Plumpton Park Developments Pty Ltd v Blacktown City Council and DEXUS Funds Management Limited

Case •

[2013] NSWLEC 1186

•

04 October 2013

Land and Environment Court


New South Wales

Medium Neutral Citation: Plumpton Park Developments Pty Ltd v Blacktown City Council and DEXUS Funds Management Limited [2013] NSWLEC 1186
Hearing dates:12-13 September 2013
Decision date: 04 October 2013
Jurisdiction:Class 1
Before: Fakes C
Decision:

(1) The appeal is dismissed.

(2) Development Application DA 08-638 for a shopping centre and associated signage, car parking and landscaping on Lot 2, DP 1181255, Jersey Road Plumpton, is determined by refusal.

Catchwords: DEVELOPMENT APPLICATION: Shopping centre; impacts of parking and traffic on second respondent's land, an adjoining shopping centre.
Legislation Cited: Environmental Planning & Assessment Act 1979
Environment Protection and Biodiversity Conservation Act 1999
Land and Environment Court Act 1979
Threatened Species Conservation Act 1995
State Environmental Planning Policy No 55 - Remediation of Land
Blacktown Local Environmental Plan 1988
Draft Blacktown Local Environmental Plan 2013
Cases Cited: DEXUS Funds Management Limited v Blacktown City Council (No 3) [2011] NSWLEC 230
Plumpton Park Developments Pty Limited v Blacktown City Council [2013] NSWLEC 1158
Wehbe v Pittwater Council (2007) 156 LGERA 446
Zhang v Canterbury City Council [2001] NSWCA 167
Category:Principal judgment
Parties: Plumpton Park Developments Pty Ltd (Applicant)
Blacktown City Council (First Respondent)
DEXUS Funds Management Limited (Second Respondent)
Representation: Applicant: Mr J Robson SC (Barrister) and Ms A Pearman (Barrister)
First Respondent: Mr S Simmington (Solicitor)
Second Respondent: Mr I Hemmings (Barrister)
Applicant: Eakin McCaffery Cox Lawyers
First Respondent: Lindsay Taylor Lawyers
Second Respondent: Allens
File Number(s):10110 of 2013

Judgment

  1. COMMISSIONER: The applicant, Plumpton Park Developments Pty Limited, proposes to construct a shopping centre with associated parking and landscaping on Lot 201, DP 1181255 (former Lots 101-103 DP1077484) Jersey Road, Plumpton (the site).

  1. The applicant is appealing, under s 97 of the Environmental Planning & Assessment Act 1979 (EPA Act), Blacktown City Council's (the first respondent) refusal of Development Application 08-638 on 21 August 2012.

  1. The site adjoins an existing shopping centre, Plumpton Marketplace, managed by the second respondent, DEXUS Funds Management Limited (DEXUS), on behalf of the registered proprietor, SAS Trustee Corporation. A Right of Way (ROW) burdens the Plumpton Marketplace land and benefits the applicant's land.

  1. On 31 July 2013, DEXUS filed a Notice of Motion seeking orders for joinder as a second respondent to proceedings set down between the applicant and the first respondent. The Notice of Motion was heard and determined by the Senior Commissioner and DEXUS was joined as second respondent to the proceedings (see Plumpton Park Developments Pty Limited v Blacktown City Council [2013] NSWLEC 1158).

The proposal

  1. The applicant proposes a 1-2 storey shopping centre with a Gross Floor Area (GFA) of 16,532m2, of which 12,880m2 is the Gross Lettable Floor Area (GLFA).

  1. The shopping centre is proposed to comprise: 2 major retailers, 2 mini-major retailers, 4,615m2 of speciality retailers, and a food court.

  1. The applicant proposes parking for 612 cars to be accommodated at grade and at basement level.

  1. The main vehicular entry will be off Jersey Road at the existing traffic lights and via the ROW on the adjoining land. A secondary vehicular entry point is proposed via Hyatts Road, along the extension of the ROW that passes the main entrance to Plumpton Marketplace. A new left in -left out vehicle access point is proposed on Jersey Road for use of staff and service vehicles.

  1. The site is to be landscaped.

The site and its locality

  1. The site has an area of 3.685 ha. The northern boundary fronts Jersey Road, a four lane divided carriageway with a 60km/h speed limit.

  1. The adjoining land to the west is Plumpton Marketplace, and to the east is council park land and land owned by a church. Immediately to the south is a relatively recently formed and revegetated drainage channel, beyond which is a residential development and Plumpton High School.

  1. There are a number of schools, a retirement village and residential dwellings in the vicinity.

  1. The site contains Cumberland Plain Woodland, a critically endangered ecological community listed in Schedule 1A of the Threatened Species Conservation Act 1995 (also listed as critically endangered Cumberland Plain Shale Woodlands and Shale-Gravel Transition Forest in the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)).

Plumpton Marketplace

  1. According to DEXUS' Statement of Facts and Contentions, Plumpton Marketplace is a sub-regional centre approved by Blacktown City Council in 1993. It is anchored by Woolworths and Big W and includes 60 speciality shops and provides 978 parking spaces. In addition, McDonalds, KFC and Woolworths Petrol outlets operate on the Plumpton Marketplace land.

  1. Plumpton Marketplace is bounded by Jersey Road to the north and Hyatts Road to the west. Access to Plumpton Marketplace is via Hyatts Road and a signalised intersection on Jersey Road.

  1. As stated above, a ROW burdens the Marketplace land and benefits the applicant's land. The council registered the ROW on 18 April 1997.

