Goonak Pty Ltd v Central Coast Council

[2024] NSWLEC 1828

Land and Environment Court

New South Wales

Medium Neutral Citation:

Goonak Pty Ltd v Central Coast Council [2024] NSWLEC 1828

Hearing dates:

16-17 October 2024

Date of orders:

19 December 2024

Decision date:

19 December 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court directs that:

(1) By 10 January 2025, the parties are to confer and agree on the particulars of the conditions of consent which reflect the findings of this judgement and file the agreed conditions.

(2) The matter is also listed for Online Court – request required 13 January 2025 (listing to be vacated if agreed conditions filed prior).

Catchwords:

APPEAL – development application – child care centre – traffic safety – whether a proposed plan of management provides an effective response to traffic safety concerns – whether certain road works which would require approval from the Local Traffic Committee are essential to the grant of consent

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Central Coast Local Environmental Plan 2022, cl 7.6

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021

Cases Cited:

Northmead P Pty Ltd ATF Northmead Discretionary Trust v City of Parramatta Council [2024] NSWLEC 1608

Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315

Category:

Principal judgment

Parties:

Goonak Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Macpherson Kelly (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/239224

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Central Coast Council (Council) of development application DA/951/2023 (DA). The DA is for demolition of existing structures, tree removal, and construction of a part one / part two storey centre-based child care facility to accommodate some 93 children and 16 staff members at 9 Goonak Parade, Narara also identified as Lot A DP 389050 (site).

The site and setting

2. I rely on Council’s Amended Statement of Facts and Contentions filed 13 August 2024 (Ex 1) for much of the material in this and the following descriptive sections of the judgment.

3. The site is irregular in shape with an area of some 1638 m². It falls from south to north by about 4 m. The site currently accommodates a single storey detached dwelling, a detached garage and mature landscaping.

4. The surrounding development consists of established low-density residential development to the east, west and south. Immediately north-west of the site is Narara railway station and the associated railway line.

Figure 1 - Aerial Photo of 9 Goonak Parade and surroundings (source: Ex 1 p 3)

Statutory context

5. The site is zoned R2 – Low Density Residential zone pursuant to the Central Coast Local Environmental Plan 2022 (CCLEP). The zone objectives are as follows:

• 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 encourage best practice in the design of low density residential development.

• To ensure that non-residential uses do not adversely affect residential amenity or place unreasonable demands on services.

• To maintain and enhance the residential amenity and character of the surrounding area.

6. Centre-based child care centres are permissible with consent in the zone.

The single contested issue relates to vehicle traffic and its management

7. While there remained three nominal contentions of relevance in Ex 1, by the conclusion of the hearing, the contested issues between the parties in relation to this matter came down to the topic of traffic management, and a quite specific question in regard to it, at that. First I will explain what is no longer in contention in regard to traffic management. The image at Figure 2 assists in that regard.

Figure 2 – Site (top right hand corner - in red) shown in the context of the nearby higher order road system including Pacific Hwy and Manns Rd (source: Googlemaps)

8. In accordance with certain points of agreement between the traffic experts (M McCarthy appointed by the applicant and P Corbett appointed by Council), the applicant had agreed to undertake specific roadworks. Here I can mention the intended installation of a pedestrian refuge island and certain associated works at the intersection of Manns Road and Narara Crescent, and certain identified road widening and linemarking along Narara Crescent. All of these works were related to the use of Narara Crescent as providing the connection between the site and the higher order road system, in this instance Manns Road.

9. The focus of the single point of disagreement between the parties related to the other access route from the site to the higher order road system. This is the current two-way road access between the site and the Pacific Highway via Goonak Parade.

Experts agree there would be a beneficial outcome resultant from making Goonak Parade one-way northbound

10. The physical outcome which the traffic experts accepted as desirable (at least on the basis that any improvement to safety is a good outcome) was to render Goonak Parade, from the intersection of the Pacific Highway to Narara Crescent, a one-way northbound route. This would mean in practical terms that those attending the site by car could still arrive via the Pacific Highway and Goonak Parade, but that they would need to leave the site via Narara Crescent (and Manns Road). The physical works and signage associated with the implementation of this change to Goonak Parade would be the responsibility of the applicant and would be the subject of detailed design to the satisfaction of Council’s Local Traffic Committee (LTC). A short cul-de-sac length of Goonak Parade, providing access to residences at 638 Pacific Highway to 648 Pacific Highway, would remain as it is, currently, providing two-way access as a practical necessity.

