Ayoub v The Hills Shire Council

[2021] NSWLEC 1021

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ayoub v The Hills Shire Council [2021] NSWLEC 1021

Hearing dates:

30 November-01 December 2020
Conditions filed 15 December 2020

Date of orders:

15 January 2021

Decision date:

15 January 2021

Jurisdiction:

Class 1

Before:

Smithson C

Decision:

The orders of the Court are:

(1)   Leave is granted to the applicant to rely upon amended plans.

(2) The applicant is to pay the costs of the respondent thrown away as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(3)   The appeal is dismissed.

(4)   Development application DA 166/2019/HA for a child care centre at 92 Peel Road, Baulkham Hills is refused.

(5)   The exhibits are returned except for Exhibits A, B, C and 1.

Catchwords:

DEVELOPMENT APPLICATION – Child care centre – overdevelopment – car parking shortfall – vehicle safety and sightline concerns – adequacy of basement design – landscaping of setbacks – amenity for neighbours – resident objections – public interest

Legislation Cited:

Children (Education and Care Services) National Law (NSW)

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

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

The Hills Local Environmental Plan 2012

The Hills Local Environmental Plan 2019

Texts Cited:

Australian Standard AS 2890.1

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy

NSW Department of Planning, Child Care Planning Guideline (2017)

Roads and Maritime Services, Guide to Traffic Generating Developments (October 2002)

Roads and Maritime Services, Validation Trip Generation Surveys Child Care Centre Report 2015

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

Charbel Ayoub (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
C Novak (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Coutts Solicitors and Conveyancers (Respondent)

File Number(s):

2019/53661

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal was lodged under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). It was in response to the deemed refusal by The Hills Shire Council (the Council) of development application DA 166/2019/HA (the application) for a property at Lot 625 of DP 243752, being 92 Peel Road, Baulkham Hills (the site).

2. As lodged in July 2018, the application proposed demolition of an existing dwelling house and ancillary structures and construction of a purpose-built 2 storey centre-based child care facility to cater for 60 children (the centre) with basement parking.

3. The basement parking comprised 12 parking spaces accessed from a driveway off Peel Road. Of these spaces, 6 were for staff and 6 for visitors. A further 3 spaces were proposed on the street.

4. The application was assessed under State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the Child Care SEPP or SEPP). The SEPP requires compliance with the NSW Department of Planning, Child Care Planning Guideline (2017) (the Child Care Guideline). The Child Care Guideline references requirements under the Children (Education and Care Services) National Law (NSW) (the National Law).

5. The Statement of Facts and Contentions (SFC) filed by the Council in the proceedings raised a number of contentions and the matter was then subject to conciliation under s 34 of the Land and Environment Court Act 1979. As no agreement could be reached, the conciliation was terminated.

6. However, arising from that process, amended plans were prepared and leave granted by the Court for the applicant to rely upon these plans, and updated supporting documentation, in June 2020. One of the changes was the proposal for a second driveway (the secondary driveway) at grade to access a proposed additional at-grade staff parking space. An Amended SFC was filed in response to this revised application.

7. In August 2020, the Council referred the application to the Department of Education as insufficient outdoor unencumbered space was provided relative to the requirements of the Child Care Guideline. In response to that referral, leave was sought and granted by the Court for further amended plans in September 2020 (the September 2020 application). A total of 60 children and 10 staff were proposed in the September 2020 application.

8. A Further Amended SFC was filed in response to the September 2020 application on 25 September 2020 (Exhibit 1). It contended that the core issues remained.

9. At the commencement of the hearing, the applicant sought leave to further amend the application by way of amended architectural and landscape plans (the amended application). The amended application was in response to issues raised in the Further Amended SFC and during expert joint conferencing. It also addressed the response from the Department of Education requiring the full provision of the required outdoor unencumbered space.

10. The amended application reduced the number of children to 54 to comply with the amount of outdoor unencumbered space provided. Staff numbers remained at 10. Associated changes included amendments to the landscaping in the front setback area and deletion of an interactive landscaped area. A total of 19 parking spaces were proposed: 15 in the basement, 1 off the secondary driveway, and 3 on-street. Of the 15 spaces proposed in the basement, 9 were for staff and 5 for visitors/parents. Of these 9 staff spaces, 4 were in a stacked arrangement (i.e. 2 x 2 tandem spaces).

11. The Council did not oppose leave being granted to the amended application subject to a finding that the amendments were not minor, as the applicant agreed. Leave was granted on this basis. This amended application therefore became the application the subject of the proceedings.

12. No Plan of Management was submitted with the original or amended application, albeit recommendations were contained within the applicant’s acoustic report in terms of the need for a management plan for operations in order to achieve acceptable noise emissions. The applicant advised in the proceedings that such a Plan could be required as a condition of consent.

