Moujalli v Penrith City Council

[2024] NSWLEC 1424

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moujalli v Penrith City Council [2024] NSWLEC 1424

Hearing dates:

28 – 30 May 2024, written submissions 4, 7, 11 June 2024

Date of orders:

25 July 2024

Decision date:

25 July 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development application DA23/0161 seeking consent for the demolition of existing structures and construction of a three-storey mixed use development containing a 131 place childcare centre and commercial office space over two levels of basement carparking at 55 Stafford Street, Kingswood is refused.

(3) Exhibits are returned with exception of Exhibits 1, A.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development with approval for use of ground and first floors as a childcare centre – whether, given its width, the site is suitable for the proposed development – whether the proposed development provides safe access to the basement and parking spaces - whether built form of the proposed development is incompatible with the character of the locality – insufficient landscaping and impacts on trees – whether the proposed development will have an unacceptable impact on the amenity of neighbouring residential properties – whether the internal amenity of the proposed childcare centre is acceptable -whether the development has been designed and will be constructed and operated in a sustainable manner- appeal dismissed.

Legislation Cited:

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

Land and Environment Court Act 1979, ss 34, 39

Penrith Local Environmental Plan 2010, cll 2.3, 4.3, 4.4, 7.4, 7.30,

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.3, 3.22, 3.23, 3.26, 3.27, Ch 3

Cases Cited:

Saffioti v Kiama Municipal Council [2019] NSWLEC 57

Texts Cited:

Education and Care Services National Regulations 2011

Child Care Planning Guideline 2021

Penrith Development Control Plan 2014

Australian Standard AS 2890.2-2002 Parking Facilities Part 2: Off-Street commercial vehicle facilities

Category:

Principal judgment

Parties:

Christopher Moujalli (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
C Koikas (Applicant)
R O’Gorman-Hughes (Respondent)

Solicitors:
Fortis Law (Applicant)
Penrith City Council (Respondent)

File Number(s):

2023/155954

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal by the Applicant, Christopher Moujalli, against the deemed refusal of their development application (DA 23/0161) by Penrith City Council (the Respondent). The Applicant filed a Class 1 Application pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The development application seeks consent for demolition, removal of vegetation and construction of a three-storey mixed use building comprising a 131 place child care centre and commercial office (Proposed Development) at 55 Stafford Street, Kingswood (Lot 376 in DP 14333) (Site).

2. A conciliation conference was held on 23 October 2023 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The parties were unable to reach an agreement at, or following the conciliation. The conciliation conference was terminated, and the matter was listed for hearing.

3. Since the filing of the appeal, the Applicant has been granted leave to amend and provide additional information in support of their development application firstly by the Registrar in February and April 2024, and subsequently at the commencement of the hearing.

4. In its amended form, the Application seeks consent for the following:

1. Demolition of all existing structures on the site, including an existing dwelling and ancillary building;

2. Excavation to create two basement levels;

3. Removal of existing vegetation, associated landscaping and drainage works.

4. Construction of a three-storey mixed use building containing a 131 place child care centre and commercial office, configured as follows:

1. Basement parking accessed via a one-way ramp, containing 49 car spaces, loading bay, a laundry for the child care centre, a waste storage room for the child care centre, a waste storage room for the commercial, storage area, lift and stairs access and on-site detention within the ceiling;

2. Ground floor with separate entries from the street and basement for the child care centre and commercial. At this level the childcare centre includes kitchen and storage facilities, a cot room, bathroom facilities, and indoor and outdoor play areas allocated to 0-2-year-olds and 3-5-year-olds.

3. First floor contains a staff room, meeting room, office, storage facilities, bathroom facilities and indoor and outdoor play areas allocated to 2-3-year-olds;

4. Second floor contains commercial office space of 396m², stairs and bathroom facilities;

5. Acoustic fencing to the side and rear boundaries, to the boundaries of the Outdoor Play Area 1 (Ground Level), and Outdoor Play Area 2 (First Floor).

5. The childcare centre proposes to operate Monday-to-Friday during the hours of 7.00am to 6.00pm. The childcare centre will accommodate 131 children, employing 28 staff (21 permanent childcare educators, 1 full time director, 4 part time support educators and 1 part time cook) and comprising:

1. 0-2 years: 19 children;

2. 2-3 years: 50 children;

3. 3-5 years: 60 children.

Issues

6. The Respondent maintains that the development application should be refused for the following reasons. I note this grouping of contentions was detailed in the opening of the Respondent’s Counsel Mr O’Gorman Hughes:

1. The site doesn’t have the characteristics necessary for the extent of development sought in the development application. In particular, on the expert evidence regarding how the narrow width of the site impacts the functionality and safety of vehicular access and the acceptability of the interface with adjoining properties.

2. The development has a commercial three storey appearance in circumstances where it falls within a designated “residential edge character area” of the Penrith Hospital Precinct at Section 12.2.1 of 12.4 Character Areas in E12 Penrith Health and Education Precinct of the Penrith Development Control Plan 2014 (DCP 2014);

3. The intensity of the development sought is too great for the site and that intensity results in:

1. poor internal amenity of the proposed childcare centre,

2. unacceptable impacts on the amenity of adjoining properties,

3. an impractical plan of management (POM), and

4. a failure to satisfy the requirements of cl 7.30 ‘Urban Heat’ in Penrith Local Environmental Plan 2010. In particular the requirements in subcl (3) to “(a) maximise green infrastructure” and “(c) use design measures to ensure the thermal performance of the development achieves a high degree of passive cooling”.

