Mount Sinai College v Randwick Council

[2008] NSWLEC 1155

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Mount Sinai College v Randwick Council [2008] NSWLEC 1155

PARTIES:
APPLICANT
Mount Sinai College
RESPONDENT
Randwick Council

FILE NUMBER(S):
11150 of 2007

CATCHWORDS:
Development Application :-
Traffic

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979

CORAM:
Moore C

DATES OF HEARING:
28 and 29 February, 7 April 2008

JUDGMENT DATE:
6 May 2008

LEGAL REPRESENTATIVES

APPLICANT
Mr J Robson SC
INSTRUCTED BY
Herbert Geer & Rundle

RESPONDENT
Mr A Seton, solicitor
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

6 May 2008

07/11150             Mount Sinai College v Randwick Council

JUDGMENT

1. COMMISSIONER:  Mount Sinai College seeks the establishment of a preschool campus comprising two preschools with a total enrolment of 90 children.  The preschool campus is intended to be located on 3 allotments (being L-shaped land) comprising 4 to 8 Storey Street, Maroubra.  The allotments total 2,122 sq m in area.

1. Although the original application was for two centres with a total of 120 children, a number in excess of the maximum permitted for a single centre by the Department of Community Services, I do not need to determine whether or not there are any regulatory issues arising as the number of children now proposed for the two centres is no greater than the maximum permitted by the Department for a single centre.  As a consequence, whether the facility, as a matter of fact, should be regarded as one centre or two, it is nonetheless within the permitted size limits.

1. During the course of the on-site inspection, I heard extensive evidence from a range of resident objectors.  I also heard several resident submissions in support of the proposal.  The residents’ objections canvassed a wide range of matters (including some which were of an inappropriate nature – which I declined to admit in their written form or to hear oral evidence concerning them).

1. The council raised a variety of issues including the numerical adequacy and layout of the on-site parking; the possible use of street parking and impacts of increased traffic patterns on the area. Mr Seton, solicitor for the council, submitted that each of these warranted refusal of the application.

2. The applicant lodged a traffic and parking study by Varga and Associates in support of the application.  This document helpfully provides a number of relevant diagrams of the road layout in the vicinity of the site. 
   [<img src="/lecjudgments/2008nswlec.nsf/files/11150_of_2007_fig3.jpg/$file/11150_of_2007_fig3.jpg" alt="fig 3">]

1. This diagram shows the hierarchy of roads in the vicinity.  As can be seen, Bunnerong Road is the main north-south arterial road in the immediate vicinity of the site.  Further to the east, an alternative main road is available using the southern portion of Anzac Parade.

1. I had the advantage of hearing concurrent evidence from three traffic experts, Mr Pindar on behalf of the applicant, Mr Lehmann on part of the council, and Mr Marshall, the single parties’ traffic expert. 

2. As I consider that the application is fatally flawed for a single and determinative reason which is not able to be remedied, I do not need to consider the other issues pressed by the council.

1. The single determinative issue upon which the application must fail, in my view, is the unacceptable impact on residents which will be occasioned by what I find will be some inevitable degree of  (unacceptable) use of Marjorie Crescent and Eastmore Place as a “rat run” to access Bunnerong Road, the nearby main road to the north and south.

2. My reasons for so concluding follow.

1. The second relevant diagram is that which shows the nature of the permitted traffic movements and other traffic controls in the vicinity of the site.  It is reproduced below.
   [<img src="/lecjudgments/2008nswlec.nsf/files/11150_of_2007_fig4.jpg/$file/11150_of_2007_fig4.jpg" alt="fig 4">]

1. This diagram shows that, for those travelling along Bunnerong Road from the south towards the site in order to bring children in the morning or to collect them in the afternoon, it is not possible to turn right directly into Storey Street where the proposed centre would be located. 

2. Two options are available for such parents or carers.  The first is to proceed some 250 m or so further north along Bunnerong Road to Snape Street; turn right at this traffic signal controlled intersection; travel some 150 m or so along Snape Street; turn right into Percival Street (or partially “rat run” through Chapman Avenue) travelling some 200 m or so to turn right into Storey Street.