13. Conditions of consent were subsequently filed after the hearing. Submissions were also filed on conditions in dispute.

Planning context

14. The site is located on the eastern side of Peel Road between Yawung Avenue to the south and Dalman Place to the north. It is adjoined by a public reserve (park), known as Gumbuya Avenue Reserve, to the north, and by single storey dwellings to the east and south.

15. The site is rectangular with an area of 929.5m², a frontage of 20.115m and a depth of 46.33m. The site slopes to the rear with a fall of approximately 1.5m and currently contains a 2-storey dwelling house with a pool.

16. The site is zoned R2 Low Density Residential under the provisions of The Hills Local Environmental Plan 2012 (the 2012 LEP). The LEP has since been replaced by The Hills Local Environmental Plan 2019 (the 2019 LEP) but, given the 2012 LEP was in place at the time of lodgement of the application and the savings provision at cl 1.8A of the 2019 LEP, the application is therefore assessed under the provisions of the 2012 LEP.

17. The proposed use is permissible in the R2 zone. The objectives of the R2 zone are:

• 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 maintain the existing low density residential character of the area.

18. The Council did not consider that the proposed development would maintain the existing low density residential character of the area. Otherwise, there was no contention that the development did not comply with the requirements of the 2012 LEP, including in terms of height and other development standards.

19. The locality is characterised by low density residential development which is reflective of the R2 zone in the immediate locality.

20. The application was also subject to assessment under the Hills Development Control Plan 2012 (the DCP). The relevant provisions of the DCP are considered in more detail later.

Objections to the development and site view

21. The application was notified and 32 letters of objections were received in response to the original application, and 9 in response to the June 2020 revised application. The September 2020 application was not notified.

22. Key issues raised in response to notification of both applications were: that the development would be out of character with the low density residential area; the impact on the amenity of surrounding residents in terms of privacy and noise, as well as in decreased property values; unsafe access; traffic impacts; and insufficient parking.

23. The safety of a child care centre in this location was a specific issue raised in most of the objections. The concerns were with the prevailing traffic hazards in Peel Road such as blind crests, vehicular accidents, the narrowness of the street when cars were parked on both sides, and “near misses” along the portion of Peel Road in which the site is located.

24. The hearing commenced with a site view with the parties consistent with the approach required by the Land and Environment Court of NSW ‘COVID-19 Pandemic Arrangements Policy’. Given this policy, limited participants and no objectors attended the site view with objectors relying on their written submissions.

25. At the site view, the Court viewed the site and surrounds given the impacts raised by objectors, which included the adjoining residents to the rear. This included viewing sight stopping distances for cars on Peel Road from the two driveways, and a view of the site and adjoining property to the rear from the adjacent park.

Overview of the contentions

26. The primary contentions focused on the adequacy of the parking and the safety of accessing and utilising the parking proposed, particularly in terms of access from the site and the design of the basement car park.

27. Given the majority of evidence related to these concerns, they are dealt with in more detail later. However, it is relevant to note the Council’s contention that there was insufficient information on staffing of the proposed centre to assess traffic and parking impacts. In the September 2020 application, 10 staff for the centre were proposed but 10 educators were required to meet the requirements of the centre for the then 60 children proposed, under the National Law.

28. A traffic impact assessment had been submitted with the application, referred to as the Traffix Report. When 60 children were proposed, the Traffix Report referred to a staff member in addition to educators, being a Director or Manager said to be expected to be on-site for the majority of the day.

29. Further, no staff were identified as being required during proposed operating hours such as kitchen or laundry staff or cleaners. The Council was therefore concerned that actual staffing numbers were likely to be in excess of the required educators, with the educators required to educate and care for, and be working directly with, the children.

30. The applicant argued that, based on the amended application proposing 54 children, only 9 educators would be required. The proposed staffing remained at 10 which allowed for an additional staff member for cooking, cleaning and administrative purposes.

31. However, the Council contended that any additional required staff would lead to traffic impacts which had not been assessed and would result in the need for additional parking. There was already a shortfall of parking proposed on-site having regard to the parking rates required pursuant to the DCP. This parking shortfall contention is considered in more detail later.

32. In addition to the contentions relating to parking and safety, there were a number of merit concerns raised by the Council, which collectively were said to result from an overdevelopment of the site with too many children proposed.

33. The first of these contentions was that the application should be refused because the setbacks of the proposed development did not comply with the minimum setback requirements of the Child Care Guideline and the DCP.

34. In this regard, the Child Care Guideline takes precedence over a DCP other than in considering building height, side and rear setbacks, and car parking rates.