Relevant background and issues

  1. The first application for a shopping centre on the site was made in about 1999 for Stage 1 of a proposed two-stage development. As I understand it, council owned the land. In 2000, consent was granted for deferred commencement of Stage 1 subject to a number of conditions. That development did not proceed.

  1. Since 2005, the applicant has owned the site. In 2008, the applicant lodged DA 08-638 for the construction of a new shopping centre with associated landscaping and car parking. Blacktown City Council ultimately approved the development application in February 2011, subject to conditions.

  1. In November 2011, DEXUS commenced Class 4 proceedings seeking a declaration that the development consent was void and of no effect.

  1. Essentially, the key issues raised by DEXUS in the 2011 proceedings related to inadequate consideration given by council to:

  • Use of the ROW to access parts of the land not benefited by the ROW and absence of owner's consent;
  • Traffic - impacts of use of the rights-of way from Jersey Road and Hyatts Road for all access to the site on internal traffic movements within Plumpton Marketplace; impacts on traffic movements particularly on Jersey Road, including impacts of traffic signals proposed in a deferred commencement condition.
  • Potential contamination due to previous land uses and the obligations that arise from State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55).

  1. Pain J made the declaration sought by DEXUS in DEXUS Funds Management Limited v Blacktown City Council (No 3) [2011] NSWLEC 230. That judgment details the background to the proceedings, issues raised by DEXUS (summarised above) and the reasons for the declaration.

  1. On 21 August 2012, DA 08-638 was subsequently refused by council on the grounds that:

  • The DA did not include a Site Contamination Report prepared in accordance with SEPP 55;
  • The applicant failed to address traffic matters through the provision of traffic control signals at the access point on Jersey Road; and
  • The entirety of the land to which the DA relates does not benefit from access afforded by the ROW.

  1. The applicant filed the Class 1 Application with the Court on 19 February 2013. In March 2013, the applicant was granted leave to rely on amended plans.

  1. The amended plans and a range of accompanying documents were filed with the DA in April 2013. The DA was notified to adjoining and nearby owners and occupiers between 21 May and 21 June 2013. Only DEXUS made a submission.

  1. The matters raised by DEXUS in the submission related to: stormwater management; ecological assessment and loss of tree cover including reference to the EPBC Act; height of the proposed building; consideration of the Draft Blacktown Local Environmental Plan 2013 (Draft BLEP); access via the ROW; and impacts of construction traffic on operation of Plumpton Marketplace.

  1. The proposal and its particular components were subject to further internal council referrals as well as referrals to external authorities, with requests made to the applicant for further information or responses.

  1. As stated above, on 31 July, DEXUS filed a Notice of Motion to be joined as a party to the proceedings. That was granted on 5 August and the matter was set down for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) on 12 August 2103. The s34 conciliation was terminated and the matter proceeded to a hearing in accordance with s 34(4) of the Court Act.

Council's remaining contentions

  1. Following the receipt of additional information, particularly in regards to SEPP 55, council raises only two issues in its Statement of Facts and Contentions filed on 2 July 2013. These are summarised as:

1. Traffic - unsatisfactory impacts unless the RMS agrees to a proposed adjustment to the cycle time of the traffic signals on Jersey Road at the main access point to the shopping centre.
2. Threatened Ecological Community - inadequate information as to whether the proposal requires a Species Impact Statement (SIS).

DEXUS' contentions

  1. DEXUS' Statement of Facts and Contentions filed on 8 August 2012 lists the following contentions (as summarised):

1. Development consent - the DA proposes works on the Plumpton Marketplace land burdened by the ROW for which no owner's consent has been granted nor development consent by council.
2. Overdevelopment of the site - no secondary access to Hyatts Road is proposed therefore this will result in unacceptable queuing of vehicles on DEXUS' land as vehicles leave the site; questionable traffic modelling.
3. Access - inadequate arrangements especially for trucks during construction and delivery trucks post-construction.
4. Parking - the proposed provision of 612 car spaces does not comply with Blacktown Development Control Plan 2006 (BDCP) and therefore overflow parking will adversely affect Plumpton marketplace car park.
5. Traffic impact analysis - Inadequate assessment of the traffic impacts during peak periods, phasing of traffic signals.
6. Statement of environmental effects - no amended SEE filed, ecological issues, tree removal, and inadequate assessment of critically endangered ecological community.
7. Draft Blacktown LEP - failure to consider; changes to height limits.

Matters resolved

  1. Setting aside the matter of the use of the ROW and any works required on it, the following issues have been resolved.

Traffic signal phase times

  1. Correspondence from the RMS dated 2 September 2013 (Annexure L, Exhibit B3) indicates that the RMS has no objections to the signals at the Jersey Road/ Plumpton Marketplace access point operating at their current phase times as those signals operate in isolation to signals on the State road network. Therefore council no longer presses contention 1. This partially addresses DEXUS contention 2.

Site access

  1. The parties' traffic experts agree that subject to a proposed amended design (identified as Annexure I in Exhibit B3), and the imposition of appropriate conditions, the access issues raised by DEXUS in contention 3 can be satisfactorily addressed. However, this is relevant to DEXUS contention 1.

  1. The traffic experts agree that additional traffic counts provided by Cardno (the applicant's traffic consultants) and the response by the RMS in regards to the traffic signals, address DEXUS contention 5. They agree that, in regards to intersection operation, the existing traffic signals will be able to accommodate additional traffic generated by the proposal.

Ecological issues

  1. In regards to council contention 2, and DEXUS contention 6, a Joint Experts Report was prepared by ecologists for the applicant (Ms E Craigie and Dr S Ambrose) and council (Mr D Fanning). Apart from considering council's contention, the joint report also considers the ecological issues raised by DEXUS.

