Land and Environment Court of New South Wales CITATION : Cyre Group Pty Ltd v Marrickville Council [2009] NSWLEC 1441 APPLICANT Cyre Group Pty Ltd PARTIES : RESPONDENT Marrickville Council FILE NUMBER(S) : 10289 of 2009 CORAM: Murrell C KEY ISSUES: DEVELOPMENT APPLICATION :- Childcare centre - adequacy of car parking and right of carriageway, traffic and on street parking, disabled access and hardship justification. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Marrickville Local Environmental Plan 2001 Marrickville Development Control Plan No. 19 - Parking Strategy Marrickville Development Control Plan No. 31 - Equity of Access & Mobility. DATES OF HEARING: 23, 25 and 29 September 2009 DATE OF JUDGMENT: 31 December 2009 APPLICANT Ms M Peatman (solicitor) SOLICITOR Hunt and Hunt LEGAL REPRESENTATIVES: RESPONDENT Mr A Pickles (barrister) SOLICITOR Mr G Christmas (solicitor) Marrickville Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES COMMISSIONER MURRELL Date 31 December 2009 File Number 10289 of 2009 Parties: CYRE GROUP PTY LTD V MARRICKVILLE COUNCIL JUDGMENT 1 The applicant is seeking to carry out alterations to the premises known as 120 B Old Canterbury Road, Lewisham for the purpose of a childcare centre with 62 places (amended from 66). Site and Environs 2 The subject site is on the northern side of Old Canterbury Road between McGill Street, and Hawthorn canal. The legal description of the land is Lot H in DP 101532 and is irregularly shaped and has a 27.5 metre frontage to Old Canterbury Road and a site area of 1160 square metres including an access handle that benefits two other properties to the rear. The existing improvements on the site consist of the two-storey brick building with a gross floor area of 782 square metres. Vehicular access to the site is via the access handle from McGill Street. 3 The site is surrounded by a combination of industrial and residential development including single and two-storey factories and single storey dwelling houses. Directly to the north and east of the site the surrounding land uses are industrial in nature. The eastern side of McGill Street further north of the site contains seven single storey dwelling houses that include attached and detached housing. These residential properties are zoned light industrial as are the adjoining lands. 4 On the opposite side of the right of way (ROW) to the east is a two storey factory building containing a T-shirt printer with frontage to McGill Street with vehicular access to the loading dock at the rear over the right of way. To the west of the site is vacant land adjoining the Hawthorn canal. On the opposite side of Old Canterbury Road there is predominantly single and two-storey dwelling houses. Figure 1, aerial photograph, shows the site in its context. At figures 2 and 3 is the site plan and the two levels of the proposal while figure 4 shows the right of carriageway. Statutory planning controls 5 The subject site is zoned light industrial 4(B) under the Marrickville Local Environmental Plan 2001. 6 The objectives of the zone are: (a) to identify areas suitable for the light industrial and warehousing activities, and (b) to permit a range of support and ancillary uses. 7 Clause 9 of the LEP requires the objectives of the zone to be taken into consideration in determining development applications. 8 Clause 42 of the LEP requires the consent authority to consider such of the following matters as are of relevance to the child-care centre application: (a) access to and within the site, incorporating principles of safety and provision for people with disabilities, in the design of driveways, car parking, and pedestrian and drop off and pick up areas. (b) whether there is provision for adequate off street parking (c) the impact of aircraft noise (d) the protection of adjoining and surrounding owners from excessive noise (e) contamination (f) landscaping and fencing 9 Development Control Plan No. 19 is the parking strategy for the Marrickville Council area. The specific objectives of the DCP include: To facilitate the safe entry and exit of vehicles and pedestrians. To ensure the effective design of parking areas. To provide convenient and safe parking. To promote recognition and acceptance within the community of the equal rights of persons with disabilities to access buildings and areas required to be accessible To ensure that car parking provision meets business and community demand. 10 The car parking requirement for child-care centres is one space per two employees plus a suitable drop off and pick up facility. 11 Section B.7 contains matters for council's consideration in determining whether or not to waive off street parking unable to be provided on site for the development. These matters include; the size and type of development and the degree of traffic impact on the surrounding locality and peak parking and traffic activity periods for the proposed development, site characteristics including building constraints and the practicality of providing off street car parking; the availability of public transport; locality analysis the availability of on street car parking in the immediate locality.; competing parking demand from adjoining developments and the origin and destination of the services provided by the proposed development and the degree to which it contributes to servicing the local community. 