35. Clause 2.7.2 (i) in Part C Section 1 of the DCP requires that basement parking areas should be setback the same distance as the building above. However, the proposed basement footprint extends beyond the building footprint above. The Council contended that the basement encroachment within setback areas reduced the ability to provide deep soil landscaping in these areas to assist with screening of the development from the adjoining properties and park.

36. The applicant argued that the setbacks facilitated the functioning of the parking and it was therefore reasonable to allow a variation to the DCP control. The non-compliant basement would have no impact on the visual character of the locality as it is below ground level. Further, other child care centres in the Hills Shire have basement parking and the DCP does not prohibit it.

37. The Council maintained that the basement, although not visible from the street, would be atypical in a low density residential area, and there are no basements of this size and scale in the immediate vicinity. Other child care centres have basement footprints compliant with setback requirements. The need for a basement of this size and scale is driven by the excessive number of children being proposed. A reduced compliant basement footprint would be a more appropriate and suitable built form outcome for the site with a corresponding significant reduction in child numbers as a result.

38. The third contention was that the September 2020 application did not comply with the outdoor unencumbered space requirements under the Child Care Guideline for 60 children.

39. The amended application addressed this by reducing the number of children to 54 and amending the outdoor unencumbered space area. However, this raised a new contention in terms of the design of a proposed acoustic pergola/barrier and whether it was a safety risk or precluded adequate maintenance of the 900mm landscaping strip situated between the pergola and site boundaries. Specifically, a 900mm gap was proposed at the base of the pergola and it was unclear what this area would be used for, if it posed a safety risk for children, and whether the barrier would continue to mitigate acoustic impacts.

40. To address the landscaping maintenance issue, the applicant initially advised that a ‘pruning maintenance catwalk’, essentially comprising a boardwalk accessed by ladder, could be constructed on top of the pergola. Subsequently, with the Council querying the veracity of and requiring details for, such a solution, it was suggested instead that a designated soft surface path be provided adjoining the landscaping strip directly behind the pergola, and that a condition requiring this be imposed.

41. In terms of the 900mm underside of the pergola, the Court was advised during the proceedings that the applicant would accept a condition requiring that this gap be filled in.

42. A further contention was that the design and layout of the centre was unacceptable in terms of reducing acoustic impacts as it did not utilise the building footprint to minimise noise to surrounding residences.

43. Specifically, the outdoor play area is proposed at the rear of the premises which is directly adjacent to both neighbouring residential properties, whilst centre windows face the private open spaces of these properties. The Child Care Guideline seeks a centre design to minimise potential noise and overlooking impacts on neighbours, thus reducing the need for tall acoustic barriers.

44. Redevelopment of the site is proposed. The Council argued that this enables a design that can locate outdoor play areas away from neighbours. In addition, the site is located directly adjacent to a park. The high noise generating aspects of the centre, being the outdoor play area, should adjoin the park which would remove the need for such high barriers for noise attenuation.

45. The applicant did not disagree that there may be other design solutions to deal with acoustic impacts, but argued acoustic design is performance based and there is no need to favour any particular design if the development meets the acoustic performance requirements. That it did was not in dispute. Further, a different design could result in non-compliant rear setbacks with associated visual amenity impacts on the adjoining dwellings, or designs uncharacteristic of the locality. Irrespective, it is the acceptability of the current design that must be assessed rather than postulating on what might be better. There are no visual privacy impacts to the neighbour to the south and a considerable separation distance to the neighbour at the rear, being 12 Gumbuya Avenue.

46. However, the Council also contended that the visual amenity for residents of 12 Gumbaya Avenue would be impacted by the acoustic pergola structure proposed. The pergola covers almost the entire width of the rear boundary as well as the length of the outdoor play area on the south-western side. The siting and scale of the structure is atypical in a low density residential area with no similar structures in the vicinity of the site.

47. The applicant claimed that any adverse visual impact was unlikely given the pergola was Perspex, was 900mm from the boundary and would therefore be screened by landscaping. Further, the rear of 12 Gumbuya Avenue adjoined the site and contained outbuildings and dense landscaping.

48. Finally, the Council contended that the front landscaping was inadequate with excessive paved areas and limited landscaping to side boundaries. This outcome would be incompatible with the local landscape and streetscape character, inconsistent with the Child Care Guideline. The secondary driveway and hardstand staff parking space contribute to the lack of landscaping in the front setback area. The DCP parking controls also require driveways to be screened by 2m wide landscaping to side boundaries. This was not achieved with only a 450mm landscaping strip provided to the boundary with the park.

49. The applicant argued that the site has two existing driveways and that there are other properties in the vicinity with two driveways. Irrespective, the impact of the second driveway on local character is minimal. Further, the landscaping proposed was an improvement on the existing landscaping and extent of paving on-site, and there were other properties in the street with less than 2m wide landscaped side setbacks.

