Land and Environment Court New South Wales

• Medium Neutral Citation: The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2014] NSWLEC 1218
• Hearing dates: 22 to 24 September 2014
• Decision date: 28 October 2014
• Jurisdiction: Class 1
• Before: Moore SC

Decision

1.The appeal is dismissed;

2.Development Application DA 559/2013 to incorporate 19 Kambala Road into the Scots College Preparatory School together with associated internal and external works to facilitate that incorporation is determined by the refusal of development consent; and

3.The exhibits, other than Exhibits 3, A and C, are returned.

• Catchwords: PARKING AND TRAFFIC: drop-off and pick-up arrangements for a primary school; impacts on local residents; risk to pedestrians; CHILD SAFETY: persistent failure by parents to observe safe behaviours during pupil drop-off and pick-up; ignoring by parents of school requests to observe safe behaviours; risks to young children and adults; risks to residents; unacceptability of present behaviours; no certainty development would not lead to increase in use of drop-off and pick-up arrangements and thus of exposure of children to present risks even assuming no increase in risky behaviours; preventative approach needed in light of potential consequences; EVIDENCE: unsworn evidence given during a site inspection; weight to be given the same as if evidence given in court subject to relevance; no inference to be drawn by failure of development proponent to cross-examine objectors during evidence given on site; PRECAUTIONARY PRINCIPLE: prerequisite/threshold questions; satisfaction of first prerequisite/threshold question but not of second; taking of preventative approach; response proportionate to risk; PLANNING PRINCIPLES: review of planning principles by Commissioners; confirmation of the planning principles in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 and Vinson v Randwick Council [2005] NSWLEC 142; (2005) 141 LGERA 27
• Legislation Cited: Civil Procedure Act 2005; Educational Establishments Development Control Plan 2012; Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Parking Development Control Plan 2011; Roads Act 1993; State Environmental Planning Policy (Infrastructure) 2007; Woollahra Local Environmental Plan 1995
• Cases Cited: Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126; Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353; (2003) 139 LGERA 231; Australian Leisure and Hospitality Group Limited v Manly Council [2008] NSWLEC 312; (2008) 167 LGERA 1; Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338; Comino v Council of the City of Sydney [2014] NSWLEC 1211; Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187; H & J Standen Pty Ltd v Minister for Planning and Infrastructure [2014] NSWLEC 113; Khattar v Holroyd City Council [2005] NSWLEC 411; Khattar v Holroyd Council (No 2) [2005] NSWLEC 359; Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277; Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167; Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 492; Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256; (2006) 146 LGERA 10; Vinson v Randwick Council [2005] NSWLEC 142; (2005) 141 LGERA 27; Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589; (2001) 115 LGERA 373
• Category: Principal judgment
• Parties: The Presbyterian Church (New South Wales) Property Trust (Applicant); Woollahra Municipal Council (Respondent)
• Representation: Mr T Hale SC (Applicant); Mr J Lazarus, barrister (Respondent); CBP Lawyers (Applicant); Lindsay Taylor Lawyers (Respondent)
• File Number(s): 10198 of 2014

Judgment

Introduction

1 SENIOR COMMISSIONER: Scots College Preparatory School (the preparatory school) is located in Bellevue Hill. The preparatory school campus is, currently, divided into two distinct segments. The first of them is located at 5 and 7 Mansion Road. This element of the campus has an access handle extending from these properties to Kambala Road to the west. The access handle is located between 19 Kambala Road and 17 Kambala Road. Both of these properties are owned by Scots College (the college). Both these properties are currently zoned residential under the Woollahra Local Environmental Plan 1995 (the LEP). 19 Kambala Road is to the north of the access handle whilst 17 Kambala Road is to the south of it. Whilst the width of the access handle is that of a conventional suburban driveway, it is my understanding that it is primarily (if not virtually entirely) used as a point of pedestrian access from Kambala Road to this element of the preparatory school's campus.

2 The second element of the preparatory school is located between Mansion Road and Victoria Road and is, at its Mansion Road frontage, opposite the first element of the campus.

3 It is convenient, for the purposes of this judgment, to refer to the first element of the campus as the Mansion Road campus whilst referring to the second element of the campus as the Victoria Road campus.

4 The preparatory school has, for several years, accepted enrolments from very young pupils. On the Mansion Road campus are presently accommodated two cohorts of preschool pupils (three year olds designated as Cubs and four year olds designated as Lions). Kindergarten and Year 1 pupils are also accommodated on the Mansion Road campus. The remainder of the preparatory school pupils are accommodated on the Victoria Road campus.

The development application

5 The present development application (DA 559/2013) to be determined in these proceedings was lodged with Woollahra Municipal Council (the Council) in November 2013. It primarily concerns the property owned by the preparatory school at 19 Kambala Road but also, to a lesser extent, involves works proposed to be undertaken on the existing Mansion Road campus property. It does not concern 17 Kambala Road.

6 The scope of the development application is described in the Statement of Environmental Effects (Exhibit 1 [commencing at folio 161] at folio 165) that accompanied the application. The description is in the following terms:

• a change of the land use of a dwelling from 'Residential' to 'Educational Establishment' (kindergarten) at 19 Kambala Road, Bellevue Hill;
• minor internal and external works to facilitate the change of use;
• minor alterations to allow pedestrian access between 19 Kambala Road and 5-7 Mansion Road;
• landscaping works and creation of an outdoor education garden;
• upgrade of the boundary fence treatment to Kambala Road, including new vehicular and pedestrian gates;
• Provision of a formal lay-by to the Kambala Road street verge, including removal of one street tree; and
• Associated upgrades to stormwater infrastructure.

7 Although this description of the elements said to be encompassed by the development application includes the element of a lay-by in Kambala Road, the position is that this cannot be encompassed within a development application made pursuant to the Environmental Planning and Assessment Act 1979 (the Act) but would require a separate application pursuant to s 138 of the Roads Act 1993 (the Roads Act) to be made to the Council as the local roads authority. There is no such application. It is settled that, in my exercising the jurisdiction of the Court to determine an appeal made pursuant to s 97 of the Act solely concerning a development application made pursuant to the Act, I do not have jurisdiction to exercise the function of the Council with respect to work requiring a Roads Act application (see Australian Leisure and Hospitality Group Limited v Manly Council [2008] NSWLEC 312; (2008) 167 LGERA 1).

8 However, Mr Hale SC for the applicant (although the Presbyterian Church Property Trust of New South Wales is the formal applicant as the owner of the real estate, it is convenient to refer to the applicant as the preparatory school for the purposes of this decision) has indicated that the preparatory school is prepared to accept a condition of consent requiring it to lodge a Roads Act application with the Council for the lay-by within a fixed period of time and for this to be accompanied by a further condition requiring that, if approved by the Council, the lay-by would be required to be constructed by the preparatory school within a further fixed period of time.

9 The utilisation of 19 Kambala Road is solely intended, on both the written evidence and the oral evidence of Mr Crerar, the principal of the preparatory school, to enable the space presently occupied by the element of the pupil cohort proposed to be transferred to 19 Kambala Road to be converted into dance and music spaces and not to increase the pupil carrying capacity of the Mansion Road campus. In this context, I note that, although the broader Scots College community has recently expanded to cater for boys younger than those presently accepted as Cubs at the Mansion Road campus, this expansion has taken place by utilising other premises owned by the college at Rose Bay.

10 As matters of detail arising from the Council's without prejudice proposed conditions of consent were not dealt with during the course of the hearing (the hearing being confined to the substantive issues that might potentially warrant refusal rather than matters of detail attaching to the conditions of consent that would need to be attached if the broad issues were resolved in favour of the preparatory school), the periods of time for application for or construction of the lay-by were deferred for later consideration with other matters arising concerning the conditions of consent (if the application were to be approvable).