Outcome of the appeal

7. For the reasons set out in the remainder of the judgment, as summarised below, I find that development consent should not be granted to the development. Having undertaken an evaluation of the development application against the matters for consideration at s 4.15(1) of the EPA Act, I conclude that having given these matters consideration they support a determination of refusal:

1. There are identifiable safety risks arising from the narrowness of the proposed basement and its access. The design results in conflicts between entering and exiting vehicles with those who are parking. The internal parking design results in difficult and uncertain manoeuvrability. The swept paths provided demonstrate some parking spaces cannot be accessed without traversing other parking spaces or the loading bay. Further, on the evidence of the Respondent’s expert, which I accept, the application varies maximum driveway grade in 3.4.4 “Driveway Grade” in Australian Standard AS 2890.2-2002 Parking Facilities Part 2: Off- Street commercial vehicle facilities (AS2890.2) which results in a greater risk of collision between pedestrians outside the site and exiting vehicles. I find these are material, unacceptable detrimental impacts arising from the development: s 4.15(1)(b) of the EPA Act that are sufficient to warrant the refusal of the development application.

2. The provisions of the Penrith Development Control Plan 2014 (DCP 2014) at Control 7 in Section 12.2.1 of 12.2 Land Use Controls in E12 Penrith Health and Education Precinct relating to the minimum site width for mixed development should not, on merit, be varied in this case: s 4.15(1)(a)(iii) of the EPA Act. Following a consideration of s 4.15(3A)(b) of the EPA Act, I find that the objective of the controls, namely “to create legible safe access and circulation in mixed use development” is not met by the development application.

3. Further, pursuant to s 3.23 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), I am required to consider the Child Care Planning Guideline (CC Guidelines). The CC Guidelines includes Section 3.8 ‘Traffic, parking and pedestrian circulation’ which seeks to ensure that car parking areas are safe for all visitors to the site and that design solutions are incorporated to provide a safe pedestrian environment in the basement and the site generally. Whilst not mandatory controls, the considerations contained within the guidelines provide useful and clear outcomes that inform how a child care centre can be developed on land considering all relevant design and environmental considerations. The non-conformance of the development application with the CC Guidelines, in conjunction with the non-compliance with the development standard relating to minimum site width, supports the refusal of the development application.

4. The conclusion of my assessment of the development application is that it should be refused on two grounds. Firstly, due to its design, the development has an unacceptable risk to safety. Secondly, because the width of the subject site is non-compliant with development controls in circumstances where no reasonable alternative solution proposed achieves the objectives of those standards.

8. It follows from the preceding that this judgment does not make findings on the remaining contentions raised by the Respondent. This is for two reasons. Firstly, I have found that the development should not be approved for the reasons detailed in the preceding. Given their importance I am satisfied that they are sufficient to dispose of the proceedings. Secondly, any comments I may make on the remaining contentions would be of no benefit to the parties, because to address the concerns that support the refusal of the application will require a significant redesign of the proposed development making any comments on the remaining matters redundant.

Subject site and locality

9. The site is legally described as Lot 376 in Deposited Plan 1433, being 55 Stafford Street, Kingswood. The site is flat, has an area of approximately 1556 m² and is located on the northern side of Stafford Street. The site has a frontage of 20.15m.

10. The existing development within the immediate vicinity of the site is comprised of low to medium density: a two-storey strata titled townhouses and single-storey residential development to the north, east, south and west. Located immediately to the north-west (rear corner) is a multi-storey mixed-use development up to 8 storeys at 48-56 Derby Street, Kingswood and beyond that site is the Nepean Hospital in Derby Street and Kingswood Station to the north-east approximately a 1.1km walk from the site.

Planning Controls

11. The site is zoned MU1 Mixed Use under the provisions of Penrith Local Environmental Plan 2010 (LEP 2010). The objectives of the MU1 Mixed Use zone are:

(a) To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.

(b) To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

(c) To minimise conflict between land uses within this zone and land uses within adjoining zones.

(d) To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

(e) To allow for residential development in accessible locations to maximise public transport patronage and encourage walking and cycling.

12. The land use table to the MU1 Mixed Use zone provide that development for the purposes of "Centre-based child care facility" and “Commercial premises” are permitted with consent in the zone.

13. The properties located opposite the site, on the southern side of Stafford Street, are zoned R3 Medium Density Residential. As required by cl 2.3(2) of LEP 2010, I have considered the objectives of the zone in determining the development application. An extract of the zoning map in LEP 2010 is in Figure 1 below (site outlined in yellow):

Figure 1

14. The following provisions of LEP 2010 are relevant to the issues in dispute in the proceedings.

1. Clause 7.4 “Sustainable development” provides mandatory matters for consideration for the consent authority. The provision states:

7.4   Sustainable development

In deciding whether to grant development consent for development, the consent authority must have regard to the principles of sustainable development as they relate to the development based on a “whole of building” approach by considering each of the following—

(a)  conserving energy and reducing carbon dioxide emissions,

(b)  embodied energy in materials and building processes,

(c)  building design and orientation,

(d)  passive solar design and day lighting,

(e)  natural ventilation,

(f)  energy efficiency and conservation,

(g)  water conservation and water reuse,

(h)  waste minimisation and recycling,

(i)  reduction of vehicle dependence,

(j)  potential for adaptive reuse.

2. Clause 7.30 “Urban Heat” applies to the development as the site is within a mixed-use zone. This provision, at subcl (3), contains a precondition to the grant of consent which requires the consent authority to be satisfied that planning and design measures are incorporated in the development to reduce the urban heat island effect that:

(a)  maximise green infrastructure, and

(b)  retain water in the landscape, and

(c)  use design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, and

(d)  use building, paving and other materials that minimise heat impacts, and

(e)  reduce reliance on mechanical ventilation and cooling systems, to conserve energy and to minimise heat sources.