50. However, the Council argued that the extent of paving and second driveway comprised works undertaken without approval, albeit subsequently approved retrospectively, and were atypical of residential development in the street. Further, the proposed fire egress could be relocated from the front of the site.

51. The applicant submitted that this was unnecessary. The area north of the driveway is adjacent to the park. That relationship is unique in Peel Road and therefore the proposed landscaping is not out of character with the existing streetscape. Further, it was not possible to relocate the fire egress to the south west as the front door would need to be opened during an emergency and there would be insufficient room between that door and the adjacent planter.

Parking and access contentions

52. As indicated, the primary contentions in the proceedings related to the adequacy of the parking, and the safety of accessing and utilising the on-site parking proposed.

52. Written and oral evidence in this regard was given by the traffic engineers, being Mr Doan for the applicant and Mr Bakovic for the Council.

Car parking provision

54. As indicated, in assessing applications, the Child Care Guideline takes precedence over a DCP other than in certain matters, including parking rates.

55. The DCP sets out the minimum parking spaces required for child care centres as 1 space per employee plus 1 space per 6 children enrolled, for visitors and/or parent parking.

56. The traffic experts agreed that the Council has discretion in relation to the application of the DCP parking rates depending upon the circumstances. However, they disagreed as to what parking rates should apply.

57. Clause 2.1.1 of Part C Section 1 of the DCP further states that set down areas are to be provided, and stacked parking cannot be counted for commercial uses. Parking for child care centres must also be situated in a convenient location, allowing for safe movement of children to and from the centre.

58. The development on which the traffic engineers conferred was the September 2020 plans which proposed 60 children with 10 educators therefore requiring a minimum of 20 parking spaces (10 for visitors/parents and 10 for staff). A total of 16 off-street parking spaces were proposed; 6 for visitors as drop-off and pick-up spaces and 10 for staff. One of the staff spaces was at the end of the secondary driveway whilst 2 of the 9 staff spaces within the basement were in a stacked arrangement. A further 3 on-street spaces were proposed for drop-off/pick-up along the park frontage, immediately adjacent to the site, bringing the total provision to 19.

59. The traffic experts agreed that the 3 on-street spaces could be provided with no adverse impacts created. This was subject to the acceptance of this proposal by the Council and the spaces only being available (used) during peak periods on weekdays.

60. For the amended application, no change to the number of parking spaces was proposed. With 54 children and 10 staff, the required DCP parking provision was 19 spaces (9 visitor/parent and 10 staff spaces).

61. If the 4 stacked and 3 on-street parking spaces are excluded, the amended application is 1 space short of the minimum number of staff spaces required by the DCP, and 4 short of the minimum required visitor/parent spaces, a total shortfall of 5 spaces. The Council considered this to be a significant departure from the DCP parking requirements.

62. Mr Bakovic also maintained that the actual staff numbers are likely to exceed 10 which would lead to an additional parking shortfall.

63. Mr Doan argued the basis for the DCP required parking provision was unknown but appears to not reference survey or research data. The DCP requirement of 1 space for every staff member, in particular, was out of step with sustainable planning policies and objectives. It takes no account of staff who walk or ride, are dropped off, or use car share or public transport.

64. In contrast, the Roads and Maritime Services Guide to Traffic Generating Developments (Version 2.2 dated October 2002) (the RMS Guide) has a parking requirement which is survey based and is widely adopted. The RMS Guide is referenced in the Child Care Centre Guideline and only requires 1 space per 4 children, with no additional parking required for staff.

65. Further, more recent surveys were commissioned by RMS and summarised in a report titled “Validation Trip Generation Surveys Child Care Centre Report 2015” (the RMS Surveys). Three centres surveyed were in predominantly residential areas, similar to the site, with between 45 and 90 children and 10 and 15 staff. These centres provided average parking of 1 space per 4.5 children, which is the aggregated demand for both staff and parent spaces.

66. Mr Doan’s evidence was that the proposed parking exceeds the required provision for the number of children and staff proposed, based on the RMS Guide and RMS Surveys.

67. That is, the 16 spaces on-site and 3 spaces on-street exceed the maximum RMS Guide requirement which, for the amended application, would be 14 spaces. Such spaces would typically be split equally between staff and visitors. The development therefore proposed a very high level of provision.

68. Mr Doan also argued that it was reasonable to rely on on-street parking where it is convenient and creates no adverse impacts, noting that peak centre demand only occurs during weekday peak periods, with no impacts on weekends, the fact the site adjoins a park, and that there was ample on-street parking available. This reliance on on-street parking is supportable by the RMS Guide in such circumstances.