The site inspection

11 At the commencement of the hearing, I inspected the Kambala Road to Mansion Road campus access handle, walking along the access handle and then through 5 and 7 Mansion Road to Mansion Road itself. It was not necessary for me to inspect, in any substantive fashion, any of the buildings within the Mansion Road campus nor any elements of built form presently on 19 Kambala Road. I walked along Mansion Road toward the north to the northern boundary of the Mansion Road campus and observed Mansion Road where it turned to the east at that point. During the course of this transit, I observed the physical parking arrangements in Mansion Road outside the Mansion Road campus.

12 The Mansion Road drop-off/pick-up zone has at least two (2) distinct differences when compared to the present arrangements in Kambala Road. First, there is an extensive lay-by constructed on the western side of Mansion Road in front of the Mansion Road campus. Second, as the preparatory school designates that the Mansion Road facility is only to be used for the Cubs and Lions (disclosed in the traffic survey analysis as being a restriction ignored by a significant number of parents), parents with these younger children are expected to park there for a longer period of time as these children are required to be signed in or out by a parent at a designated location within the Mansion Road campus.

13 It is apposite to observe that, in Mansion Road to the south of the Mansion Road and Victoria Road elements of the preparatory school, Mansion Road terminates in a cul-de-sac turning head. There are a number of residences with frontages to Mansion Road to the south of the two campus elements.

14 During the course of this inspection, I observed the Victoria Road campus of the preparatory school across Mansion Road but it was not necessary to visit that campus.

15 I also walked Kambala Road on its eastern side, for 50 m or so, to the north of the access handle exit onto Kambala Road; crossed the road at that point and walked to the south along Kambala Road (incorporating, in this process, walking along a service road element of Kambala Road - lower than the main thoroughfare - that provides access to a small number of Kambala Road frontage properties on the western side of that road); at the southern end of the service road, I crossed the road and returned to the access handle before departing from the site.

16 During the course of the site inspection, I was accompanied by Mr Hale and by Mr Lazarus, barrister for the Council, and those instructing and advising each of them. A number of residents also accompanied me during the course of the site inspection.

The resident objector evidence

17 Prior to the commencement of the site inspection, I heard evidence given, informally, by six local residents who objected to the proposed change of use.

18 It this appropriate to note at this point, in light of a suggestion made by Mr Hale during the course of the subsequent in court proceedings that less weight should be given to the onsite evidence of the objectors (a proposition I reject, absolutely) because it was unsworn, that, as is my habit in such circumstances, I advised those who were to give on-site evidence to me that I would not be producing any holy book and swearing them in but that, nonetheless, they were under exactly the same obligations as if they were giving their evidence under oath or affirmation in court and their evidence would be treated, to the extent that it was relevant to the matters requiring determination in the proceedings, as if it had been given under oath or affirmation in the witness box.

19 This proposition from Mr Hale was a reprise of the position advanced by him to me nearly a decade earlier (see Khattar v Holroyd Council (No 2) [2005] NSWLEC 359 at [12] to [17]), but, when I referred four propositions of law to the then Chief Judge, McClellan CJ, Mr Hale elected not to pursue the submission (see Khattar v Holroyd City Council [2005] NSWLEC 411 at [6]).

20 I am fortified in this view by Craig J's observation in H & J Standen Pty Ltd v Minister for Planning and Infrastructure [2014] NSWLEC 113 at (84), in response to such a proposition, that:

The practice of this Court in hearing evidence from lay witnesses onsite is a practice that has been followed in the determination of almost all merit appeals for many years. Although those giving evidence onsite are not sworn, the evidence has always been treated as if given in court and intending witnesses are usually so advised. As in the present case, witnesses in that category are almost always called by the consent authority. Representatives of any other party present onsite are entitled to question each witness whose evidence is given. Assuming both counsel and solicitors for the parties to be present, each solicitor notes the evidence given by each witness, compares those notes with those taken by his or her counterpart and upon agreement being reached between them, the summary of evidence is later tendered in the course of the hearing. That is what occurred in the present case.

21 I note, in passing, that if this were not to be the case, the vast majority of merit appeals in the Court's jurisdiction would be required to be run in an entirely inefficient and cumbersome fashion, a fashion totally inconsistent with the obligation imposed on the Court by s 56 of the Civil Procedure Act 2005 to foster the just, quick and cheap resolution of the issues genuinely in dispute between the parties. It would also be contrary to the provisions of s 38(1), (2) and (4) of the Land and Environment Court Act 1979 which, relevantly, provide:

38 Procedure

(1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.

(2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.

(3) .................

(4) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing.

(5) .....................

22 I also observe that, although at one stage Mr Lazarus put the proposition to me that I ought have regard to the fact that as Mr Hale was afforded the opportunity to crossexamine the resident witnesses during the course of their onsite evidence and did not elect to do so, I should have greater confidence in the evidence because of that lack of testing on behalf of the preparatory school. I did not (and do not) accept that proposition. It is, in my experience, now comparatively rare for advocates on behalf of development proponents to cross-examine objectors during the course of onsite evidence from those objectors. It is my observation that, on the rare occasions it occurs, the likelihood of such cross-examination eliciting anything of utility for a proponent is usually illusory (at its highest) and, much more often than not, entirely fruitless. Experienced advocates such as Mr Hale nowadays do not do so and, in not doing so, make a quite proper forensic decision - one that should not be taken to disadvantage their client.

23 There are a number of matters to be observed concerning the resident evidence given orally onsite; the text, pictorial and graphic materials presented in support of that oral evidence and the broad range of resident submissions that were made in writing to the Council as part of the development assessment process.

24 The text, pictorial and graphic materials were tendered and became Exhibit 8 whilst the written submissions lodged with the Council were tendered and became Exhibit 2. I am required to consider these earlier submissions, to the extent that they raise matters validly within the jurisdiction of the Court (s 79C(1)(d) of the Act).

25 To the extent that these submissions and/or the oral evidence of the objectors raise matters that are not pressed by the Council in its contentions, it is appropriate for me to deal with them to the extent that they give rise to issues I consider potentially could act adversely to the position of the preparatory school. However, where such an issue arises from the objector material, as I am required to accord procedural fairness and natural justice to the parties, it is incumbent on me to put the parties (particularly the preparatory school as the party potentially adversely affected) on notice of such issues.

26 Two matters arose during the course of the objectors' evidence that potentially fell in this category. The first was an acoustic impact concern raised by the neighbour to the north of 19 Kambala Road.

27 The second was the suggestion, not specifically particularised in the Council's contentions (although, perhaps, on a broad reading, implicit in them - a matter I need not determine) that the proposed relocation of the Early Learning Centre children to 19 Kambala Road would exacerbate impacts in Kambala Road by transferring a centre of activity currently located elsewhere in the Mansion Road campus to a greater proximity to Kambala Road by having their classrooms located in 19 Kambala Road.

28 With respect to the second of these points, I indicated to Mr Hale toward the conclusion of the first of the hearing days that this was a matter that was potentially of concern to me and needed to be addressed during the course of the remainder of the hearing, particularly in the concurrent evidence of the traffic experts, evidence that was to be taken on the second day of the hearing.

29 I did not give him notice of that nature with respect to the acoustic impact issue raised with respect to the property to the north of 19 Kambala Road as I was of the opinion (necessarily implicit, in my view, from the terms of on-site evidence of the objector who spoke on that point) that that issue, to the extent necessary, could be dealt with through the conditions of consent process if the application were to be approvable.

The planning framework

30 As earlier noted, 19 Kambala Road is zoned residential by the LEP. Use of this property for the purposes of an educational establishment is prohibited in the zone by the provisions of the LEP.

31 However, in 2007, State Environmental Planning Policy (Infrastructure) 2007 (the Policy) came into effect. The Policy is a beneficial and facultative one that has the effect, in a variety of circumstances prescribed in it, of permitting development that would otherwise be prohibited, amongst other things. In the particular circumstances of this application, cl 28(2)(b) of the Policy deals, amongst other things, with the expansion of educational establishments. It does so by permitting development for the purpose of the expansion of existing educational establishments-on land adjacent to the existing educational establishment even where prohibited.

