Bruce Lyon Holdings Pty Ltd trading as Bruce Lyon Holdings Pty Ltd v City of Parramatta Council trading as City of Parramatta Council

Case •

[2022] NSWLEC 1705

•

16 December 2022

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Bruce Lyon Holdings Pty Ltd trading as Bruce Lyon Holdings Pty Ltd v City of Parramatta Council trading as City of Parramatta Council [2022] NSWLEC 1705
Hearing dates: 7-9 November 2022
Date of orders: 16 December 2022
Decision date: 16 December 2022
Jurisdiction:Class 1
Before: Horton C
Decision:

The Court orders that:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment, as agreed or assessed.

(2) The appeal is dismissed

(3) Development application No 944/2021 for the demolition of all existing buildings and structures on the site, excavation for 5 levels of basement car parking, construction of a 3 level commercial podium, 2 x residential towers containing 117 residential dwellings and public through-site link is refused.

(4) All Exhibits are returned except for Exhibits A, B, C, D, E, F, K, L, O, P, Q, R, S, T, V, 13 and 14.

Catchwords:

DEVELOPMENT APPLICATION — mixed use development in B2 Local Centre zone – design quality of residential apartment development – traffic impacts – whether ongoing operation of a classified road will be adversely affected by the development

Legislation Cited:

Draft Consolidated Parramatta Local Environmental Plan 2020, cl 1.8A

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Parramatta Local Environmental Plan 2011

State Environmental Planning Policy (Transport and Infrastructure) 2021, Sch 3, ss 2.119, 2.122

Texts Cited:

Parramatta Development Control Plan 2011

Roads and Traffic Authority, Guide to Traffic Generating Developments 2002

Australian Standard AS1742.10-2009

Australian Standard AS2890.1:2004

Category:Principal judgment
Parties: Bruce Lyon Holdings Pty Ltd trading as Bruce Lyon Holdings Pty Ltd (Applicant)
City of Parramatta Council trading as City of Parramatta Council (Respondent)
Representation:

Counsel:
A Galasso SC (Applicant)
M Staunton (Respondent)

Solicitors:
Clayton Utz (Applicant)
HWL Ebsworth (Respondent)
File Number(s): 2022/44395
Publication restriction: Nil

Judgment

  1. COMMISSIONER: Development for the purpose of shop top housing over commercial premises and basement car parking is proposed on a site fronting Beecroft Road, adjacent to the Epping Railway station.

  2. To this end, the Applicant in these proceedings, Bruce Lyon Holdings Pty Ltd, lodged development application No 944/2021 with the City of Parramatta Council (the Respondent) on 13 October 2021.

  3. The development application was referred to a number of authorities for concurrence on 15 October 2021, and was publicly notified between 22 October and 19 November 2021.

  4. On 15 February 2022, the Applicant filed an appeal against the deemed refusal of the development application in Class 1 of the Court’s jurisdiction, under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

  5. On 25 March 2022, the Sydney City Central Planning Panel determined to refuse the development application. A notice to this effect was issued 28 March 2022.

  6. On 19 August 2022, the Applicant amended the development application and the proposed development comprises the following:

  1. Demolition of all existing buildings and structures on the site.

  2. Excavation for 5 levels of basement car parking, comprising:

  • 74 residential parking spaces;

  • 17 residential visitor parking spaces;

  • 94 commercial parking spaces;

  • 2 car share parking spaces;

  • 1 car wash bay;

  • 195 bicycle parking spaces;

  • 15 motorcycle parking spaces; and

  • Loading facilities

  1. Construction of a 3 level commercial podium, comprising:

  • 3,262m2 of retail floor spaces; and

  • 1,847m2 of business floor space.

  1. 2 x 18 level residential towers containing 117 residential dwellings, comprising:

  • 46 x 1 bedroom apartments;

  • 60 x 2 bedroom apartments;

  • 11 x 3 bedroom apartments; and

  1. A public through-site link.

  1. On the eve of the hearing, the Applicant sought to further amend the development application by Notice of Motion filed with the Court on 4 November 2022. However, as the Respondent sought further time to understand what, if any, contentions were resolved by the proposed amendments, I adjourned the Notice of Motion to the second day.