3. Within clause 7.30 of LEP 2010 the following terms are defined:

green infrastructure means the network of green spaces, natural systems and semi-natural systems including waterways, bushland, tree canopy, green ground cover, parks and open spaces, that—

(a)  supports sustainable communities, and

(b)  is strategically designed and managed to support a good quality of life in an urban environment.

Urban heat island effect is a result of conditions that contribute to higher temperatures in urban areas, including—

(a)  use of roads, car parks, pavements, roofs, walls and other hard and dark surfaces, and

(b)  activities that generate heat, including waste air from mechanical cooling systems, and

(c)  reduction in green infrastructure.

15. The Site is subject to a maximum FSR development standard of 2:1 under cl 4.4 of LEP 2010. On the Applicant’s calculations the amended development application has an FSR of 0.8:1. There is a dispute between the planning experts as to the application of the definition of gross floor area to the development application, but it is agreed that even on the most conservative reading of the definition, the proposed development is compliant with the FSR standard.

16. Pursuant to cl 4.3 of LEP 2010 the site is subject to a maximum height of buildings development standard of 12m with which the amended development application is compliant.

17. As the development application seeks consent for a centre based childcare centre, ch 3 of SEPP TI applies.

18. Section 3.22 of SEPP TI provides that a consent authority must not grant consent to a development for the purposes of centre based childcare facility if the outdoor space requirements for the building or place do not comply with regulation 108. Regulation 108 of the Education and Care Services National Regulations 2011 (Childcare Regulations) requires at least 7m² of unencumbered outdoor space for each child. The parties disagree whether the amended development application is compliant with this provision of the regulation, and accordingly whether the concurrence of the regulatory authority is required. Pursuant to s 39 of the LEC Act, the Court could grant such concurrence, however given my findings that the development application warrants refusal on other grounds, a determination on this issue has not be made, see [8].

19. Section 3.23 of SEPP TI requires consideration of the CC Guideline by the consent authority prior to the grant of consent. Relevant to the issues in dispute, the CC Guideline includes the following matters for consideration:

“3.1 Site Selection and Location

Objective: To ensure that the site selected for a proposed childcare facility is suitable for the use.

C2:

…

- The characteristics of the site are suitable for the scale and type of development proposed having regard to:

- length of street frontage, lot configuration, dimensions and overall size.

…

- There are suitable and safe drop off and pick up areas, and off and on street parking.

…

3.8 Traffic, parking and pedestrian circulation

Objective: To provide a safe and connected environment for pedestrians both on and around the site.

C35:

The following design solutions may be incorporated into a development to help provide a safe pedestrian environment.

…

- defined pedestrian crossings and defined/separate paths included in large car parking areas.

…

- delivery, loading and vehicle turnaround areas located away from the main pedestrian access to the building and in clearly designated and separate facilities,

- minimise the number of locations where pedestrians and vehicles cross each other.

- in commercial or industrial zones and mixed-use developments, the path of travel from the car park to the centre entrance physically separated from any truck circulation or parking areas.

…

- clear sightlines are maintained for drivers to child pedestrians, particularly at crossing locations.

C36

Mixed use developments should include:

…

- drop off and pick up zones that are exclusively available for use during the facility’s operating hours with spaces clearly marked accordingly, close to the main entrance and preferably on the same floor level. Alternatively direct access should avoid crossing driveways or manoeuvring areas used by vehicles accessing other parts of the site.”

20. Section 3.26 of the SEPP TI specifies non-discretionary development standards that, if met, preclude more onerous standards from being used to refuse the development. Subs (2) details those standards as follows:

(2) The following are non-discretionary development standards for the purposes of section 4.15(2) and (3) of the Act in relation to the carrying out of development for the purposes of a centre-based child care facility—

(a)  location—the development may be located at any distance from an existing or proposed early education and care facility,

(b)  indoor or outdoor space

(i)  for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies—the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations, or

(ii) for development to which clause 28 (unencumbered indoor space and useable outdoor play space) of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 applies—the development complies with the indoor space requirements or the useable outdoor play space requirements in that clause,

(c)  site area and site dimensions—the development may be located on a site of any size and have any length of street frontage or any allotment depth,

(d)  colour of building materials or shade structures—the development may be of any colour or colour scheme unless it is a State or local heritage item or in a heritage conservation area.

21. Sections 4.15(2) and (3) of the EPA Act state:

(2) Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority—

(a)  is not entitled to take those standards into further consideration in determining the development application, and

(b)  must not refuse the application on the ground that the development does not comply with those standards, and

(c)  must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards, and the discretion of the consent authority under this section and section 4.16 is limited accordingly.

(3)  If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards—

(a)  subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and

(b)  a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.

22. An environmental planning instrument is defined in the EPA Act as including a State Environmental Planning Instrument or Local Environmental Plan but not including a Development Control Plan. Therefore, the non-discretionary provision at s 3.26(2)(c) of SEPP TI does not have the effect of limiting the consent authority’s consideration of the site width provisions in DCP 2014 in evaluating the merits of the development application.

23. Section 3.27(1) of SEPP TI has the effect of turning to a range of provisions in DCP 2014. That clause states:

3.27   Centre-based child care facility—development control plans

(1)  A provision of a development control plan that specifies a requirement, standard or control in relation to any of the following matters (including by reference to ages, age ratios, groupings, numbers or the like, of children) does not apply to development for the purpose of a centre-based child care facility—

(a)  operational or management plans or arrangements (including hours of operation),

(b)  demonstrated need or demand for child care services,

(c)  proximity of facility to other early education and care facilities,

(d)  any matter relating to development for the purpose of a centre-based child care facility contained in—

(i)  the design principles set out in Part 2 of the Child Care Planning Guideline, or

(ii)  the matters for consideration set out in Part 3 or the regulatory requirements set out in Part 4 of that Guideline (other than those concerning building height, side and rear setbacks or car parking rates).

