Land and Environment Court of New South Wales CITATION : Stanton Dahl Architects v Blacktown City Council [2009] NSWLEC 1124 APPLICANT Stanton Dahl Architects PARTIES : RESPONDENT Blacktown City Council FILE NUMBER(S) : 10978 of 2008 CORAM: Murrell C KEY ISSUES: DEVELOPMENT APPLICATION :- s 97 appeal against a deemed refusal of a development application to allow access from Shaun Drive to a proposed school. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Blacktown Local Environmental Plan 1988 Roads Act DATES OF HEARING: 10 March 2009 EX TEMPORE JUDGMENT DATE : 10 March 2009 APPLICANT Mr I Hemmings (barrister) SOLICITOR instructed by M Peatman Hunt & Hunt LEGAL REPRESENTATIVES: RESPONDENT Mr S Simmington (solicitor) SOLICITOR Lindsay Taylor Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 10 March 2009 10978 of 2008 Stanton Dahl Architects v Blacktown City Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 This is an extempore judgment for a s 97 appeal against Blacktown Council's deemed refusal of a development application to provide access from Shaun Drive to a proposed private school previously approved by the council. 2 By way of background. The Statement of Facts and Contentions sets out the development application No. 082043 is for the provision of pedestrian and vehicular access to Shaun Drive, Glenwood, and the provision of a bus bay to Old Windsor Road, Glenwood. Blacktown Council previously granted consent to a school, Glenwood Anglican College, on the subject land in 2006 and as part of that approval council conditioned that there be no vehicular access to Shaun Drive. 3 The only matter now in contention in these proceedings is whether there is egress from the school site back onto Shaun Drive or whether only access should be allowed. Council contends that only access should be allowed from Shaun Drive and not egress. The issue of the bus bay is not contested in these proceedings. 4 The matter commenced on site as a s 34 conciliation conference and the Court on that occasion heard from a number of resident objectors. The parties discussed the issues at a conciliation conference and the experts also conferred after the conciliation conference. At the beginning of the s34 conciliation conference the respondent contested that there should not be any access at all from Shaun Street. 5 Following the conciliation conference the parties agreed that access be allowed from Shaun Drive to the site. However, no agreement, could be reached between the parties on the question of egress and under s 34(4) the parties agreed to the Court adjudicating this in a formal hearing. 6 On the first occasion at the conciliation conference the Court heard from a number of objectors and the Court has had regard to the concerns of the objectors. These included: Mr Osland, considers that there should not be access allowed and that there should only be pedestrian access because of the access points to the suburb and the narrowness of Shaun Street. Mr MacPherson also expressed concern about the traffic and the congestion of Shaun Street and that it was a narrow street and that the safety for children and damage to vehicles was of concern and that the access for a 900 pupil school should not be allowed because of the additional parking that would also be created in Shaun Street. Mrs Docker expressed concern about the size of the school, 900 pupils, the number of parking spaces and the congestion that would be created. Mr Schiliro expressed concern about the estimates for the number of vehicles and the traffic congestion and the fact that many senior high school children drive to school. Ms Gorndel expressed concern about traffic volumes and the width of the road and the intersection or the T-section with Glenwood Park Drive. Mrs Belby expressed concern about the driveway being an in and out driveway and increased traffic in particular to the T-section, she said she would not object to a roundabout. Mr Clark expressed concern about the traffic noise and the generation of cars by the school allowing access from Shaun Street and the speed humps near his property create a great deal of noise. He was also concerned there may be vandalism if parking signs were erected. 7 Mr Marshall a consultant traffic engineer, gave evidence for the respondent council, and on behalf of the applicant Mr Robert Varga gave evidence. They prepared a joint statement and also analysed the traffic flows and volumes in streets within the vicinity and further traffic counts were done following the s 34 conciliation conference. 8 On the occasion of the site inspection the Court walked the length of Shaun Street and also had the opportunity of viewing the properties of objectors. It is noted that Shaun Street is a relatively narrow street and the experts have agreed that there be no parking signs erected on the drainage easement /open space side of Shaun Street. 9 By way of background. The residential subdivision of Shaun Street is approximately ten years old and the dual purpose drainage easement open space area is opposite the subject site and the Shaun Street residences. It is noted that if no parking signs are erected on the open space/drainage easement side that the street width can then accommodate two lanes of traffic, that is one in either direction, as well as kerbside parking next to or adjoining the residential properties in Shaun Street. 