Kabalan v Georges River Council

[2024] NSWLEC 1687

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kabalan v Georges River Council [2024] NSWLEC 1687

Hearing dates:

26-27 September 2024

Date of orders:

30 October 2024

Decision date:

30 October 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The development application (DA2021/0192) for the demolition of the existing structures and construction of a 2 storey 56 place childcare centre with basement parking at 31 and 33 Bailey Parade, Peakhurst, is determined by the grant of consent subject to the conditions in Annexure A.

(3) Exhibits A-D and 7-8 are retained, the remaining exhibits are returned.

Catchwords:

APPEAL – development application – centre-based child care facility – traffic and safety impacts – sightlines – site suitability

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Georges River Local Environmental Plan 2021 cl 1.8A

Hurstville Local Environmental Plan 2012, cl 6.7

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 5, 23, 25

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) Amendment 2021, Sch 5 cl 3

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, Sch 9 cl 1(5), Sch 12

Cases Cited:

HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135

Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143

Texts Cited:

Australian Standard AS2890.1 – 2004

NSW Department of Planning and Environment, Child Care Planning Guideline, 2017

Hurstville Development Control Plan No 1

Guide to Traffic Generating Developments 2002

Category:

Principal judgment

Parties:

Hassan Kabalan (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
C Koikas (Applicant)
A Pearman (Respondent)

Solicitors:
Fortis Law (Applicant)
Georges River Council (Respondent)

File Number(s):

2023/00279149

Publication restriction:

No

Judgment

1. COMMISSIONER: Within a stone’s throw of Peakhurst Public School, at 31 and 33 Bailey Parade, Peakhurst, Hassan Kabalan seeks to construct a centre based child care facility. He lodged a development application with Georges River Council (the Council) on 13 May 2021, which was refused on 2 March 2023. These proceedings are an appeal against that decision, lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979.

2. The proposed development is for the demolition of existing structures and the construction of a two-storey childcare centre for 56 children, together with basement car parking and associated site works and landscaping.

3. The Council remains opposed to the grant of development consent, although the issues raised by the Council have narrowed significantly in the course of the appeal proceedings, following amendments to the development application. At the hearing, the Council approved a further amendment of the development application, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021. That amendment reduced the height of the acoustic fencing and increased the driveway headroom for entry to the basement level.

4. The Council contends that the development application should be refused on the basis that the proposal will result in unacceptable traffic and safety impacts on Bailey Parade and for residents of that road, and that the driveway exit from the proposed car park does not have adequate sightlines. The Council therefore says that the site is not suitable for the proposed development.

5. For the reasons that are set out below, I consider that, although there are unsatisfactory aspects of the current operation of Bailey Parade, the additional impact occasioned by the proposed development is negligible and within the environmental capacity of the road. I also find that the proposed development minimises its impact on the safety of Bailey Parade and on the amenity of residents of that road. Further, I consider that the sightlines are acceptable in the circumstances and that the design of the development minimises the risk associated with the obstructions within the sightline distance. For those reasons, the Council’s contention does not warrant refusal of the development application and I have determined to grant development consent subject to conditions.

The site and the locality

6. The site comprises two parcels of land known as 31 and 33 Bailey Parade, Peakhurst, and is legally identified as Lots 97 and 98 in DP 16980. The site, with the two lots combined, is regularly shaped with a frontage of 24.99m to Bailey Parade, side boundaries of differing lengths around 39m, and a total area of 980.1m². It is on the southern side of Bailey Parade, around 30m east of the intersection of Bailey Parade and Greenland Avenue.

7. Bailey Parade has a road carriageway width of 7.5m and accommodates two-way traffic movements, and parallel parking along both kerbsides. This means that the two-way movement of vehicular traffic can be, and often is, impeded by parked cars. Bailey Parade is also lined by large street trees.

8. The site is within a low density residential area, characterised predominantly by single storey detached dwellings, with some two-storey dwellings and a few, newer, contemporary infill dual occupancies. The local public school, Peakhurst Public School, is about 50m to the west of the site, on the northern side of Bailey Parade and on the corner of Bailey Parade and Greenland Avenue. The site and its context can be seen in Figure 1.