  2. The Applicant moved on the Notice of Motion, unopposed, at the commencement of the second day. The Respondent, as the relevant consent authority, agreed to the amending of the development application pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, subject to the Applicant paying the Respondent's costs thrown away in accordance with s 8.15(3) of the EPA Act, arising from the amended plans and other documents summarised, as follows:

  • Amended Remediation Action Plan, later marked Exhibit O

  • Amended Dewatering Management Plan, later marked Exhibit P

  • Amended Solar Reflectivity Analysis, later marked Exhibit Q

  • Amended Acoustic Report, later marked Exhibit R

  • Amended selected architectural plans, later marked Exhibit S

  • Revised design statement, later marked Exhibit T

The Parramatta Local Environmental Plan applies

  1. On 31 August 2020, a Draft Consolidated Parramatta Local Environmental Plan 2020 (Draft LEP) was exhibited.

  2. The Draft LEP proposes to consolidate the local environmental plans that apply within the City of Parramatta Council local government area, but does not affect the primary development standards applicable to the site.

  3. In any event, the savings provision at cl 1.8A of the Draft LEP provides that the development application, made and not determined before the foreshadowed adoption of the Draft LEP, is assessed under the provisions of the Parramatta Local Environmental Plan 2011 (PLEP).

The site and its context

  1. The site comprises 13 lots to form an irregular shaped allotment with a frontage to Beecroft Road measuring 85m in length, and a secondary frontage to Rawson Street of 25m, and a total area of 2,990m2.

  2. The lots are legally described as follows:

  1. Lots 1, 2, 3, 4, 5, 6, 7 in DP29138,

  2. Lots A, B, C, D, E, F in DP28758, and

  3. Pt Lot 8 in DP 29138 Subject to Right of Way

  1. The site is currently occupied by a number of two-storey commercial buildings, with parking provided at-grade to the rear where the existing properties address a laneway, providing a Right of Way in a North/South orientation (the Lane).

  2. To the north of the site is an existing development at No 72 Rawson Street, known as the ‘Genesis’ development.

  3. To the south of the Lane, an existing pedestrian link transects to connect Rawson Street with Beecroft Road in an East/West direction (the pedestrian link).

  4. The level change between Rawson Street and Beecroft Road varies in the order of 3-5m in height.

  5. Nearby development on Rawson Street is relevant for two reasons:

  1. Firstly, an existing at-grade carpark, adjacent to a public reserve known as Boronia Park is proposed for conversion to a public square at sometime in the future.

  2. Secondly, a Coles supermarket to the north of the carpark objects to the location of access to, and egress from, the basement car park on the subject site.

  1. In accordance with its usual practice, the proceedings commenced with an onsite view at which the Court, in the company of legal representatives and experts, observed the site and the Lane, before a walking tour along Rawson Street to the west of the site, Carlingford Road to the north of the site, and Beecroft Road to the east of the site.

  2. The site is located within the B2 Local Centre zone, according to the PLEP in which the proposed uses are permitted with consent, where consistent with the objective for development in the B2 zone, which are:

To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

To encourage employment opportunities in accessible locations.

To maximise public transport patronage and encourage walking and cycling.

To encourage the construction of mixed use buildings that integrate suitable commercial, residential and other developments and that provide active ground level uses.

The issues are distilled

  1. The Respondent identifies a number of contentions, initially pleaded in the Amended Statement of Facts and Contentions (Exhibit 1), filed 21 September 2022, that have been resolved by amendments made to the development application, through the conferral of experts in certain disciplines, or by the imposition of agreed conditions of consent.

  2. Those contentions that remain are characterised, broadly, as follows:

  1. Traffic impacts.

  2. Design quality and desired future character.

Traffic impacts

  1. While a number of the contentions related to traffic and parking are also resolved by amended plans, or are agreed to be capable of being resolved by conditions of consent, those contentions remaining may be characterised as follows:

  1. Firstly, the impact of traffic on the road network in the Epping Town Centre, and

  2. Secondly, inadequate car park design.

The impact of the traffic on the road network in the Epping Town Centre

  1. Beecroft Road is a classified road, and the proposal contains more than 75 dwellings and retail uses of greater than 500m2 in area. Accordingly, the proposed development is classified as traffic generating development pursuant to Column 1 of the Table to Schedule 3, State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP).