10 Under the Blacktown Local Environmental Plan 1988 the site is zoned Special Uses for church/school purposes and there are a number of zone objectives including: to identify land currently used by public authorities and organisations, to provide community facilities and services, to allow the identified land to be used for recreational or other purposes where that use does not conflict with the existing or likely future of the land by public authorities, 11 The proposed use of the subject site for school/church purposes are permissible with consent. Clause 9 of the LEP requires that the objectives of the zone be taken into consideration in the granting of consent to any development. 12 The Court appreciates that many people do not embrace change and the proposed development with access to a school will mean a change for the local residents of Shaun Street. However, the issue for the Court is to assess the reasonableness of that change. It is not just a matter of whether the change is one of a percentage increase in traffic volumes but whether the impact on the amenity of the residential area would warrant refusal of the development application. 13 As I stated the Court heard from the two experts in the proceedings. I also have the benefit of the advice from the RTA and I am aware of its terms of concurrence prior to the school being approved by the council. The RTA's concurrence was on the basis of access for the school to Shaun Street. 14 I note the following in the RTA's letter of 31 January 2008 when they were asked to comment on the proposal currently before the Court. I t has come to the attention of the RTA that the proposed access arrangements have been amended from that previously considered by the RTA, the proposed new arrangements are contrary to the RTA's conditional concurrence under s 138 of the Roads Act dated 12 January 2005, inter alia, vehicular access for set down and pick up of students and parking for the proposed college and church is to be made available via Shaun Street in addition to that from Old Windsor Road and it is also noted that council's requirement that all traffic is to enter and exit the site from Old Windsor Road has created a significant safety issue in potential vehicle pedestrian conflict especially at southbound vehicles on Old Windsor Road who may choose to stop on the shoulder to set down students. 15 The RTA in the above letter also commented on the fact that it is highly unlikely that all students who do not live within the immediate area will either walk to school or catch the bus. The RTA further comments: In applying the rates identified by the consultant for bus usage, some 33 per cent AM and 41 per cent PM and adding 10 per cent for walking to the school, there are still some 50 per cent of trips made by car. The proposed student population is 900 students with 50 per cent arriving by car and assuming two students per car there would be approximately 225 individual car trips to the site at peak hours. Given the council has conditioned all access to be off Old Windsor Road, this represents an increase of 225 vehicles to the existing volume of traffic using Old Windsor Road. Old Windsor Road already experiences significant congestion in the AM peak in the vicinity of Celebration Drive and the additional traffic generated at the school will exacerbate the current situation. I would also remind council that the RTA's major objective is to ensure safety for all road users and this has been endorsed by the New South Wales government. 16 In summing up Mr Marshall considers that it is appropriate to have access from Shaun Street and in particular he noted that for locals accessing the school it would be unfair and unreasonable to expect them not to be able to access the school via Shaun Street. He is of the opinion, however, there should not be any egress from the school site back out along Shaun Street and that this would create an unreasonable amenity impact for the existing residents of Shaun Street. He quoted that there would be an increase in the AM peak period of some 350 per cent and in the PM by some 250 per cent to the current usage of Shaun Street. It is noted that Shaun Street currently only serves the residential subdivision and the dwelling houses erected on those lots. 17 The other issue is the roundabout. Mr Marshall is of the opinion that even if there is only access and no egress to Shaun Street that there should be a roundabout constructed at the applicant's expenses at the T-section of Shaun Street and he agrees with Mr Varga that a pedestrian crossing should also be provided on the northern end of the T-section. 18 Mr Varga is of the opinion that if only access is allowed from Shaun Street and no exit onto Shaun Street then a roundabout is not necessary. The applicant, however, is prepared to pay for a pedestrian crossing if in fact the local traffic committee approve same. 19 Mr Varga also is of the opinion that the environmental capacity, in particular the maximum capacity of the street, is not exceeded by egress and ingress from Shaun Street and that cars should be allowed to enter and leave the school site from Shaun Street, that is those cars only that access from Shaun Street. 