Land and Environment Court New South Wales Medium Neutral Citation: The Trustee for G & E Property Investments Unit Trust v Fairfield City Council [2020] NSWLEC 1390 Hearing dates: 3-4 August 2020 Date of orders: 10 August 2020 Decision date: 10 August 2020 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders that: (1) The appeal is dismissed. (2) Development Application No. 486/2018 for demolition and construction of a three-storey building comprising four vacant tenancies, use of one tenancy for the purpose of a child care centre accommodating 90 children and ancillary works stormwater management systems, two levels of basement car parking, landscaping and tree removal at 317-321 Hume Highway, Cabramatta is refused development consent. (3) The exhibits are returned. Catchwords: DEVELOPMENT APPLICATION – deemed refusal of a development application – childcare centre – location of the proposed development – proposed development located on a classified road Legislation Cited: Environmental Planning and Assessment Act 1979 Roads Act 1993 State Environmental Planning Policy (Infrastructure) 2007 Cases Cited: Benson McCormack Architects v Manly Council [2013] NSWLEC 1223 Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 138 Category: Principal judgment Parties: The Trustee for G & E Property Investments Unit Trust (Applicant) Fairfield City Council (Respondent) Representation: Counsel: F Berglund (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Maclarens Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/133835 Publication restriction: No Judgment 1. COMMISSIONER: 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 Council's deemed refusal of Development Application No. 486/2018. The applicant seeks consent for demolition works and the construction of a three-storey building comprising four vacant tenancies, (which are subject to future use development applications and presently identified as three light industrial tenancies), together with one gym tenancy, and another tenancy for the purpose of a 90 place child care centre with ancillary works stormwater management systems, and two levels of basement car parking, landscaping and tree removal ("the proposal"). 2. The site is comprised of three lots and is located at 317-321 Hume Highway, Cabramatta. It has a primary frontage to the Hume Highway which is a classified road, and there is secondary frontage at the rear of the property addressing Boundary Lane. 3. Boundary Lane is accessed via Cabramatta Road (another classified road) and runs parallel to the Hume Highway. It leads to residential streets behind the site. This laneway is 7.3m wide (kerb to kerb) with unrestricted parking permitted on the northern side of the laneway and "no stopping" restrictions on the southern side for a length of 131m from the intersection of Cabramatta Road East to the end of the site. Given these restrictions within the laneway this leaves only approximately 5m for two-way traffic flow into the site. 4. Boundary Lane is the nominated entry point for the childcare centre and other tenancies within the development. The expectation is that all parents and carers attending the childcare centre will enter the basement carpark from the laneway access and take Lift 1 to the foyer of the gym on level 2 and walk from there into the childcare centre. It is expected that the parents and carers will not enter from the Hume Highway frontage and park at the rear of the development in the loading bay or truck parking area and enter directly into the centre from the street frontage via the pedestrian path. 5. The childcare centre is intended to operate Monday to Friday from 7am until 6pm and will generate between 122 trips (AM peak) and 113 trips (PM peak) daily. Boundary Lane will also be the access point for all other light vehicles to the site. As heavy vehicles/trucks are unable to manoeuvrer the constraints of the laneway they will be directed by signage to access the site via a left in/left out driveway from the Hume Highway. These access restrictions will also be incorporated as terms in the future leases for the tenancies. Issues 1. The acceptability of proposed vehicular access from the classified road (Hume Highway), and Boundary Lane were central issues at the hearing. 2. The Council maintaining that the applicant has failed to demonstrate that access to the site via the Hume Highway will not have an adverse impact on the safety, efficiency and ongoing operation of the classified road, traffic and pedestrian safety, road congestion, and the efficiency of the road and will not otherwise have parking implication for the development. And, that the narrow carriageway of Boundary Lane is insufficient to accommodate uninterrupted two-way flow, as is required, given the proposed development will generate a significant increase in traffic movements along Boundary Lane. 3. The acceptability of vehicular access to the site from a classified road arises because s 138(2) of the Roads Act 1993 provides that development consent may not be given with respect to a development which fronts a classified road except with the concurrence of the Roads and Maritime Services (now Transport for New South Wales ("Transport NSW")). 4. Transport NSW has indicated in correspondence to the Council dated 13 July 2020 that it does not support the amended application because: "2. It is unclear from the submitted information how cars entering the site via Hume Highway will be prevented. The applicant is to demonstrate how service vehicles access is going to be managed so that only service vehicles access the site from the Hume Highway". 