  1. The ecologists agree that sufficient information has been provided in the various ecological reports and that an SIS is not required for any listed ecological community or species. However, all ecologists agree that there should be a 'biodiversity offset', that is, an environmental contribution to offset the ecological impacts of the development.

  1. The experts agree with council's proposal to impose a levy of $150,000 to be paid by the applicant to fund a three-year weed eradication and bush regeneration program, primarily within Plumpton Park.

  1. To that end, council has drafted a Voluntary Planning Agreement (VPA) between Blacktown City Council and Plumpton Park Developments Pty Ltd for the purpose of the restoration of Cumberland Plain Woodland in the council's area, in priority, Plumpton Park. The contribution will be $150,000. The terms of the proposed VPA and an acknowledgement of the applicant's agreement to it are provided in Exhibit B8.

  1. While landscaping was not raised as a contention, during the hearing I drew the parties' attention to the proposed use of Eucalyptus moluccana as a boundary planting species. This species is particularly susceptible to psyllid attack and therefore potentially not as useful as other less susceptible Cumberland Plain Woodland species. The applicant and council agreed that a suitable replacement would be considered, and if necessary, a condition drafted to that effect.

Draft BLEP 2013

  1. Planners for the parties prepared a Joint Report dated 2 September 2013. The participants were Mr G Apps, council's planner, Ms L Bull, the applicant's planner who also prepared a Statement of Evidence (Exhibit L), and Ms D Pinkerton, presumably planner for DEXUS.

  1. The experts agree that the issues raised by DEXUS in regards to the Statement of Environmental Effects have been satisfied by the range of supporting materials prepared by others. Similarly, the planners agree with Ms Bulls' findings in her Statement of Evidence in regards to Draft BLEP 2013.

  1. In essence, while the Draft BLEP 2013 has been publicly exhibited, its finalisation is neither certain nor imminent. Although the savings provision in cl 1.8A of the draft LEP requires a DA made before the commencement of a plan to be determined as if the plan had not commenced, s 79C(1)(a)(ii) makes it a matter for consideration.

  1. Draft BLEP 2013 establishes the height of a building on the site to be a maximum of 9 metres. Clause 4.6 of the draft allows exceptions to development standards. Ms Bull finds that approximately 41% of the proposed roof area exceeds 9m. In applying the rationale described by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446, Ms Bull concludes that there are sufficient planning grounds to support the non-compliance with height controls of the proposed development. In her view, a view supported by the other planners, the departure from the draft height control is appropriate and reasonable in the circumstances.

  1. Ms Pinkerton advised that the relevant parts of DEXUS contentions 6 and 7 are no longer pressed.

Remaining issues

  1. The issues remaining between the applicant and DEXUS relate to:

  • ROW - No owner's consent, or any other consent for proposed works on the ROW off Jersey Road (DEXUS contention 1).
  • Traffic - Impacts of traffic generated by the proposed development on traffic movements on the rights-of way including queuing on Plumpton Marketplace land and consequential impacts on the operation of the car park; application of the SIDRA model and its accuracy (DEXUS contention 2).
  • Parking - shortfall of parking spaces; non-compliance with DCP; likely impacts on Plumpton Marketplace car park (DEXUS contention 4).

The assessment framework

  1. Section 79C of the EPA Act establishes the requirements for evaluation and determination of a development application.

  1. The site is zoned General Business 3(a) in Blacktown Local Environmental Plan 1988 (BLEP 1988). The proposed development is permissible with consent.

  1. Draft Blacktown Local Environmental Plan 2013 (Draft BLEP 2013) applies. The site is proposed to be zoned B2 Local Centre. The proposed development is permissible with consent and a height limit of 9m will apply to the site. The draft BLEP is neither certain nor imminent but has been publicly exhibited.

  1. Blacktown Development Control Plan 2006 (BDCP 2006) applies. The only relevant Part of BDCP is Part A - Introduction and General Guidelines, Section 5.0 Car Parking.

  1. Part D - Development in the Business Zones, Section 4.0 General Guidelines for Development - cl 4.8 Car Parking and Section 5.0 - Sub-Regional Centres - cl 5.2 refer to the general guidelines in Part A - Section 5 of BDCP 2006.

  1. The relevant provisions of Section 5.0 Car Parking are as follows:

5.1 Objectives
Recognising the varying availability of public transport within Blacktown, the aim of the car parking provisions of Blacktown DCP 2006 is to provide a comprehensive guide for the provision of parking for new development in order to:
(a) ensure adequate traffic safety and management;
(b) ensure an adequate environmental quality of parking areas (both safety and amenity); and
(c) provide parking areas that are convenient and sufficient for the use of the employees and visitors generated by new developments.
5.2 General Principles
Council will take the following factors into account in determining car parking provision for a particular development:
(a) the size and type of the development and its traffic generation;
(b) the availability and accessibility of other public parking (particularly if within or close to a shopping centre);
(c) traffic volumes on the street network, including expected future traffic volumes relating to the City's road hierarchy; and
(d) hours of operation and any other specific characteristics of the development proposal.
5.3 Specific Land Use Requirements
Car parking is to be provided for specific types of development in accordance with the standards shown in Table 5.1. Parking is to be provided off-street and is to be readily identifiable and accessible from public roads.
(Table 5.1 provides:)
Retail Shop/ Showroom: Shops 200m2 or greater - 1 space per 22m2 GFA; Shops less than 200m2 - per 30m2 GFA
Supermarket & Vegetable/Fruit Market: Shops 200m2 or greater - 1 space per 22m2 GFA; Shops less than 200m2 - per 30m2 GFA
Note 3 to Table 5.1 states:
3. GFA means "Gross Floor Area" [Defined].....
The above parking requirements apply to development in general. Specific additional requirements may be necessary for certain developments, in particular within the Blacktown CBD and the Mount Druitt Town Centre. You should check the relevant parts of Blacktown DCP 2006 to ensure that you are familiar with Council's requirements. For developments other than those listed above, or dealt with elsewhere in Blacktown DCP 2006, car parking requirements will be based generally on the standards applied by the Roads and Traffic Authority in its publication 'Policies Guidelines and Procedures for Traffic Generating Developments" and on the merits of the individual development.
Each development proposal will be treated on its merits in relation to the general principles above and the standards for specific developments. Applicants are encouraged to discuss car parking proposals with officers of Council's Planning and Development Services staff.
For developments incorporating a number of related uses, a separate calculation will be made for each component. Parking needs will be calculated on the peak demand time. Thus, where peak demand is staggered, Council may permit a reduction in the total number of spaces otherwise required.