  2. The Respondent notified Transport for NSW (TfNSW) of the development application in accordance with s 2.122(4) of the Infrastructure SEPP.

  3. On 5 November 2021, TfNSW provided a written response, stating it was unable to provide comments for reasons summarised in the Amended Statement of Facts and Contentions (Exhibit 1) as follows:

  • SIDRA modelling;

  • Details regarding the management of vehicular access to the basement car park of the proposed development;

  • Calculation of car parking and traffic generation in accordance with Roads and Traffic Authority ‘Guide to Traffic Generating Development’ 2002 and justification for the adjustment of traffic generation rates;

  • Assessment of impacts the proposed development would have on bus stops on Beecroft Road.

  1. According to Mr Jason Rudd, traffic expert for the Applicant, the additional information requested by TfNSW has been provided, and no further written advice has subsequently been received from TfNSW.

  2. According to Mr McCarthy, traffic expert for the Respondent, the level of information provided by the Applicant remains insufficient to determine the impact of the proposed development on the surrounding road network.

  3. By way of example, Mr McCarthy describes the insufficiency at par 7 of the joint report (Exhibit 5) in the following terms:

“Will the right turn lanes from Beecroft Road into Carlingford Road extend past the existing right storage lane, impacting the through movement of Beecroft Road and compromising road safety.

Will the left turn lanes from Beecroft Road into Carlingford Road extend past the existing storage lanes, impacting the through movement of Beecroft Road and compromising road safety.

Will the increase in turn movements into Rawson Street from Carlingford Road impact the traffic flow efficiency along Carlingford Road, with potential queuing occurring back to Beecroft Road, blocking the through lane.

How will the restriction of the driveway to left it/left out impact the road network, both local and arterial/sub-arterial. There has been no assessment of displaced vehicles trips and how vehicles will turn right onto Beecroft Road to travel south/east. Will residential amenity be impacted as a result of this restriction.

Is the left turn egress restriction going to create more congestion within Epping Town Centre rather than mitigate congestion due to vehicles likely to still use the intersection of Ray Road/Rawson Street/Carlingford Road to access Beecroft Road via U turns at either the intersection of Bridge Street/Rawson Street and the Rawson Street carpark.”

  1. In summary, the Applicant submits that past modelling has informed the approach taken by the Applicant in this case, the results of which demonstrate that traffic congestion is a feature of the Epping Town Centre, both now and projected for some time to come.

  2. To this end, both experts have had regard to an Epping Town Centre Traffic Study, commissioned by the Respondent in 2018, and referred to, for reasons unknown, as the EMM Town Centre Traffic Study (the EMM Traffic Study).

  3. As I understand it, the EMM Traffic Study assumed both existing and forecast traffic generated by 10,000 additional dwellings projected to be added to the Epping Town Centre by 2036.

  4. Mr McCarthy notes the EMM Traffic Study also assumes no change in the scale of commercial or retail floorspace, yet the proposal includes both commercial and retail floorspace.

  5. Mr Rudd proceeds on the logic that it is reasonable for any development in the Epping Town Centre that is consistent with the dwelling growth at [32] to rely on the EMM Traffic Study for its underlying modelling of traffic volumes and behaviour at key intersections.

  6. The Transport Impact Assessment prepared by TTPP, dated 8 August 2022 (TIA) (Exhibit K, Tab 9) notes the EMM Traffic Study focused on arterial roads and their intersections with local roads and other arterial roads (i.e. Epping Road, Beecroft Road and Carlingford Road) (p 5).

  7. It is on this basis that Mr Rudd considers it reasonable for the TIA to have omitted modelling of other intersections in the Epping Town Centre and other input data observed by Mr McCarthy at par 56 of the joint expert report, given the EMM Traffic Study commissioned by the Respondent already includes the same in its model.