The planning framework

9. Although the Georges River Local Environmental Plan 2021 (GRLEP) would ordinarily apply to the site, the GRLEP commenced on 8 October 2021 and the savings provision in cl 1.8A makes it clear that development applications lodged prior to the commencement of the GRLEP “must be determined as if this Plan had not commenced”. As such, the applicable environmental planning instrument for this development application is the Hurstville Local Environmental Plan 2012 (HLEP).

10. The site is zoned R2 Low Density Residential under both the GRLEP and the HLEP, and centre based child care facilities are permissible with development consent in the R2 zone under both instruments. The objectives of the R2 zone, in the HLEP, 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 development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area.

• To ensure that a high level of residential amenity is achieved and maintained.

• To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment.

• To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity.

11. The parties agree that the repealed State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Childcare SEPP) applies to the proposed development, as a result of the savings provision contained in Sch 9 cl 1(5) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) and by the operation of Sch 12 of the SEPP TI at the time of its commencement on 1 March 2022.

12. Clause 23 of the Childcare SEPP requires that, before determining a development application for development for the purpose of a centre-based child care facility, “the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development”.

13. The “Child Care Planning Guideline” is defined in cl 5 of the Childcare SEPP, but its definition was amended on 17 December 2021 by the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) Amendment 2021. The savings provision in Sch 5 clause 3 of the Childcare SEPP makes it clear that an amendment made by the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) Amendment 2021 does not apply to a development application made but not finally determined by the commencement of that policy. The words “does not apply” means that no regard can be had to those provisions (Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143 at [20]). Therefore, the definition of “Child Care Planning Guideline” that applies to the development application before the Court is the “the document titled Child Care Planning Guideline, published in the Gazette by the Secretary on 1 September 2017” (CCPG).

14. The proposed development complies with the regulations concerning indoor and outdoor unencumbered space, consistent with cl 25(2)(b) of the Childcare SEPP.

15. The Hurstville Development Control Plan No 1 (HDCP) also applies to the development application.

The expert evidence

Acoustic evidence

16. Expert opinion evidence on the acoustic impact of the proposed development was given by Mr Sean Hook, an acoustic engineer engaged by the applicant, and Mr Richard Haydon, an acoustic engineer engaged by the Council.

17. They agree that, in relation to both cumulative noise emission and noise emission from outdoor play, with appropriate controls put in place through the conditions of consent, the proposed development will not have an unacceptable acoustic impact.

18. With respect to noise emission from outdoor play, Mr Haydon is satisfied that the barriers can be reduced to those now proposed, and compliance will be achieved with the appropriate criterion for outdoor play at all relevant receiver locations. With respect to the cumulative noise emission, Mr Hayden is satisfied that with doors and windows closed during indoor play scenarios, and with appropriate conditions for noise emission from mechanical plant and equipment, the cumulative noise emission resulting from the operation of the proposed child care centre is likely to marginally comply with a criterion of 37 dB(A), with the exception of a 1 dB exceedance for one receiver location.

19. As a result of the evidence of Mr Hook and Mr Hayden, the contention raised by the Council concerning the acoustic impact of the proposed development is no longer in issue.

Traffic engineering

20. Expert opinion evidence on the basement and driveway design, sightlines from the driveway and the impact on Bailey Parade was given by Mr Thomas Steal, a traffic engineer engaged by the applicant, and Mr Paul Corbett, a traffic engineer engaged by the Council.

21. Mr Steal and Mr Corbett agree that the design of the basement and driveway is acceptable, including the turning bay, the aisle widths, the head height clearances and the driveway ramp gradients. They also agree that there can be uninterrupted passing of vehicles along the ramp.

22. However, they remain in disagreement concerning the adequacy of the sightlines for vehicles exiting the driveway, the impact of the development on pedestrian and road safety, and the appropriateness of the site for development given the characteristics of Bailey Parade.