12 Development Control Plan No. 31 - equity of access and mobility Through this DCP the Council is seeking "to promote a more equitable safe dignified and independent lifestyle for the whole of its community. Provisions of access and mobility should benefit not only people with disabilities, but also ageing people with mobility difficulties, parents with prams, carers with strollers, and other persons with temporary disabilities as well as associated friends and family members." 13 The main aims of the DCP include; to provide appropriate levels of access for new developments; upgrades to existing buildings; public buildings and public open space. 14 The key elements of councils assessment are set out at part three and the Disability Discrimination Act (DDA) 1992 concept of unjustifiable hardship has been incorporated in the DCP as a mechanism for the fair consideration of those instances where the access and mobility requirements are unreasonable, impractical or uneconomical, provided that adequate justification is provided. The DCP sites section 11 of the DDA: For the purposes of this act in determining what constitutes unjustifiable hardship, or relevant circumstances of the particular case are to be taken into account including: (a) The nature of the benefit or detriment likely to accrue will be suffered by any persons concerned; and (b) The effect of the disability concerned; (c) The financial circumstances of the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship… 15 The 'unjustifiable hardship' provision is only relevant to changes of use and some alteration works on existing buildings and not to new developments. 16 The DCP states: 'to make an assessment for exemption under unjustifiable hardship relevant details to the application need to be submitted." 17 Under the heading of continuous accessible path of travel, the DCP notes that the BCA provides a definition and it is mainly applied to larger developments such as shopping centres, public buildings, cinemas, and office buildings which generally provide substantial public areas and facilities. The DCP states: In simpler terms it aims to enable barrier free travel for all users of the development, to and from main entrances to buildings, from car parks, any other buildings on the site, and to all public spaces and facilities such as toilets and amenities. 18 For child-care centres the DCP has general access requirements to be in accordance with the BCA and AS 1428.2. 19 The RTA guide to traffic generation developments was also tendered and for child-care centres the traffic generation rates for long day care for peak vehicle trips per child in the 7 a.m. to 9 a.m. period is 0.8 and for the 2.30 to 4 p.m. period 0.3 and the 4 p.m. to 6 p.m. 0.7. The long day-care centres surveyed had between 29 and 66 children and the mean proportion of children transported to each centre by car was 93% for a long day care. 20 The RTA parking guidelines for off street parking to be provided at the rate of one space for every four children in attendance and parking must be provided in a convenient location allowing safe movement of children to and from the centre. Consideration could be given to reducing the parking required if convenient and safe on street parking is available (e.g. indented parking bays), provided that the use of such parking does not adversely affect the amenity of the adjacent area. In a survey undertaken by SSROC in association with Marrickville Council and other councils in the southern area of councils and this included a parent survey showed that 84% listed driving is the usual mode of travel to child-care. 21 State Environmental Planning Policy -- Infrastructure 2007 requires consideration of developments on main/arterial roads against certain criteria under clause 101(2): 22 The subject site has frontage to a classified road (Old Canterbury Road). Under Clause 101(2) the Environmental Planning Policy – (Infrastructure) 2007 the consent authorit6y must not grant consent to development on land that has a frontage to a classified road unless it is satisfied the following criteria are met: (a) Where practicable, vehicular access to the land is provided by a road other than the 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: The design of the vehicular access to the land, or The emission of smoke or dust from the development, or 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 or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road." 23 The Council officers report states that in accordance with clause 101(2)(a) vehicular access should be provided via road other than the classified road that is Old Canterbury Road. Vehicle access is via McGill Street and subsequently the proposed development generally satisfies the requirements of clause 101(2)(a) with the main access to the site located away from the classified road. 24 Clause 101(2)(b) requires the proposal shall not adversely effect the safety, efficiency and ongoing operation of the classified road. The council's report stated that: It is considered the traffic generated by the proposed development in conjunction with the location of the vehicular entry to the site, the proposed development is likely to impact on the safety, efficiency and