Parties’ dispute is concerned with whether changes to Goonak Parade will be agreed by Local Traffic Committee, and implications if it were to not be agreed

11. Turning to the disagreement, this is in relation to the status of the application were the LTC not to agree to making Goonak Parade one-way northbound between Narara Crescent and the Pacific Highway.

12. Council’s position is that were this to occur, the application should not go ahead. This would be effected, for Council, by a condition of consent indicating that a construction certificate cannot be issued in the absence of an approval of the one-way northbound arrangements for Goonak Parade by the LTC.

13. The applicant, while agreeing to undertake these Goonak Parade one-way works (ie if approved by the LTC), argues that such works are not fundamentally necessary as a consequence of the development.

14. The applicant, I believe, argues that while there may be some public benefit associated with the one-way treatment for Goonak Parade, the need for it does not arise as a consequence of the proposal. An important part of the applicant’s argument related to the proposal’s Plan of Management (henceforth PoM and referenced as Ex C Tab 7 in the proceedings).

15. Section 9 of the PoM, entitled “Traffic and parking management and travel to the child care centre”, identifies safety issues with the Goonak Parade/Pacific Highway and indicates that “all access to the site is via the Narara Crescent/Manns Road intersection”, and that “Goonak Parade should not to be used to access the Pacific Highway”. A quite graphic diagram is provided (within the PoM) with red crosses indicating the Goonak Parade east of the site and towards the Pacific Highway as a no go zone (see Figure 3). The Narara Crescent/Manns Road access is highlighted in blue. The PoM indicates that the material is to be “provided to parents as part of the induction at the child care centre”.

Figure 3 - Plan of Management excerpt (source: Exhibit 5 p 11)

16. To be clear on the applicant’s position, the applicant notes that there are no appeal rights, should the LTC not determine the Goonak Parade one-way works favourably. Its submission is that the conditions otherwise associated with the grant of consent to the development should make plain that the works relating to the implementation of one-way northbound arrangements for Goonak Parade, are only required if the LTC does indeed approve such works.

Evaluation

Approach

17. Below there is an outline of selected expert evidence in regard to current traffic safety at the intersection of the Goonak Parade/Pacific Highway intersection, and then implications of the proposed development on the intersection, without any intervention (ie by way of the proposed PoM or otherwise). I make a preliminary finding at this point, which is essentially that it would be unreasonable to provide for agreed increases in traffic flows through this intersection which flow as a consequence of approval of the proposal, without intervention in relation to such flows. I then turn to the proposed intervention, in particular the proposed PoM. The Court’s planning principle from Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 (Renaldo) are considered in that regard. I also turn to the submissions from the parties before final evaluative conclusions are drawn.

Evidence

Goonak Parade/Pacific Highway intersection safety - current setting

18. The Goonak Parade / Pacific Highway intersection is an unusual configuration. As indicated in Ex 1 (p 13):

“…[the intersection] has three (3) two-way minor road approaches to the high-volume Pacific Highway. Goonak Pde (north) is a two-way approach that provides access to the subject site. This access approaches the Pacific Highway at an 11-degree angle, which is very acute, and the Pacific Highway carries a high volume of traffic in peak periods within two (2) lanes (one northbound and one southbound)”

19. In their joint report the traffic experts agreed that “existing geometric conditions of the intersection of Goonak Parade / Pacific Highway is poor”. They cited a large number of vehicle safety issues at the intersection (Ex 5 par 22):

i) Left turning vehicles from Goonak Parade travelling on the other side of the Pacific Highway (into opposing travel lane) to complete the left turn;

ii) Vehicles taking up the entire width of Goonak Parade which conflicts with traffic turning into Goonak Parade.

iii) Sight lines between vehicles approaching the Pacific Highway along Goonak Parade and vehicles turning left and right from Pacific Highway into Goonak Parade are poor.

iv) Sight lines for vehicles leaving Goonak Parade and entering the Pacific Highway are poor for right turning traffic.

v) Sight lines for vehicles leaving Goonak Parade and entering the Pacific Highway are poor for left turning traffic, particularly to observe motorists arriving at the intersection along Pacific Highway from the north.

vi) Vehicles leaving 642, 644 and 646 Pacific Highway have limited sight lines to vehicles heading northbound along Pacific Highway.

vii) A crest exists in Pacific Highway to the immediate south of the intersection. This crest impedes sight lines for motorists leaving Goonak Parade to access Pacific Highway.

viii) Per the conflict diagram prepared by [Mr Corbet] below …, the 5-way intersection and acute intersecting angles of the northern and southern sections of Goonak Parade, result in a substantial number of potential conflict points and confusing arrangements for motorists negotiating through the intersection.

ix) The southern section (642, 644 and 646 Pacific Highway) of Goonak Parade, at its intersection with Pacific Highway, is not provided with a defined holding line for motorists exiting from this section of road and seeking to access Pacific Highway. This creates a confusing arrangement for motorists exiting the southern section of Goonak Parade as they would be unaware of a safe location to stand their vehicle as to avoid any oncoming motorists from the other intersection approaches.