69. Further, irrespective of the quantum of on-site parking provided, there is a reasonable prospect that some parents will elect to park on-street in any event, which is legal and commonplace. A parking survey in the street during AM and PM peak periods indicated ample street parking was available in Peel Road.

Safety of the proposed access

70. Peel Road is a local road signposted at 50km/h. The site is located at a low point in the road downhill from a crest to the south. Peel Road was described by the traffic experts as a typical local road, with an undivided carriageway with no centreline and unrestricted on-street parking along both kerbs.

71. The Council raised a safety concern in terms of vehicles leaving the site and travelling northbound on Peel Road. This was primarily in terms of cars exiting the basement car park but also from staff reversing from the parking bay proposed off the secondary driveway.

72. The traffic experts agreed that, in accordance with the requirements of the Australian Standard AS 2890.1 at Figure 3.2, a minimum stopping sight distance (SSD) of 45m and Minimum Safe Gap Distance (MSGD) for a desirable 5 second gap of 69m is required. This is based on Peel Road being signposted at 50km/h and applies to driveways other than for domestic property access.

73. The MGSD is based on distances corresponding to the critical acceptance gap that drivers are prepared to accept when undertaking a crossing or turning manoeuvre at intersections.

74. It was agreed that that the main driveway (to the basement) provides sufficient SSD for a travel speed of 50km/h. However, Mr Bakovic’s concern was the inability for northbound exiting vehicles (ie those turning right out of the basement) to see vehicles coming over the crest. His evidence was that the secondary driveway could not meet the minimum SSD of 45m and neither driveway could meet the MSGD for a desirable 5 second gap of 69m, which increases to 83m for 60km/h.

75. Further, when travelling north from approximately 50m to the south of the site, a driver is unlikely to observe an egressing vehicle on either of the two driveways, where sight distances are obstructed by kerbside parked vehicles. At the same time, a driver egressing the site to travel northbound would have a MGSD of no more than 22-23m if there is kerbside parking, given the sight distance is reduced (or shortened) by these parked vehicles.

76. Even without adjacent kerbside parking, due to the crest, neither of the driveways were visible from a position 66m to the south of the site, therefore the 69m MSGD was not met.

77. In Mr Bakovic’s opinion, the current poor co-ordination of horizontal and vertical alignment, the crest, permitted on-street parking, and the lack of road features such as line markings, increase the chance for conflict and ultimately collision between through traffic on Peel Road and traffic leaving the centre.

78. He noted the numerous submissions received from residents of Peel Road, raising concerns regarding the blind crest, car accidents, and “near misses” along the portion of Peel Road in which the site is situated. Whilst there was no crash data or ‘near-misses’ data for the section of Peel Road, as an accredited Road Safety Auditor, he had inspected the site and most of the vehicles seemed to be travelling at speeds above 50km/h. He opined that, more likely than not, the ‘operational speed’ (being the 85th percentile of the speed of all vehicles along a section of road) was above the posted speed limit of 50km/h and closer to 60km/h. Accordingly, he had ordered a 24/7 traffic count survey on Peel Road.

79. The results of the survey were not available at the time of preparing the Joint Report but were available for the hearing. They indicated in fact that all of the surveyed vehicles were travelling at less than 50km/h.

80. Mr Doan disagreed that the available sight distances at the driveways did not meet the requirements of AS 2890.1 if one measured the distance from the road edge of the driveway where exiting cars would stop and wait before turning right, rather than the exit point of the basement. He argued that the physical features of Peel Road were not relevant in circumstances where the driveway conforms to the requirements of the standard. Thus, a blind crest has no significance where the sight distance requirements are met.

81. Mr Doan noted that the Council has not provided any accident history in the immediate locality, while near misses are unable to be tested. He also considered that residents would be inclined to make submissions on traffic conditions along Peel Road generally, without reference to the specific conditions at the site. Further, no contention had been raised in terms of concerns for pedestrian movement along the footpath. To the extent that safety concerns along the street may be real issues, these might reasonably have been referred to Council for investigation. No such issues had been identified or particularised by the Council.

82. The Traffix Report estimated that the centre would generate 48 and 42 vehicles per hour during the morning and evening peak period respectively (combined in and out movements). These trips were also split into both directions along Peel Road, diluting traffic impacts. SIDRA intersection modelling has been conducted showing no change in Level of Service (LoS) and only minor increase in intersection delays for the intersections of Merindah Road with Seven Hills Road (LoS C) and Merindah Road and Peel Road (LoS A). As such, it was agreed that the proposed development would have minimal operational impacts on the key intersections and will continue to operate satisfactorily.

83. Of the estimated trips, the applicant noted that the numbers of cars leaving the site to travel north would be limited to only 6 in the morning peak and 5 in the evening peak, being only 24% of the egressing vehicles at those times.