ongoing operation of Old Canterbury Road and subsequently the proposal does not satisfy the requirements of clause 101(2)(b). Contentions 25 The Council provided an amended Statement of Issues as follows: 1. Site contamination. (a) A detailed investigation (as referred to in the contaminated land planning guidelines) is required pursuant to clause 7(3) State Environmental Planning Policy No. 55 because the Preliminary Site Contamination Assessment prepared by Douglas Partners dated April 2003 submitted with the development application does not conclude that the site will be suitable for its intended use (whether with or without remedial measures). (b) Consent cannot be granted in the absence of a detailed investigation, which shows that the site is suitable for its intended use: clause 7(1) of SEPP 55. (c) The Applicant's proposal to deal with this contention by way of a deferred commencement condition is beyond power. 2. Unsatisfactory and unsafe internal and external layout and inequitable access. Unsatisfactory access (a) An office area/reception area, disabled toilet and staff room must be provided on the ground floor of the building and should be shown on amended plans - not left to a condition of consent as proposed by the Applicant. The safety and security of children attending the Centre is a paramount consideration. (b) The access between the floors of the building is inequitable for mobile impaired people and/or people pushing prams. A passenger lift (or similar arrangement) should be provided within the building. Having regard to the extent of building work proposed, this requirement is not onerous and should be enforced. The Applicant has not submitted any evidence to establish "unjustifiable hardship" for such a requirement. (c) The inability to provide a direct and convenient at grade access from the car parking spaces into the building (which will be the main entry point) for mobile impaired people and/or people pushing prams is an inherent design flaw. Unsafe access (d) The Council agrees that a condition requiring lighting to a suitable standard can be imposed. (e) However, the fact that the primary entrance to the building is down a laneway/access handle and away from usual street surveillance is an inherent design flaw. 3. Traffic and parking. (a) There are only 4 useable spaces for drop off and pick up (including the disabled space) when the required width standards under the Australian Standard are imposed (2 x 2.6m + 2 x 2.9m + 1 x 3.2m). (b) There are an inadequate number of on-site car spaces for drop off and pick up of children having regard to the number of children proposed to be accommodated at the Centre. (c) Because of the location of the staff car parking spaces on the access handle, the width of the access handle does not provide for two way vehicular movements for the length of the access handle. (d) Two way vehicular movement is essential having regard to the volume of traffic to be generated by the Centre (and the existing and likely future volumes from other developments, which use the access handle) and for the safety of pedestrians using the access handle. (e) If parking is removed from the access handle, there will be insufficient on-site car parking for staff. (f) There is insufficient on-street parking in the locality to cater for overflow. The spaces identified in Fred Street are too remote and should not be counted in the overall availability of on-street parking. In any event, the Centre should provide for its parking demand (both staff and parents) on-site. (g) The location and safety issues associated with the use of the kerb side parking to the east of the site on Old Canterbury Rd do not alleviate (and in fact add to) the concerns with the availability of parking to cater for the demand generated by the development. (h) The development will have a measurable detrimental impact on the level of service of the Old Canterbury Road/McGill Street intersection having regard to the likely number of additional traffic movements generated by the development. Evidence and Findings 26 The Court met on site the first morning of the hearing and heard from resident objectors and an objector of the industrial premises opposite on the right of carriageway. Ms Miles of 11 McGill St Lewisham expressed concern about the number of children and the volume of traffic that will be generated by the proposed development and the impact of using the right of carriageway with access from McGill Street. She described the queuing that takes place with traffic trying to enter Old Canterbury Road from McGill Street and the detrimental impact on residences and businesses already using McGill Street with the additional vehicles generated by the child-care centre given its narrow width of a little over 6 meters. 27 Ms Birkett representing the industrial premises opposite on the ROW advised the court that the right of carriageway is the only access for large vehicles to load or unload at the rear of her premises and that it is the only access to the vacant land at 120C Old Canterbury Road, the site on the opposite side of the canal. She also expressed concern about safety and reversing on the right of carriageway and the concern of parents/carers parking illegally on right of way when the designated spaces are occupied. She also advised that the loading dock to her premises require trucks to do a three point term and she's concerned about safety and reversing movements on the right of carriageway as the vehicles from all the sites served by the right way need to exit in a forward direction to McGill Street. 