SIDRA modelling is deficient

  1. Mr Rudd has undertaken SIDRA modelling, contained at Annexure C of the TIA. In doing so, he has adopted traffic volumes from 2016, prior to the dampening effect of the COVID-19 pandemic, and which he has “grossed up” to account for background growth.

  2. A key finding of the EMM Traffic Study, according to Mr Rudd, is that residential development in Epping has occurred at a faster pace than anticipated, resulting in roads that are highly congested, with levels of service (LoS) at various intersections performing at below what is considered acceptable.

  3. Accordingly, any and all development in the Epping Town Centre that advances ahead of further road improvements can only, unavoidably, exacerbate the existing level of traffic congestion as a statement of fact.

  4. Mr McCarthy adopts the converse view at par 42 of the joint report, which is that development such as that proposed should be refused until such time as a Transport Study is undertaken demonstrating that future road infrastructure will be in place to ensure an acceptable level of service for intersections in the area.

  5. Until then, the EMM Traffic Study concludes that intersections at Beecroft Road, Rawson Street and Carlingford Road will experience a LoS F until 2036, at which time the LoS at Carlingford Road and Rawson Street is projected to be LoS C.

  6. The road improvements referred to are considered at [55]-[57].

  7. Mr McCarthy’s criticisms of the SIDRA modelling undertaken by Mr Rudd are set out at pars 54-57 of the joint report, including an outline of the approach that should have been taken to validate the base case model, without which Mr McCarthy cannot be certain of its accuracy against actual traffic movements.

  8. Relatedly, the SIDRA model appears to contain a number of errors or omissions, described by Mr McCarthy as follows:

  1. The priorities for right turn movements from Rawson Street and Ray Road are incorrect as right turning vehicles do not give way to pedestrians.

  2. Right turn movements are shown from Carlingford Road into Rawson Street and Ray Road, despite a prohibition on those movements in reality.

  3. The signalised intersection at Beecroft Road and Carlingford Road has no input data for signal co-ordination nor bunching factors.

  1. These errors and omissions are separate and additional to Mr McCarthy’s observation that phase time inputs are run as ‘user-given phase’ times, and not ‘optimum cycle’ times which I understand to mean custom fields have been entered in to the model, the precise nature of which is unknown.

  2. The experts agree that the SIDRA modelling has accounted for movements in to and out of the site to be restricted to left in/left out only, which is to be achieved by extending a central median in Rawson Street adjacent to the car park entry.

  3. However, they dispute the degree to which such a restriction will positively impact movements at the nearby intersections. Mr Rudd argues the median will reduce queuing in Rawson Street, while Mr McCarthy, as I understand his evidence, believes vehicles leaving the site have the opportunity to join queuing at the Rawson Street/Carlingford Road intersection by circulating around the existing Rawson Street car park, or via the roundabout at Bridge Street.

  4. Mr Rudd’s assumptions on the distribution of traffic exiting the site (Annexure B of the joint report), is that 10% of traffic exiting the site will use the roundabout to rejoin the queue seeking to turn right from Rawson Street into Carlingford Road.

Traffic generation

  1. I note here that the means of calculating the traffic generated by the proposal is disputed. Mr McCarthy cites the RTA Guide to Traffic Generating Developments 2022, and believes the TIA overestimates the AM peak, and under estimates the PM peak.

  2. The TIA refers to the same document as the basis for traffic generation, but has also applied the restrictive parking provisions set out in the Parramatta Development Control Plan 2011 (PDCP) by adopting a traffic generation rate per vehicle parking space for both retail and commercial uses (TIA, p 22).

  3. That said, it is also explained in the TIA that a higher traffic generation rate applicable to retail and commercial uses in the PM peak has also been applied to the AM peak to account for the central location of the proposed development in the town centre (p 23).

  4. The proposal adopts parking rates, shown in Table 4.1 of the TIA, that are consistent with those set out in Table 4.1.5.14 of the PDCP. This includes 94 car parks for residential uses, and 94 car parks for retail and commercial uses on the site. I state here that the parking rate of 1 space per 30m2 for retail uses, and 1 space per 50m2 for commercial uses nominated in Table 4.1.5.14 results in a total maximum number of retail and commercial spaces of 146, whereas 94 are provided.