(2)  This section applies regardless of when the development control plan was made.

24. Whilst the effect of s 3.27 of SEPP TI is to restrict the effect of DCP 2014, a number of its provisions remain relevant as they are outside the scope of the matters excluded. Where those provisions are relevant to the matters in contention between the parties they are detailed below.

25. The site is identified in DCP 2014 specifically at Figure E12.2 in Chapter E12 ‘Penrith Health and Education Precinct, E12 Part A Hospital Precinct’ as being located within Character Area “C. Residential Edge”. An extract from DCP 2014 Figure E12.2 (with the Site outlined in green) is below:

Figure 2

26. DCP 2014 provides controls for Parking Access and Driveways at Part 10.5 in Chapter C10 “Transport Access and Parking”. The relevant parts of the provisions are:

“10.5.1. Parking

…

B. Objectives

a) To ensure the provision of an appropriate number of vehicular spaces having regard to the activities present and proposed on the land, the nature of the locality and the intensity of the use;

b) To require parking areas to be designed and constructed in accordance with the Australian Standards for efficient and safe vehicle circulation and parking;

c) To reduce pedestrian and vehicle conflicts on development sites.

d) To facilitate an appropriate level of on-site parking provision to cater for a mix of development types;

…

f) To provide adequate space for parking and manoeuvring of vehicles (including service vehicles and bicycles);

…

C. Controls

1) Provision of Parking Spaces

a) Parking provided on site is to meet AS 2890 and where appropriate, AS 1428.

b) For any proposed development, Council will require the provision of on-site car parking to a standard appropriate to the intensity of the proposed development as set out in Table C10.2 below.

…

g) Where relevant, development shall provide on-site loading facilities to accommodate the anticipated heavy vehicle demand for the site.

…

Table C10.2: Carparking Rates

…

…

…

5) Design of Parking and Manoeuvring Areas

a) Car space dimensions must comply with the relevant Australian Standards.

b) The movement of pedestrians throughout the car park should be clearly delineated and be visible for all users of the car park to minimise conflict with vehicles. The car parking and manoeuvring layout should be in accordance with the provisions of AS 2890.1 - 2004.

c) Provision of parking spaces for disabled persons should be in accordance with the Access to Premises Standards, the Building Code of Australia and AS2890.

…

i) All vehicles must be able to enter and leave the site in a forward direction without the need to make more than a three point turn.

j) Council may require the provision of internal directional signs to assist site visitors in locating parking areas.

…

m) Access to security parking shall be designed to ensure the access mechanism is accessible to the vehicle driver on the entry side of the driveway.

n) Provision should be made for all vehicles to enter and exit a secure (i.e. boom-gated) area in a forward direction.

o) Visitor parking should be provided outside the secured parking areas.

p) The design of car parks should ensure adequate separation of staff/visitor parking and loading dock circulation areas for heavy vehicles.

q) Vehicular ramps less than 20m long within developments and parking stations must have a maximum grade of 1 in 5 (20%). Ramp widths must be in accordance with AS2890.

…

s) Loading docks associated with the development shall be provided on-site, with all loading and unloading activities occurring on-site.

t) All loading and unloading areas are to be:

i) integrated into the design of developments,

ii) separated from car parking and waste storage and collection areas,

iii) located away from the circulation path of other vehicles,

iv) provided separately for commercial/retail and residential uses, where part of a mixed use development, and

v) designed for commercial vehicle circulation and access complying with AS 2890.2.

…

z) Access, parking, manoeuvring and loading facilities for commercial and industrial development shall be in accordance with AS 2890.2 - 2004 and accommodate vehicle types as outlined in Table C10.3.

…

Table C10.3: Minimum design vehicle requirements for commercial and industrial developments - minimum design vehicle requirements

10.5.2 Access and Driveways

A. Objectives

a) To ensure satisfactory arrangements are made for access to any development or new allotment created by subdivision;

b) To require that access internal to the development is adequate to accommodate traffic generated by the development;

c) The minimise the impact of vehicle access points on the quality of the public domain;

…

f) To ensure that access ways and driveways provide safe access from a property to a public road; and

g) To ensure driveways do not negatively impact on pedestrian mobility.

B. Controls

1. General Requirements

a) The road access to the site should provide for safe entry to and exit from the site. All vehicles must enter/exit the site in a forward direction. (This does not apply to single dwellings).

b) The entry and exit from the site should provide for appropriate traffic sight distance in both directions, in accordance with the provisions of AS2890.1 and 2 - 2004 for car parking and commercial vehicles respectively.

c) The design of the development driveway should take into consideration the traffic volumes of the surrounding road network.

d) Driveways should be:

i) Provided from lanes and secondary streets rather than the primary street, wherever practical;

ii) Located taking into account any services located within the road reserve, such as power poles, drainage inlet pits and existing street trees;

iii) Setback a minimum of 6m from the perpendicular of any intersection of any two roads; and

iv) Located to minimise noise and amenity impacts on adjacent residential development.

e) The driveway crossing and access roads shall be designed in accordance with the provisions of AS2890.1 and 2 - 2004 for car parking and commercial vehicles respectively.

f) Driveway widths must comply with the relevant Australian Standards.

g) Driveway grades, vehicular ramp width/grades and passing bays must be in accordance with the relevant Australian Standard (AS2890.1).

h) Access to basement parking shall have an entry threshold a minimum of 300mm above the top of the kerb. The threshold shall be increased within areas of flooding or local overland flows to a minimum of 300mm above the flood level. The design of the development shall ensure that floodwater cannot enter the car park in a 1% Annual Exceedance Probability (AEP) flood event.