84. The Council also raised concerns with the sightlines from the secondary driveway. Mr Bakovic argued that this driveway is obstructed on both sides with plants that have a mature height of 1.5m–3m and, on the side boundary, by a retaining wall and fence with a height of 1.79m above the finished level of the driveway. This failed to ensure adequate visibility between exiting vehicles and pedestrians on the Peel Road footpath.

85. The secondary driveway is also not compliant with the Child Care Guideline whereby vehicles are required to enter and exit the site in a forward direction. In addition, the SSD and MGSD for this driveway are shorter than for the basement driveway and, therefore, not compliant with AS 2890.1.

86. Mr Doan’s evidence was the use of the secondary driveway to access one staff car space would likely be an improvement compared with the current situation as a dwelling would generate up to 10 trips per day while a staff space would typically generate 2 trips per day (1 in and 1 out), and no traffic on weekends.

87. The applicant also proposed that the frontage of the site between the two driveways be signposted as “No Stopping” to ensure that clear sightlines are available at all times, free from on-street parking effects. This would be a superior outcome given it is rare that any driveways on any public street achieve this outcome where on-street parking is permitted.

88. However, the Council was concerned that the application had not been accompanied by a Road Safety Audit to demonstrated that the geometric features of Peel Road proximate to the site are appropriate and safe for a centre-based child care facility. The application therefore failed to demonstrate compliance with the Child Care Guideline, specifically Principle 7: Safety or objectives of Part 3.1, being “To ensure that the site selected for a proposed child care facility is suitable for the use” and “To ensure that sites for child care facilities do not incur risks from environmental, health or safety hazards”.

89. Based on his analysis, Mr Bakovic concluded that the proposed development will pose an unacceptable risk to the safe operation of the surrounding road network and, in particular, to the section of Peel Road adjacent to the site. None of Traffix’s report includes a chapter on impact on safety, as is required by the RMS Guide. His analysis suggested that, with the centre operational at full capacity, there would be an increase in the number of vehicle conflicts in Peel Road, including the likelihood of quite severe turning or rear-end collisions.

90. Following the oral evidence and in response to the Council’s concerns, the applicant offered to accept a condition which would restrict access to left turn only out of the site. This however, raised issues as to whether cars exiting the centre would comply if increased travel times were involved.

91. Mr Doan argued, based on viewing Google maps in oral evidence, that this would add less than 5 minutes to journeys to Merindah or Seven Hills Road but the Council disputed this, and also objected to evidence being developed ‘on the run’ which could not be assessed.

Basement design

92. The Council contended that the proposed development did not provide an acceptable driveway and basement parking design in accordance with the requirements of the RMS Guide, the DCP or AS 2890.1.

93. As indicated, the proposed basement contains 15 parking spaces: 6 pick-up/drop-off spaces and 9 staff spaces, 4 of which are in a stacked arrangement.

94. Mr Doan argued that access to all 15 spaces was safe and convenient. However, Mr Bakovic considered that the proposed design was unsafe. In particular, the swept path analysis shows that vehicles exiting the basement will not be able to do so without encroaching onto the path of an oncoming vehicle, and a 3-point manoeuvre is required at the bottom of the entry driveway where the mutual visibility between a vehicle entering and a vehicle exiting is obstructed by a wall.

95. He argued that this increases the chance for head-on or side-swipe collisions on the driveway, or the driver of an ingressing vehicles would be forced to reverse back toward the road in order to avoid collision with an egressing vehicle, or to allow the two vehicles to pass each other. Reversing along the driveway would also increase the chance for a collision with another incoming vehicle which would be unaware of the congestion on the driveway.

96. Mr Doan accepted that, when reversing out of any of the basement parking spaces, vehicles are required to encroach onto the path of other vehicles. However, he considered that there would be sufficient visibility for entering vehicles to see these reversing vehicles. Further, uninterrupted two-way flow is generally provided along the length of the ramp, with a recommended ‘Give Way’ arrangement proposed at the base of the ramp where priority would be given to entering traffic, albeit he accepted such an arrangement was not indicated in the amended application.

97. Further, to address the Council’s concern, he understood from the applicant’s architect that the wall adjacent to the ramp could be pushed back to provided improved visibility, overcoming any conflicts at this ‘Give Way’ location.

98. Mr Doan also argued that the speed of vehicles entering the basement would be slow and that cars would not reverse out of the driveway but wait until it was safe to enter.

99. Mr Gough, solicitor for the applicant, submitted that the basement ramp had, in fact, been designed as a one-way system notwithstanding the swept path analysis was based on two-way flow. The Council did not accept that this was the case based on the written evidence and nor did the plans show this.

