Skoulogenis v Blue Mountains City Council

[2009] NSWLEC 1177

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Skoulogenis v Blue Mountains City Council [2009] NSWLEC 1177

PARTIES:
APPLICANT
Vicki Skoulogenis

RESPONDENT
Blue Mountains City Council

FILE NUMBER(S):
10100 of 2007 and 10119 of 2009

CATCHWORDS:
SECTION 96 MODIFICATION :- childcare centre; parking - safety and impact on local road and residential area.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979

CORAM:
Murrell C

DATES OF HEARING:
5 May 2009

EX TEMPORE DATE:
5 May 2009

LEGAL REPRESENTATIVES

APPLICANT
Mr N. Howie (Solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie

RESPONDENT
Mr A Seton (Solicitor)
SOLICITOR
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

5 May 2009

10119 of 2009                   Vicki Skoulogenis v Blue Mountains City Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1. This is appeal under section 96(6) of the Environmental Planning and Assessment Act against Blue Mountains City Council’s refusal of an application to modify a consent issued by the Court 19 July 2007.  The subject premises are No. 8 Tabor Street, Glenbrook.

1. A condition that the Court imposed at that point in time required a parking marshall, that is condition 16 in the consent issued.  The parking marshall was to assist in providing for in the safe and efficient use of the semi-circular driveway. 

1. By way of background the subject premises are now operating and the conditions of consent required the construction of a semi-circular driveway to allow the drop off and pick up of children and also for the parking of the two staff related cars along the northern boundary of the subject site.  Other conditions imposed for the residential amenity of the area included: acoustic fencing; landscaping and construction of the driveway. Both  these have been completed.  The extension to the rear of the childcare centre has not been completed.  That is the verandah and the movement of the gate to allow the second staff parking space.

1. The issue in these proceedings is whether the Court should approve the deletion of Condition 16.  Condition 16 states:

   As a proposed driveway will not facilitate vehicles to pass, a parking marshall is to be employed on-site between 8 am and 9 am, in between 3 pm and 4 pm to ensure efficient and safeties of the circular driveway by vehicles and pedestrians

2. A Condition of consent was also 15(a):

   To ensure appropriate on-site drop off and pick up a sealed semi-circular driveway is to be constructed and the provision of 1.2 metres wide pedestrian path. 

3. At the time the Court first heard this matter there were a large number of resident objectors and as noted in the previous judgment the submissions were rather impassioned and the Court at that time noted that the residents were concerned about the safety of children.  In my previous judgment I said “I am satisfied that the safety of children will be enhanced by the proposed development”.  I will not go into the previous use on the site suffice to say that in 1992 Council approved three car parking spaces on the site which required reverse movements on to the street and the residents were concerned about the safety of children and also the safety of the residential street. 

1. In attendance today are the traffic engineers: Mr Varga on behalf of the applicant and Mr Price on behalf of the Council.  Mr Price is concerned from his observations that parents access their vehicles on the driver’s side at the rear and take children in and out of the car and this is an inappropriate practice or not the best practice in terms of safety.  He is also concerned that the cars do not park completely on the grass verge, which is the road reservation, it is noted that the roadway has a 5.5 metres seal generally with grass road reservation verges, which allows for the parking of vehicles. 

1. A condition of the previous consent was to provide immediately outside the subject property kerb and guttering and this allows space for the parking of one vehicle on a sealed surface.  There are other driveways within the street that also provides for a more continuous sealed surface than the 5.5 metres sealed road pavement width. 

1. Commencing on site at 8.20am this morning the Court had the opportunity of observing the period of drop off of the children although I do note that this may not represent a usual situation and many parents did not avail themselves of the use of the semi-circular driveway.  The Court did observe one person driving to the facility, park at the northern end on the semi-circular driveway and take a child into the childcare centre whist another smaller child was also taken in and brought back to the car.

1. It is also noted that the road as agreed to by the experts is well below the environmental capacity.  In an afternoon peak period some 40 vehicle movements and of a morning 28 vehicles movements.  It is noted that the environmental capacity of the road according to Mr Price is 100 vehicles per hour and as such it operates well below the capacity, less than 50% in Mr Price’s terms. 

1. The question for the Court today is whether there is a need application for a parking marshal and if there are any change to circumstances that may have occurred since its imposition.  The Court notes, and whilst the lack of objection is not necessarily a test for the Court, at the same time clearly the residents on the first occasion were motivated to voice their concerns about safety on the street and today there is one objection tabled in a submission when the modification was advertised.  Mrs Peterson who owns No. 7 and No. 11 and a non-resident of the street made a submission that the condition should be retained and there was a reference to parents parking vehicles on the street.  The other submissions received in respect of the application are in support and the parents indicated that they are well instructed in terms of the access to the centre, the vehicle access and the parking. 