Town planning evidence

23. Expert opinion evidence was given by Mr Garry Chapman, a town planner engaged by the applicant, and Mr Scott Barwick, a town planner engaged by the Council. They each expressed differing opinions concerning the suitability of the site, based on the carriageway width of Bailey Parade.

24. Mr Chapman and Mr Barwick agree that the acoustic barriers now proposed do not have an unacceptable impact.

The resident objector evidence

25. The development application was notified between 9 June and 24 June 2021, and again between 18 August and 1 September 2022. In response to both notification periods, a total of 87 written submissions were received. At the commencement of the hearing, one resident objector gave evidence onsite. The issues raised in the written submissions and in the onsite evidence can be summarised as follows:

• Increased congestion and traffic conflicts on Bailey Parade, given the narrow width of the roadway and its current operation;

• Overshadowing;

• Acoustic impacts; and

• Amenity impacts concerning odour and outdoor lighting.

26. As set out above, based on the evidence of the acoustic engineers, the acoustic impacts of the proposed development are acceptable. I do not consider that any issue arises concerning overshadowing, odour, and outdoor lighting. The issues concerning the increased traffic and operation of Bailey Parade are considered below.

Impact on safety for motorists and pedestrians (contention 2)

27. The Council contends that the application will result in unacceptable and significant traffic and pedestrian safety impacts. It says that, due to the narrow width of Bailey Parade and the parallel parking that occurs along both kerbs, the proposed development will cause increased congestion in Bailey Parade during peak periods, increased difficulty for residents to gain access to and from their properties and a reduction in safety for motorists and pedestrians, particularly school children.

The relevant provisions of the CCPG and HDCP

28. The Council relies on a number of provisions of the CCPG concerning site selection and road safety.

29. In the introduction to the guidelines, at Section 1.3, one of the planning objectives of the CCPG are stated to be to “minimise any adverse impacts of development on adjoining properties and the neighbourhood, including the natural and built environment”.

30. Part 3 of the CCPG provides matters for consideration for applicants in designing a high-quality proposal, and Section 3.1 concerns site selection and location. It states that the “most important question for each applicant: Is the neighbourhood a good “fit” for the proposal?”. C1 requires consideration of “traffic and parking impacts of the proposal on residential amenity”, and C2 requires that, when selecting a site, ensure that “the type of adjoining road (for example classified, arterial, local road, cul-de-sac) is appropriate and safe for the proposed use”. C3 states that a child care facility should be located “near compatible social uses such as schools and other educational establishments, parks and other public open space, community facilities, places of public worship”.

31. Section 3.8 of the CCPG, also within Part 3, concerns traffic, parking and pedestrian circulation. Of relevance is C33 and C35, which provide as follows:

“C33

A Traffic and Parking Study should be prepared to support the proposal to quantify potential impacts on the surrounding land uses and demonstrate how impacts on amenity will be minimised. The study should also address any proposed variations to parking rates and demonstrate that:

• the amenity of the surrounding area will not be affected

• there will be no impacts on the safe operation of the surrounding road network.”

…

C35

Child care facilities proposed within cul-de-sacs or narrow lanes or roads should ensure that safe access can be provided to and from the site, and to and from the wider locality in times of emergency.”

32. The Council also relies on the development requirements in Part 5.3 of the HDCP, which give locational criteria for child care centres. In DS2.1, it requires that “child care centres should be located close to or adjacent to community focal points such as… schools (where there is no major traffic conflict)”.

The increase in traffic movements on Bailey Parade

33. In a supplementary traffic report prepared by Mr Steal and Mr Corbett, they agree on the numerical increase in traffic volumes resulting from the development, which is contained in Table 2 of that report and shown below.