The hearing and evidence

  1. The hearing commenced on site. As the only merits issues between the parties relate to the impacts of additional traffic on operational aspects of Plumpton Marketplace - traffic queuing and parking, the site itself was not inspected in any detail.

  1. The site inspection focussed on the internal roads and rights-of-way, the configuration of Hyatts Road, access points to both Plumpton Marketplace and the site, and identification of the location of works proposed on the Jersey Road ROW as identified in Annexure I in the Joint Traffic Report.

  1. The drainage easement at the rear of the site was noted as was the staff/ delivery access for Plumpton Marketplace off Hyatts Road. This element of the inspection was prompted by various references, in particular by Mr Hollyoak, DEXUS' traffic expert, to the 1998/99 proposal for a shopping centre to be constructed in two stages when the site was owned by the council. Stage 2 of that proposal included a secondary vehicular access along the rear of the existing Plumpton Marketplace shopping centre and associated parking. However, since that proposal, the stormwater easement at the rear of the site and Plumpton Marketplace has been realigned. In addition, the proposal did not eventuate and therefore is irrelevant to my consideration of this matter.

Traffic

  1. The only experts required for cross-examination were the parties' traffic and parking experts. Mr John-Paul Maina was engaged by the applicant, Mr Craig McLaren by the council, and Mr Ken Hollyoak (of GTA) by DEXUS. The experts prepared a joint report (Exhibit B3) and a supplementary report (Exhibit B7).

  1. There appears to be no dispute between the experts that traffic movement surveys conducted on behalf of Cardno (the applicant's traffic consultants for whom Mr Maina works) indicate that approximately 60% of the existing traffic entering the Plumpton Marketplace land does so via the signalised intersection on Jersey Road. Approximately 40% of vehicles use the Hyatts Road access point with the (small) majority of those vehicles entering from and exiting to the south.

  1. The surveyed peak periods were Thursday mornings (6.30-9.30am), Thursday afternoon/early evening (3.00/4.00-6.00/7.00pm) and Saturday (10.00/11.00am-2.00pm). Traffic volume surveys were conducted in July 2007, February 2013, and August 2013.

  1. The experts agree with Mr Maina's finding in his 'Traffic and Parking Impact Assessment' (23 August 2013)(Exhibit C) that while the existing Marketplace generates more traffic on Saturdays, the relatively high shopping centre activity during the Thursday PM peak period combines with passing commuter traffic to produce the greatest traffic flows, and therefore the greatest impact on the adjacent road network. Therefore, the Thursday PM peak period is the basis of subsequent discussion on queue lengths.

  1. The experts have agreed that the works on the Jersey Road ROW, as proposed in Appendix I (Exhibit B3), would reduce potential queuing problems at that access point. Therefore the main area of dispute between the experts is the likely length of the queue of vehicles exiting the site onto Hyatts Road during the peak period; that is, on the east-west ROW in front of the Plumpton Marketplace shopping centre. The basis of the dispute rests with assumptions made in applying the SIDRA model.

The SIDRA model

  1. According to Mr Maina's report, the SIDRA Intersection model is a software package originally developed by the Australian Road Research Board. It provides information about the capacity of an intersection in terms of a range of parameters including:

  • Degree of Saturation (DOS) - the ratio of the volume of traffic observed making a particular movement compared to the maximum capacity for that movement. Varying DOS are given a rating from excellent, very good, good, fair, poor and very poor.
  • 95th Percentile (95th%ile) Queue - represents the maximum queue length, in metres, that can be expected in 95% of observed queue lengths in the peak hour.
  • Average Delay - the delay time, in seconds, which can be expected over all vehicles making a particular movement in the peak hour.
  • Level of Service (LOS) - an important consideration in determining the impact of a proposed development on the road system and the effect on traffic efficiency. The objective is to maintain the existing level of service. The LOS is given as a rating of A, B, C, D or E and is tabulated against criteria of Average Delay per vehicle at intersections with traffic signals/ roundabouts and intersections with give way/ stop signs. A is good, E indicates the intersection is at full capacity and requires other control modes.

  1. In the joint report and in oral evidence, further details emerged about the SIDRA model, in particular as it applies to the Hyatts Road intersection. Mr Maina states that the model has been developed using parameters accepted by council and validated by the proprietor of the modelling program.

  1. One of the parameters in the model is a default/recommended 'gap acceptance time' or 'critical gap' measured in seconds. This is essentially the break in the major road stream of traffic a driver seeks before entering that major road from a minor road. The critical gap value is dependent on the number of lanes in both directions on the major road.