Works are proposed in the Contributions Plan

  1. The City of Parramatta (Outside CDB) Development Contributions Plan (Exhibit L, Tab 1), identifies certain works considered to be road improvements in the network, including:

  • TM39: new link road to the west and south of the Coles site (see [20(2)]), depicted on Figure 4.1.5.3 of the PDCP.

  • TM43: signalised intersection at the intersection of Ray Street, Rawson Street and Carlingford Road, to be delivered in 5-20 years.

  • TM44: signalised intersection at a new intersection between Carlingford Road and the new link road referred to at TM39.

  1. The new link road depicted on Figure 4.1.5.3, and the subject of TM39 and TM44 is, according to the public submission prepared by Mecone (Exhibit 2, Tab 11A), subject to flooding. For this reason, the submission asserts future traffic is likely to be directed to Rawson Street, and not to Carlingford Road as may be assumed.

  2. Improvements to the public domain are incorporated in the Contributions Plan, with street upgrades identified for Rawson Street (PN13) and Beecroft Road (PN14), and a new signalised crossing to replace the existing pedestrian crossing on Rawson Street (PN39).

Inadequate circulation within the basement carparks

Driveway access to Rawson Street

  1. Access into, and egress out of the basement carpark is proposed from Rawson Street to the east of the site.

  2. The experts agree that access is not permitted from Beecroft Road as it is a classified road.

  3. However, according to Mr McCarthy, the location of the driveway ramp access to and from the basement is inappropriate given the close proximity to the existing driveway to the Genesis development to the north.

  4. Locating the driveway immediately adjacent to the existing driveway to the Genesis development results in a 20m length of driveway crossings for pedestrians to navigate without adequate refuge, on what Mr McCarthy regards as a high pedestrian traffic area.

  5. The experts agree that a refuge should be provided, but dispute the appropriate width of refuge. Mr McCarthy cites Australian Standard AS1742.10-2009 (Appendix D) for a dimension of 3m, while Mr Rudd favours a dimension suited to a person with pram, or cyclist, of around 2m.

  6. Architectural plans tendered late on the third day of the hearing (Exhibit V) amended the width of the refuge to 2.5m wide.

Carpark design and circulation

  1. Access to the loading dock on Basement Level 01 is via a single lane, two-way entry to the east of the lift core to Tower A.

  2. The experts agree that a number of operational matters in the loading dock can be addressed by the preparation of a Plan of Management. However, two aspects remain in dispute:

  1. The appropriate width of the single lane, two-way access to the loading dock from the carpark ramp, and

  2. Swept path movement for trucks within the loading dock demonstrates space for manoeuvring is inadequate.

  1. The width of the single lane, two-way access to the loading dock is not marked on the architectural plans but is stated by Mr Rudd to be 3.6m.

  2. Mr McCarthy considers the width to be inadequate for the manoeuvring of trucks, by reference to AS 2890.1:2004, which requires a width of 3.5m for medium rigid vehicles (MRV), with additional clearance of 300mm each side of the vehicle.

  3. That is, when the greater width of a MRV, and size of wing mirrors is factored, a width of 4.1m is required. At the least, Mr McCarthy believes 3.9m is the minimum acceptable width.

  4. Mr Rudd regards access to the loading dock to be a low speed manoeuvre, akin to entering or leaving a service bay, and so a lesser clearance is acceptable in accordance with Section 5.4 (a) of Australian Standard AS2890.1:2004.

  5. Architectural plans tendered late on the third day of the hearing amended the width of the access to the loading dock to provide 3900mm in accordance with Mr McCarthy’s evidence at [68].

  6. The means of regulating access through this single lane, two-way access to the loading dock was agreed by the experts as being capable of resolution by a condition of consent. The condition is to require a sensor network to identify tall vehicles such as MRVs, to then prioritise the entry of those vehicles into the loading dock, while any vehicle already in the loading dock is to be held until the entering vehicle manoeuvre is complete.

  7. Truck movements of vehicles in the loading dock were initially depicted in Appendix F of the joint expert report, and subsequently amended in revised swept path diagrams at Exhibit U.