20. Mr Corbet argued that the safety issues at the intersection posed significant risk to motorists and the general public (Ex 5 par 43).

21. Mr Corbet also provided turning paths overlain on an aerial photograph, highlighting his interpretation of potential conflict with turns into and out of Goonak Parade at the intersection with the Pacific Highway (see Figure 4).

Figure 4 - Mr Corbet swept paths showing “potential conflicting movements”(source: Ex 5 p 15)

22. In relation to local crash data, in their joint report the experts advised as follows:

“The experts agree TfNSW 5-year (2019-2023) crash data shows one reported crash being a ‘serious injury’ crash at the subject intersection. This crash had a RUM Code 16 and involved a crash between a left turning vehicle from Pacific Highway and a second vehicle that was attempting to travel across the Pacific Highway from and to one of the side roads.”

Implications of proposed development

23. According to the traffic experts, the additional traffic generation of the proposal would be 78 vehicle trips (39 in, 39 out) in the AM and PM peak. The experts acknowledged that the PoM is not capable of being enforced in full, which would require off-site management (ie personnel physically inspecting and preventing use of the intersection by travellers to the proposed childcare centre).

24. There was agreed evidence about high traffic volumes along the Pacific Highway during peak hour periods and Mr McCarthy believed that the difficulty associated with the right turn movement out of Goonak Parade would act as deterrent, of itself. Mr McCarthy provided empirical evidence indicating no vehicles turning right out of Goonak Parade for an assessed peak hour period. The SIDRA results demonstrated that it was much more efficient to travel south via Narara Crescent and Manns Road than to use Goonak Parade.

25. Mr McCarthy also believed that the safety issues associated with the left turn out of Goonak Parade would act as a deterrent, but not to the same extent as a deterrent as for right turn movements (Ex 5 par 53): “it is more than likely some vehicles would still choose to turn left out of Goonak Parade” (Ex 5 par 54 ii) a)).

26. Mr McCarthy’s projections of traffic flows to and from the site during the AM and PM peak, without any intervention (eg via the proposed PoM) are indicated in Figure 5.

Figure 5 - AM and PM (in brackets) vehicle movements at various intersections (source Ex 5 p 25)

27. Mr McCarthy’s SIDRA analysis indicated no change in level of service at any of the assessed intersection.

28. McClaren Traffic Engineers (McClaren) prepared a traffic and parking impact assessment for the proposal (Ex C Tab 10, and henceforth traffic assessment). Mr McCarthy works at McClaren. In the joint report prepared by the traffic experts (Ex 5 par 5 v) a)), Mr McCarthy referred to the analysis contained in the traffic assessment including its findings that:

"these upgrades are not mandatory to facilitate safe vehicular access to or from the proposed child care centre, they will improve the safety along the route and provide a public benefit".

29. As a matter of principle, Mr McCarthy expressed the view that the safety of existing intersections was a matter for road authorities but that often this was constrained by limited funding. He indicated there are strategic road works proposed that will close the Goonak Parade / Pacific Highway intersection but it was highly unlikely that any construction work would occur for at least five years (Ex 5 par 72).

30. Mr Corbet highlighted the fact that 23 of the total 78 vehicle trips would use the Goonak Parade/Pacific Highway intersection during the AM peak. A similar proportion (29%) would use this intersection during the PM peak. Mr Corbet was particularly concerned about the additional left turn movements from Goonak Parade into the Pacific Highway, which has been agreed is unsafe by the experts (Ex 5 par 22). Mr Corbet believed that the “traffic arrangements and impacts arising from the proposed development would be very unsafe”, and particularly at the Goonak Parade/Pacific Highway intersection (Ex 5 par 83). He believed safety should be a considerable focus in the evaluation of the development applications for childcare centres. Mr Corbet referred to Principle 7 of the Child Care Planning Guideline the provisions of which include that “well designed vehicular … access minimise traffic safety risks on children and staff” (Council’s bundle of documents Ex 2 Tab 24 p 8).

