at [44(2)] and [46(2)]), that:

1. the school had not been able to manage the vehicle and traffic flows associated with its current consent which had an approved maximum of 600 enrolled students at the school;

2. the Applicant’s drone footage evidence taken on 13 September 2022 had confirmed that, even with the adoption of the additional traffic mitigation measures from May 2022, there remained significant problems with traffic flows at the school at that time;

3. the Proposed Development did not provide for any increase in the DOPU zone of around 60m available on Kitson Place, when the evidence of the Applicant’s traffic engineering expert, Mr Maynard, has indicated that the proposed increase in enrolled students from 600 to 900 students would require space to accommodate a student queue of 208m;

4. the Applicant’s revised TPMP was not adequate to manage the potential traffic impacts associated with the Proposed Development because the TPMP:

1. did not provide clarity, such as triggers, to guide the Applicant as to what traffic management measures should be implemented at what points to mitigate traffic impacts as the student population moved from its current levels to 900 students;

2. a proposed traffic mitigation measures within the TPMP were discretionary and the TPMP did not require the adoption of any of the identified potential traffic management measures as student numbers increased towards a 900 student level proposed by the Applicant;

3. relied on the using methods to manage traffic that were not consistent with powers available to the school to do so, including the school appointing traffic wardens to manage traffic flows on roads outside the school, such as Kitson Place;

5. the potential traffic congestion impacts of the Proposed Development and the increased safety risks associated with the Applicant’s proposed increase in student enrolments from 600 to 900 warranted refusal of the application.

48. In its closing submissions, the Applicant stated that:

1. the school had recognised that its management of traffic flows associated with the school required improvement and had instituted changes that had resulted in improvements in traffic management between May and September 2022;

2. there had been no evidence tendered of any breaches of road rules or of any enforcement action that had been taken in relation to traffic management or vehicle behaviour at the school;

3. the drone footage it had tendered had not illustrated any traffic related impacts associated with the school;

4. the Applicant’s revised TPMP presented an opportunity to improve the management of traffic and vehicle movements associated with the school.

49. Having considered the evidence presented in the appeal, including the expert testimony and joint reporting of the Parties’ traffic engineering experts, as well as the submissions of the Parties, and I have concluded that, for the reasons provided the Respondent (see above at [47]), which I adopt, the Proposed Development, including the Applicant’s revised TPMP:

1. does not, in my assessment, provide for:

1. adequate management of accessibility to the Subject Site under the proposed increase in enrolled students from 600 to 900;

2. efficiency of movement of people, notably students, to and from the Subject Site under the proposed increase in enrolled students from 600 to 900, both in terms of:

1. the proposed use of the four lane DOPU queuing on the school site at 10 Benham Road; and

2. the management of the DOPU zones on Kitson Place;

2. has not demonstrated, to my satisfaction, that it would minimise the need for travel by car to and from the school;

3. has not demonstrated, to my satisfaction, that the traffic, safety road congestion and parking implications of the Proposed Development can be satisfactorily managed or mitigated.

50. Based on my conclusions above (at [49]), I am satisfied that the Applicant’s Proposed Development, including its revised TPMP:

1. has not adequately addressed the matters I am required to consider in relation to a traffic generating activity under the provisions of cl 57(3) of the Education SEPP; and

2. should not be approved.

Conclusions in relation to remaining contentions

51. On the basis on my conclusion above (at [49] and [50]), there is no utility in giving further consideration to the remaining contentions in the appeal because, even if the Court were to find in favour of the Applicant in relation to matters concerning the potential noise impacts, that would not provide sufficient grounds to overcome the reasons already established above (at [49]) that require that the Proposed Development not be approved, and the application in this appeal to be refused.

52. Consequently, the Court is able to make the following final orders to dispose of the appeal.

Orders

53. The orders of the Court are:

1. the appeal is dismissed;

2. Development Application 3527/2021/DA-U, seeking approval to increase enrolled student numbers from 600 to 900 students at the Al-Faisal College, along with the demolition of existing structures, and construction of a designated staff car park, at 10 Benham Road and 20-22 Kitson Place, Minto, is determined by way of refusal;

3. the exhibits are returned, with the exception of Exhibit 1.

M Chilcott

Commissioner of the Court

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Decision last updated: 13 January 2023