32 The consequence of this provision, in the context of the preparatory school's application, is to set aside the prohibition contained in the LEP and make it possible for the present application to be approved despite the prohibiting effect of the zoning of 19 Kambala Road.

33 However, the operation of the policy to set aside the prohibition does not have the effect of removing the necessity for a proper merit assessment of the proposal as required by s 79C of the Act. This includes, in addition to consideration of public submissions as earlier noted is required by this section, the provisions of any relevant development control plan (s 79C(1)(a)(iii) of the Act).

34 There are two relevant development control plans that have been adopted by the Council. The first of these is the Educational Establishments Development Control Plan 2012 and the second is the Council's Parking Development Control Plan 2011. Both of these development control plans have provisions that have been pleaded by the Council as providing a foundational basis for refusing this application.

35 Prior to setting out the relevant provisions of these development control plans, it is appropriate to note two further matters concerning my consideration of the impact of the pleaded provisions in my assessment of the application.

36 It is necessary to set out a further element of the development application history concerning 19 Kambala Road before noting the first of these points. In November 2011, the preparatory school lodged a development application for 19 Kambala Road that was, at least for the purposes of this notation, in similar terms to the application lodged in November 2013 and now the subject of these proceedings. In the intervening period of time, the Council adopted the Educational Establishments Development Control Plan that adopted a provision concerning pupil drop-off and collection arrangements that is now pleaded as giving rise to a basis for refusal of the application.

37 I invited Mr Hale to make any submissions that he might wish to advance (should he wish to do so) that the pleaded element of this development control plan had been adopted by the Council for the purposes of defeating this application (this being a basis for considering whether to disregard a council policy as discussed by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 492; (2004) 136 LGERA 254 at (91) with this discussion necessarily applying, by analogy, in my view, to development control plans). Mr Hale made no submission of this nature.

38 Second, the current application had been made to the Council after the coming into effect of s 79C(3A) of the Act (a provision designed, as I understand it, to soften the strictures of the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589; (2001) 115 LGERA 373 as to how provisions of a development control plan are to be considered during the course of assessment of development applications). Although this was pointed out to him, Mr Hale made no submission that this provision had any relevance to my consideration of the present application.

The 2009 development consent

39 The school operates within a development consent (DA 758/2008/1), presently relevant, given by the Council in May 2009. That development consent (Exhibit B, Tab 2) includes, within the conditions that attach to it, two provisions relevant in these proceedings. The first is condition D.12 - a condition that requires the preparation of a traffic management plan. Such a traffic management plan was prepared to satisfy the condition. A copy of that traffic management plan became Exhibit E.

40 The second relevant aspect is the limit on the preparatory school's population, both pupil and academic, contained in condition I.1. This condition limits the preparatory school to a maximum of 500 pupils and 65 staff members at the preparatory school.

The preparatory school's pupil population

41 Although there was some discussion as to whether the limit on pupil numbers was a limit strictly based on a headcount or was to be calculated as a full-time equivalent number (thus potentially permitting a higher headcount), I do not consider that it is necessary to resolve that tension for the purposes of these proceedings.

42 Two factual matters arise with respect to the preparatory school population. The first is that preparatory school has not, on the evidence, exceeded the cap on pupil numbers since the cap was imposed (although the preparatory school also does not seem to have breached the cap on staff numbers, staff numbers are not an issue in the proceedings).

43 Second, there has been both demographic and numerical change in the composition of the pupil population. I have earlier set out the shift in the demographic cohort at the preparatory school to an earlier aged profile and it is unnecessary to repeat that description. However, pupil numbers have also increased, approaching but not breaching the numerical limit. From the documents in evidence, the pupil numbers at the preparatory school over recent years can be shown in the following table:

Year	Pupil numbers	Source
2014	491	Exhibit 1, Folio 12
2013	483	Exhibit 1, Folio 175
2012	484.2 FTE	Exhibit B, Tab 1, Page 9
2011	484 FTE	Exhibit B, Tab 1, Page 9
2010	486 FTE	Exhibit B, Tab 1, Page 9
2009	461	Exhibit 1, Folio 13

General comment concerning parking and traffic matters

44 The Statement of Environmental Effects prepared by JBA Urban Planning Consultants (Exhibit 1, commencing at Folio 161) deals with the question of access, parking and traffic in s 3.6 (Folio 177). It does so in the following terms:

There are no changes to existing access and general parking arrangements associated with the ELC (incorporating the proposed relocated kindergarten).

In terms of pedestrian access to the proposed relocated kindergarten, it will be provided:

From Kambala Road via the existing access way along the southern side of 19 Kambala Road, where pedestrians will be able to access the rear of the building which accommodates the main entry to the kindergarten; or

Through Mansion Road via the existing main ELC entry connecting through to the rear of 19 Kambala Road.

No direct access to the relocated kindergarten is proposed off Kambala Road.

45 As part of the documents lodged with the Statement of Environmental Effects, there was included a traffic and parking assessment prepared by Mr Morse of Parking and Traffic Consultants (Exhibit 1, Tab D commencing at Folio 247). This document, dated December 2013, includes a diagram (on Folio 256). The diagram is described in the report as summarising the results of the travel surveys in indicating where each group of pupils is being set down. An image of the diagram appears below:

46 It is clear from what is shown in this diagram that the drop off and pick up patterns of parents as shown in this survey analysis do not reflect what the preparatory school has repeatedly advised parents should be the pattern of such activities set out by the preparatory school as the appropriate locations to be used by parents for these activities. The unsafe aspects of this behaviour in Kambala Road and the preparatory school's genuine (but futile) attempts to remove child safety risks are discussed in detail later.

47 In particular, it is to be observed that for the pupil cohort the school intends should use Kambala Road (K-1). 134 cars were counted in the survey of which only 113 used Kambala Road. However, in addition, 48 cars (41 Cub and 7 preparatory school) also used Kambala Road. This reflects an aspect of the impacting behaviour in that the 41 Cub-related movement cars will require parents to park the vehicle and escort the child to or from the sign-in location within the Mansion Road campus.

48 In analysing the material that follows, it will be necessary to consider not only the qualitative response from Mr. Morse, the preparatory school's traffic expert, but also such quantitative material as is available concerning the actual pick-up and drop-off operation in Kambala Road, Mansion Road and Victoria Road. This analysis will also need to comprehend the evidence given by the preparatory school's principal, Mr Crerar, and the relevant matters that may be gleaned from the 2009 consent traffic management plan; publications to parents of pupils at the preparatory school concerning traffic and parking matters; and matters contained in the college's draft master plan concerning the preparatory school.

The 2013 master planning exercise

49 In 2013, the preparatory school formed part of a substantial master planning exercise undertaken on behalf of the college - the elements of this process with respect to the preparatory school included both the anticipated use of 19 Kambala Road for the purposes now proposed and some elements relevant to traffic management issues.

50 The master plan that resulted remains in draft only. However, to the extent that it foreshadowed some utilisation of the property owned by the college at 17 Kambala Road, I have disregarded that as 17 Kambala Road remains residential and there is no evidence of any application to incorporate it within the preparatory school campus or the broader college at this time. Indeed, the ownership of 17 Kambala Road is and must be a matter of complete irrelevance in these proceedings. I have paid no regard to it in any aspect of my merit assessment.

Communication with parents about parking and traffic arrangements

51 The school communicates with parents or prospective parents about a range of matters (including traffic and parking management issues in the vicinity of the two elements of the preparatory school's campuses). This is done through newsletters that are distributed electronically and/or physically to parents. There are two newsletters for this purpose - The Clansman is solely directed to preparatory school parents whilst The Flying Scotsman is for the whole college community.

52 Although there was no specific evidence as to their frequency, it is reasonable to infer from the edition dates of the extracts that were in evidence that they are produced on a regular basis (whether weekly or fortnightly or on some irregular basis being irrelevant) at least during term time.

