Land and Environment Court New South Wales Medium Neutral Citation: Hastie v Liverpool City Council [2020] NSWLEC 1250 Hearing dates: 1 June 2020 Date of orders: 05 June 2020 Decision date: 05 June 2020 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application No. DA-541/2016 for the demolition of existing dwelling, inground concrete swimming pool and detached secondary dwelling, and construction of a childcare centre for 60 children with basement car park to operate from Monday to Friday 7am to 7pm and 30 children Saturdays 8am to 4.30pm is approved, subject to the conditions set out in Annexure A. (3) The exhibits, apart from Exhibits C, D, E and F, are returned. Catchwords: DEVELOPMENT APPLICATION – childcare centre– traffic impacts – upgrade of a "T" intersection to a roundabout – upgrade not part of the development application – applicants' original offer of a voluntary planning agreement ("VPA") rejected by Council – conditions relating to VPA should be excluded from the conditions of consent Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Liverpool Local Environmental Plan 2008 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 Texts Cited: Child Care Planning Guideline Liverpool Development Control Plan 2008 Category: Principal judgment Parties: Andrew Hastie (First Applicant) Patricia Hastie (Second Applicant) Liverpool City Council (Respondent) Representation: Counsel: R Lancaster SC with N Eastman (Applicants) R O'Gorman-Hughes (Respondent) Solicitors: Rydge Evans Lawyers (Applicants) Liverpool City Council (Respondent) File Number(s): 2018/393506 Publication restriction: No Judgment 1. This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 ("EPA Act") against the Liverpool City Council's refusal of Development Application No. 541/2016 ("DA") for demolition works and the construction of a childcare centre for 60 children with basement carparking at 53 Clyde Avenue, Moorebank ("the site"). 2. The site is within a residential catchment which is essentially a cul-de-sac. The only entry and exit point is the "T" intersection at Nuwarra Road and Marshall Avenue ("the intersection"). The aerial photo below shows the site in its locality: 1. Although framed in several contentions, the impact of the development on the existing delay for vehicles using the intersection is the only issue in this appeal. 2. The Council contends that the intersection is already operating beyond capacity and that it cannot cope with the further traffic generated by the proposal having regard to the traffic counts undertaken on behalf of the applicants in April 2018. 3. The applicants contend that the development is suitable for the subject land given: 1. its R2 Low Density Residential zoning pursuant to the Liverpool Local Environmental Plan 2008 and "Centre-based childcare facilities" is a permissible form of development within this zone; 2. the proposed development complies with the planning controls; and 3. the traffic impact of the proposed development itself is minimal and it will not have any measurable impact on the overall operation of the surrounding network. Section 34 1. As part of the appeal process, a conciliation conference was held on 25 August and 29 September 2019 under s 34 of the Land and Environment Court Act 1979 ("LEC Act"). I presided over the conciliation conference. 2. Several resident objectors gave oral evidence at the commencement of the conciliation conference. Some of them complained about the existing delay experienced by drivers wishing to exit Marshall Avenue when turning right into Nuwarra Road at peak times. To understand their evidence and the Council's case, the Court inspected the "T" intersection at Nuwarra Road/Marshall Avenue at the conference and observed the existing seagull island and noted that Nuwarra Road is a north-south regional road, whilst Marshall Avenue is a north-west to south-east local street. The applicants' traffic expert, Ken Hollyoak and the Council's traffic consultants Charles Waife and Victor Lim, whom were in attendance, gave evidence that the most appropriate mechanism to alleviate the existing traffic impacts was to upgrade the intersection to a roundabout. 3. Although the DA does not include a funding mechanism arrangement for a roundabout, during the conciliation conference, the applicants made an offer to enter into a voluntary planning agreement ("VPA") with the Council to pay for 50% of the cost of upgrading the intersection to a roundabout. The offer of a VPA was rejected by the Council, and the conference was terminated. 4. The parties have now requested that I determine the appeal with a further hearing pursuant s 34(4)(b) having regard to the evidence taken onsite at the conference, and the further traffic evidence prepared for the hearing including the individual Traffic Expert Report by Mr Hollyoak dated 5 February 2020 (Exhibit D), and the joint traffic report of Ken Hollyoak and Tom Wheatly dated 17 March 2020 (Exhibit E). 5. In accordance with the public health emergency, both Senior Counsel for the applicants and Counsel for the Council appeared at the hearing remotely by telephone. The evidence of the traffic experts given concurrently at the hearing was also via the telephone. Decision 1. For the reasons that follow, I am satisfied that the development will not unreasonably exacerbate the existing delay for vehicles using the intersection at peak times. In that circumstance, as the upgrade is not part of the application, there is no proper basis to impose conditions requiring such works as part of this DA. 2. The Council accepts that the development is otherwise compliant with the relevant planning controls, and as I have no expert evidence to the contrary, and after a consideration of submissions of the local residents, I have decided to grant development consent to the development subject to Council's draft conditions of consent as modified by the applicants. Facts 1. The essential facts are detailed in the following paragraphs. 