Preliminary finding

31. This preliminary finding is based on the hypothetical position that the proposal go ahed without intervention to effect changes to otherwise traffic patterns, or in particular reduce the southbound movement along Goonak Parade.

32. It is my view that the proposal (based on no intervention to traffic patterns) would introduce obvious and unreasonable traffic safety risks. Approval of a development which would introduce further significant traffic movements left-in and left-out of Goonak Parade during AM and PM peaks, at an unsafe intersection (as agreed), would be poor outcome of itself. The left turn movement out of Goonak Parade during peak times, intruding on southbound traffic lanes is very unsafe and to add even 15 vehicles per day, every day the centre is open, as a consequence of a development consent seems very inappropriate.

33. There is then the direct conflict between left in and left out at Goonak Parade. This head-on presentation of vehicles to one another, which the Court had the opportunity to see first-hand during the site inspection, might usually be managed safely by those experiencing it. However, to create a setting where this risk scenario is increased from the present (with the significant increase of traffic movement associated with the child care centre), would seem to be approving the exacerbation of safety risk to an already unsafe setting.

34. There is certainly a public interest in the provision of additional child care places. However, safety is a high priority issue and I generally agree with Mr Corbet that traffic safety for children attending a child care centre is a matter of most significant weight. There could not be the grant of consent under these hypothetical circumstances.

Plan of management

35. The Court’s planning principles include the giving of some guidance, at least, with respect to plans of management. The Renaldo questions (at [54] of that judgement) are reproduced below and are considered relevantly in regard to the question of traffic safety and the Goonak Parade/Pacific Highway intersection, immediately following:

1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?

2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?

3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?

4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?

5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements?

6. Is the Management Plan to be enforced as a condition of consent?

7. Does the Management Plan contain complaint management procedures?

8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?

36. In relation to Questions 1, 6, 7 and 8, I note that the PoM would be incorporated into consent conditions and questions of complaint management and procedures for updating are not at issue.

36. Having regard to the Question 2, I can accept that it would be unlikely that people would make the right turn movement out of Goonak Parade, at peak periods, due to both safety and efficiency concerns (ie related to waiting periods). This seems to me to be the main argument pressed by the applicant in its submissions (dated 17 October 2024). However, otherwise, it seems to me clear enough that the provisions of the PoM to restrict the use of Goonak Parade (entirely) do require people to act in a manner that is unlikely in these circumstances. I accept that the right turn movement out of Goonak Parade would not be used due, at least, to efficiency (and this efficiency downside might be reasonably thought as particularly applying to peak periods – ie there may be some inclination to use the intersection for those occasional out of peak trips). However, otherwise, I accept Mr Corbet’s evidence that the Goonak Parade/Pacific Highway intersection provides “the most direct route to/from the broader road network for a considerable portion of those attending the site” (Ex 5 par 79). This movement seems to account for some 29% of the total peak hour vehicle trips (see [30]).

37. Having regard to Question 3, it was agreed by the experts that it would be unfeasible to provide for traffic wardens or the like to identify breaches to allow for enforcement action (Ex 5 par 51). The applicant submits that this should not be a concern because of the “overwhelming likelihood (because of sheer utility) that Narara Crescent will be the option used”. However, it seems to me this utility argument only applies to right turn movement out of Goonak Parade. Otherwise there is no particular likelihood of compliance with a PoM provision to not use Goonak Parade for access.

38. Question 4 concerns the question of whether absolute compliance with the PoM is required to achieve an acceptable outcome. It seemed to be a final position of agreement by the traffic experts that left turn into Goonak Parade off the Pacific Highway or even right turn into Goonak Parade off the highway, as people access the child care centre to drop off or pick up their children was an acceptable outcome. However, I have already indicated above that I believe it would be an unacceptable outcome to bring about an increase in left turn movements out of the Goonak Parade and onto the highway as a result of approval of a child care centre at the site, and that this particular unsafe movement would be exacerbated due to increased flows associated with people using Goonak Parade/Pacific Highway intersection to get to the child care centre during the same peak periods (at [31]-[34]).

39. I also see some problems in regard to Question 5, concerning knowledge of the PoM requirement. It is one thing to provide for a “contractual requirement” (applicant’s submissions par 28) upon parents in relation to PoM compliance. However, this does not account for instances where parents are unable to attend to pick up their children and rely on others to do so. It is not unreasonable to think that grand parents and friends assisting with the pick up of children in care from time to time will not be familiar with this PoM requirement.