2. I note that there is a ‘Traffic Management Plan’ that includes a number of requirements that were not part of the original Court consent.  The Traffic Management Plan however, has been assessed by Mr Price and he notes its various provisions and comments on same.  A Traffic Management Plan is required to be reviewed at the end of this month.  The current provisions include:

   parents living locally be encouraged to walk to the centre, parents are encouraged to car pool; and parents are to be allocated a time slot; a maximum drop off and pick up of five minutes; and vehicles must enter the property from the southern driveway in a forward direction and leave from the northern driveway in a forward direction. 

3. Clearly, the Traffic Management Plan needs to be reviewed.  In accordance with the survey that has been carried out a five minute drop off period is inadequate as there is an average stay period of close to eight minutes per vehicle coming to the site.  The Court has the opportunity of understanding the road in terms of the site line, there are clear sight lines and there are clear sight lines of traffic on this road, which is subject to a 50-kilometre local road speed limit.  A question also raised by this appeal is that of proportionality and the Court must always be conscious of ensuring that conditions are proportional to requirements of a development to delete the condition for a parking marshall.

1. The childcare centre has 20 children and is not a long day care centre but rather a pre-school centre that generally caters for children during the period of school hours and is not long day care centre.  By way of comment, not that it is determinative in any way, but preschools generally allow for greater flexibility in terms of the time for drop off and pick up of children as opposed to the peaking that occurs with long day care centres. 

1. The Court in its previous judgment was aware that there would be parking on the street and parking on the street is allowed.  It is not unlawful to park outside the subject premises or outside indeed other people’s properties on the road verge that is within public domain.  The issue is to ensure that if that parking does occur on the road verge that it is done in a safe manner.  In the previous judgment the Court commented that:  “the safety of the children is paramount”.

1. I accept what Mr Seton said in that the lack of objection is not the test in this case.  It would appear, however, that this small childcare centre co-exists harmoniously in this residential area and local residents did not avail themselves of the opportunity to lodge submissions. 

1. The parking marshal has been described as performing more as a meet and greet person as opposed to a traffic warden.  In my overall assessment of the facts and evidence I consider that the need for a parking marshal is not necessary and that the centre can function effectively and safely and does not require a parking marshal for  the operation of the semi-circular driveway. 

1. It has been pointed out that the maximum stay of persons at times is much longer than the five minute period which is nominated in the traffic management plan and it is agreed this is to be extended to reflect a more average situation of approximately eight minutes.  However, the issue for me is whether it is safe and efficient and the thing is whether child safety is compromised.

1. The additional time that parents take to drop off and pick up children may result in some inconvenience to parents having to wait although it would be clear that management of the childcare centre would ensure that parents are not so inconveniently impacted to then cause inefficient operation of the centre through its own management, it would be aware of same.

1. On the question of safety, I am satisfied that child safety is not compromised by the longer pick up and drop off times currently being experienced at the centre and there are often many factors in why children require longer to settle in to a childcare centre.  It is noted in the previous judgment that where parents were seeking to conference with the staff that they should park on the street.  Therefore it was always envisaged that there would be kerb side parking in the street and the longest stay periods may result in parking on the street but this is not a concern in terms of unreasonably impacting on residential amenity.  I note Mr Price’s concern about car doors being opened on the drivers side and children being taken out of car seats or out of the back of vehicles on the road.  Clearly this a matter that should be also emphasised to parents and carers when dropping off children in this location that the access should be from the passenger’s side of the vehicle near the kerb.

1. The Court also notes that the applicant has proffered a further condition requiring ‘no reversing’ be stencilled on the semi-circular driveway and this is to ensure that people are fully aware and reminded that reversing is unacceptable and should not occur at any time.  There are instances where people say they have observed reversing, no specific instances came to the Court but clearly this is something that needs to be communicated effectively to the users of the childcare centre. 

1. The Court in its assessment must also have regard to the proportionality of the imposition of conditions and I am satisfied that deletion of the condition will not result in concerns that would require the continuation of the parking marshal.

1. The additional evidence to the Court in terms of the drop off times has been useful and as a result the Plan of Management requires an amendment.

1. The operation of the centre itself is testament to the fact that it has been operating in a safe and efficient manner without unreasonable impacts on the amenity on the street.  The small size of the centre and the proportionality of requiring a parking warden in the circumstances with the benefit of the works that have been carried out on the subject premises and the benefit of the other information available to the Court I am satisfied that this condition is no longer warranted. 

1. It seems that it would be prudent for the first week of the school year when new pupils may be commencing at the childcare centre that there be a person to supervise the drive through semi-circular drop off and pick up zone, such that parents would become fully aware of its operation.  Also from time to time there should be spot checks to ensure that the efficient operation of the facility occurs and the continual review of the management plan can ensure that the necessary provisions and amendments are made in terms of informing the parents that the object for the drive through is to ensure that as few a number of vehicles park on the street as possible.  This does not mean that there should be no vehicles parking in the street as clearly the spare capacity for on-street parking is not an issue.  The efficient operation of the drive through even with an extended stay period will allow for safe and efficient use of the facility.  Bearing in mind a childcare centre with less that 30 children is generally regarded as a small facility that can integrate well within a residential area and the need for all parking to be accommodated onsite is not always necessary having regard to the context of the area and the circumstances of the availability of on-street parking. Residents sometimes do not appreciate that it is not unlawful to park in a public street to access facilities such as this childcare facility.