2. The land is zoned R2 Low Density Residential under the Liverpool Local Environmental Plan 2008 ("LEP") and the proposed childcare centre is permissible with consent. 3. The objectives of the relevant zone seek "to ensure that a high level of residential amenity is achieved and maintained". The objectives of the LEP seek to "maintain suitable amenity". 4. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 applies to the development. Clause 23 of that Policy requires the consent authority to take into consideration any applicable provisions of the Child Care Planning Guideline ("Guideline"), in relation to the proposed development. 5. Clause 3.1 of the Guideline relevantly provides in C1 "for proposed development in or adjacent to a residential zone, consider: • traffic and parking impacts of the proposal on residential amenity". 1. Part 3.8 of the Liverpool Development Control Plan 2008 deals with non-residential development in residential zones. The objective is: "to provide controls of urban design, that is compatible with the amenity and character of the area" (clause 1.2(c)). 2. Clause 2.8 provides controls relating to location and access. 3. Various traffic reports have been submitted by the applicants based on surveys carried out on different dates. 4. Lodged with the application were three traffic reports prepared by the applicants' consultant at the time, Thompson Standbury Associates (Exhibit F, Items 30, 31 and 36). * May 2016 * 10 April 2017 (sic) accepted as April 2018 * 25 October 2018 * (The report dated 10 April 2017 (sic) was prepared in response to a request from the Council to submit an updated survey and traffic analysis. A survey carried out by ROAR on 6 April 2018). 1. The earlier traffic modelling lodged with the DA was based on the traffic counts of April 2018. It showed that the exiting traffic from Marshall Avenue experienced delays of approximately 3.5 minutes during the PM peak period, which is, Level of Service ("LoS") "F", in accordance with the Roads and Maritime Services ("RMS") intersection performance analysis. And, as noted in Mr Hollyoak's report, an average delay of more than 70 seconds is considered unsatisfactory (LoS F the worst category) according to the RMS intersection performance analysis and requires additional capacity. 2. With the proposed development, without intersection treatment, the exiting traffic modelling at that time in April 2018 forecast delays of approximately 7.5 minutes, during the PM peak period. 3. The Council's contention 5 refers to this evidence in the following terms: "Traffic modelling based on existing traffic counts of April 2018 shows that the exiting traffic from Marshall Avenue experience delays of approximately 3.5 minutes during the PM peak period…. With the proposed development, without intersection treatment, the exiting traffic is forecast to experience delays of approximately 7.5 minutes, during the PM peak period. This indicates the exiting traffic movement would operate with… unacceptable delays" 1. The genesis of the above contention – specifically that wait times would increase from approximately 3.5 to 7.5 minutes – was the applicants' traffic report and survey evidence lodged with the application, prepared by Thompson Standbury Associates. 2. Relevantly, at the hearing, the Thompson Standbury Associates' traffic evidence was discredited by the parties' traffic experts. 3. Both Mr Wheatly and Mr Hollyoak described the Thompson Standbury Associates' traffic studies as "unreliable" because it was unclear as to whether the modelling had been calibrated. For that reason, Mr Hollyoak said he did not rely on them for the purpose of his evidence. Nor did Mr Wheatly. 4. Instead, Mr Hollyoak: 1. relied upon certain traffic surveys he commissioned on 13 August 2019 to record the existing turning movements at the intersection now and into the future. This is referred to in paragraph 3.3.2 of Mr Hollyoak's Individual Report (Exhibit D). In summary, the individual report records: "TTPP commissioned new traffic surveys on Tuesday 13 August 2019 between 6:30am and 9:30am and between 2:30pm and 6:30pm to record the existing classified turning movements at this intersection. In addition to this, TTPP collected dwell times for traffic turning into and out of Marshall Avenue during the AM and PM peak periods." 1. relied upon certain traffic growth scenarios for a 7-year future prediction. And, in paragraph 3.3.8 of Exhibit D provides: "All future scenarios relate to a future year of 2026 which represents a 7-year horizon using traffic growth factors obtained from the Sydney Strategic Travel Model (STM) obtained from RMS. STM data indicates that traffic flows along Nuwarra Road are expected to increase by one to three per cent per annum." 1. presents figures (from modelling conducted by Mr Hollyoak at paragraph 3.3.12) which show the level of service in four circumstances – existing base (no development) both with and without the proposed roundabout upgrade; and proposed development base both with and without the proposed roundabout upgrade. Each are shown for the AM peak period and the PM peak period. 