1. At the hearing the parties' traffic experts Mr Corbett and Mr Gary in addressing this issue agreed that the management of vehicular access from the classified road (Hume Highway) was problematic as there was no sure measure proposed which would preclude vehicles for the childcare centre from entering the site at the Hume Highway access. In short, the experts accepted that the proposed advisory signage proximate to the access point on the Hume Highway frontage entry will be difficult to police and that it is likely some parents or carers will use this entry to access the childcare centre irrespective of any signage or direction in the plan of management for the centre. In fact, Mr Garry, the applicant's traffic expert conceded in Court that as few as five unauthorised vehicles entering the site from Hume Highway would be sufficient to impact the efficiency and safety of the classified road. 2. Based on this evidence and Mr Corbett's assessment that it was very likely that some of the childcare centre parents/carers would turn off from the Hume Highway (Joint report p13 (Exhibit 5)) it follows that I cannot be satisfied as required by cl 101(2)(b)(iii) of the State Environmental Planning Policy (Infrastructure) 2007 ("Infrastructure SEPP"). 3. Clause 101 provides: (1) The objectives of this clause are: (a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and (b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads. (2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that: (a) where practicable, vehicular access to the land is provided by a road other than a classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise of vehicle emissions, or is appropriately located or designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. 1. As Mr Seton identified when opening the Council's case, the Court cannot grant consent to this development unless it is satisfied that the pre-conditions expressed in cl 101(2)(b) of the Infrastructure SEPP is achieved: Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC. 2. Although the decision of Modern Motels Pty Limited v Fairfield City Council is a case focused upon cl 101(2)(a), the judgment of the Chief Judge makes clear the fact that the three matters in cl 101(2) are conjunctive and, therefore, I need to be satisfied of each of them before determining to grant development consent (at [20]). 3. Any one matter in cl 101(2) about which I am not satisfied precludes the issue of consent: Benson McCormack Architects v Manly Council [2013] NSWLEC 1223. 4. In this case the parties agree that cl 101(2)(a) is not relevant because the classified road is not the only road access to the land. 5. That said, the next relevant consideration is cl 101(2)(b) and, according to the agreed traffic assessment it is likely that five cars will attempt to enter the site from the Hume Highway and in that event the safety, efficiency and ongoing operation of the classified road will be adversely affected. 6. The clause does not contemplate varying degrees of satisfaction; it invites satisfaction or not. There is no sure way to preclude the vehicles turning from the Hume Highway into the site on the evidence before me. Transport NSW has flagged this issue as a concern in its most recent correspondence and I accept that to be the fact. 7. Additionally, I am also not satisfied as required by cl 101(2)(c) that the childcare centre is appropriately located or designed to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. 8. Of particular concern is the location of the elevated outdoor play area for up to 24 x 0-2 year olds – some 11m from the classified road – with no ameliorative measures in place (i.e. vegetation screening). 9. The extent of vehicle emissions to this sensitive part of the development has not been adequately assessed. The reports before the Court make this plain (Letter report dated 6 May 2020 and Letter report dated 29 July 2020 and the joint report (Exhibit 7)). Mr Graham, the air quality expert retained by applicant explained during cross-examination that he elected not to monitor the PM2.5 particles because he did not have the necessary equipment at the time of his monitoring and no further opportunity to do so. However, he conceded that this would have been desirable. 10. The Council contends on the evidence of Mr Batshon that insufficient air quality monitoring has been undertaken, the scope of the air quality monitoring program should have included PM2.5 given the location of the childcare centre and no feature incorporated into the design to ameliorate the vehicle emissions from the classified road into this sensitive land use. 11. Having determined that I do not have power to deal with the application for the reasons outlined the application must be refused consent. 12. The Court orders that: 1. The appeal is dismissed. 2. Development Application No. 486/2018 for demolition and construction of a three-storey building comprising four vacant tenancies, use of one tenancy for the purpose of a child care centre accommodating 90 children and ancillary works stormwater management systems, two levels of basement car parking, landscaping and tree removal at 317-321 Hume Highway, Cabramatta is refused development consent. 3. The exhibits are returned. ……………………… S Dixon Senior Commissioner of the Court ********** 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: 24 August 2020