  1. Annexure N in the joint report includes a table showing the critical gap values used in SIDRA and those in the AUSTROADS guide for a range of types of movement.

  1. There is a dispute between the experts as to the configuration of Hyatts Road at its intersection with the access from Plumpton Marketplace.

  1. Mr Maina categorises Hyatts Road at its intersection with the access road as a '2-lane two way' with the SIDRA default position for a right turn into such a road being a gap acceptance of 5.5 seconds (although the model will accept 5-6 seconds). Mr McLaren also considers Hyatts Road to be a two-lane road and has always applied the AUSTROADS gap acceptance of 5 seconds to such intersections.

  1. Mr Hollyoak considers a gap acceptance of 7 seconds more accurately reflects both recalibration of the model to replicate actual queue lengths (discussed below) but also the actual way in which the intersection is used. The lane width is wider than the standard lane width. Through vehicles heading south move out and around vehicles turning left into the access road from the north (this was observed during the site view although some vehicles cross the double lines and some use the unmarked section closer to the intersection). Mr Hollyoak contends that this adds complexity to the decision making process and the configuration is more akin to a 3 lane road. Seven seconds is the default gap acceptance for the SIDRA model for a 4-lane two-way road but the system also allows a range of 6-8. The AUSTROADS critical gap for the same road is 8 seconds. Mr Maina considers that the relative distances to traffic lights, pedestrian crossings and speed limit on Hyatts Road support the default position.

  1. The SIDRA model for the Hyatts Road exit (undertaken by Mr Maina and reported in his Supplementary Traffic Impact Assessment - 29 August 2013 (Exhibit D)) generated a 95th%ile queue of 9m under existing conditions. [Elsewhere in his evidence Mr Maina gives this as a figure of 1.3 vehicles.] The model, in Table 3-2 predicts the post-development 95th%ile queue length to be 18m. This results in a rating of excellent DOS and a LOS of A.

  1. However, Figure 4-2, and the accompanying comments, in Mr Maina's supplementary report indicates that queue surveys observed during the critical Thursday PM peak periods reach a maximum of 60m with the average 26m (equivalent to about 4 vehicles). He then states that the SIDRA model indicates that the queues in the ROW will increase by 9 metres post-development.

  1. Therefore, in Mr Maina's opinion, post-development traffic will result in manageable queues and will have no material impact on the operation and circulation within the Plumpton Marketplace car park.

  1. Mr Hollyoak raises a concern about the discrepancy between the modelled 95th%ile queue length of 9m [1.6 vehicles in his calculation] whereas the queue surveys show the maximum queue above 10 vehicles or at least 60m. He states that the model assumptions must therefore be called into question.

  1. The period over which the debate centres is the most recent queue length survey of the Hyatt Road/ Shopping Centre Access between 4.00-7.00pm on Thursday 15 August 2103. The data in the table shows the number of vehicles in each lane in 5-minute intervals. The right hand turn lane is the significant lane. The critical hour, the subject of further scrutiny by Mr Maina of actual video footage is between 5.00-6.00pm. This analysis included as Annexure M in the joint traffic report shows the number of vehicles in the right hand lane in 5-second intervals.

  1. Mr Hollyoak recalibrated the SIDRA model by adjusting the gap acceptance of the model until such a time that the model then replicated the observed queue. The critical gap/ gap acceptance level was just over 7 seconds. In applying this to the post development scenario, Mr Hollyoak applied this to the 5-minute data and generated a queue length of 52 vehicles or 300m. In eventually accepting the observed 95th%ile queue length to be 4.0 vehicles (as recorded in 5 second intervals), Mr Hollyoak then calculates a queue of 160m, which would stretch along the majority of the Plumpton Marketplace frontage thus compromising access to and from the majority of the parking aisles. He considers that with an assumed growth of 2% p.a of traffic use along Hyatts Road that the access road will operate with a LOS of F [off the scale in Mr Maina's report].

  1. In the joint report, Mr Maina further explains the SIDRA model. He states that the model runs its calculations on a per second basis. He argues that Mr Hollyoak's initial approach of using 5-minute intervals (or 12 samples) is flawed, and that while the 5-second analysis is still flawed, it gives a better representation of the 95th%ile queues than the use of 12 samples. To that end, Mr Maina agrees that the 95th%ile queue length is 4 vehicles or a difference of 2.7 from that modelled by SIDRA. He considers this to be an acceptable discrepancy that will have no appreciable impact on the post-development queue length.

  1. Both Mr Maina and Mr McLaren disagree with Mr Hollyoak's use of a 7 second gap acceptance as, in their view, this is not the industry accepted figure for the particular intersection and it overestimates the likely queue length.

  1. In regards to the discrepancy, Mr McLaren would not adjust the model but would simply look at the net difference in queues and apply that to the observed queue length. In his opinion, when considered on a per minute basis (his preferred time period) this equates to an additional two vehicles per minute to the end of the queue. He also stated in oral evidence that adjustments could be made to the entry and exit points within the proposed car parks on the site that could limit traffic from the site using the ROW to Hyatts Road.

  1. Mr Maina, who viewed the video footage of the intersection, states that the footage shows motorists taking gaps consistent with the programmed model and therefore, there is no justification to adjust it. Further, his analysis of the data in Annexure M shows 460 of the 720 recorded events indicate queues of one vehicle or less, and only 27 instances when the queues exceeded 4 vehicles. In his opinion, this confirms that the intersection has capacity and the level of service of the intersection is good.