1. The key points made in the individual report with respect to the traffic impact of the proposed development as set out at paragraphs 3.3.4-3.3.7 of Exhibit D are as follows: "3.3.4 Based on the surveyed sites as part of the RMS study, the childcare centre AM peak generally occurred between 7:30am and 8:30am, while the Centre PM peak generally occurred between 4:30pm and 5:30pm. Based on the existing road network peak at the Nuwarra Road-Marshall Avenue intersection, the proposed development traffic is expected to coincide with the AM road network peak period (i.e. between 7:00am and 8:00am), while the proposed PM development traffic is not expected to occur during the PM road network peak (which is 3PM to 4PM). 3.3.7 Based on the above, the proposed development (60-place childcare centre) is estimated to generate 44 and 22 vehicles during the AM and PM peak periods respectively." 1. For the purpose of assessing the impact of traffic from a proposed development on an intersection, by use of the RMS measure of performance for intersections under prevailing traffic conditions to measure LoS, Mr Hollyoak's report adopts the criteria that SIDRA Intersection adopts in assessing the LoS – as shown in the table below. 1. The key points from the modelling in Mr Hollyoak's individual report when factoring in the development are as follows: 1. The existing overall LoS for the Nuwarra Road – Marshall Avenue intersection during the AM Peak Hour (7:00am-8:00am) with the Development (no roundabout upgrade) is "A". 2. The existing overall LoS for the Nuwarra Road – Marshall Avenue intersection during the PM Peak Hour (3:30pm-4:30pm) with the Development (no roundabout upgrade) is "A". 3. The future (2026) overall LoS for the Nuwarra Road – Marshall Avenue intersection during the AM Peak Hour (7:00am-8:00am) with the Development (no roundabout upgrade) is "A". 4. The future (2026) overall LoS for the Nuwarra Road – Marshall Avenue intersection during the PM Peak Hour (3:30pm-4:30am) with the Development (no roundabout upgrade) is "A". 5. The only existing unacceptable LoS "F" is for the South Leg Marshall Avenue (right) during the PM Peak Hour (3:30pm-4:30pm). However, it should be noted that: 1. this is consistent with the existing base without the development; 2. Mr Hollyoak identified in paragraph 3.3.4 of the individual report that the general childcare centre PM Peak Hour occurs between 4:30pm-5:30pm, which is after the surveyed peak period 3:30pm-4:30pm; and 3. the LoS improves to "C" with the roundabout upgrade. 1. The only future unacceptable levels of service "F" is for the South Leg Marshall Avenue (right) and West Leg Nuwarra Road (Right) during the PM Peak Hour (3:30pm-4:30pm). However, it should be noted that: 1. this is consistent with the future base without the development; 2. Mr Hollyoak identified in paragraph 3.3.4 of the individual report that the general childcare centre PM Peak Hour occurs between 4:30pm-5:30pm, which is after the surveyed peak period 3:30pm-4:30pm; and 3. the levels of service improve to "C" for the South Leg Marshall Avenue (right) and "A" for West Leg Nuwarra Road (Right) with the roundabout upgrade. 1. This result is demonstrated by the following table for the AM scenario (demonstrating no change to the LoS): 1. In the PM scenario, there is a discernible impact in the LoS, but critically, it does not change: 1. The tables in Mr Hollyoak's expert report are clear and observe that the level of service will be maintained both currently and in the future (year 2026) if the development is approved. 2. The data is objective and shows the level of service, as well as the average delay and the queue length. 3. The modelling conducted by Mr Hollyoak has been accepted by the respondent's traffic expert, Mr Wheatley and the Applicants contend that this allows the Court to comfortably accept that the modelling shows the minimal impact of the proposed development and that it does not result in an unacceptable traffic impact. 4. There are no key differences between the experts set out in the Joint Report. 5. The Applicants contend that if the Court can accept the correctness of the joint approach outlined in the Joint Report, then it can accept that the traffic impacts are acceptable for the development and the unsatisfactory operation of the intersection can be managed by Council. 6. The Council submits that, without the provision of an upgrade to the intersection (which it concedes is not covered by this DA), the intersection is unable to cope with the current demand on it. The proposed development will exacerbate an already unacceptable situation, therefore the site is unsuitable for the development. The Council maintains the position that the Thompson report and April survey 2018 results are relevant to my assessment of impact - despite the experts' evidence to the contrary. 7. And, in the event of the grant of consent, the Council presses for the imposition of conditions requiring the Applicants to fund 50% of the upgrade of the intersection with a roundabout in accordance with the terms of a VPA which was refused by the Council at its meeting on 28 October 2019. 8. The Council contends that the Court has power to impose a condition requiring a planning agreement to be entered into as a condition of a development consent, in this case, conditions 1, 2, 3 and 81 (which require the funding and construction of the roundabout). 9. The Council refers me to s 7.7(3)(a) of the EPA Act which relevantly provides: … a consent authority can require a planning agreement to be entered into as a condition of a development consent, but only if it requires a planning agreement that is in the terms of an offer made by the developer in connection with — 1. (a) the development application or application for a complying development certificate … 1. In this case, the evidence is that the applicants at one point in time did offer to enter into a VPA with the Council on the terms in Exhibit A. That agreement provided that the applicants were to pay 50% of the costs of the construction of the roundabout. 