100. The Council also raised a concern with the design of the parking within the basement. Mr Bakovic stated that it was commonly considered to be a safe design if a vehicle can either enter or leave a parking space in a single movement, not in 2 or 3 manoeuvres. It is not considered safe if a car is forced to do both, or is forced to reverse almost the length of the aisle in order to exit, as the design required.

Filed conditions to address parking and basement design

101. The Council filed conditions of consent after the hearing which included a condition requiring deletion of the staff parking space within the front setback as well as 2 spaces located within the basement, to enable the widening of the basement driveway.

102. Further conditions required the widening of 2 visitor spaces to improve safety, involving moving the entire rear wall of the basement 400mm to the south-east and reducing the height of the south-east wall at the base of the driveway to 1.2m for the first metre.

103. The applicant accepted these proposed conditions and submitted that the shortfall arising from the deleted parking could be provided by on-street parking which is available, safe and convenient. Further, that the removal of the 2 spaces to enable widening of the driveway would achieve a better outcome for the safety of the ingress to, and egress from, the basement.

104. The Council did not however, support the use of on-street parking to supplement the shortfall. Instead, on the basis of the parking that could be accommodated on-site, the Council submitted that the maximum number of children should be reduced to 41, and the staff to 6, to accord with the parking rates as set out in the DCP.

105. The applicant opposed this reduction in the size of the centre but did offer instead a condition to reduce the number of children attending the centre to 48, and the staff to 7, with all parking provided within the amended basement, notwithstanding the non-compliance with the required DCP rate of provision.

Findings on parking, access and the basement design

106. Having considered the evidence, I am not satisfied as to the adequacy of the design of the basement or the egress from the site, from a safety perspective.

107. Further, amending the basement design through conditions of consent, and without assessment of the implications, is not an appropriate mechanism to address these fundamental areas of concern.

108. Without reducing the number of children and staff, such changes would also further increase the shortfall in parking required to be provided under the DCP, exacerbating the safe operation of the centre.

109. In this regard, the evolving nature of the proposal, and inadequacy of the information offered throughout the proceedings in response to this, demonstrated that the application was not in a form that warranted approval.

110. The fundamental safety issues were contended at the outset by the Council and objectors, and needed to be addressed prior to the proceedings commencing.

111. Dealing firstly with the primary safety concern.

112. I was not satisfied that the basement, which provides not only on-site staff parking but would also be the drop-off and pick-up location for parents, would safely or efficiently operate, particularly during peak times, which is a fundamental requirement for a child care centre.

113. I reject that the driveway should be considered and assessed as a one-way system, as was suggested during proceedings in an endeavour to respond to the evidence as to the inadequacy of the two-way system shown. This suggestion by the applicant was contrary to the evidence of the applicant’s traffic engineer that the driveway had been designed to allow 2 vehicles to pass; one ingressing and one egressing.

106. What was demonstrated (and agreed) was that, to safely exit the basement, a vehicle had to find a specific location in the basement at the base of the driveway to effectively pullover and wait for an ingressing vehicle to pass, in order to avoid a collision. Or, alternatively, for that ingressing vehicle to reverse back onto a street where minimum sightlines were already an issue due to the road geometry in the vicinity of the site. This latter option also presumed that, in peak drop-off and peak pick-up times, there was not already another vehicle queuing to enter the basement, which would appear an unlikely scenario.

107. I also accept the Council’s concerns over the safety of vehicles exiting the basement and turning right into Peel Road in terms of potential collision with vehicles already travelling northbound on Peel Road.

108. In this regard, I prefer the evidence of Mr Bakovic that an acceptable time required for cars in Peel Road to stop so as to not to collide with exiting vehicles would not be met where there were lawfully parked cars on the same side of the street as the site immediately south of the site. Further, the Minimum Safe Gap Distance for a desirable 5 second gap could not be met even without parked cars. That is, given the crest in the road south of the site, there would be limited time for exiting cars to see oncoming traffic, even if the minimum Safe Sight Distance could be achieved.

109. It also assumes no northbound vehicles on Peel Road in this location ever exceed 50km/h during the peak periods of the centre’s operation.

110. I accept that the estimated volume of traffic leaving the site to travel north even in peak periods is relatively low and that survey data showed surveyed vehicles complied with the posted speed limit of 50km/h in Peel Road. However, a child care centre is a use which requires particular consideration of safety for occupants and users and I was not satisfied this could be achieved, or that even occasional collisions would be acceptable.

111. As I have indicated, the concerns with the sightlines in Peel Road given its geometry and design in the vicinity of the site were raised at the outset by the Council and in submissions from residents of Peel Road. The applicant’s offer during the proceedings to respond to this issue by restricting right turn movements, thus changing the required assessment of impacts, travel times and behaviours, was a belated, and therefore unconsidered and inadequate, response which could not meaningfully be considered by the experts or by the Court. It was also not the application before the Court and not a minor change to the application.