28 On behalf of the applicant evidence was given to the Court by Mr Terry Winning consultant traffic engineer and Mr David Goding , accessibility consultant. For the respondent Council expert evidence was given to the Court by Mr Christopher Hallam, traffic engineer, and Mr Glenn Redmayne, accessibility consultant. Accessibility 29 The Council contends that the proposed development as configured over two floors of the building provides inequitable access and that the proposal has an inherent design flaw by not being able to provide direct and convenient access from the car parking spaces into the building.. 30 Mr Goding is of the opinion that the proposal provides for facilities on both levels for disabled persons and that the duplication of facilities on each of the two levels will mitigate most of the disadvantage of not having a lift. Mr Goding conceded that it would be desirable to have a lift but also noted the cost and in the circumstances a lift in his opinion is not necessary to satisfy the accessibility requirements. He stated that the platform lift proposed is in the vicinity of $40,000 as opposed to an internal lift required by the Council of about $180,000 31 Mr Redmayne states and internal vertical lift would be the preferred solution to resolve the equity contention as it would serve all clients and staff needs. However if a sound case of 'unjustifiable hardship' was found and if there is scope to mitigate most of the disadvantage of not having a lift then duplication of all facilities with careful staff training and an operational management plan focusing on access could be considered. 32 During the proceedings the applicant tendered a statement of 'unjustifiable hardship' claim. In conclusion Mr Goding states: the applicant is entitled to make the claim of unjustifiable hardship given that the provision of a lift and associated building works amounts to substantial costs compared with the cost of the DA (that is between 70 to 97% of the total cost of all other works required for the development ). 33 In my asassessment the unjustifiable hardship is reasonable in the circumstances and I am satisfied that the duplication of facilities and a management plan for access to the two separate levels of the building is satisfactory and would not warrant refusal of the development application for the re-use of this building. Contamination 34 State Environmental Planning Policy No. 55 -- remediation of land must be considered in the assessment of the development application. The Council contends that a detailed investigation is required by clause 7(1) prior to consent. 35 I also note that sub clause 2 requires that before determining an application that would involve a change of use, subcl 4 refers to child care purposes on land where there is incomplete knowledge of previous uses and subcl 3 states the consent authority may require a detailed investigation if it considers that the findings of the preliminary investigation warrant such an investigation. 36 The assessment report on the preliminary site contamination was tendered and this comprised a 'walk over' site inspection and review of available site history documentation with a note that no soil sampling was undertaken. The site history stated that the buildings on site were constructed around the mid-1960's and the site has been used for printing purposes since then, however, the sites use prior to the construction of the buildings has not been investigated. Furthermore, when carrying out the preliminary assessment it was understood the site is to be refurbished and extended for continued light industrial use. The report concluded that some potential, though probably minor, exists for contamination of the sites but the limitations of the report were stated as no intrusive sampling had been undertaken and the former underground silage tanks should be considered as potential sources of contamination. 37 It was submitted on behalf of the respondent that further investigation and evidence is required as a threshold question to determine the suitability of the site and a deferred commencement condition is inappropriate. 38 The applicant at the end of the proceedings did not press for a deferred commencement condition and requested that the Court make preliminary findings on the merits issues identified and allow an adjournment for a detailed investigation if necessary. 