20 Clearly the Old Windsor Road is an access in its own right and there is a condition or a management plan that requires teachers and other people to park within the car parking spaces available. It is noted that the school has the benefit of using the church car parking spaces as well as those dedicated for the use of the school and the increased parking was a matter that was negotiated early in these proceedings to allow for greater use of the church car parking areas. 21 The joint report of the experts provides one with many mathematical calculations and it is dependent upon whether one looks at the average number of children that would attend the school by bus. Mr Varga is of the opinion that many of the children would use the bus transit way that adjoins the site. 22 I also note that for the local area the higher incidence of bus usage is for areas that would not be accessing via Shaun Street, but nonetheless Mr Varga has used this in his calculations to give an indication of the modal split of the transport for children. He increases the outer areas as using the transit way by an additional 20 per cent grater than many other schools. It is unclear the basis of his calculation in this regard, however I note it does not impact to any great extent on the use of Shaun Street. Similarly he then also looks at calculations for the other catchment areas that are described in the development application. 23 In summary, it is important to note, that Mr Varga states that the existing plus ultimate school traffic volumes with entry only from Shaun Street in the AM would be 124 vehicles per hour on Shaun Street and in the PM 114. Mr Marshall on the other hand says that in the AM this would be 169 and in the PM 110. 24 For the existing traffic on Shaun Street, plus the ultimate school traffic if entry and exit is permitted in Shaun Street Mr Varga states this to be 167 vehicles per hour for the AM and 147 for the PM. Mr Marshall on other hand considers that the AM peak would be 214 vehicles and the PM would be 151 vehicles. 25 To provide guidance in terms of the capacity of the street apart from the percentage increases referred to by Mr Marshall it is noted that the current AM peak in Shaun Street is 38 vehicles and the current PM peak is some 44. And just to put it in the context of the local road network Glenwood Park Drive south of Shaun Street is currently 484 vehicles currently and 382 in the PM. Glenwood Park Drive north of Shaun Street is currently 478 vehicles AM and 382 PM. So it can be seen that Glenwood Park Drive is significantly used or heavily used, it is also noted that there is a local high school south of the Shaun Street T-section. 26 The council provided in its bundle the RTA guidelines for traffic generating development of October 2002. This provides for road hierarchy considerations and provides figures for environmental capacity and maximum capacities and provides the characteristics affecting environmental capacity. 27 The environmental capacity of an area is determined by the impact of traffic, roads and various aspects of the location. Traffic characteristics include traffic volume, traffic composition in particular the proportion of heavy vehicles, vehicle speed, road characteristics and locality characteristics including a number of measures that can be used to determine the impact that a road will have on environmental capacity. Issues such as vehicle volume, traffic speed, heavy vehicle percentage and the distance of the noise source should be considered. 28 Environmental capacity is defined in the RTA guidelines as: "The acceptable level of noise at a building or dwelling. Analysis of traffic volumes for new residential subdivisions has focused on allotting appropriate maximum traffic volumes for new areas and performance standards. Environmental capacity is best estimated by considering a range of differing perceptions and attitudes of traffic impacts, in a particular area. The environmental expectations of residents often varies significantly. It is anticipated the performance standard usually occurs at the top end of the range. While it is generally accepted that a departure from the standard in the table below may be accommodated to a degree, developers must justify plans where designs significantly exceed the standard. Table 4.6 below sets out the recommended environmental capacity performance standards and it relates to streets with direct access to residential properties." 29 The subject street, Shaun Street, is a local street with a 40 kilometre per hour speed limit by virtue of the proposed nearby school. In the Table 4.6 for the maximum peak hour the number of vehicles per hour is 200 for the environmental goal and 300 for the maximum. In the performance standard set out in table 4.6 two levels are given, one of the desirable environmental goal and one for the absolute maximum. The Guidelines state there may be situations where alterations to these levels might be appropriate, for example the width of the road et cetera. Table 4.6 takes into account both amenity and safety considerations. 