53 The extracts that were in evidence from the newsletters were in two forms. Some material (Exhibits J and 10) was photocopies of pages from the printed document whilst other extracts had been obtained by an electronic data search and extraction process and were produced as a single compilation document of elements from the two newsletters dealing with traffic and parking matters (Exhibit G).

54 The school also conducts information sessions for parents during the evening time with separate sessions for parents of different age elements within the preparatory school cohort. Finally, the preparatory school produces, annually, a handbook for parents. A copy of the 2014 edition of the handbook was Exhibit H.

55 The 2014 preparatory school handbook for parents deals with arrival at school on page 22 and, relevantly, does so in the following terms:

The only boys to be delivered and collected in Mansion Road are transition boys, their brothers, players of the double bass and those with an injured leg.

Boys in years K-1 are to be dropped off at the Lane in Kambala Road. Boys in years two to four are dropped off and collected at the Lane in Kambala Road or at the laneway in Victoria Road. Boys in years five and six are dropped off and collected at the laneway to Kambala Road halfway between Mansion Road and the senior school

56 Under the heading ELC, on this page, the following relevant elements appear:

The only boys to be delivered and collected in Mansion Road are transition boys and their brothers.

Boys in Kindergarten and year one are to be dropped off at the top of the lane in Kambala Road.

57 Commencing on page 40, under the heading parking, the 2014 handbook says:

Your son's safety may be affected adversely by thoughtless driving and parking habits. It is important, also, that we maintain cordial relations with our neighbours and not cause them inconvenience by obstructing driveways. Parents are asked to observe the following:

Transition boys' parents only should use Mansion Road. Parents are asked to depart as soon as possible after delivering or collecting their sons in orders that others may use the parking spaces. 8:30- 9:00am staggered start time to the day and 2:30pm-3 pm staggered collection times.

Boys in Kindergarten and Year 1 should be dropped-off and picked-up in Kambala Road using the pedestrian access lane to the school grounds. 8:20 to 8:40 am drop-off and 3:05 to 3:25pm collection.

Year 1 boys carrying large musical instruments may be dropped off in Mansion Road.

Boys in Years 2 to 4 should be dropped-off and picked-up on Kambala or Victoria Road using the pedestrian access lane to the school grounds. 8:00 to 8:25am drop-off and 3:05 to 3:25pm collection.

Boys in Years 5 and 6 should be dropped-off and collected in Victoria Road, near the bus stop and laneway to Kambala Road. 8am to 8:25am drop-off and 3:05 to 3:25pm collection.

Boys carrying large musical instruments or with an injured leg may be dropped-off in Mansion Road.

In the interests of boys' safety, observe all parking signs. Please take particular care not to park in the bus or no stopping zones in Victoria Road. Vehicles parked in these zones obscure the view of pedestrians crossing at the Mansion Road intersection and that of vehicles approaching the crossing. Please do not leave your car unattended in the Kambala Road morning drop-off.

The Traffic and Parking Management Plan

58 The October 2009 Traffic and Parking Management Plan (Exhibit E) is a document of a little over 11 pages of double-spaced text. On page 5, it sets out overall principles of traffic management. There are 11 such principles. It is to be observed that this Traffic Management Plan was prepared in response to the requirement to do so in condition D.12 of the 2009 development consent and was prepared prior to the preparatory school's implementation of its Cubs and Lions transition programs. Of the principles set out on page 5, the following are relevant:

• minimise impact of on street parking in the vicinity of the site, particularly during the morning and afternoon peak periods (Third principle);
• separate to set down and pick-up areas of the preparatory school and the early learning centre (Fifth principle);
• preparatory school set down in pick-ups to occur from Kambala Road (Kindergarten to Year 1) and from Victoria Road (Year 2 to Year 4) (Sixth principle);
• early learning centre set down in pick-ups to occur from Mansion Road (Seventh principle).

59 Page 7 of the Traffic Management Plan describes the results of a traffic count survey undertaken. The results are set out in table 2.1 of the document. For the purposes of these proceedings it is sufficient to note that no traffic count was undertaken in Kambala Road. Page 10 of the document commences with the heading Traffic and Parking Management Plan. At 2.20, the document sets out what I describe as the main aspects of the Traffic and Parking Management Plan. Of those matters there set out, the third point is relevant in these proceedings. It is in the following terms:

• Maintain existing student set-down and pick-up operation in Kambala Road for Kindergarten and Year 1 of the preparatory school.

60 The next point notes the intention to construct an indented parking bay in Mansion Road, works that have been undertaken and were inspected during the course of the site inspection.

61 At 2.21, the document concludes by saying:

The proposed Traffic and Parking Management Plan is considered appropriate to cater for set down and pick-up operation for the Scots Preparatory School and Early Learning Centre.

The Statement of Facts and Contentions in Reply

62 The preparatory school filed and served a response to the Council's Statement of Facts and Contentions. This document became Exhibit C. With respect to the particularisation of the Council's contentions (at 2.4) concerning, inter alia, the interaction of school-aged pedestrians and traffic on Kambala Road, the preparatory school's response was:

Disagree. Under the current arrangement, students have no interaction with traffic on Kambala Road, provided the parents use the drop-off/pick-up area and the student uses only the passenger side doors of the vehicle (emphasis added).

63 With respect to Objective O2 of the Educational Establishment's Development Control Plan, the objective being to minimise conflict between vehicles and pedestrians, particularly at entrances, the preparatory school's formal response (in Exhibit C page 11 at 2.5) was that the proposal is consistent with these objectives because:

There is no material conflict between pedestrians and vehicles under the current arrangement.

The only instance where conflict may occur is when a parent parks on the western side of Kambala Road or if a student exits a car in the drop-off area from the driver's side. Both of these actions are actively discouraged by the applicant.

64 A bundle of extracts from The Clansman were tendered and became Exhibit J. I do not propose to set out, in full, the various relevant extracts from the newsletter where messages are given either by the principal of the preparatory school (Mr. Crerar) or the principal of the college (Dr Lambert) concerning traffic and parking matters.

65 It is sufficient to note, as a general proposition, that I have been provided with extracts from seven newsletters within the period 27 February 2014 to 24 July 2014 where material relating to traffic and parking is addressed. Although not specifically reproduced in total, I consider it a fair summary to observe that there are consistent themes of setting out the times and locations for drop-off/pick-up are expected to occur for the various elements within the Preparatory school pupil cohort.

66 It is also fair to observe that there is a consistent theme of addressing the need to obey road rules and to behave in a neighbourly fashion toward residents in the vicinity of the various drop-off/pick-up locations.

67 It is appropriate to reproduce what is contained in the first of the extracts in Exhibit J (Term one, week five-Thursday 27 February 2014) where, under the heading Road Behaviour Around the College, the following appears:

The college would like to remind parents of their road behaviour during drop-off and pick-up times.

The following behaviours must be avoided:

• Please do not use the resident's access road off Kambala Road for parking or driving through.
• Do not speed through the area at any time.
• Please show appropriate consideration for our neighbours by parking only in legal parking bays and do not obstruct driveways.
• Stopping in no stopping zones.
• Allowing boys to exit vehicles in an unsafe manner.

Please be aware that these behaviours will not be tolerated by the College.

It should also be noted that Council traffic infringements and harsh penalties apply in school zones, particularly for double parking, parking on a pedestrian crossing or children's crossing and illegally parking in no stopping, no parking and bus zones.

It is extremely important to be conscious of the impact our driving habits have on our neighbours and the safety of our boys. It is very important as we continue through 2014 that you model positive road behaviours for your sons and be courteous to all of our neighbours.

Your actions speak louder than words, so please model good behaviour.

The planning principle in Randall?

68 In Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277, Tuor C published a planning principle concerning the expansion or intensification of an existing use. Although this planning principle was subsequently expanded in the particular context of licensed premises by the decision in Vinson v Randwick Council [2005] NSWLEC 142; (2005) 141 LGERA 27, in these proceedings Mr. Lazarus has sought to invoke the principle in Randall as a reasoning process warranting refusal of the application. The planning principle in Randall is in the following terms:

25 Principles for the assessment of an extension or intensification of a use which may have an adverse impact on residential amenity, such as a hotel, are:

● First, is the impact of the operation of the existing use on residential amenity acceptable?