39 In my assessment this is the most appropriate course of action and I agree that this matter cannot be left to a deferred commencement condition. Indeed in my assessment, in terms of the SEPP 55 provisions, more detailed investigations would be required prior to the granting of consent in these circumstances of incomplete site history where the proposed use is for a child-care centre. Traffic and parking 40 During the proceedings the safety issue of parking for carers and parents utilizing the on street parking on Old Canterbury Road was examined as well as the practicality of using the right of carriageway for both staff and parents to drop-off and pickup children. Matters such as the origin of carers and vehicle distribution as to what direction the site is to be approached from was raised to ascertain those parents more likely to use the parking with access from the ROW or on street parking on Old Canterbury Road. According to Mr Winning one third would approach from the south, one third from the west and one third from the east. 41 The width of the access way was questioned by Mr Halllam because of the number of vehicles using the right of way and the length of the right of way being in excess of 30 m. In his opinion there is a need for vehicles to be able to pass for the entire length of the driveway. Mr Hallam states that with a lower number of vehicles using the right of carriageway this would reduce also the number of car parking required for staff parking. Mr Hallam is of the opinion that it is not safe nor is it nor is it appropriate to rely on the use of Old Canterbury Road for the dropping off or picking up of children. 42 Mr Winning agrees that seven spaces are required for drop-off / pickup of children to the centre and that four only can be provided on site however he is of the opinion that the additional demand for drop-off / pickup can be accommodated along Old Canterbury Road and in his opinion adequate site distances allow traffic to merge after coming from the overpass bridge where there are two lanes of traffic that is required to merge into one lane when cars are parked outside the hardware store on Old Canterbury Road, the proposed on street parking for the centre. 43 With respect to safety Mr Winning said that the onus is on the individual to be aware of surroundings when dropping off children and exiting the motor vehicle. Mr Winning was questioned on whether the rear parking, with access from the right-of-way, was more likely to be used for the downstairs area rather than for the babies and toddlers facilities in the upper level of the building where it is more convenient to park on street. He responded to the question about what safety features there are and said that the presence of a vehicle itself was the safety feature and a parking along old Canterbury Road adjacent is convenient and that parking spaces are mostly vacant between 7 and 9 a.m. where there is half hour restricted parking signs. 44 Following the evidence it is apparent that apart from the entry point of the right-of-way that the total width does not allow for passing of vehicles when there is staff parking parallel to the southern side. It was suggested that staff parking space number 6 could be deleted and this could provide a passing bay. 45 Mr Hallam notes that the RTA research found that the average length of stay by parent/ carers at child-care centres was 6.8 m and according to the RTA guidelines one space per 4 children for a 66 place child-care centre this equates to 16 to 17 spaces and allowing fast basis of staff the parent parking required is 11 to 12 spaces. However Mr Hallam states that from his surveys as a general rule staff parking should be provided at one space for 2 staff and parent parking provided at one space per nine children thus requiring five staff spaces and 7.3 or seven spaces parents. He is of the opinion that with 4 staff parking in the right-of-way there will only be 4 spaces the parents which in his opinion is inadequate because parking on Old Canterbury Road is not safe or convenient. 46 Mr Winning considers Mr Hallam's rate of 1 to 9 children is reasonable and he states that six spaces are provided along Old Canterbury Road immediately east of the subject site where there is half hour restricted parking. And he considers that this is available for the set down / pickup offering an additional six spaces allocated at the rear of the building for carer/parent parking. 47 The width of the right-of-way on entry is some 5 m wide and the eastern end 2.8 m Mr Hallam notes that the minimum driveway width according to the Australian Standard requires 3 m and he concludes the ROW is substandard even for one-way travel let alone for two way travel. In Mr Hallam's opinion this puts additional safety constraints on the movement of vehicles and pedestrians. 48 Mr Hallam accepts Mr Winning's peak hour traffic generation of 53 vehicles per hour between 7 and 9 a.m. and 46 vehicles per hour between 4 and 6 p.m. However he notes that 53 does not include vehicles generated by the other sites that have the benefit of the ROW. 49 Mr Hallam notes that the Australian Standard requirements that low-volume category one access driveways and connecting to roads states as a guide, "30 or more movements in peak hour (in and out combined) would usually require provision for two vehicles to pass on the driveway, i.e. a minimum width of 5.5 m …" As agreed by the experts the traffic generation will substantially exceed 30 vehicles per hour threshold for four hours each day five days a week. 50 Mr Winning considers that that the half hour restricted parking zone on Old Canterbury Road is available and will attract vehicles for set down /pickup activities that may reduce vehicle trips within the access handled by up to 50%. Mr Hallam notes that the use of Old Canterbury Road by parents was not part of the proposal submitted to council and it now seems like an alternative put in to overcome the issues of the driveway. Mr Hallam is strongly of the view that the parking on Old Canterbury Road is not safe enough for this purpose.. Mr Winning is of the opinion that parking along old Canterbury Road is not unsafe. Mr Winning notes that a minimum combined driveway width of 3 m serving less than 25 spaces and that the right-of-way access handle at the property line is 5.6 m without the constraints of the existing gates or footpath and that adjustments can be made to accommodate a 5.5 m width for at least 6 m into the property. 