112. Further, even with the reduced number of children proposed in the amended application, there was a shortfall in the DCP required number of on-site parking bays provided, further exacerbating the issues associated with accessing the proposed basement car park.

113. This shortfall would be even greater if the application was approved with the conditions agreed by the parties which results in spaces being deleted as a consequence of design changes in the basement required to address safety concerns. The belated offer by the applicant to accept a reduction in children, and therefore staff numbers, would not resolve this shortfall and would have implications for the design of the centre (such as the amount of outdoor play space and acoustic treatment required) and therefore, again, would not be a minor modification of the application.

114. Conditions alone also cannot demonstrate that the changes required to the basement car park would resolve the safety concerns with the access to, from and within the basement.

115. The application before the Court proposed a basement design which does not safely enable two-way traffic flow without cars having to wait or reverse in or out of the basement to avoid collision. This is unsatisfactory, particularly for a use with acknowledged daily peak periods of high parking turnover, with parking spaces termed “drop-off” and “pick-up” accordingly, and where cars using these spaces contain children. The unacceptable design of the basement alone is a basis for refusal of such an application and it cannot be rectified, to my satisfaction, by proposed conditions of consent.

116. The safety of egressing vehicles was further exacerbated by the proposal to provide a staff parking space at the end of the secondary driveway. Exiting this space would require reversing onto Peel Road, against the requirements in the Child Care Guideline. Even if this only happened once daily, it would further increase the chance of collision with traffic accessing or passing the site.

117. Using on-street parking in the vicinity during peak drop-off and pick-up times adds a further factor to consider in terms of the safety of access to and from the proposed centre, albeit I accept ample spaces may be available. This is noting both traffic experts agreed that parked cars adjoining the site to the south reduced available sightlines requiring exiting cars to essentially crawl to the edge of the site in order to see northbound traffic on Peel Road. Whilst there was no specific evidence on pedestrian safety, parents and children accessing the centre from cars parked in the street is also an additional factor to consider.

118. Having regard to the factors I am required to consider under s 4.15 of the EPA Act, including any submissions made, I find that the site is not suitable for the development proposed and is therefore not in the public interest.

119. The safety of children is a paramount consideration, and the Court needs to be satisfied that the centre could operate safely. From a parking and access perspective, I could not be so satisfied on the evidence before me. On this basis, the application is refused.

Findings on other contentions

128. As I am not satisfied that the development could safely operate in terms of access and parking, and must be refused accordingly, it is not necessary for me to deal with the other contentions raised in the proceedings.

129. However, I briefly comment that there were unresolved issues, or lack of clarification of specific details, in terms of aspects of the proposed development, further resulting in an inadequate application which could not, and should not, be resolved by conditions of consent, or by modifications offered during the proceedings.

130. One example was the absence of a Plan of Management, despite the need for such a mechanism to enforce operational requirements for the centre so at to achieve acoustic compliance. Agreeing to a condition of consent requiring such a document to be produced is not satisfactory.

131. Another example was the lack of clarity on the basis for, use of, and implications associated with, the 900mm open area at the base of the acoustic pergola structure.

132. A further example was the lack of clarity on how landscaping between this structure and the side boundary could be reasonably accessed for maintenance. Initially the applicant proposed using a boardwalk on the pergola roof but, when details of how this would operate were sought, a ‘soft’ landscaping path in the setback area was offered as a condition instead.

133. A final example was the lack of deep soil landscaping in side setbacks arising from a basement non-compliant with the setback requirement of the DCP in not being contained within the building envelope. This was to accommodate parking that still did not meet the required DCP provision and would need to be further extended into setbacks if the agreed conditions were imposed.

134. Whilst individually these matters may not have been determinative of the application, they collectively suggest an inadequate application and an overdevelopment of the site where, to resolve one issue, other issues arise.

135. In summary, on the basis of the expert evidence on the remaining contended issues, I find that there are numerous grounds for refusal of the application. I have however, only addressed in detail the failure to demonstrate that the proposed basement design, access, parking and pick up/drop off arrangements would result in safe operation of the centre. Refusal is therefore required.

Orders

136. The orders of the Court:

1. Leave is granted to the applicant to rely upon amended plans.

2. The applicant is to pay the costs of the respondent thrown away as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The appeal is dismissed.

4. Development application DA 166/2019/HA for a child care centre at 92 Peel Road, Baulkham Hills is refused.

5. The exhibits are returned except for Exhibits A, B, C and 1.

………………………..

Jenny Smithson

Acting Commissioner of the Court

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Decision last updated: 15 January 2021