Submissions

41. The parties’ submissions essentially followed the evidence of the experts appointed by them. Among other things, the applicant made reference to findings in Northmead P Pty Ltd ATF Northmead Discretionary Trust v City of Parramatta Council [2024] NSWLEC 1608 where Espinosa C’s findings, in a case with at least some similarities although considerable differences, included the following (at [70]):

“In light of all the evidence, it is the Applicant’s position and I also am satisfied that the pedestrian refuge is not essential to the safe operation of the proposed centre and, that in the event that the pedestrian refuge was not provided the proposed centre should be permitted to proceed.”

42. Similarly, the applicant seeks a finding that the proposed one-way treatment of Goonak Parade is not essential to the safe operation of the proposed centre. This is a finding I cannot make on the evidence before me.

43. Council’s submissions also, for me, included a highlighting of the experts’ reference to the “serious injury” car crash at the Goonak Parade / Pacific Highway intersection during the period 2019-2023 which “involved a left turning vehicle from Pacific Highway and a second vehicle that was attempting to travel across the Pacific Highway from and to one of the side roads” (Ex 5 par 25).

Conclusion to the traffic safety contention

44. Based on the above reasoning, I do not accept the applicant’s submissions that the PoM would provide an effective response to the traffic safety concerns relating to the Goonak Parade / Pacific Highway intersection. The Goonak Parade / Pacific Highway intersection is generally unsafe. There has been a serious accident at the Goonak Parade / Pacific Highway intersection in the relatively recent past involving at least a somewhat similar traffic movement to that which is agreed by the experts to increase with the subject proposal, without effective intervention.

45. There are two essential problems both of which involve the south bound movement along Goonak Parade from the site. The first is the left turn (northern) movement out of Goonak Parade onto the highway which intrudes on a trafficable southbound lane. The second is the direct conflict between southbound movement along Goonak Parade and cars exiting the highway onto Goonak Parade. To approve a development which would increase incidence of these two problem settings occurring every day of opening of the proposed child care centre, is inappropriate. It follows that it is a fundamental requirement of this proposal that traffic movement on Goonak Parade be restricted to one-way northbound.

46. Were there to be any doubt, I also note that I do not see the public interest in the proposed provision of additional child care places, or public safety aspects associated with the other traffic management works agreed by the applicant, as of sufficient weight to counterbalance the risks associated with additional use of the Goonak Parade/Pacific Highway intersection associated with the new childcare centre.

Other jurisdictional considerations

47. In its written submissions the applicant helpfully listed relevant jurisdictional factors and how they have relevantly been addressed with the application. With respect to this, I note the following:

1. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) has been given consideration in the application. I note the following:

1. The DA was referred to Transport for NSW (TfNSW) in recognition of certain of the proposed earthworks within 25m of the railway corridor and TfNSW has granted its concurrence to the amended DA.

2. The DA was also referred to TfNSW with respect to proposed roadworks at the intersection of Manns Road and Narara Crescent and that TfNSW has advised of its support for these works.

3. There is also a requirement to consider applicable provisions of the Child Care Planning Guidelines under SEPP T&I. I note that this has occurred in the evaluation of the DA and no concerns remain on that front on Council’s part. I accept that the proposal before me accounts for the requirements for unencumbered indoor and outdoor space under the Education and Care Service National Regulations.

2. State Environmental Planning Policy (Resilience and Hazards) 2021 has also been given consideration in regard to contamination. Both a preliminary and detailed site investigation has been undertaken with respect to the site, and I accept that suitable conditions of consent are agreed to ensure the site can be made suitable for the proposed development.

3. Further in relation to CCLEP, and mindful of the advice of the applicant, not disputed by Council:

1. I accept that the proposal does not breach any of the applicable development standards.

2. I am satisfied that the essential services listed in cl 7.6 will be available to the development when required.

48. I also note that there were two lay objecting submissions arising from notification of the proposal. These related to noise exposure, flora and fauna impacts, increased waste and traffic. Council’s evaluation has found the amended proposal as satisfactory in regard to each of these matters and I see no reason not to accept this position.

Directions on final conditions of consent

49. The parties attempted to assist the Court by giving instructions as to the wordings of condition alternatives. While the instructions may have been clear to the parties, I found them challenging to follow. In this instance it is necessary for me to direct the parties to amend the consent conditions document to align with the findings above.

50. The Court directs that:

1. By 10 January 2025, the parties are to confer and agree on the particulars of the conditions of consent which reflect the findings of this judgement and file the agreed conditions.

2. The matter is listed for Online Court - request required 13 January 2025 (listing to be vacated if agreed conditions filed prior).

P Walsh

Commissioner of the Court

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Decision last updated: 19 December 2024