51 Mr Winning considers that the access handle was not intended to be used for pedestrians to the centre and that pedestrian access from Old Canterbury Road with the set down/ pickup area directly adjoining the building is intended to eliminate vehicle pedestrian conflict within the access handle. Mr Hallam notes that the current use of the site uses car spaces behind the building for staff parking and the need to put parallel parking on the access way in his opinion represents an overdevelopment of the site. Mr Winning on the other hand states that if parking is removed from the access handle then adequate on street parking is available for staff whereas Mr Hallam considers this is inappropriate. 52 The traffic experts agree there are minimal vacant parking spaces in McGill Street and some parking is generally available on Old Canterbury Road outside the adjoining hardware store subject to a half hour time limits and therefore this is not suitable staff parking. They also agreed that on street parking can be found in Fred Street on the other side of Old Canterbury Road however Mr Hallam does not considered it appropriate to force staff to use a residential street for parking. 53 Mr Hallam considers it would also not be appropriate or good planning to assume parents would park in Fred Street and cross Old Canterbury Road which carries 1700 to 1800 vehicles per hour two way and Mr Winning agrees with this. Mr Hallam considers that parking on Old Canterbury Road that immediately adjoins another business is inappropriate to meet the needs of the proposal and that this parking is relatively unsafe. He notes that at the western end the distance from the kerb to the nearest lane is 4.1 m and at the eastern end this distance is 5 m. This width has to accommodate the parking space apart from passing eastbound traffic in that lane and the restricted width available creates safety risks for people alighting from cars at times of high traffic flows. This traffic approaches the site in 2 traffic lanes over the railway bridge it again needs to queue in two lanes at the Toothill St intersection. If forced into one lane the mid-block level of service would be B in the morning and D. in the afternoon Mr Hallam considers that any reliance on the use of this parking by parents dropping off and picking up children would be unsafe planning. 54 Mr Winning is of the view that the lane from kerb to nearest lane has to accommodate both that parking space and the passing eastbound traffic in that lane. He says that Old Canterbury Road only operates as two lanes eastbound flow when these spaces are not occupied and there is sufficient width to accommodate safe operation by drivers accessing vehicles for drop and pickup. 55 Mr Hallam notes that the parking on Old Canterbury Road is shown on the plans to be six spaces whereas only five spaces can be accommodated according to the standard. 56 On the contention that the development will have a detrimental effect on the level of service of the Old Canterbury Road/McGill Street intersection because of the additional numbers of vehicles Mr Hallam says there is currently an issue with queuing across McGill Street blocking access for right turns in and out. The experts agree there would be benefit installing signs questing drivers not to queue cross the McGill Street / Fred Street intersection. 57 Mr Winning states that the drop off pickup along Old Canterbury Road is adequate and satisfies the council's requirements for a drop off pickup facility. 58 The Australian Standard for parking facilities for off-street car parking was tendered and at section 3.2 .2 where the circulation roadway leading from a category one access driveway 30 m or longer with sites distance from one end to the other is restricted…as a guide 30 or more movements in the peak hour in an out combined would usually require provision to two vehicles to pass on the driveway with a minimum with the 5.5 m. 59 The experts provided supplementary reports on reduced numbers of children. Mr Winning states that if the on street parking on Old Canterbury Road is considered safe and convenient then on the above distribution there would be one third from the west, the south, and the east with the access handle/right of way attracting the remaining two thirds of trips. Therefore he says that of the agreed 53 vehicle trips per hour generated by the proposed centre 35 would be attracted to be right-of-way. Therefore he says that by reducing the total number of children to 62 then the use of the right-of-way would attract 33 vehicle trips per hour.. He further states that reducing the total number to 56 child places, to comply with the Australian Standard for a one lane two-way flow operation of the access handle, would generate 30 