  8. Common to both, according to Mr McCarthy, is a “turn on spot” manoeuvre indicated by a sharp change in direction in the swept path. This indicates a truck achieving the turn required to exit the loading dock by coming to a stop, executing a full lock, before advancing.

  9. Furthermore, Mr McCarthy considers it unacceptable for swept paths which show trucks conflicting, or striking, columns within the loading dock, which is a matter the Applicant submits can be overcome by relocating the swept paths out of line with those columns.

Passing conflicts on access ramp

  1. The vehicle access ramp to basement car parking is in the form of an elliptical spiral that generally permits two-way use by vehicles entering and exiting the car parking simultaneously.

  2. An area of conflict initially identified by Mr McCarthy is at the eastern end of the spiral, where it is not possible for vehicles to pass simultaneously without conflict, and where Mr McCarthy considers what he describes as a ‘double blind corner’ to be incapable of providing intervisibility between passing areas within all basement levels, despite reliance on convex mirrors.

  3. An alternative agreed between the experts is to place a barrier at the base of the ramp to prevent a right hand turn to complete the spiral. Instead, vehicles will be directed around the perimeter of the car park which avoids a two-way passing conflict in the vicinity of the ramp.

  4. However, in resolving this conflict, another inconvenience was then identified by Mr McCarthy. That is, on the car park level providing retail customer parking, the barrier resolving the two-way passing conflict also prevents a vehicle from re-circulating on the retail level. Instead, once a vehicle has completed a rotation of the level, the driver is directed back up to Rawson Street and must circulate around the block, further contributing to congestion in the road network.

  5. Architectural plans tendered late on the third day of the hearing demonstrate that a barrier can be provided to direct vehicles using the spiral ramp to the perimeter of the car park, and still permit re-circulation on the car park level.

Conclusion

  1. The errors and omissions identified by Mr McCarthy in the joint report go largely unanswered. Accordingly, for the reasons that follow, I accept Mr McCarthy’s evidence as to the inaccuracies inherent in the modelling on which the Applicant relies.

  2. In response to critique of the TIA, the Applicant relies on the results of the EMM Traffic Study to argue, in effect, that the proposal does not worsen an already congested town centre.

  3. In fact, the Applicant’s modelling forecasts improvements in performance of the intersections, despite the additional volume added into the network.

  4. The reasons for the improvement in queuing at the intersection on Rawson Street from the base case adopted from the EMM Traffic Study are unknown, as is the improvement in average delays and LoS in forward growth years to 2036.

  5. While the EMM Traffic Study is agreed to have accounted for traffic volumes at the Carlingford Road/ Beecroft Road intersection, the Court was not taken to it in evidence, and the TIA prepared in support of this appeal does not model that intersection.

  6. To the extent that the intersection at Rawson Street and Carlingford Road is modelled, it contains errors that are at odds with the real-world operation of the intersection, and for which Mr Rudd offers no explanation. A right turn is prohibited between certain times from the west and east of Carlingford Road. Whether or not an accurate rendering of this fact in the SIDRA modelling would improve or worsen the performance of the intersection is unknown. What is known is that the modelling is based on an incorrect assumption.

  7. The two signalised intersections on Carlingford Road, at Rawson Street and Beecroft Road, are in close proximity. An impact on one intersection is likely, in my view, to have some impact, be it large or small, on the other. However, absent modelling of the Carlingford Road/Beecroft Road intersection in the TIA, and the incorrect modelling of the Rawson Street and Carlingford Road intersection, the scale of the impact, if any, is unknown.

  8. Mr McCarthy also queries how it is that vehicles exiting the site, seeking to travel south along Beecroft Road, gain access to Beecroft Road, given the restriction to left out only, and yet the further assumption that only 10% return north along Rawson Street to turn right on to Carlingford Road.

  9. I note the Bridge Street/Beecroft Road intersection to the south of the site, to which 45% of vehicles exiting the site are directed, according to the traffic distribution at Annexure B of the joint report, does not permit a right hand turn on to Beecroft Road. In my view, this lends weight to Mr McCarthy’s view that vehicles exiting the subject site will seek to return north along Rawson Street where a right hand turn on to Carlingford Road, and then to Beecroft Road, is able to be effected.