  1. In Mr Maina's opinion, adjusting one parameter to suit only one output fundamentally compromises the integrity and balance of the model. He considers that this will influence the post development outputs by introducing a negative compounding effect which in turn results in over-reporting of performance measures such as DOS, average delay, and 95th%ile queue. In his view, the model is under reporting existing queues by 2.7 vehicles and that these should be added to the predicted post development queues resulting in an adjusted 95th%ile queue of 5.2 vehicles or about 30m.

Parking

  1. The key issue in regards to parking is whether the 612 proposed car spaces are adequate and will not lead to patrons of the new shopping centre using the Plumpton Marketplace car park.

  1. Mr Maina considers that the proposed 612 spaces are satisfactory and will sufficiently and comfortably accommodate the peak parking demand. While he accepts this is below the number of spaces required by the BDCP, he states that the DCP allows consideration of the RTA/RMS 'standards' as an acceptable alternative. He considers the BDCP to be a guide and relies on the statement in BDCP under Table 5.1 that "each development will be treated on its merits in relation to the general principles listed above and the standards for specific developments." The RTA Guidelines calculate parking spaces based on Gross Leasable Floor Area (GLFA) and include a regression formula to explain the rates. This is the basis upon which Mr Maina has calculated parking rates of 454-551 parking spaces.

  1. On Mr Hollyoak's calculation, the BDCP requires provision of 743 spaces, a shortfall of 131 spaces. Mr Hollyoak maintains that as the BDCP includes the proposed mix of retail in Table 5.1, there is no requirement to consider the RMS guidelines. However, even if the RMS guidelines for GLFA were used, the proposal would still require 722 spaces, a shortfall of 110 spaces. He considers the regression equation shown in the RMS guidelines is 'indicative'.

  1. Mr Hollyoak considers that the proposal is not an extension of the existing centre and therefore no discount in car spaces is warranted. In his view, the proposed number of parking spaces is unlikely to satisfy demand and consequently, parking will overspill onto Plumpton Marketplace therefore adversely affecting its operation.

  1. Mr McLaren agrees with Mr Maina, as his preference is to use the RMS regression model. Both he and Mr Maina consider there will be some duel use of the proposed car park and the existing Plumpton Marketplace car park as customers walk between both centres. He also considers that there are a number of bus services that operate along both Hyatts Road and Jersey Road thus providing an alternative to car use.

Submissions - traffic and parking

  1. Mr Simmington for Blacktown City Council notes that council's Traffic Management Services section raises no concerns about the Hyatts Road intersection. It appears that council is as content with Cardno's most recent analysis as it was in its November 2010 council meeting report when it questioned assumptions made by Mr Christopher Hallam, a traffic consultant who, in October 2009, peer reviewed Cardno's traffic impact assessment for the original DA-08-638.

  1. Mr Simmington contends that Mr Hallam used a similar but erroneous approach to Mr Hollyoak in characterising Hyatts Road as more than a two lane two way road and applying a higher gap acceptance figure with subsequent inflated figures for the queue length. While he accepts there is a discrepancy between the modelled queue length and the observed queue length, he considers this is not a 300% discrepancy, as contended by Mr Hemmings for DEXUS, but rather an absolute figure of 2.7 vehicles that will not result in an acceptable impact on the operation of Plumpton Marketplace.

  1. In regards to the provision of parking on the site, Mr Simmington refers to a memo dated 28 June 2013 from council's Senior Traffic Management Officer who reviewed the latest traffic impact assessment from Cardno, which states: 4. The parking provisions proposed appears (sic) to be satisfactory. Mr Simmington also refers to the November 2010 council meeting report where the parking proposal is deemed to be compliant with council's parking policy.

  1. Mr Simmington contends that customers will see the proposed shopping centre and the existing Plumpton marketplace as one destination and people will use both car parks for both centres. He submits that it is an extension of the existing centre and that the level of proposed parking is sufficient.

  1. Mr Robson for the applicant maintains that the council has always considered the use of the site as a shopping centre. Apart from a legal argument about works on the ROW, Mr Robson contends that the issues raised by council have been resolved and that the council is similarly satisfied with the Hyatts Road intersection and the parking proposal.

  1. He essentially concurs with Mr Simmington in that Mr Hollyoak, and previously Mr Hallam (who Mr Robson reminds me is not an expert in these proceedings), applied the SIDRA model in way not intended or advocated by its designer. Mr Robson relies on the evidence of Mr Maina and his experience with the model and the site. In particular, Mr Robson presses the evidence of the video footage of the actual queue length, a video not viewed by Mr Hollyoak, which demonstrates the low level of queuing along the access to Hyatts Road.

  1. In regards to the parking, Mr Robson argues that the control of parking rests with the council in the provisions of BDCP - Part A, Section 5. These in turn allow for the use of the RTA (RMS) guidelines, the RMS being the pre-eminent authority on such matters. He maintains that Council, by its own assessment of the Cardno reports, is fully satisfied with the level of parking to be provided on the site.

  1. Mr Robson submits that when assessed against s 79C of the Act, there are no unreasonable impacts on DEXUS' land as a consequence of the traffic and parking elements of the proposal and the appeal should be upheld.

  1. Mr Hemmings for DEXUS contends that Mr Maina's evidence in regards to the modelling of the Hyatts Road intersection is such that the Court can have no confidence that there will not be a detrimental impact on the operation of the Plumpton Marketplace car park. He argues that Mr Maina was unable to satisfactorily explain how the model works in regards to the magnitude of the error due to the discrepancy between the modelled current queue, the observed queue and the likely post-development queue.