2. The offer to enter into a VPA is no longer on the table having been rejected by the Council on 28 October 2019 according to the evidence before me. Consideration 1. The evidence is that there is an existing unsatisfactory operation of the intersection which will increase in time if left untreated. 2. That said, it can be resolved by an upgrade of the intersection to a roundabout, however, the upgrade of the intersection is not part of the application before the Court. 3. Whilst the Court may authorise works outside the site via a condition, there needs to be a satisfactory nexus between the development and those off-site works. As the traffic impact of the development is not considered to be significant, there is no reasonable basis to require the applicants to upgrade the intersection as part of this DA. 4. In forming this view, I accept that the earlier survey data of April 2018 is unreliable and therefore not relevant. Therefore, the traffic impact contention turns on the evidence in the Joint Report which is agreed and based on Mr Hollyoak's individual report – which is summarised above. Noting, that Mr Hollyoak's evidence to the Court is that he commissioned traffic tube surveys over a period of 7 days which were calibrated to ensure the modelling was accurate. 5. Mr Hollyoak's individual statement of evidence prepared for the purposes of the appeal concluded that the existing wait time in the PM peak for vehicles turning right from Marshall Avenue was 1 minute and 54 seconds, and based on existing traffic flows, the proposed development would increase the wait time to 2 minutes and 10 seconds. 6. Relevantly, the experts agree that if there is no upgrade of the intersection "the proposal does not create any unacceptable impact in that it creates no change at all to any [Level of Service] classification…If it is at "F" it stays at "F". In short, the 16 second increase in driver delay at the peak period is, as Mr Wheatly said, "not a huge concern." 7. And, if the RMS predictions for the traffic increase eventuate, then it is more likely that the traffic queuing will go back to Brickmakers Drive. However, both Mr Hollyoak and Mr Wheatley have said that in their experience, rather than allow the increase in traffic, motorists are more likely to find an alternative, including changing their travel route, changing their travel time to miss the peak period, and/or changing their mode of transport. 8. In circumstances where the experts agree that the additional traffic generated by this development at peak times will not unreasonably change the category or the delay at the intersection, it follows that there is no proper basis to refuse consent to this development on the ground of traffic impacts. Conditions 1. The parties have provided competing versions of the final draft conditions of consent. 2. The applicants are agreeable to changes made by the Council to clauses relating to food provision (clauses 33, 60 and 79) and these changes after review are accepted by the Court. The applicants do not accept the clauses relating to a VPA and submit that part of the conditions 2, 3 and 81 are to be deleted. 3. The Council submits that the intersection is beyond its capacity and consent is sought for a form of development that will generate significant additional traffic at that intersection beyond that generated by the current use of the site and neighbouring properties (dwelling houses). 4. And, if the development is to be approved at all, a contribution to the cost of the construction of the roundabout via a VPA in the terms offered by the applicants should be imposed. 5. Both traffic experts agree that a roundabout is an appropriate form of intersection treatment (Exhibit E par 10(b)). 6. Conditions 2, 3 and 81 contain minor revisions to clarify that the VPA is in Exhibit A, and that the agreement has not yet been executed. 7. However, the wording in s 7.7(3)(a) of the EPA Act is clear. The section allows me to impose a condition requiring … a planning agreement to be entered into as a condition of a development consent, but only if it requires a planning agreement that is in the terms of an offer made by the developer in connection with — 1. (a) the development application or application for a complying development certificate … (Emphasis added) 1. The Council may seek to reignite the earlier offer of a VPA but this is inconsistent with the evidence before me. 2. The applicants are not offering a VPA and I have no power to require a planning agreement as a condition in the present circumstances under s 7.7(3). These three clauses are to be struck out. 3. As the traffic impact issue is the only matter agitated by the Council on appeal and the development is otherwise compliant, it follows that the development ought to be approved and the inadequate LoS at the intersection be separately addressed by Council. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development Application No. DA-541/2016 for the demolition of existing dwelling, inground concrete swimming pool and detached secondary dwelling, and construction of a childcare centre for 60 children with basement car park to operate from Monday to Friday 7am to 7pm and 30 children Saturdays 8am to 4.30pm is approved, subject to the conditions set out in Annexure A. 3. The exhibits, apart from Exhibits C, D, E and F, are returned. ………………………… S Dixon Senior Commissioner of the Court Annexure A (246761, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 June 2020