If the answer is no, then an extension or intensification, would be unacceptable unless there is no overall increase in impact or there are measures proposed which would mitigate the existing impact.

● Second, if the answer is yes, is the impact of the proposed extension or intensification still acceptable?

26 In answering the first question, it is not sufficient to assume that a use operating in compliance with its approval has an acceptable impact. A hotel could be approved without limits on patron numbers or hours of operation and, while its operation complies with this approval, may not achieve an acceptable impact. Moreover, the surrounding area may change and the attitudes of the community as to what is acceptable may also change. An extension or intensification of use may provide opportunities to reduce the impact of the existing operation through limiting numbers or hours of operation. The overall impact of the development may then be neutral or result in a lesser impact.

69 There are three matters that warrant consideration in this context. The first is the continuing relevance of Randall and Vinson; the second is the approach to be undertaken in considering the terms of planning principles generally; and the third is whether or not, properly understood, Randall has any application to the circumstances here to be considered.

70 First, I turned to the continuing relevance of the planning principles in Randall and Vinson. As I observed recently in Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167 at (30), the Commissioners of the Court have undertaken a review of the published list of planning principles in order to assess which remain relevant in their original form; which, if any, might warrant revision or replacement (as was undertaken in Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187); or which principles, if any, were no longer relevant and should, for the future, be disregarded.

71 This latter course has been followed by O'Neill C in Comino v Council of the City of Sydney [2014] NSWLEC 1211 where she noted that the planning principle in Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353; (2003) 139 LGERA 231 should no longer applied and the reasons why the principle was no longer appropriate.

72 As part of that process, the Commissioners have considered, through the collegiate system used within the Court for the consideration of planning principles, the continuing relevance of the planning principles in Randall and Vinson. The Commissioners have concluded that each of these principles remains relevant and neither requires revision.

73 I now turn to the general question of consideration of planning principles and their applicability. In this context, it is important to note the limitations on their use. I set out the correct approach to planning principles several years ago in Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126. That which I wrote on that occasion remains relevant today and is in the following terms:

54 On the other hand, equally importantly, there are a number of matters that planning principles are not.

55 First, planning principles are not immutable. Planning principles are evolutionary and can change or grow as circumstances in particular cases give rise to matters where members of the Court collectively consider a further statement of generality (either by revision to or expansion of an existing planning principle) is desirable rather than merely the making, by those to whom the matter has been assigned by the Chief Judge, of a simple determination confined to the specific merits of the individual application.

56 For example, further consideration of the original planning principle dealing with the impact of extending trading hours of licensed premises (published in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277) led to the refined and expanded planning principle subsequently published in Vinson v Randwick Council [2005] NSWLEC 142; (2005) 141 LGERA 27.

57 Second, planning principles are not intended to be exhaustive. This is, perhaps, a corollary of the first proposition. Just as members of the Court will consider whether particular cases give rise to general matters which might expand or otherwise build upon an earlier planning principles, so the Court may invite the advocates for the parties, in appropriate cases, to suggest modification or evolution of an already published planning principle. Indeed, a case may canvass whether the establishment of a new principle should be contemplated and, if so, the approach that should be considered to that topic.

58 Third, planning principles are not binding. They are not the stone-inscribed commandments that Moses is described, in Exodus Chapter 20, as bringing down from Mount Sinai.

59 Planning principles published and adopted by the Court are intended to provide guidance to those who bring similar cases to the Court for determination and are also intended to provide assistance and guidance for local consent authorities. They do not and cannot have the same force as some form of statutory prescription. They certainly cannot automatically displace or override the provisions of a local environmental plan or a development control plan that deals with the topic of a particular planning principle in a fashion differing from that enunciated by the planning principle itself.

60 Fourth, planning principles are not statutory instruments and are not intended or expected to be the subject of the same statutory interpretation and construction of the words and phrases contained within them as if they had the force of law and were subject to the requirements for statutory interpretation of their intention.

61 Finally, they speak for themselves. Croesus asked Pythia, the sibyl or oracle at Delphi, if he should make war on the Persians and if he should take to himself any allied force. The oracle gave the response, that if he made war on the Persians, he would destroy a mighty empire. Croesus declared war and, indeed, succeeded in destroying a mighty empire - his own. Planning principles are not statements replete with hidden meaning or calculated ambiguity - unlike Delphic prophecies habitually were.

74 Finally, I turned to the question of whether or not the planning principle in Randall has any relevance in the present proceedings.

75 I do not consider that it does and that to seek to apply it here would effect a significant distortion of the underlying reasoning that led to its promulgation.

76 The critical word, in this context, is "extension".

77 Mr Lazarus puts the proposition that, because there is a geographic extension proposed of the activities of the Mansion Road campus into 19 Kambala Road, this is sufficient to trigger engagement of the assessment of the existing impacts of the preparatory school in Kambala Road and that, as they are unacceptable, the geographic extension should not be permitted. In advancing this proposition, Mr. Lazarus specifically relies on Tour C's first question and the comment upon it:

First, is the impact of the operation of the existing use on residential amenity acceptable?

If the answer is no, then an extension or intensification, would be unacceptable unless there is no overall increase in impact or there are measures proposed which would mitigate the existing impact.

78 This represents a misunderstanding of the words "extension or intensification" used in the planning principle. The planning principle is clearly intended to apply where there is an increase in the quantum of the activity whether that quantum of activity is conducted across a larger geographic area (extension) or conducted within the confines of the existing area of activity (intensification)

79 What is sought by the application to use 19 Kambala Road is not an "extension" of the activities of the preparatory school in the sense that that word is used in Randall. It is merely a spreading of the existing level of activity, without any increment in the quantum of the activity, over a wider geographic area.

80 The consequence of this, therefore, is that the present impacts of driving and parking activities of parents in Kambala Road when using the access way to the Mansion Road campus, although unsafe and unsatisfactory, cannot be used as a basis to refuse the application to convert and use the existing dwelling at 19 Kambala Road solely in reliance on construing the wording of the planning principle in Randall.

81 However, as dealt with later, the question of whether or not there is a likelihood of an increase in the safety risks arising from the application is a separate question - one distinct from that arising from any application of Randall.

The provision of onsite parking

82 The Council contends that the inadequacy of onsite car parking and the failure of parking provision to comply with that which is required by the Parking Development Control Plan warrants refusal of the application.

83 This arises because the Council says that this application engages consideration of the adequacy of parking across the whole of the Mansion Road campus and 19 Kambala Road as an aggregated site.

84 This arises, the Council says, because the development application lodged with the Council specifies that the application is made with respect to not only 19 Kambala Road but also 5 and 7 Mansion Road. This is necessary as there are works proposed to be undertaken to the existing Mansion Road campus. Those works comprise (1) the relocation of the present security gates (these are now located some distance from Kambala Road down the access way) to the property boundary at the mouth of the access way and (2) the creation of a pedestrian access aperture in the dividing fence between the rear of 19 Kambala Road and the existing Mansion Road campus. No access is proposed through the fence between 19 Kambala Road and the existing access way (a matter of relevance, Mr Hale submits, in my subsequent consideration of how to deal with traffic and parking issues in Kambala Road).

85 Although Mr Hale suggested, during the course of the in court hearing, that the spread of the development application to encompass the combined area of 19 Kambala Road and Mansion Road could be cured by the deletion of the proposed relocation of the security gates in the access way, no application was made to amend the proposal in this regard.

86 In any event, to the extent that the Mansion Road campus needs to be engaged, even had these gates been deleted, I am satisfied that the creation of a pedestrian access through the rear fence of 19 Kambala Road necessarily engages the remainder of the Mansion Road campus in this application. It is in this context that I turn to consider the Council's submission that inadequate parking provision warrants refusal of the application.