  1. In regards to the proposed number of parking spaces, Mr Hemmings submits that as considered in Zhang v Canterbury City Council [2001] NSWCA 167, the DCP must be the focal point of the Court's determination. He maintains that the provisions of BDCP - Part A, Section 5 make specific reference to the nature of the proposed use. BDCP only requires use of the RTA/RMS guidelines if the use is not listed.

  1. Mr Hemmings contends that Mr Maina has applied the RMS regression formula without any rationale for doing so. In addition Mr Hemmings considers that Mr Maina's calculation is, at best, a 'guesstimate' as there is no breakdown of the types of retail proposed.

  1. Mr Hemmings also notes that Mr Maina states that people using both centres will share the parking spaces on both sites; therefore there is an assumption that the site is an extension of the Plumpton Marketplace car park. Mr Hemmings maintains that the proposed new shopping centre is not an extension of the Plumpton Marketplace as it is a new commercial development on land not owned or managed by DEXUS. Therefore all parking needs generated by the development should be wholly provided on the applicant's land. He stated that no commercial agreement had been discussed between the applicant and his client in regards to parking opportunities on Plumpton Marketplace land. Mr Hemmings considers that absent such an arrangement, it would be analogous to owners or occupiers of one block of units deciding they could park their cars in the car park of an adjoining block of units should their own site be full.

  1. Therefore, Mr Hemmings submits that the appeal should fail on the merits.

Findings - Traffic and Parking

Traffic - Hyatts Road Access

  1. While it is clear that there is a discrepancy between the modelled 95th%ile queue length and the actual surveyed queue lengths, on balance I am not persuaded by Mr Hollyoak's approach of adjusting the gap acceptance input in order to recalibrate the model. I note Mr Hollyoak's statement at the beginning of his Annexure N - 'Explanation of GTA SIDRA calibration' - 'Intersection analysis results for sign controlled intersection using SIDRA are very sensitive to the critical gap (and follow-up headway) values chosen.' I agree with Mr Maina and Mr McLaren, that to do so would result in a forecast queue length that would appear to be unsupported by the evidence of the current actual queues generated within the busiest hour on a Thursday night.

  1. While Mr Hallam's report was referred to, Mr Hallam was not involved in the preparation of any new evidence or joint reporting for these proceedings and no weight will be given to that report. It is sufficient to note that the issues raised in council's report about gap acceptance values are the essentially the same as those covered in these proceedings.

  1. I am satisfied with Mr Maina's analysis of the video footage of the traffic movements onto Hyatts Road (Annexure M) and his assessment that the actual flow of traffic agreed with the modelled gap acceptance figure. I also note the breakdown of the actual queue lengths in that peak hour, summarised in [75], that shows the vast majority of traffic movements involve fewer than four vehicles in any queue. It would seem that Mr Maina's and Mr McLaren's assessment of Hyatts Road as a two-lane two way road is justified even though it occasionally operates, lawfully or otherwise, as a two-plus one two lane road.

  1. I cannot find any disagreement from Mr Hollyoak as to the Cardno figures for the projected peak hour traffic distribution resulting from the proposal. The figures in Mr Maina's August report indicate a possible 64 additional trips in the right hand turn lane with a projected total of 225 trips in that hour. In taking an intuitive approach and applying the additional numbers to the 5 second analysis of the actual queue survey results (Annexure M) and noting the relative distribution of those figures, I find it difficult to accept Mr Hollyoak's projected queue lengths. However, Mr McLaren's estimate of an additional 2 vehicles per minute is probably an over-simplification as the distribution within the hour is variable with a number of minor peaks.

  1. I also cannot accept Mr Hollyoak's assumption that traffic will grow at about 2% per annum when the traffic survey results between 2007 and 2013 show a decrease in traffic on both Jersey and Hyatts Roads, albeit less of a decrease along Hyatts Road.

  1. Overall, on the evidence before me, I have not been persuaded by DEXUS' argument that the proposed development will have such an unacceptable and detrimental impact on the operation of its car park and the associated ROW past Plumpton Marketplace as to warrant refusal on this basis. Undoubtedly there will be an impact and the queues will be longer at peak times, something to be expected by anyone visiting a regional shopping centre on a Thursday night or Saturday morning.

  1. However, the measures alluded to by Mr McLaren in regards to reducing the flow of vehicles from the proposed development onto the Hyatts Road access should be investigated and incorporated into the design of the proposed car park.

Parking

  1. I agree with Mr Hemmings that the finding in Zhang requires me to make BDCP the focal point of my consideration of the parking proposal, although I am not bound to accept it uncritically.

  1. Table 5.1 in BDCP Part A Section 5 does not include the words 'shopping centre' but it does specify the parking rates required for retail shops/ showrooms and supermarkets/ fruit markets. A shopping centre is a collection of retail outlets under 'one roof' however, that roof also includes pedestrian and other spaces that may not generate a demand for parking.

  1. The BDCP parking rate is based on GFA: 1 space per 30m2 for outlets less than 200m2 and 1 space per 22m2 for outlets greater than 200m2. The proposed development has a GFA of 16,532m2. Therefore in applying a very coarse application of the DCP to the proposal, and treating the entire complex as one very large retail space, by my calculation the figure is 752 parking spaces...slightly more than Mr Hollyoak's 743 spaces.

  1. BDCP enables the consideration of the RTA/RMS Guidelines for developments other than those listed in the Table. Again in applying a strict interpretation of BDCP, 'Shopping Centre', as an entity, is not listed.

  1. The 'RTA Guide to Traffic Generating Developments' - version 2.2, October 2002, Section 5.7.1 specifically refers to shopping centres. The Guidelines are based on Gross Leasable Floor Area (GLFA). The rationale for this approach is explained in cl 5.7.1:

Gross leasable floor area is preferred to floor area for this land use category, because it refers most specifically to the factor that generates/ attracts trips.