34. Mr Steal and Mr Corbett agree that the 7.5m pavement width of Bailey Parade does not accommodate two-way traffic if vehicles are parked on both sides of the road, which reduces the carriageway to 3.5m. In the event of two cars needing to pass one another within the reduced carriageway, observations of driver behaviour demonstrate that drivers stop their vehicles in portions of the road where there are either no cars parked or a car parked only on one side of the road (which can be where a driveway is located), to allow the opposing vehicle to pass before proceeding down the road. They agree that the surveys of Bailey Parade indicate that average speeds along Bailey Parade are presently at or below 40km/h during the proposed operating hours of the child care centre, even outside of school hours.

35. In one period of observation of the site, in the afternoon peak period, Mr Corbett observed that one vehicle pulled into a driveway and stopped across a pedestrian footpath to allow an opposing vehicle to pass. Mr Corbett and Mr Steal agree that this would likely be illegal. Other behaviour observed includes cars waiting in the through-travel lane, or waiting beside driveways, to give way to oncoming vehicles.

The Council’s position that the impact is unacceptable

36. The Council’s position is that, given the suboptimal existing road network, it would not be appropriate or safe to add more vehicles to the neighbourhood. It submits that Table 2 demonstrates that the proposed development increases traffic volumes at peak periods, which coincide with the school drop off and pick up, along with the evening commuter peak.

37. The Council relies on the opinion of Mr Corbett, that it is not appropriate to add to the existing congestion in Bailey Parade, as the current operation of Bailey Parade is unsafe. His evidence that the current driver behaviour to allow oncoming vehicles to pass is unsafe.

38. The Council also relies on the evidence of the local residents, whose written submissions describe the difficulty of using Bailey Parade during peak period. In particular, one local resident describes the current difficulty she experiences with exiting her driveway in one motion when cars are parked opposite. Whilst she describes this as occurring occasionally, she is concerned that this will become a regular occurrence if the development is approved.

39. The Council submits that the proposed development therefore does not meet the CCPG objective to minimise adverse impacts on neighbouring properties, as it exacerbates an already sub-optimal driving environment in Bailey Parade.

The applicant’s position that there is no unacceptable impact

40. On the other hand, the applicant’s position is that the traffic impacts arising from the proposed development are acceptable. The applicant makes a number of submissions in support of this position.

41. Firstly, the applicant points out that the evidence of Mr Corbett is that the peak school pick-up and drop-off periods are 9-9:30am and 3:10-3:40pm respectively. This reflects the school bell times of 9:20am and 3:20pm. The applicant says that the peak period for traffic generated by the proposed development are outside those times, being 8-9am in the morning, and 5-6pm in the evening.

42. Secondly, the applicant submits that the increased traffic on Bailey Parade will not cause it to exceed the environmental capacity of the road. The agreed evidence is that the environmental goal volume for a local road, like Bailey Parade, is 200 vehicles per hour. The resulting traffic will only cause it to reach 68.5% capacity.

43. Thirdly, the applicant points out that the SIDRA results demonstrate that, with the additional traffic, the intersections at Bailey Parade will remain performing at Levels of Service of either A or C, where C indicates the delays are satisfactory with spare capacity remaining.

44. Fourthly, the applicant submits that there is no evidence that the proposed development will create congestion at a time where congestion does not already exist.

45. In particular, he relies on the evidence of Mr Steal that outside of peak drop-off and pick-up times for the school, the parking occupancy along Bailey Parade is significantly reduced, such that the conflict that can occur between traffic and parked cars along Bailey Parade is not likely to be caused or increased by the traffic generated by the proposed development. The applicant submits that, as the proposed development caters for all the parking to occur on site, it will not create any additional traffic issues as cars using the development will have no reason to park on the street.

40. Further, the applicant points out that there are numerous existing driveways in Bailey Parade, which prevent parking on one side of the road, so that passing can occur along those sections of the road. The applicant says that the wide driveway of the proposed development will further facilitate these passing opportunities. The applicant relies on the evidence of Mr Steal that the low speed manoeuvring of cars to one side of the road to allow oncoming vehicles to pass are typical of a local road, and act as a traffic calming measure, which results in lower speeds and higher driver attention.