87 The Parking Development Control Plan contains a table (Table 2.1) that enables the calculation of the parking requirements for various classes of development. The table uses the gross floor area of a development as the measure with different rates of parking required for different types of development when calculated against the gross floor area of the relevant development.

88 The differences that arise in this instance are occasioned because the Council says that the aggregated gross floor area of the existing Mansion Road campus should be added to the gross floor area sought to be utilised for school purposes on 19 Kambala Road and that then the educational establishment parking rate of one (1) space per 100 m² gross floor area should be applied to that total gross floor area. This would necessitate the aggregated development providing a total of seventeen (17) onsite parking spaces.

89 At the present time, there are only two (2) onsite parking spaces provided on the Mansion Road campus whilst it is proposed that the existing vehicle parking location on 19 Kambala Road be utilised to provide four (4) parking spaces. The resultant total parking space provision, after the proposed development (if approved) would be eleven (11) spaces short of that which the Council says should be provided, thus warranting refusal of the application because of the significant extent of the discrepancy.

90 On the other hand, it is the preparatory school's position that, judged against the gross floor area of the building on 19 Kambala Road now proposed to be used for educational purposes, that which is required to be provided by this utilisation when assessed against the gross floor area of that building is entirely satisfied by the provision of the four (4) additional parking spaces on 19 Kambala Road itself (indeed, for 19 Kambala Road, with a surplus of one (1) space - Exhibit C page 9 response to 1.4).

91 It is convenient, in my view, to approach my consideration of this contention on behalf of the Council by assuming that the Parking Development Control Plan is engaged in the fashion advocated by the Council and, by doing so, assessing the Council's case at its highest on this point.

92 Only if I were to be satisfied of the validity of the Council's contention on its merits, on this basis (which I am not for the reasons that follow) would it then become necessary to consider broader historical matters including what might be the position flowing from the 2009 development consent or any earlier planning history for the preparatory school campuses.

93 As to the emphasis I should give to a development control plan, Zhang deals, inter alia, with the issue of consideration of relevant provisions of a development control plan in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at (75), three propositions emerge:

• First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered.
• Second, the provisions of a development control plan are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan; and
• Third, a provision of the development control plan directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative.

94 On one hand, the mere fact that a proposal meets the requirements of a development control plan does not automatically mean that Development Consent will be granted. However, on the other hand, if a proposal does not meet a development control plan's requirements, the Court may still grant consent, in appropriate cases, given a proper and genuine consideration of the development control plan and having considered all other matters that are relevant under s 79C of the Act.

95 I note, here, that Mr Hale was afforded the opportunity to address the provisions of s 79C(3A) of the Act and the extent, if any, of its relevance to my assessment of this aspect of the Council's case but he did not do so. I have thus assessed this aspect of the Council's case in a conventional post-Zhang fashion without having regard to any leavening that might arise as a consequence of this new statutory provision.

96 I have, earlier, set out why I do not consider that the concept of "extension" discussed in the planning principle in Randall can be applied in these proceedings.

97 That conclusion is relevant in my assessment of the issue of parking requirements. Taking the Council's case at its highest, the gross floor area-based parking requirement for the Mansion Road campus as it presently is, is fourteen (14) parking spaces whilst only two (2) are provided. The expansion into 19 Kambala Road does not embody any additional activity level across the combined campus footprint of 5 and 7 Mansion Road and 19 Kambala Road. There is, it is true, a spreading of the level of activity (but, as earlier noted, the preparatory school has, presently, but a nine (9) pupil headspace before it reaches its absolute pupil limit embodied in the 2009 development consent and there is thus no significant room for a Randall type extension within this limit).

98 In fact, in my assessment, the proper approach to be taken to parking demand arising out of this development application is that it effects a modest step (but nonetheless a constructive one) in addressing the existing overwhelming inadequacy of parking provision on the Mansion Road campus. Looked at in that light, going from approximately 14% compliance for the Mansion Road campus without 19 Kambala Road being counted to approximately 35% compliance based on the aggregated site is to be regarded as an ameliorative feature rather than a negative one.

99 This is not to be seen as saying that, in any way, there is a flaw in the approach embodied in the Parking Development Control Plan, far from it (and so to assert would be contrary to the decision of the Court of Appeal in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338). Here, an appropriate assessment of the merits of the proposal pursuant to s 79C of the Act must inevitably lead to the conclusion that there is, for no change in the overall level of activity and pupil carrying capacity of the Mansion Road campus, in fact an improvement in what has been an historic inadequacy in parking provision.

100 It follows, therefore, that a proper consideration of this contention pressed by the Council is that it provides, taken at its highest, not only no basis to refuse the application but also no basis to criticise it (indeed, a deal of faint praise, at least on the parking front, might well be warranted).

An onsite drop-off/pick-up facility?

101 The second contention put by the Council as warranting refusal of the application is that the preparatory school does not have and does not propose to establish an onsite drop-off/pick-up facility. The Council's position is that such a facility is now required by virtue of the Educational Establishments Development Control Plan. This is said to arise from the provisions of Part 2.6 Arrival and Departure. This section has four objectives, three of which are engaged in this context. They are:

• O1 To provide a safe and effective circulation network that prioritises pedestrians and provides for cars, disabled access, emergency vehicles and servicing vehicles;
• O2 To minimise conflict between vehicles and pedestrians, particularly at entrances;
• O3 .....................;
• O4 To minimise the impact of students arriving and departing on the surrounding community.

102 Of the controls in support of this objective, the Council invokes C 5, a provision in the following terms:

Major development of existing establishments should wherever feasible provide an internal driveway for vehicles that are picking-up and dropping-off students.

103 One of the resident objectors, an architect who has lived in the vicinity of the preparatory school for several decades, produced a concept plan that was incorporated in the folio of visual material produced during the course of the onsite resident evidence. This folio together with written material from the residents became Exhibit 8.

104 This plan, prepared as an outline concept, was intended to demonstrate that it was possible to design a route for such an onsite facility with that route operating on an east to west basis debouching onto Kambala Road via the present access way. The concept plan included a long section to demonstrate the grades that would be involved along such a route.

105 I should also observe that the resident author of the east to west option also produced a marked-up air photo proposing an alternative location for an onsite facility, this being within the Victoria Road campus of the preparatory school. This was accompanied by no detail of the nature attendant upon the east to west plan but, for the reasons that follow, nothing turns on this.

106 Finally, it is appropriate to note that one of the other resident objectors postulated that an onsite facility could be accommodated on 17 Kambala Road, the property owned by the college adjacent to the Kambala Road access way but on its southern side. This property is currently zoned residential and is not the subject of any application in these proceedings for its incorporation into the Mansion Road campus of the preparatory school. This property is, however, incorporated in the draft master planning process undertaken by the college in 2013 (but nothing turns on that in my view).

107 In response to this resident proposal, the preparatory school commissioned:

• an analysis of a through-site facility generally along the route advocated by the residents but operating on a west to east basis debouching in Mansion Road (JCA Architects Report - Exhibit 1, Folios 58 - 64);
• a Road Safety and Risk Assessment undertaken by ARRB Group (the ARRB report) (Exhibit 1, Folios 86 - 115); and
• a report entitled Safety Assessment of School Pick-up/drop-off at the Scots College Early Learning Centre by the Monash University Accident Research Centre (the Monash report) (Exhibit 1 Folios 65 to 85).

108 Having identified the reports commissioned by the preparatory school, however, it is first appropriate to turn to consider whether the relevant provision earlier quoted from the Educational Establishments Development Control Plan can act to provide a foundation for rejecting this proposal.

109 In considering this control, there are two elements in its wording that require analysis. The first is that that which is proposed for approval be "major development" rather than merely development and, second, if the development should properly be classified as "major development", whether it is "feasible" to incorporate within the site an internal driveway for the setting down and/or picking up of students.