…

12.2.1 Mixed use development controls

…

B. Objectives

a) To encourage a variety of mixed use developments in the Hospital Precinct;

..

h) To minimise potential conflicts and achieve compatibility between different uses;

…

j) To create legible safe access and circulation in mixed use developments;

…

C Controls

…

7) A minimum site width of 24m is required for any mixed use development.

…

10) Security access controls must be provided to all entrances into private areas, including car parks and internal courtyards.

Public submissions

27. The development application was advertised on 24 March 2023 and notified to adjoining and nearby residents between 24 March and 10 April 2023. In response to the public exhibition, five submissions were received in objection to the development. Those submissions raise the following concerns:

1. The commercial look of the proposed development will have a negative impact on the existing residential streetscape of the locality.

2. The proposed development is not suitable for the location and will lead to traffic congestion in an already narrow street.

3. There is no demand for childcare centres in the locality which is already oversupplied with them.

4. The development application does not justify the variations to councils planning controls sought.

5. The proposed building will result in a loss of solar access for adjoining residents.

6. The childcare centre will result in an increase in daytime noise from children playing outside.

7. On street parking in Stafford Street is marked for essential workers at Nepean Hospital and visitors to the hospital.

8. A street level pickup/drop off zone for the childcare centre should be added to the proposal.

9. The proposed basement carpark is insufficient to cope with the high number of childcare places, and will cause congestion in the morning and the afternoon.

10. During construction, the adjoining properties and nearby residents will experience excessive noise, dust and traffic congestion.

11. There is a potential safety issue arsing from children running onto Stafford Street.

28. During the hearing, provision was made for a number of objectors to address the Court directly and give evidence of their concerns in relation to the proposed development. These objections emphasised many of the concerns summarised in the proceeding.

29. As required by s 4.15(1)(d) of the EPA Act I have taken into consideration the submissions in determining the development application.

Expert evidence

30. The following experts gave evidence in the proceedings:

• Town Planning: Mr Jeremy Swan (Applicant)., Ms Donna Clarke (Respondent)

• Landscape: Mr Mark Santagelo (Applicant)

• Acoustic: Mr Alexander Mendoza (Applicant), Mr Paul Reynolds (Respondent)

• Traffic: Mr Oleg Sannikov (Applicant), Mr Kablan Mowad (Respondent)

• Stormwater, Civil and Water Sensitive Urban Design: Mr Andrew Arida (Applicant), Mr Ganesh Bista (Respondent) and Mr Tim Gowing (Respondent)

• Arboriculture: Mr Scott Freeman (Applicant), Ms Donna Montgomery (Respondent)

31. The pairs of experts prepared joint reports which were admitted into evidence. The traffic, arboriculture, landscape and town planning experts were also called for cross-examination and oral evidence.

The safety of the proposed access and parking

32. In their joint report on traffic, Mr Sannikov and Mr Mowad maintained a difference of opinion on five key issues. Those differences of opinion remained in their oral evidence. Those issues are:

1. Firstly, whether a single lane access ramp between the proposed basement 1 and 2 will create conflict between vehicles entering and exiting and whether that potential can be mitigated by the use of a convex mirror.

2. Secondly, whether access into and out of the delineated carparking spaces is consistent with Control 5(i) in Part C10 Section 10.5.1. “Parking” in DCP 2014, or whether more than a three-point movement is required.

3. Thirdly, the potential safety risks of the required reversing movements to access a number of parking spaces to be utilised for the child care centre, including the proposed disabled parking spaces and the loading bay.

4. Fourthly, the weight to be given to the potential safety risk arising from the swept path of a small waste collection vehicle crossing into an oncoming vehicle path when it enters and exits the property driveway.

5. Fifthly, the consequence of the noncompliance of the driveway ramp grade with AS/NZS 2890.1:2004. Namely:

“3.44 Driveway grade

The maximum grade on an access driveway together with the connecting circulation roadway shall be 1:20 (5%) for a distance extending from the property line for at least 6m or the longest wheelbase of any vehicle likely to use the driveway, whichever is the greater.”

33. In the Traffic Impact Assessment (TIA) (Exhibit A) of the proposed development contains the following traffic generation for the proposed development:

“Additional traffic generated by the proposed development.

Morning peak hour:

68 (CC +C) – 0 (existing) = 68 trips in

48 (CC +C) – 1 (existing) = 47 trips out

Afternoon peak hour:

42 (CC +C) – 1 (existing) = 41 trips in

59 (CC +C) – 0 (existing) = 59 trips out”

34. In his oral evidence, Mr Mowad maintained his significant concerns in relation to safety arising from the following:

1. Lack of confirmation that the two-way portion of the ramp providing access to basement one is of a width that is compliant with AS/NZS 2890.1:2004.

2. The restricted area for passing of vehicles at the base of the ramp into basement 1 creates a risk of conflict. Further, the swept paths show that if a vehicle is in a certain location, it will conflict with the manoeuvring of a vehicle traversing basement 1 to access the ramp to basement 2.

3. The use of the commercial component of the development is unknown and subject to change. Depending on that use, turnover of parking may be high, visitors may be in attendance to the building. The use of basement 2 by visitors to the site or uses that have a high turnover increase the potential for conflicts on a single lane width ramp.

4. Demand for the use of onsite parking by users of the childcare centre (and the future commercial use) will be high due to the documented lack of availability of on street parking.