41. To the extent that the Council relies upon illegal driver behaviour, the applicant submits that the functioning of the road must be evaluated based on a reasonable assumption that motorists will, as a whole, comply with road rules, relying on HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [107].

The impact of the proposed development on road traffic is acceptable

48. Whilst the proposed development will cause an increase in traffic movements in Bailey Parade, that increase is minor and manageable in the circumstances. I reach this conclusion for the following reasons.

49. Firstly, the increase in vehicle movements in Bailey Parade does not cause Bailey Parade to exceed its environmental capacity of 200 vehicles per hour (vph). The RTA Guide to Traffic Generating Developments 2002 sets out an environmental goal volume of 200 vph for local roads. It is not disputed that Bailey Parade is a local road, and that the applicable environmental capacity is for 200 vph. It is clear from Table 2 that the increase in vehicle movements occasioned by the proposed development is well within that environmental capacity.

50. Secondly, the peak of the traffic generated by the proposed development occurs outside the peak periods for the morning school drop-off and afternoon pick-up. I accept that the peak periods for the school drop-off and pick-up are between 9am to 9:30am and 3:10pm to 3:40pm, respectively, although the afternoon peak for the school may extend from 3pm to 3:45pm. Regardless, it is clear that, at those times, the traffic generation for the proposed development is 13vph, or 6-7 vehicles during a half hour period. This increase is negligible, and I accept Mr Steal’s evidence that these additional movements will not have any impact on the safety of the road.

51. Thirdly, the proposed development will cater for all car parking on the site. As such, there is no need for street parking to be used. Mr Steal and Mr Corbett agree that the issues with Bailey Parade arise from the street parking (and the narrow width of the carriageway). The provision of all car parking within the site will minimise the potential for additional conflicts by parked cars with vehicular movements along Bailey Parade.

52. Fourthly, when considered as a whole, the resultant two-way traffic volumes for Bailey Parade in the periods in Table 2, are only marginally more than what is experienced presently in the current peak periods. That is, at present, the peak periods of 9am to 10am and 3pm to 4pm have an average existing two-way traffic volume of 103 and 124 respectively. The resultant two-way traffic volumes increase the number of hours over which there will similar volumes of traffic, but does not result in any one period of traffic over 137 vehicle movements per hour. The increased vehicle movements therefore do not create any periods where the number of vehicles per hour is significantly more than what is presently experienced in the current peak periods. This illustrates that the proposed development has minimal impact on the current operative volumes of traffic on the road.

53. Fifthly, it is likely that a proportion of the trips that are estimated to be generated by the child care centre would be by parents with children at the school, so that the resultant two-way traffic volumes for Bailey Parade will be less than that estimated.

54. Sixthly, the SIDRA analysis demonstrates that the intersections with Bailey Parade will continue to operate acceptably with the increase to traffic volumes occasioned by the proposed development.

55. Further, I accept the evidence of Mr Steal that Bailey Parade already operates with vehicles travelling at a low speed of around 40km/h and in a context where drivers are already alert to the existence of the school and the possibility of children walking on or crossing the road.

56. Therefore, I am satisfied that whilst there will be an increase in traffic movements, the change is relatively minor, it is within the environmental capacity of the road and occurs in a context in which vehicles are already travelling at a low average speed of 40km/h.

57. Whilst I accept that, at times, there could be traffic congestion that results in poor driver behaviour, as there is presently, that is a consequence of the current operation of Bailey Parade with unrestricted parking on both sides of the road, and does not result from the proposed development. Mr Corbett agrees that there would be no issue without the parked cars. That issue concerns the management of the road, and does not arise from the proposed development or warrant its refusal. Indeed, I accept the applicant’s submission that the proposed development improves passing opportunities on Bailey Parade, as the provision of the wide 9m driveway prevents cars being parked on that side of the road and therefore allows two-way passing on that section of the road.

58. For those reasons, the increase in traffic movements in Bailey Parade that will arise from the proposed development is minor and manageable. I do not accept that it causes a safety impact, as the poor driver behaviour identified by the Council as causing a safety risk instead arises from the current operation and management of the road.