3. The second option is to turn right at the uncontrolled intersection into Eastmore Place some 50 m or so south of Storey Street and travel along Eastmore Place and Marjorie Crescent (which intersects with Storey Street almost opposite the site) a distance of some 150 m or so in total.  The detailed configuration of these local streets as shown below in an extract from a Varga and Associates diagram.
   [<img src="/lecjudgments/2008nswlec.nsf/files/11150_of_2007_fig.jpg/$file/11150_of_2007_fig.jpg" alt="fig">]

1. Eastmore Place, in particular, is extremely narrow at either end as can be seen from the above diagram.

2. For parents or carers undertaking the trip to the south after collecting their children in the afternoon, it is possible to turn left from Storey Street into Bunnerong Road and proceed directly to the south. 

1. The Marjorie Crescent and Eastmore Place route as an alternative to path to access Bunnerong Road travelling south from the site is an unattractive route as it is longer than a direct left turn from Storey Street into Bunnerong Road.  I accept that, with respect to such afternoon movements, there is unlikely to be any use (certainly no significant use) of Marjorie Crescent and Eastmore Place as a “rat run” for this southward travel purpose.

1. As for parents and carers travelling from the north along Bunnerong Road to access the site, in either the morning or the afternoon, they can turn left into Storey Street and have direct access to the site. 

2. However, to leave the site, they would return to Bunnerong Road either by using the reverse of the path described in (14) to the traffic signals at the intersection of Snape Street and Bunnerong Road or by using the “rat run” via Marjorie Crescent and Eastmore Place – turning right at the uncontrolled intersection of Eastmore Place and Bunnerong Road.

1. It was the evidence of an objector, Mr Jones, who has been resident in Snape Street for 30 years, that, during the morning peak periods from 7am to 9 am, westbound traffic in Snape Street seeking to access Bunnerong Road, was backed up to Snape Street’s intersection with Percival Street – a distance of some 150 m or so. “Between 7 – 9am the traffic in Snape Street is terrible. Traffic backs up in Snape Street from Bunnerong Road to Percival Street during this time” (respondent’s notes of resident evidence) and “Snape and Bunnerong Road, very poor driving 7-9am” (applicant’s notes of resident evidence).  The two sets of notes were tendered as a cumulative record of the on-site evidence rather than as contradictory or comparative records of this evidence.

2. The extent of morning peak westbound traffic in Snape Street is not dealt with by any of the following possibly relevant documents:

   Mr Varga’s SEE traffic report;
   Mr Marshall’s single parties’ traffic expert report and supplementary report; and
   The traffic experts’ joint report.

3. Therefore, Mr Jones’ evidence on the extent of morning peak traffic in Snape Street stands unchallenged and I accept it.

4. Parents would have to wait for a gap to enter this traffic stream if it were banked back beyond the Snape Street/Percival Street intersection. If it were not, they would still have to join the 150 m long queue to access the signal controlled intersection to turn into Bunnerong Road.

5. The other option of looping back around Snape Park by going a further 350 m or more; left up Hannan Street a further 180 m or more; and left a further 350 m or more back along Snape Street would merely reach the end of the backed up traffic in Snape Street (distances measured from plan in SEE after page 7 and are approximate only).

6. The only immediate alternative to using this signal controlled intersection and grappling with the attendant backed up traffic in Snape Street is to utilise the “rat run” through Marjorie Crescent and Eastmore Place and turn right into Bunnerong Road at this uncontrolled intersection.

7. The final tendered version of the proposed Traffic Management Plan contains the following relevant elements:

   Management procedures

   Parents/carers will be provided with an information booklet on their child's first attendance day outlining all relevant procedures/policies/practices. This will include a copy of this Plan of Management. A member of staff will be appointed to implement, supervise and monitor the operation of the TMP. All parents/carers will be required to sign a copy of the TMP upon enrolment, to state that they have read and accept their responsibilities under the TMP.

   General behaviour

   Staff shall monitor the behaviour of parents and carers to the best of their ability on an ongoing basis and in the event that any breaches of this TMP occur, parents/carers shall be counselled and if necessary cautioned.  A record of these events shall be kept by staff in an “event diary” which shall record details of the breach and action taken.  In the event that any parents and carers do not adhere to the reasonable directions of staff; or exhibit continued disregard for the provisions of the TMP, the centre is authorised to terminate the enrolment of children associated with the relevant parent/carer; and

   Parents and carers shall not use Eastmore Place or Marjorie Crescent for access to the site; 

8. During the joint evidence of all three traffic experts, they dealt with the matter of unacceptability of any use of the Marjorie Crescent and Eastmore Place route for any access or departure purposes.  The following exchange took place, during the course of their concurrent evidence, when I asked them to consider this issue:

   Commissioner: Gentlemen, I just take you to the third page of the joint report. You say, in the second last substantive sentence:

   The experts agreed that parents should not use Eastmore Place to access the site and this should be included in the TMP [Traffic Management Plan].