  1. Table 5.2 indicates the minimum recommended level of off-street parking and gives the number of spaces per 100m2 of GLFA. For developments between 10,000-20,000 m2 GLFA, 5.6 car parking spaces are required per 100m2.

  1. Given this rationale, I agree with Mr Maina and Mr McLaren that GLFA is a more realistic basis for the calculation of parking rates for shopping centres than GFA.

  1. The proposed GLFA is 12,880m2. The RTA rate is 5.6 car parking spaces per 100m2 GLFA which generates a figure of 722 spaces, as calculated by Mr Hollyoak, and which is significantly more than the proposed 612 recommended by Mr Maina and accepted by council.

  1. The Guidelines further qualify the car parking provisions [emphasis added].

The above car parking provisions are based on unrestrained demand for parking, in isolation to adjacent developments. When it can be demonstrated that the time of peak demand for parking associated with the proposed shopping centre and the adjacent land uses do not coincide, or where common usage reduces total demand, a lower level of parking may be acceptable. Provision of public transport may also reduce the demand for car parking spaces. If the proposed development is an extension of an existing retail development, additional parking demand could be less than proportional to the increase in floor area.

  1. The RTA Guidelines state that the parking provisions are based on aggregated retail categories and on surveys of a number of shopping centres during peak parking demand periods. The Guidelines include an indicative formula that shows the relative parking demand characteristics of different retail outlets such as slow trade (A(S)major department stores), faster trade (A(F) discount department stores), supermarkets/large fruit shops (A(SM)), specialty shops (A(SS)), and offices/medical (A(OM)). The indicative formula/ model is:

Peak Parking Demand = 24A(S) + 40A(F) + 42A(SM) + 45A(SS) + 9A(OM) (per 1000m2)

  1. As stated above, Mr Maina has used the regression formula to arrive at a figure of 551 spaces, which in his view is more than adequately covered by the provision of 612 spaces. Mr McLaren supports this approach. Mr Maina and Mr McLaren both stated that they assumed people visiting the proposed shopping centre would use the Plumpton Marketplace car park and visa versa thus taking the position that the development is not in isolation to adjacent developments but effectively an extension of the existing retail development of Plumpton Marketplace.

  1. In reading the various Traffic and Parking Impact reports relevant to the amended plans, I can find no rationale for the figure of 612 parking spaces. Although the BDCP allows a separate calculation for each component of developments incorporating a number of related uses, neither the March 2013 Cardno report or Mr Maina's August 2013 Traffic and Parking Impact report, which both apply the indicative RTA regression formula, show any workings including the breakdown of the retail mix.

  1. The March 2013 report erroneously uses GLFA instead of GFA in its application of the BDCP. Mr Maina accepts the BDCP is based on GFA but supports the 612 figure on the basis that it exceeds to figure derived from the RTA formula: he adopts the same rates determined in the March report without any further explanation. The council officer's statement referred to by Mr Simmington in [84] similarly sheds no light on why this figure is deemed to be acceptable.

  1. While I don't agree with Mr Hollyoak that the BDCP figure should apply, I prefer his interpretation of the RTA Guidelines and I agree that the model/ formula is noted as being 'indicative' and that the per 100m2 rates already incorporate aggregated retail categories.

  1. In considering the Guidelines in [110], while shoppers may perceive the proposed shopping centre as an extension of Plumpton Marketplace, it is a new development on land not owned or managed by DEXUS and should be considered in isolation. Both development being shopping centres, the periods of peak demand will coincide.

  1. While it is inevitable that shoppers parking in one car park are likely to visit the other shopping centre, it is not unreasonable to expect that a separately owned and managed commercial operation should be responsible for its own parking requirements. The de facto reliance on Plumpton Marketplace car park assumed by Mr Maina and Mr McLaren does not envisage a potential redevelopment of the Plumpton Marketplace land that could remove or restrict access to the current Marketplace car park thus leaving a likely shortfall on the site.

  1. Therefore, on the evidence before me, I am not satisfied that the proposal adequately provides sufficient car parking spaces for peak parking demand and should not be approved in its current form. Given the shortfall in on-site parking spaces the proposal could have a detrimental impact on the Plumpton Marketplace car park.

Works on the Right of Way

  1. As stated above, the site benefits from a ROW located on Plumpton Marketplace land. The configuration of the ROW off Jersey Road includes three points of access onto the site.

  1. In order to improve access from Jersey Road onto the site, the traffic engineers agreed on minor works on the ROW near the Jersey Road intersection to improve movements into the site from the first entry point off Jersey Road. The works include line marking of lanes and a slight widening and re-kerbing of the first access point into the site.

  1. There is no owner's consent to these works.

  1. As I have determined on the merits that the development application should be refused in its present form on the basis of inadequate provision of parking, I need not address the issue of the works on the Jersey Road ROW as recommended by the traffic experts at [32]. While these are minor and a sensible and practical means of facilitating traffic movement off Jersey Road, they are works on land not the subject of this application and therefore beyond the Court's jurisdiction to approve without owner's consent.

Orders

  1. Therefore on the basis of the foregoing, the Orders of the Court are:

(1)   The appeal is dismissed.

(2)   Development application DA 08/638 for a shopping centre and associated car parking, signage and landscaping on Lot 201, DP 1181255, Jersey Road, Plumpton is determined by refusal.

(3)   All exhibits except K, B1 and D1 are returned.

_________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 04 October 2013

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