vehicle trips per hour. 60 In contrast to the above Mr Hallam provides the following opinion in exhibit 10: I do not accept that it is safe or appropriate to rely on the use of on street parking in Old Canterbury Road for the dropping off or picking up of children. … It is primarily a safety issue to the parents and children. The suggestion of a sheltered parking area is not practicable because after allowing to the 3 m through traffic name the tapered area lefties 1.1 m at the start and 2 m at the end, dimensions which do not allow for parking in accordance with the required standards. With all parking for parents to be provided at the rear of the site the factors determining the maximum number of children are the parents spaces and the need to keep two-way traffic down to no more than 30 vehicles per hour if staff parking is to be on the right of way. I consider the maximum number of children so determined is 40. The morning peak generation at 0.8/vehicles/hr/child would generate 32 vehicles per hour.. the afternoon peak generation would generate 28 vehicles per hour stop taking the mean as 30 vehicles per hour the staff parking can occur on the right of way with a single lane in acceptable. With 40 children the parent parking at 1 to 9 would be 4.4 spaces. Based on assumed age splits, 40 children would require about six staff, so three staff parking spaces would be required. These spaces can be provided at the rear of the site and on the right-of-way. This analysis does not take into account the impact of this traffic at the intersection of old Canterbury Road with McGill Street I am concerned about the traffic efficiency and safety issues that this intersection. 61 I have carefully assessed and considered all the evidence to the Court in these proceedings and the application fails on the contention of traffic and parking. In this regard I am persuaded by the evidence of Mr Hallam and I accept his analysis that "in traffic movement terms the site location is very difficult for a development generating a peak hour flow of about 50 vehicles per hour… with the proposal as it currently stands with the inadequate parking at the rear of the site parents might be forced to park in Old Canterbury Road outside the hardware store. I consider that this would be unsafe. Kerbside parking of limited width with a high volume of passing traffic is not an appropriate location for dropping off and picking up children in the age range of 0 to 6." 62 I also agree with Mr Hallam's conclusion in exhibit 4 that: this is a totally inappropriate site on which to establish a 66 place child care centre. There is inadequate set down and pickup space parents forcing parents to parking under safe and inappropriate locations. The site is in a difficult location in the road network, with queueing and intersection capacity issues, as well as a narrow carriageway width on the alternative route to the site. On traffic and parking grounds this proposal is unacceptable. 63 I prefer Mr Hallam's evidence to that of Mr Winning's whose surveys, analysis and attention to detail has not been rigorous in contrast to Mr Hallam's understanding of the operation of the road system and child-care centre needs. I am not persuaded that the matters for consideration in the DCP for determining whether or not to waive off street car parking are justified in the circumstances of this case. In particular "the size and type of development and the degree of traffic impact of the development on the surrounding locality and peak parking and traffic activity periods for the proposed development; and the safety of vehicles and pedestrians". 64 Furthermore the objective of the DCP is not satisfied. That is "to provide convenient and safe parking for residents, workers and visitors and ensure the safety of pedestrians in the design..". In my assessment the applicant has not demonstrated a suitable drop off and pickup facility for a site that has significant constraints with frontage to a main road where on street parking is proposed to accommodate, together with the ROW, the required number of drop off and pickup movements. 65 Based on my assessment above I am not satisfied that the proposed development for a 62 place child care centre is worthy of approval for the reason that the parent/carer drop-off and pickup of children is unsatisfactory. The right of way does not meet the Australian Standard for the volume of traffic, and the on-street parking proposed on Old Canterbury Road, while it may be convenient, it cannot be described as safe on an arterial road for the sensitive land use of a child care centre. 66 In terms of section 79C(1)(c) of the Environmental Planning and Assessment Act on a merits assessment the site constraints of traffic and parking leads me to conclude the site is not suitable for the proposed child care centre 67 Accordingly the formal orders of the Court are: 1. The appeal in respect of the property known as 120B Old Canterbury Rd, Lewisham is dismissed. 2. The development application submitted to Marrickville Council and as amended is determined by the refusal of consent. 3. The exhibits are returned to the parties. J S Murrell Commissioner of the Court ljr Note: Typographical errors in paragraph 59 have been corrected 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.