  10. Yet despite 45% of vehicles exiting the site being directed to this Bridge Street/Beecroft Road intersection, the intersection is not included in the SIDRA analysis.

  11. In fact, the corollary to only 10% of vehicles exiting the site returning north along Rawson Street is that 90% of vehicles are directed elsewhere. Yet the intersections to which that quantum is directed are not assessed in SIDRA modelling undertaken by the Applicant.

  12. While the Court does not have the EMM traffic study before it, prior studies commissioned by the Council do not relieve the Applicant of the onus to demonstrate the degree to which impacts arising from the particular development advanced by the Applicant are addressed.

  13. While the results reported from the EMM Traffic Study may show that transport and land use planning have been allowed to de-couple in the Epping Town Centre, that only lends greater, and not lesser, weight to the need by the Applicant to demonstrate the degree to which impacts arising from the particular development are the result of the development.

  14. A TIA developed in response to the particular components of a proposal will always be a more granular assessment of traffic and parking relevant to that site, in that context, particularised to the nature, location and frequency of traffic movements.

  15. In my view, this is demonstrated by the proposal for a median on Rawson Street that flows from agreement between the experts as to an appropriate response to the nature, location and frequency of traffic movements resulting from the site, with potential benefits to the free flow of traffic on Rawson Street.

  16. However, as shown at [86]-[88], a TIA should also model the impact of the decision taken in support of an application, and its downstream impacts.

  17. Absent an accurate model for the Court to rely upon, I am unable to assess with certainty the potential traffic safety and road congestion implications of the development, that I must consider pursuant to s 2.122 of the Infrastructure SEPP.

  18. Section 2.122 of the Infrastructure SEPP precludes the grant of consent, unless the consent authority, or the Court on appeal, is satisfied of the following matters set out at subcl (4):

(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.

  1. Whilever errors and omissions in the TIA go unresolved, the Court is also unable to reach a state of satisfaction that the proposal will not adversely affect the safety, efficiency and ongoing operation of the classified road as a result of the precise nature, volume or frequency of vehicles using the classified road to gain access to the land, pursuant to s 2.119, (2)(iii) of the Infrastructure SEPP.

  2. Section 2.119 of the Infrastructure SEPP precludes the grant of consent unless the consent authority, or the Court on appeal, is satisfied of those matters set out at subs (2), including:

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

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

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

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

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

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

  1. According to the traffic distribution assumed by Mr Rudd, 100% of vehicles seeking access to the site do so using the classified roads of Carlingford Road and Beecroft Road.

  2. For reasons stated at [83]-[90], the Court is unable to form the opinion of satisfaction required of it to warrant the grant of consent.

  3. In reaching my conclusion, I do not adopt the position of Mr McCarthy at [42] that development cannot proceed until road improvements are in place. A short history of transport and land use planning suggests the two are rarely in a state of equilibrium.

  4. Instead, I understand one purpose of a TIA is to provide site-specific inputs for traffic and parking so that the precise nature and degree of impact of the proposal on the road infrastructure that exists at the time the development is proposed can be understood.

  5. Additionally, such information can also further crystalise the need, scope and timing of future work to the road network or to guide adjustments to works previously identified on earlier assumptions.

  6. I consider the second of TfNSW’s advisory comments (Exhibit 2, folio 1193), that early investigation as to further improvements to Beecroft Road is underway, to be evidence of the same.

Orders

  1. The Court orders that:

  1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment, as agreed or assessed.

  2. The appeal is dismissed.

  3. Development application No 944/2021 for the Demolition of all existing buildings and structures on the site, excavation for 5 levels of basement car parking, construction of a 3 level commercial podium, 2 x residential towers containing 117 residential dwellings and public through-site link is refused.

  4. All Exhibits are returned except for Exhibits A, B, C, D, E, F, K, L, O, P, Q, R, S, T, V, 13 and 14.

……………………

T Horton

Commissioner of the Court

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Decision last updated: 16 December 2022

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