5. Whilst the plan of management (POM) for the childcare centre seeks to mandate that parents only utilise parking in basement 1, given the projected traffic movements in the TIA, it is likely that demand will overflow to the parking in basement 2. With 106-108 traffic movements per hour in the AM peak, which equates to almost one every 35 seconds, this presents a real risk of conflict arising from parents seeking to enter and exit the single lane ramp at the same time. The use of the POM as a control to mitigate this risk is unsatisfactory.

6. That the reliance of the application on a convex mirror to address the potential of vehicle conflict on the single width ramp between basement 1 and 2 is an inappropriate mitigation. He argues that given the mixed use nature of the site it is likely that users of the basement (such as visitors) will be unfamiliar with the basement and may miss the mirror. In response to the proposed condition advanced by the Applicant to require a traffic light system, Mr Mowad’s evidence was:

“WITNESS MOWAD: Well it would be an improvement, but I only provided that as something to fall back on should the development be approved. But I don't believe it's leading to a good outcome because there's potential for queuing from that traffic signal system. Also if you look at the swept paths, you require a waiting bay be required somewhere in that second basement to facilitate the swept path of the vehicle coming down, so it would have to be a very well designed signal system and then manage the people that, or manage the spaces that are within the swept path of the vehicle coming down to prevent them exiting or existing their space while that signal system is in operation.

So yeah, based on the turnover of the spaces, the lack of queueing area between the top and bottom of the basements at the ramps, it's not an ideal solution but it would work better than the convex mirror.”

(Transcript 29 May 2024, page 24)

7. The fact that the swept path diagrams show numerous encroachments of the vehicle clearances into adjacent spaces, and also a reliance on the loading area being free to access parking spaces.

8. Further the swept paths demonstrate a significant reversing movement of the service vehicle in the centre of the car park area of basement 1, between the two ramps. Such a reversing movement is a clear safety issue given the vulnerable pedestrians associated with a childcare centre and the proximity of the loading bay to the lift access to reception.

9. That a small rigid vehicle would have to cross over an oncoming vehicle's path to exit or enter the basement.

10. the noncompliance of the driveway ramp grade with AS/NZS 2890.1:2004 may result in the potential of a vehicles bonnet, or part of their vehicle, obstructing a clear view of pedestrians creating a safety issue. This risk is greater for a site proposing a child care centre as children (of smaller stature than adults) will be in proximity of the driveway exit. In response to the assessment advanced by the Applicant that the proposed driveway has an effective grade of 12% between the front and rear tyres of an actual vehicle (in the depiction a van), Mr Mowad remained concerned explaining that the variation in the grade required by AS/NZS 2890.1:2004 will reduce a drivers reaction and stopping time if a pedestrian is traversing the driveway at the property boundary.

35. In contrast to Mr Mowad, Mr Sannikov’s evidence on the five key issues is:

1. that any widening of the ramp to facilitate two way traffic is not warranted by the number of traffic movements generated by the development and that any risk of vehicles colliding on the ramp is mitigated by the proposed convex mirror, the short length of the ramp and the fact the use of basement 2 is restricted to employees and visitors to the future commercial use. He notes that the POM for the childcare centre mandates that basement 2 will not be used for drop off and pick up of children. Further, Mr Sannokov notes that the use of such convex mirrors is standard practice, and such a mirror is unlikely to be missed by drivers.

1. That there is no requirement in AS/NZS 2890.1:2004 that requires manoeuvring into and out of carparking spaces to be less than a three-point turn. It was unclear whether he accepts that some spaces will require a three-point turn, but he concludes that the vehicular movements to access the proposed parking spaces are acceptable given the use proposed and the volume of traffic.

2. In relation to the identified reversing movements, he addresses two circumstances. Firstly, the need to reverse into the proposed accessible spaces. In regard to that matter, he concludes that the length of the reversing is acceptable on two grounds, it will be infrequent due to the lower demand for accessible spaces and secondly the length of the reversing is less that that established by AS/NZS 2890.1:2004 for a public carpark. Secondly, he addresses the reversing movement required to access the loading bay. He argues this is acceptable as deliveries will occur outside the operating hours of the child care centre, removing the risk of conflict.

3. He gives little weight to the potential safety risk arising from the swept path of a small waste collection vehicle crossing into an oncoming vehicle path when it enters and exits the property driveway as such a vehicle will access the site outside operating hours. He notes this is a matter that is incorporated in the POM. Further, he disagrees that servicing of the site with a medium rigid vehicle is required.

4. Finally in response to Mr Mowad’s safety concerns about the noncompliance of the driveway ramp grade with AS/NZS 2890.1:2004 Mr Sannikov prepared two detailed cross sections of the proposed ramp. These cross sections emphasise the gradient experienced by the wheel axle of a vehicle on the proposed ramp. Mr Sannikov concludes that while there is a technical exceedance in the ramp grade, it will not impact on whether or not a person driving a vehicle will be able to see pedestrians. He argues this is because there is a crest on the driveway within the first six metres of the site. the grade increases and then decreases, which has the effect that at all times when a vehicle is in the first 6 metres of the boundary, the vehicle will have an effective grade of no greater than the 5 degrees standard prescribed in AS/NZS 2890.1:2004. In fact he argues the effective gradient of a vehicle will be around 2.74%.