110 I turn, first, in this discussion to the question of whether or not that for which approval is sought in this development application should be regarded as major development of the existing educational establishment. In this context, I am satisfied that the only reasonable meaning to be attributed to the word 'establishment' is to adopt its application as being to the whole of the preparatory school. However, I am also of the view that, although the percentage of the site engaged if consideration needs to be confined to the Mansion Road campus is nearly doubled, the other factors still act to lead to the same overall conclusion.

111 Whether the development here proposed is major is, itself, obviously a question of fact and degree confined to the terms of those elements of the development application for which consent could properly be granted pursuant to the Act (thus excluding, for this purpose, any consideration of the possible construction of a lay-by in Kambala Road).

112 As might be expected, the evidence and counsel's submissions on how to consider the major development requirement are entirely incompatible and the positions adopted predictable. The position advanced by the Council is that the provision is engaged as that which is sought should be regarded as major development whilst the position advanced on behalf of the preparatory school is to the contrary.

113 On this point, for the reasons I set out shortly, I am satisfied that the position advanced on behalf of the preparatory school is correct and that this provision of the Educational Establishments Development Control Plan is not engaged by the scope of matters for which approval is sought in this development application.

114 I earlier set out the elements that are specified in the Statement of Environmental Effects as comprising the matters covered by this development application. They are repeated below with the removal of reference to the possibility of a lay-by being constructed in Kambala Road. The matters for which approval is sought, therefore, are:

• a change of the land use of a dwelling from 'Residential' to 'Educational Establishment' (kindergarten) at 19 Kambala Road, Bellevue Hill;
• minor internal and external works to facilitate the change of use;
• minor alterations to allow pedestrian access between 19 Kambala Road and 5-7 Mansion road;
• landscaping works and creation of an outdoor education garden;
• upgrade of the boundary fence treatment to Kambala Road, including new vehicular and pedestrian gates;
• .....................; and
• associated upgrades to stormwater infrastructure.

115 With respect to the question of whether that for which approval is sought is major development or not, Mr. Lazarus submitted that the development is major development. He said, in his written submissions:

The development, if approved, represents an expansion of the site area of the educational establishment by approximately 35%, which on any view of the matter is a significant expansion.

The site at 19 Kambala Road is currently zoned for a residential use. However, this will change if the development application is approved. There will be an intensification of the use of that site, in that it will now be used as an educational establishment for 80 boys aged five and six.

There are clear impacts arising from the expansion of the educational establishment to 19 Kambala Road. The fact that some of those impacts (such as for example, noise generation) are not in issue between the parties in the proceedings, does not mean that the expansion of the school to 19 Kambala Road is not major development.

Further, the development, if approved, will be the only approved non-residential use in Kambala Road.

116 Mr Lazarus submitted that those matters, particularly in aggregate, warranted my concluding that that which is proposed constitutes major development.

117 Despite Mr Lazarus's submissions, I cannot conclude that that which is proposed to be regarded as major. A number of factors need to be weighed up in making this assessment. The indicators for my conclusion to the contrary of Mr Lazarus's submissions are as follows:

• The geographic expansion in area occupied, encompassing both the Mansion Road and Victoria Road campuses, by the proposed inclusion of 19 Kambala Road is, on my calculation, of the order of 18%.
• The number of pupils in the preparatory school is not proposed to be increased.
• The physical works that are proposed to be undertaken to 19 Kambala Road are minor and might well, in themselves, have constituted exempt development pursuant to State Environmental Planning Policy (Exempt and Complying Development) had they been undertaken whilst the building on 19 Kambala Road remained a dwelling.
• The relocation of the existing gates in the access way to the present Mansion Road campus, when coupled with the proposed new treatment to the Kambala Road frontage of 19 Kambala Road, whilst potentially providing some minor security improvement to the access way and the parking spaces in 19 Kambala Road, are, in reality, little more than cosmetic.
• The filling of the swimming pool and the creation of an education garden on 19 Kambala Road is also work of a comparatively modest scope.
• The creation of a pedestrian access through the fence presently separating the rear of 19 Kambala Road from the Mansion Road campus, even if not capable of being considered exempt development if undertaken whilst 19 Kambala Road remained a residence (a position I suspect is the case but is not necessary to be confirmed given my conclusion about this item and my overall conclusion) should be regarded as an entirely inconsequential element of the proposed development.
• Finally, the proposal incorporates four (4) parking spaces that are little more than redelineation of existing parking spaces available on 19 Kambala Road.

118 The total declared cost of the development on the development application form is $168,500, a declared value that has not been challenged by the Council.

119 Despite the valiant attempt through evidence and submissions to characterise the totality of this development package as being a major development being undertaken to the existing preparatory school, I do not consider that it is possible, on calm and mature contemplation of the limited nature of that which has been set out in the above list when coupled with the comparatively modest sum needing to be extended to achieve them, that this application could conceivably amount to a major development of an existing substantial preparatory school with 491 pupils and 65 staff currently spread across two existing substantial campus elements at Mansion Road and Victoria Road.

120 It therefore follows from this analysis that that for which development consent is sought does not engage and trigger the operation of control C5 in part 2.6 of the Educational Establishments Development Control Plan.

121 Having concluded that the first test is not able to be satisfied, it is, therefore, unnecessary to consider whether it is feasible to do so. Had I needed to do so, there would have been four matters, in my view, that I would have needed to assess. These would have been:

• possible in a design and engineering sense;
• able to operate safely and efficiently;
• is not so expensive to construct and/or operate so as to render serious contemplation of such an option unreasonable; and
• if none of the first three pose an insurmountable barrier, could such a facility be constructed in a time period when doing so would no disrupt the normal operations of the preparatory school.

122 However, having concluded that the first test is not satisfied, I do not need to undertake that assessment. The consequence of this is that I do not need to consider the detailed criticisms of the resident's proposal that are contained in the JCA Architects, ARRB and Monash University reports.

123 However, the Monash report does provide considerable assistance in understanding the safety/risk dynamics of the present drop-off/pick-up use by parents in Kambala Road. Those matters are discussed later after I have set out the evidence from the objectors concerning present parental road use behaviours.

The resident evidence of concerning parking and traffic matters

124 I have earlier set out the contentions that have been raised by the Council concerning non-compliance with controls that arise from the Council's development control plans. There is no need to canvas them here in the context of the factual material raised by the resident objectors (save to note that that element concerning possible designs for an on-site pickup and collection regime for pupils attending the Mansion Road campus was dealt with above).

125 What is of particular relevance, in this consideration, is the present behaviour patterns demonstrated by parents using the Kambala Road access handle to the Mansion Road campus for the purposes of delivery to or collection from the preparatory school of children attending one or other of the preparatory school's campuses.

126 I set out, below, a distillation of what I understand to be essential elements, in short point form, of the residents' complaints about the operation of the Kambala Road access point to the preparatory schools campuses for drop-off and pick-up purposes. In summary, the resident concerns are:

• Parking on the western side of Kambala Road above the service road (including stopping in an area directly opposite the Access handle that is a designated No Stopping area) creates significant safety risks (particularly but not only) for young children;
• Use of the service road as a stopping location for drop-off or pick-up of pupils creates significant safety risks for those engaged in such activities as well as for occupants of the houses accessed by the service road;
• Use of the service road by north travelling vehicles as a method to facilitate a U-turn at the northern end of the service road for the purposes of effecting pick-up or drop-off on the eastern side of Kambala Road in the vicinity of the access point (or simply to return toward the south) is not only unsafe for the same reasons as is use of the service road for pick-up and drop-off purposes but is also, separately, unsafe at the point of exit from the service road to make the turn to the south;
• The queuing of northbound vehicles past vehicles (including drop-off/pick-up parents vehicles) parked to the north of the time-limited stopping area in the vicinity of the Kambala Road access point causing adverse effects - these adverse effects being a disruption to traffic flow for vehicles seeking through passage along Kambala Road to the south and, second, the risk of collision to or delay for vehicles travelling to the north on a through passage along Kambala Road past the Kambala Road entrance to the campus;
• Parents parking across the driveways of local residences thus blocking entry to or exit from those residences;
• Parents performing three point turns into driveways and across footpaths in a fashion that was inherently dangerous and at a frequency that cause disruption to the flow of through traffic; and
• A pattern of parking on footpaths or at illegal locations too close to nearby road intersections so as to increase risks to those driving in the vicinity.