   Mr Marshall: Yes

   Commissioner: The Traffic Management Plan says “shall not” which is more prescriptive. I just what to make it clear in my own mind that what you are saying is any use of Marjorie Crescent and Eastmore Place is unacceptable. Is that correct?

   All experts: Yes

9. The conditions of consent are silent on what role might be undertaken by the security guard in the enforcement of the relevant matters contained in the traffic management plan.  However, if I were otherwise satisfied that the effective and complete prevention of using Marjorie Crescent and Eastmore Place for access to or egress from the site was possible by imposing additional conditions in the consent setting out the duties of the security guard in this regard, I would merely have imposed such conditions.  However, as is obvious from what follows, I am unable so to conclude.

1. From my observation of the area and, particularly, from Mr Jones’ evidence concerning the morning peak hour traffic congestion at the signal controlled intersection of Snape Street and Bunnerong Road (when coupled with any additional travel which would be required if Anzac Parade were to be used as an alternative route to Bunnerong Road), I am unable to accept the submission made by Mr Robson, senior counsel for the applicant, that good management and surveillance by centre staff and appropriate warnings to parents would prevent any use whatsoever of Marjorie Crescent and Eastmore Place for vehicles travelling north after leaving the centre after leaving children (particularly during the morning peak period).

2. Further, I cannot be satisfied that there will be no use of Marjorie Crescent and Eastmore Place for vehicles from the south travelling north toward the centre – whether in the morning for depositing, or in the afternoon for collecting, children. 

3. I am satisfied that even the foreshadowed process of warnings and, if necessary, requirement for removal of the relevant family from the school will be ineffective in completely preventing use of the Marjorie Crescent and Eastmore Place “rat run”.

1. I am fortified on this issue of surveillance being an inadequate answer by the fact that the plans for the centre show that there is no realistic opportunity for members of the centre's professional staff to provide any significant level of continuous surveillance and number plate observation and recording of parents leaving the school who might turn down Marjorie Crescent. The teaching staff would have only one small window, over the sink and workbench in the staff room/kitchen of Centre 1, oriented in this direction. Further, the proposed security guard is also to have a gatekeeper and traffic warden role and is not likely to be able to undertake such a reporting task satisfactorily. 

2. In any event, even if I am wrong about the ability of the staff to operate an observation and recording system, I am satisfied that the potential advantages of the “rat run” are sufficient, psychologically if not always practically, that it is absurd to expect that no parent would ever use it – complete absence of use of this “rat run” being the evidence of the traffic experts as necessary for the acceptability of the site.

1. The consequence of the foregoing is that I am satisfied that:

   there must inevitably be at least some (and possibly significant – but in light of the traffic experts’ evidence the extent is irrelevant) use of the Marjorie Crescent and Eastmore Place “rat run” by parents travelling north in order to avoid congestion at the signal controlled intersection at Snape Street – particularly during the morning peak periods; and
   there must also inevitably be at least some (and probably significant – but in light of the traffic experts’ evidence this extent is also irrelevant) use of the Marjorie Crescent and Eastmore Place “rat run” by parents travelling from the south toward the site merely to take advantage of the shorter and easier access along the route of the “rat run” when travelling to the north. 

2. As a consequence, I am satisfied that the impact on the residents of Marjorie Crescent Eastmore Place, as the traffic engineers postulated it, would be unacceptable and the application must be refused for that reason alone.

1. As a consequence, the orders of the Court are that:

   The appeal is dismissed;
   Development Application 663/2007 for the demolition of the existing structures on 6 to 8 and the adaptation for re-use of the house on 4 Storey Street, Maroubra; remediation of 4 Storey Street and the erection of two preschool centres with a total enrolment of 90 children is determined by the refusal of development consent; and
   The exhibits are returned.

Tim Moore

Commissioner of the Court