36. During oral evidence the experts were asked a series of questions about the potential benefits arising from the installation of a traffic light system to control vehicle movements between basement 1 and 2 where the ramp is a single lane. They were unable to confirm given the variables in how such system was designed and managed whether such a facility would result in queuing of vehicles. In his oral evidence Mr Sannikov disagrees that a traffic light system is required on similar grounds to that summarised at [35(1)]. Mr Mowad raised concerns that such a system usually incorporates a waiting bay for vehicles that was located outside the swept path of a vehicle exiting the ramp. I note the Respondent’s proposed conditions of consent include the following condition:

25. Prior to the issue of any Construction Certificate, a Traffic Management Plan is to be prepared and submitted for approval to the Certifier. The Plan shall include all details of the installation and management of a traffic signal system as well as any traffic control measures installed in relation to the single lane basement ramp(s). The Plan shall include, but not limited to, the provision of:

a) The product and its specifications (including signage and signal lantern dimensions and clearances, with any associated details of loop detectors, signal output controllers and the like).

b) Details of swipe card/security/activation/trigger/trip/manual activation mechanisms and/or positional sensors and their operation (whether inground or surface-mounted for vehicle detection).

c) Signal programming details with regard to “revert to” and “dwell” for green and red signals (for ingressing and egressing vehicles).

d) Nominated system wait times and pre-set clearance timing.

e) Instructions on the use of the system to be given to existing and new tenants.

f) Installation and maintenance details from the installer (including a copy of the user operation manual, or the like), and;

g) Contingencies in the event of a system failure.

Findings

37. I am not satisfied that the access, parking and servicing arrangements proposed by the development application are appropriate for the proposed use. In my assessment the design of the development generates unacceptable inherent risks of conflict between vehicles and pedestrians, and between vehicles themselves. That safety risk needs to be assessed in the context of the use of the proposed building. The proposed use is relevant as it affects the volume of vehicles and pedestrians accessing the building, the rate of turnover of vehicles and when during a typical day those users will be likely to attend the site and how concentrated the peak times of arrival and exit are for the use. In this development, which is a mixed use building in which one of those uses is a childcare centre, each of those factors tend towards a reduced tolerance for risk.

38. I accept the concern raised by the Respondent that the risk of conflict between vehicles and between vehicles and pedestrians in the proposed development is unacceptable and is made out on the evidence. I prefer and adopt the evidence of Mr Mowad as summarised at [34], along with the following reasoning, and conclude that the risk of conflict is an unacceptable risk arising from the development that are determinative.

39. Further, it is unremarkable to say that an assessment of the level of risk of a matter requires consideration of both its likelihood and the consequence of its realisation. I am unpersuaded by Mr Sannikov's evidence about the safety of the proposed basement and ramp access design as his evidence focusses primarily on the first part of risk assessment, namely the likelihood of a safety risk arising. In circumstances where the proposed use is one frequented by children and where the basement does not provide for the separation of pedestrians and vehicles (some who are reversing), this is a shortcoming in his evidence.

40. The development application is accompanied by a swept path analysis. That analysis demonstrates the unacceptable inherent design risk of conflict as follows:

• That if there are two Australian Standard 85th percentile size vehicle (B85 vehicles) entering and exiting the front driveway at the same time, there is little clearance beyond that mandated in the standard, for vehicles to pass.

• If a small waste truck (SRV) is entering the site at the same time that a B85 vehicle is exiting, the SRV crosses over the swept path of the car at the driveway entry into the site.

• A B85 vehicle entering the car park that wishes to utilise the two car spaces in basement 1 directly adjacent the lift reverses over the swept path of a vehicle seeking to exit the carpark that is on or approaching the ramp. Similarly, such vehicle seeking to reverse park in these two spaces crosses the shared zone of the nominated accessible spaces in entering the parking space, and on exiting.

• That to be utilised by parents for ‘drop off’ access to the three spaces located in north eastern section of basement 1 requires complex reversing and manoeuvring actions due to the width of the aisle.

• The swept path for a vehicle accessing the parking space at the end of the aisle, adjacent the northern wall, is in conflict with an adjacent parked vehicle.

• An SRV seeking to access the loading bay is required to reverse within basement one for a length of 20m. The area of the basement where this reversing will occur also contains the lift providing pedestrian access to the reception for the child care centre. On exiting the SRV is required to utilise a portion of the entry lane of the ramp into basement 1.

• Access between basement 1 and basement 2 is via a single lane ramp which will facilitate access or egress by only one vehicle at a time.

• There is no physical control proposed (such as a boom gate or roller door) to restrict access to basement 2 to staff and the future commercial use.

• There are no swept paths provided demonstrating how vehicles will access the two accessible spaces in basement 1.

41. Further, I note that while a roller door is indicated in the architectural plans. Following the hearing the following clarification of its operation was provided by the Applicant:

It is proposed that the roller door to the basement car park will be programmed to automatically open at a pre-set time consistent with the childcare centre opening time and will automatically close at a pre-set time consistent with the closing time of the childcare centre. The garage door will remain open during business hours.  There will be a detection loop in the basement slab which will automatically open the garage door for any vehicles trying to leave the basement after the garage door has closed for the day.  The childcare centre and the commercial suites will have remote controls to enable the roller door to be opened outside of business hours if any emergency access is required after hours.  As such, there is no intention to install infrastructure in the driveway area.

42. On the preceding basis there is not infrastructure proposed to be installed in the driveway which would further affect the swept paths indicated in the development application.

43. In addition, I am not persuaded that the design risk of conflict can be confidently and reliably mitigated, and managed in a POM. In addition to those reasons detailed by Mr Mowad’s evidence, in my view there are two further reasons.

1. Firstly, because one of those risks is that a vehicle exiting the basement will have a reduced line of sight of pedestrians (due to the variation in the maximum ramp grade), a risk which cannot be managed by a measure in the POM.

2. Secondly, because there is a chance of a visitor to the site acting in a manner contrary to the POM. For example, if parents in the peak AM access basement 2 in a desire to locate available parking, they have a high chance of encountering another vehicle on the single lane ramp. The TIA determines that the volume of vehicles entering the basement in the morning peak is forecast to be slightly more than one vehicle a minute entering the basement, and in the same minute a 78% chance of a vehicle exiting. If one of those vehicles need to reverse, there is a high chance of conflict with a vehicle parking (as demonstrated by the swept paths) or pedestrians making their way through the basement. Relevantly, if the vehicle who reverses is at the top of the single lane ramp, they cross the path of a vehicle entering basement 1. There is very little room in either basement for vehicles to pass, manoeuvre or to wait.