30 It was submitted on behalf of the respondent by Mr Marshall that the proposed percentage increase is unfair on the existing local residents in Shaun Street. It is noted in the RTA guidelines there is no precise level at which the traffic environment can be said to be acceptable or unacceptable to residents. Nonetheless the maximum peak hour volume, in particular the environmental goal, does provide a guideline. 31 As I stated earlier I appreciate that residents will not embrace change and the increased traffic in percentage terms is significant according to Mr Marshall's calculations but nonetheless that is not the test, it is the reasonableness of the amenity impacts and I am satisfied that if the traffic is contained within the environmental goal, that is 200 vehicles per hour, that it is not an unreasonable impact on the amenity for the local residents. 32 I heard evidence on site that the residents are concerned if there are parking restricted on the opposite side of the road, however, it could be seen on the view that there are only houses on one side with the large drainage swathe/easement and parking is not at a premium. If residents choose to park on the street that is their prerogative and the proposal will not deny the opportunity for kerb side parking immediately outside their dwellings, although people do not own the kerbside outside their dwelling house. Furthermore there is still the opportunity even with the no stopping during the peak drop off and pick up of an AM and PM on school days adjoining the reserve, for the residents to park on their side of the road and on both sides outside the peak am and pm periods. 33 The Court has also had regard to reasonable expectations for the use of the subject site. That is zoned and has been zoned for school/church purposes 'Special Uses' under the Blacktown LEP since 1998 and prior to the residential subdivision taking place. It should be no surprise that a school may establish on the subject site as opposed to when schools are proposed in a residential zone. 34 In my assessment I have had regard to Mr Varga's assessment of numbers travelled by bus. I am not satisfied that he has provided a rigorous analysis and that his forecasts would necessarily come to fruition once the development is fully operational. However, based on all the evidence to the Court I consider that it is appropriate that both ingress and egress, that is access to and exit from Shaun Street, should be allowed subject to conditions requiring independent monitoring. 35 The amenity is to be safeguarded for the residents by monitoring the environmental capacity of the street. I have decided to do this by way of a condition on the development consent so that at a five year period, that is five years after operation of the school, when it is approximately two-thirds of its capacity, there will be a condition for independent monitoring to ensure that the environmental capacity of 200 vehicles per hour is not exceeded, and then independent monitoring every three years thereafter. The purpose of this condition is to enable the school to coexist harmoniously into the future with the adjoining residential area. Whilst there will be a change for the residents the change in my assessment is not unreasonable and could be expected having regard to the safeguards of the monitoring. 36 If in the course of the monitoring it is found that the environmental capacity is exceeded, the school would need to amend its traffic management plan such that it would limit the number of vehicles accessing and exiting onto Shaun Street. This can be done by a number of ways (and in fact was offered by the applicant in correspondence previously), such as the junior school only may be limited to this access point and the senior school would be required to use the Old Windsor Road entry. There are other management mechanisms that can be put in place as well that is the exclusive use of buses by the school for the collection of students in various locations and the entrance or exit would only be to Old Windsor Road in that instance. 37 On the basis of my assessment a roundabout is also required at the T-section of Glenwood Park Drive and Shaun Street and a pedestrian crossing preferably, to be provided on the northern side of the roundabout, or a pedestrian refuge, and this would be subject to the approval of the Local Traffic Committee. 38 Accordingly, the formal orders of the Court on the receipt of the conditions to be drafted by the parties to reflect the need for independent monitoring of the traffic numbers will be: 1 The appeal in respect of the property known as lot 7, DP 1078760, 992 Old Windsor Road, Glenwood, is generally upheld; 2 The development application submitted to Blacktown City Council and as amended for access, both egress and ingress, to the subject school from Shaun Street and the construction of a bus lay-by is approved subject to the conditions in Annexure 'A'; 3 The exhibits are returned with the exception of 3, A, B and D. ___________________ J S Murrell Commissioner of the Court ljr 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.