The sightlines from the driveway exit (Contention 1(a))

59. The Council contends that the sightlines from the driveway exit, particularly when looking right, are inadequate as they are obstructed by parked cars and street trees.

60. Guidance is provided in AS2890.1 – 2004 regarding the sight distances that should be available to drivers departing access driveways in Figure 3.2. The diagram and table from that figure is reproduced below.

61. Figure 3.2 provides that a stopping sight distance of 45m is required for roads with a speed of 50km/h. It also provides an area along the road that has the words “No permanent site obstruction (see Note 3)”. Note 3 states that “Parking on this side of the frontage road may need to be restricted on either side of the driveway so that the sight distance required by the above table to an approaching vehicle is not obstructed”.

62. Mr Steal and Mr Corbett agree that Bailey Parade is a straight road with no significant vertical geometry, and that there is a slight crest in Bailey Parade approximately 70 metres to the west of the proposed vehicle access driveway to the childcare centre development. They agree that this distance exceeds the minimum sight distance requirement and therefore the crest is not a relevant consideration for the purpose of assessing sight lines at the proposed vehicle access.

63. However, Mr Corbett’s evidence is that the sightline is obstructed by parked cars and street trees, and that these obstructions, together with the narrow width of Bailey Parade, means that a vehicle leaving the site will manoeuvre onto Bailey Parade at a time that it is unsafe to do so, with no room to pull to the side if there is an oncoming vehicle. He says that this will result in a vehicle-vehicle crash, with young children likely to be passengers of one or both vehicles. The Council, in its submissions, also suggested that this could cause a driver to mount the footpath in a reversing manoeuvre to avoid a collision with an oncoming vehicle.

64. Mr Steal’s evidence is that the typical application of Figure 3.2 of AS2890.2 is to ignore parked vehicles and street trees when undertaking the sight distance assessment. He points out that if these objects were to be considered as unacceptable obstructions, on most roads there would be no street trees and no kerbside car parking. His evidence is that, it is clear from the number of driveways, street trees and lack of parking restrictions along Bailey Parade that the Council does not consider these obstructions to sight lines to be unacceptable. Mr Steal has conducted a detailed analysis of the sight lines available at the driveway, including a video and images taken at the site driveway which show that a vehicle is visible to a driver exiting the site. Based on that analysis, his evidence is that the movement of the vehicle travelling past the driver waiting in the driveway will be easily perceived.

The sightlines are acceptable

65. I consider that the sightlines from the driveway of the proposed development are acceptable, for the following reasons.

66. Firstly, the minimum safe sight distance of 45m is numerically achieved.

67. Secondly, parked cars and street trees are ordinary features of local roads, and are sporadically located such that vehicle movements can be perceived when vehicles move past them. This is supported by the sightline analysis undertaken by Mr Steal. Whilst Note 3 of Figure 3.2 of the AS2890.2:2004 says parking “may need to be restricted on either side of the driveway”, Note 3 does not suggest that the full length specified in the diagram may need to be free of parked cars.

68. Thirdly, the width of the driveway and the removal of T2 reduces the extent to which the sightline will be impeded to the right. The proposed driveway will span 8.973m on Bailey Parade, and a driver exiting the driveway will have unobstructed sightlines for the full width of that driveway and with no obstruction by the street tree that is currently adjacent to the existing driveway.

69. Fourthly, the risk associated with exiting from the driveway is minimised in two ways. The first is by the width of driveway, which allows vehicles queuing to exit the site to remain on the site until it is safe to exit. The second is by the design of the driveway and basement, ensuring that all vehicles exit the site in a forward direction.

70. The hypothetical examples of risky or illegal driver behaviour, advanced by the Council, are of no assistance. There is not a skerrick of evidence to support the Council’s assertion that there is an increased risk of a reverse manoeuvre over the footpath as a result of the proposed development. Instead, I prefer the evidence of Mr Steal that the human eye will pick up the vehicle movement through the gaps in the street trees and parked cars, and I consider that the width of the driveway will allow cars to wait in the driveway until it is safe to turn onto the road.