44. Pursuant to s 3.23 of SEPP TI in determining the development application I am required to give consideration to the CC Guidelines. Control C35 of those guidelines recommends the adoption of a number of design solutions to create a safe pedestrian environment. A number of these solutions are not adopted by the current development application. For example, the basement fails to provide a defined, or separate, path for pedestrians. The CC Guidelines seek a physical separation between the path of travel for pedestrians accessing the childcare centre entrance and areas of truck circulation or parking. Further, the CC Guidelines require the maintenance of clear sightlines for drivers to child pedestrians at crossing locations. Each of these solutions detailed in the matters for consideration are not included in the design of the proposed development. This lack of consistency with the CC Guidelines leads away from approval of the development, particularly in circumstances where the design of the development does not adopt alternative solutions that create a safe pedestrian environment in the development’s basements or driveway areas.

45. Pursuant to s 4.15(1)(b) of the EPA Act it is necessary for the Court as consent authority to consider the likely impacts of the development in determining a development application. In this case I find that likely safety impacts that arise from the risk of conflict between vehicles and between vehicles and pedestrians in the proposed development is unacceptable. The basements do not have adequate space to separate vehicles and pedestrians nor separate service vehicles from passenger vehicles. Further, the internal parking design results in difficult and uncertain manoeuvrability, lengths of reversing, and areas of clear conflicts between the swept path movements between vehicles. These safety risks are material unacceptable detrimental impacts arising from the development: s 4.15(1)(b) of the EPA Act. Given their importance I am satisfied that the detrimental impacts are sufficient to dispose of the proceedings.

46. Finally, the development application varies control C1(a) at Part 10.5 in Chapter C10 “Transport Access and Parking” as it does not meet the requirements of AS 2890.2. In my view flexibility in the application of this control in these circumstances is not warranted because the objective of the control, namely “to reduce vehicle and pedestrian conflict on development sites” is not achieved.

Variation to the lot width control in DCP 2014

47. The development application relies on a variation to the lot width in Control (7) in Section 12.2.1 of 12.2 Land Use Controls in Part E 12 Penrith Health and Education Precinct. That control provides that a minimum site width of 24m is required for a mixed-use development. The site has a width of 20.15m.

48. The proposed basement design maximises the available width of the site, relying on a nil setback on both the east and west boundaries.

49. The Applicant seeks to utilise the provisions of s 4.15(3A)(b) of the EPA Act which provides as follows:

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

…

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

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

In this subsection, standards include performance criteria.

50. It is agreed between the parties that the development control is varied by the development application, as such the Applicant seeks to vary the controls on the basis that the objectives are met. The relevant objectives of the standard are extracted at [25]. In Saffioti v Kiama Municipal Council [2019] NSWLEC 57 (“Saffioti”) Preston CJ at [27-28] held that the reasonable alternative solutions referred to in s 4.15(3A)(b) of the EPA Act are solutions that are embodied in the development that is the subject of the development application and further that the onus is on the Applicant to proffer these alternatives.

51. In his submissions Mr Poisel argues that the reasonable alternative solution is that, despite the variation the objectives of the standard, the development application meets the objectives and there are no unacceptable amenity impacts.

Findings

52. Given my earlier findings, the development application does not create legible safe access and circulation for users and visitors to the proposed mixed use development because the access and parking design generates unacceptable inherent risks of conflict between vehicles and pedestrians and between vehicles themselves. Therefore, arguably the development application does not meet the requirements of being a reasonable alternative solution that achieves the objects of Control 7 in Section 12.2.1 of 12.2 Land Use Controls in Part E12 Penrith Health and Education Precinct of DCP 2014. I find that the narrow frontage and non-compliant width compromises the ability of the site to achieve a suitable width for basement access which has concordant impacts to safe manoeuvring, the provision of access and loading areas for service vehicles, and adequate space to separate vehicles and pedestrians. In my assessment these deficiencies are symptomatic of the lack of suitability of the site for a childcare centre: s 4.15(1)(c) of the EPA Act.

Conclusion

53. At the conclusion of my assessment and evaluation of the I find that the development application for a mixed use development, including a childcare centre, on the subject site should be refused on three grounds. Firstly, that there exists a risk to safety which is a detrimental impact that arises from the proposed development: s 4.15(1)(b) of the EPA Act. Secondly, that the development application relies on a variation to a provision of DCP 2014 in circumstances where the design does not meet the objectives of the control. Thirdly, the narrow frontage and non-compliant width compromises the ability of the site to achieve a suitable width for basement access which has concordant impacts to safe manoeuvring, the provision of access and loading areas for service vehicles and adequate space to separate vehicles and pedestrians which are symptomatic of the lack of suitability of the site for a mixed use development incorporating a childcare centre: s 4.15(1)(c) of the EPA Act.

54. Whilst the Respondent raises other contentions in the proceedings, given the preceding conclusion I am satisfied it is not necessary to address these contentions as I have concluded that the development warrants refusal on the nominated grounds.

Orders

55. The Court orders that:

1. The appeal is dismissed.

2. Development application DA23/0161 seeking consent for the demolition of existing structures and construction of a three-storey mixed use development containing a 131 place childcare centre and commercial office space over two levels of basement carparking at 55 Stafford Street, Kingswood is refused.

3. Exhibits are returned with exception of Exhibits 1 and A.

D Dickson

Commissioner of the Court

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Decision last updated: 25 July 2024