1. It is noted that when the development is completed there will be two spaces for staff to be provided on site.  A total of five is a requirement of the council’s controls and this deficiency can be readily accommodated and supplemented by the availability of on street parking.

1. The survey material provided to the Court indicates that there has been longer stays in the drive through facility than would normally be the case and it should be emphasised to parents that on occasions where they wish to conference or take longer to pick up their children or drop their children, they should park in the street to facilitate greater use of the drive through in particular during the peak drop off and pick up times.  Clearly this is not an issue at other times and could be seen by the survey material that staying on the driveway for 15 minutes when there is no demand does not create a problem.

1. The Court is satisfied that the safety of children is not compromised by the deletion of the condition for a parking marshal.  The site is clearly marked in terms of the pedestrian pathway to the centre and the further signage of ‘no reversing; 5km; directional arrows’ need to be incorporated into a revised management plan. 

1. I will issue the formal orders of the Court when the parking management provisions are provided.  This would also allow the traffic engineers to have an input into the necessary requirements for the traffic management plan including such matters as ensuring no reversing, low speed and a maximum stay in the vicinity of 8 to 10 minutes and also the need to advise parents that it is a safer method to access children from the passenger side  of the car.  Clearly, some of these matters can be by way of advice only because parents will not necessarily adopt ‘best practice’ but it is something that can be encouraged.  It would appear that the applicant has used its best endeavours in the past from the documentation provided to the Court and the childcare centre is to be commended in terms of its overall management, not just in terms of the traffic and parking and road safety education that is provided from time to time.

2. Accordingly, the formal Orders of the Court will be on the receipt of a traffic management plan that:

   1. The Appeal under section 96AA(3) of the Environmental Planning and Assessment Act 1979 is upheld.

   2. The development consent granted by the Court on 19 July 2007 in proceedings No 10100 of 2007 in respect of the property at 8 Tabor Street, Glenbrook is modified in accordance with section 96AA of the Environmental Planning and Assessment Act 1979 as follows:

   2.1 The words “Parking Marshall” immediately to the left of Condition 16 are deleted.

   2.2 Condition 16 is deleted and replaced with the following:

   “The development is to be carried out in accordance with the terms of the Traffic Management Plan dated 11 May 2009 which is annexure “A” to the Orders made by the Land and Environment in proceedings No10119 of 2009
   The Traffic Management Plan is to be reviewed annually. Any amendments to the Traffic Management Plan must be submitted to and approved by Council prior to implementation of the same.”

   3.     The Traffic Management Plan referred to in paragraph 2.2              is annexed and marked “A”.

   4.     The exhibits are returned.

___________________

J S Murrell
Commissioner of the Court

ljr

Annexure ‘A’

Alasan Cottage Pre-School
Traffic Management Plan

The following guidelines must be adhered to at all times to ensure the safety of the children

1. Parents and carers living locally are encouraged to walk to the centre whenever possible and practical.

1. Parents and carers are encouraged to car-pool whenever possible and practical.

1. Parents and carers are encouraged to use the onsite parking on the semi-circular driveway, in the positions marked on the driveway, when the driveway is available for parking.

1. Maximum drop-off and pick-up time for parents and carers using the semi-circular driveway is 10 minutes.

1. Where a longer stay is required, parents and carers are to use on-street parking.

1. Vehicles parking on-street are to park off the paved road surface, parallel to the street, except where parking directly in front of the preschool where the kerb is provided.

1. When parking on-street, children are to be loaded and unloaded from the safety door (ie. the door closest to the footpath) and escorted to and from the childcare centre, under the supervision and control of parents and carers.  Parents and carers shall exercise care at all times.

1. Vehicles parking on the semi-circular driveway must enter the property from the southern driveway in a forward direction, and leave the property from the northern driveway in a forward direction.

1. Parents and carers who use the circular driveway are to ensure that their vehicle is parked as far forward on the driveway as is reasonably practicable at the time.

10.There is to be no reversing from the semi-circular driveway at any time.

11.A “NO REVERSING” sign is to be stencilled onto the pavement of the semi-circular driveway, just inside the entry driveway, parallel to the property boundary.

12.Parents and carers with 2 or more children in their vehicle are encouraged to use the semi-circular driveway in preference to parking in the street.

13.A sign is to be posted above the sign-in book and on the entry gate stating; “REMINDER: if you are parked in the semi-circular driveway please limit your stay to less than 10 minutes”.

14.The Traffic Management Plan is to be reviewed annually. Any changes to the plan are to be approved by the Blue Mountains City Council.

15.A parking marshal is to be employed for the first week of each new year and the first week of school terms 2, 3 and 4, to supervise and monitor the safe and efficient use of the driveway. The marshal is to be provided between 8am and 9am and 3pm and 4pm each day of the respective weeks.

This is Annexure “A” to the orders made by the Land and Environment Court of NSW in Proceedings No. 10119 of 2009.