Site suitability (Contention 4)

71. The Council’s position is that the site is not suitable for the proposed development given the existing poor functioning of Bailey Parade as a consequence of its narrow carriageway, location adjacent to Peakhurst Public School, and the obstructions to the sightlines. The Council submits that the neighbourhood is therefore not a good fit for the proposal, contrary to Part 3.1 of the CCPG, and the proposal does not meet the CCPG objectives of minimising adverse impacts on neighbouring properties, as it will instead exacerbate the existing sub-optimal traffic environment.

72. The Council points out that whilst C3 of the CCPG provides that a child care facility should be located near compatible social uses such as schools, read together with the HDCP, that should be understood to be true where there is no major traffic conflict. Additionally, the Council relies upon Part 3.8 of the CCPG, which emphasises that a safe pedestrian environment is essential to the site.

73. The Council relies on the written submission from the former Peakhurst Public School principal, who outlines concerns regarding traffic and pedestrian conflicts.

74. Contrary to the Council’s position, I find that the site is suitable for the proposed development. I reach this conclusion for the following reasons.

75. Firstly, the proposed development does not create a traffic and pedestrian conflict. The proposed development caters for all parking within the site, with pedestrians accessing the development either through the onsite parking or on the existing footpath. In assessing the development, I must make the reasonable assumption that drivers will follow the road rules, and not mount or stop on the footpath contrary to law.

76. Secondly, the existing functioning of Bailey Parade, relied upon by the Council, and referred to in the written and oral submissions by local residents and the former school principal, arises from the current management of the road. As set out above at [57], the congestion in Bailey Parade and the issues with passing oncoming vehicles, occurs as a result of the current operation of Bailey Parade with unrestricted parking on both sides of the road. The experts agree on this point. This is readily able to be resolved through restrictions on car parking, consistent with the evidence of Mr Steal. In my view, the Council’s operational decision not to manage the road in a way that permits two-way passing does not inform the suitability of the site for development.

77. Thirdly, the site’s location on Bailey Parade is appropriate for the development in circumstances where it is already a low speed environment, and where drivers are already alert to the existence of the school and children walking on or crossing the road.

78. Therefore, there is nothing particular to the site, its location or characteristics that makes it unsuitable for the proposed centre-based child care facility. Instead, the site is located in close proximity to a public school and along a road that has an average low speed of 40km/h. In my view, it is a good fit for the neighbourhood, and, as set out above at [68]-[69], the design of the carpark and driveway minimises any risk caused by the characteristics of Bailey Parade. It also minimises its impact on the existing operation of Bailey Parade, for the reasons set out at [48]-[58].

Development consent should be granted

79. For the above reasons, the Council’s contentions concerning traffic and safety impacts (contention 2), the adequacy of the sightlines (contention 1(a)) and site suitability (contention 4) are not established and do not warrant refusal of the development application. Each of the remaining contentions are agreed to have been resolved.

80. Further, consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of residential uses, it is unlikely to be contaminated. In addition, I am satisfied that the development complies with the relevant development standards that apply pursuant to the HLEP, and, based on the Statement of Environmental Effects dated 26 March 2021, I am satisfied of the matters in cl 6.7.

81. There is therefore no basis upon which to refuse the development application and it ought to be granted, subject to conditions of consent. The parties have agreed on the appropriate conditions of consent.

82. The Court orders that:

1. The appeal is upheld.

2. The development application (DA2021/0192) for the demolition of the existing structures and construction of a 2 storey 56 place childcare centre with basement parking at 31 and 33 Bailey Parade, Peakhurst, is determined by the grant of consent subject to the conditions in Annexure A.

3. Exhibits A-D and 7-8 are retained, the remaining exhibits are returned.

……………………….

J Gray

Commissioner of the Court

Annexure A

**********

Decision last updated: 30 October 2024