127 Before consideration of each of these elements in detail, it is appropriate to note that the evidence concerning these matters that was given by the residents involved an extensive co-ordinated set of oral presentations (given from written scripts that were subsequently tendered and, as best I am able to recollect from the oral presentations and a reading of the scripts were significantly faithfully adhere to) and a deal of photographic material.

128 Other image-based (plans etc) material forming part of this overall evidentiary package has been dealt with in my earlier consideration of that portion of the Educational Establishments Development Control Plan dealing with the provision of on-site drop-off and pick-up facilities.

129 In addition to the still photographic material discussed below (elements of which are also reproduced in this judgement), I was also played a short video of traffic behaviour in the vicinity of the Kambala Road drop-off location. This video was said to have been reflective of events that took place in mid-July 2014. Although the video was short, its playing during the course of the on-site evidence did not facilitate ready analysis of its contents and, although I viewed it at the request of the residents, I then indicated that I did not consider it appropriate to give it any evidentiary consideration. During the course of the subsequent in court proceedings, I adhered to that position. As a consequence, I have paid no regard to that which was depicted in the video in my consideration of the matters arising for determination in these proceedings.

130 Before turning to analysing each of these specific aspects raised in the oral evidence of the residents, two further general observations are warranted. The first, earlier adverted too, is that the complaints made by the residents in these proceedings are not ones that have arisen merely in the recent past. The voluminous public submissions contained in Exhibit 2 demonstrate that a wide range of complaints have been made to the Council about these matters from a significant number of authors (not merely those objectors who gave oral evidence) indicating that the concerns set out above were pressed by a broader range of objectors resident in the locality.

131 Of course, the number of objections is not relevant as to weight as an objection pressed by one person, if valid, is, in matters such as this, to be given the same critical analysis and assessment as would be given to the same objection expressed by a multitude of objectors.

132 Second, Mr Crerar gave oral evidence that he inspected the operation of the drop-off/pick-up zone in Kambala Road on a regular basis. He has been the principal of the preparatory school for more than four years and had had, prior to his appointment, extensive managerial and teaching experience in similar primary level education institutions. It was his evidence that he considered that the Kambala Road drop-off/pick-up area operates well. By this, I consider it reasonable to infer that this evidence embodied two propositions. These were:

• The Kambala Road drop-off/pick-up area worked efficiently, from the preparatory school's perspective, as a location for dropping off and picking up of pupils; and
• There had been no accidents of which he was aware occasioned by picking up and dropping off activities at this location.

133 This is consistent with the observations made by Mr Morse during his school day inspection.

134 I should observe, in the context of my conclusion as to the second proposition I have drawn from his evidence, I have no evidence (none from the oral evidence of resident objectors; no written objection material; no written material produced by the preparatory school; nor any written or oral evidence of the traffic experts', Mr Morse and Ms Edwards Davis) that there has ever been any actual accident injuring a pupil or parent (or if there has been, it has been so trivial as not to warrant recollection for the purposes of these proceedings).

135 I now turn to the resident evidence in detail. In this discussion, I commence with two photograph reproduced below. The first shows an adult male taking a young pupil of the college out of the right hand (driver's) side of a vehicle parked in the No Stopping area directly opposite the Kambala Road access handle to the Mansion Road campus. The second shows an adult female taking two young boys across Kambala Road from the western side in the vicinity of the No Stopping zone. These photographs are of somewhat poor quality because they has been downscaled from an A3 photograph in a folio of photographs provided by residents during the course of the onsite evidence and subsequently tendered to form part of Exhibit 8.

 

 

136 Although these photographs are of only two instances of this behaviour, the written and oral submissions from the objectors were that these are not isolated or unusual occurrences but are, rather, something that happens frequently during the course of dropping off pupils. The evidence was that not only did this behaviour occur regularly in the No Stopping zone but that parents stopping on the unregulated element of Kambala Road above the service road and using driver's side doors to extract themselves and children (including young children who were not pupils but who were accompanying siblings who were pupils) happened on a regular basis.

137 Because of the steep embankment of 3 m or so to the service road and the necessity to park close to the wooden safety railings on the edge of Kambala Road proper, it is not possible for drivers or child passengers to alight from a vehicle parked along this strip through the passenger side doors and it is necessary for such exiting from vehicles to take place into the adjacent traffic lane on the right-hand side of any vehicle so parked.

138 Mr Morse conceded, in his oral evidence, that this was an unsafe practice.

139 Although the site inspection took place during school holidays (as the hearing dates were those that were requested by the parties), and it was thus not possible to inspect a school day operation of the drop-off zone, the geography and geometry of this element of Kambala Road means that any parking immediately adjacent to the service road on Kambala Road proper for the purpose of dropping off or picking up a child is one that is inherently dangerous and risky for the safety of the child (and indeed, for the accompanying adult as well). The fact that there has not been any reported serious incident does not lessen the risk nor make the activity any safer.

140 The second unsafe practice raised by the objectors involved behaviour in the service road adjacent to Kambala Road and to the west of the access point. The service road extends for approximately 80 m in a one-way northbound direction commencing about 50 m to the south of the access point, dipping down a ramp to a flat section running immediately adjacent to a steep embankment falling from Kambala Road proper, an embankment that appeared to be a little more than 3 m or so high; and then rising back up to the grade with Kambala Road at a point some 30 m to the north of the access way to the Mansion Road campus.

141 Whilst the entry to the service road at the south is affected by a gentle, in-line merging out from Kambala Road, the return at the northern end is both steeper and at more of an inclined angle to Kambala Road. The service road, proper, is one vehicle wide and has a tarsealed surface. There is a concrete footpath element, also one vehicle wide, with a concrete surface that is also at grade with the tar sealed surface.

142 Reproduced below are two further photographs forming part of Exhibit 8.

143 The first of these photographs shows a conflict between vehicles using the service road and residents exiting a house with a frontage to the service road whilst the second shows children who have left a vehicle parked in the service road and who are walking along the service road in conflict with a vehicle driving along the footpath element of the service road. As with the earlier photographs, the evidence was that these were representative of a broad and frequent pattern of behaviour rather than isolated incidents.

144 A copy of an extract from an edition of The Clansman (Exhibit 10) published (by inference) in late 2011 includes a message from the director of the Early Learning Centre that included the following with respect to the Kambala Road drop zone:

If you travel from the south, there is a small access road that will enable you to turn on Kambala Road and be facing the correct direction.

145 I accept that this position no longer remains a view endorsed by the executive of the preparatory school. This was expressly confirmed in the extracted material in Exhibit G where the extract from The Clansman of 27 February 2014 includes, in a list of behaviours to be avoided, the following:

Please do not use the residents' access road off Kambala Road for parking or driving through.

146 Whether or not such activities occurred between late 2011 and early 2014 because parents considered that such use was condoned by the preparatory school, I accept that, since at least February 2014, it has been explicitly clear to parents that this is not the case. Nonetheless, the fact that such use continues is yet a further demonstration of the inability of the preparatory school to influence parental behaviour in such matters.

147 The evidence, oral and written, by the objectors is that, notwithstanding the more recent position adopted by the preparatory school instructing parents not to use the service road for any purpose, it is regularly and frequently used for the purposes of parking to drop-off or pick-up children from the preparatory school.

148 There are two conclusions to be drawn from this. First (and fundamentally), such behaviour is unsafe whenever there is a pedestrian conflict with moving vehicles in the service road (whether the pedestrian conflict is created with residents from the adjacent dwellings or from adults and children from vehicles that have parked in the service road).

149 Second, it is a reinforcing example of the position conceded on behalf of the preparatory school that they are unable to control the behaviour of parents utilising the Kambala Road drop-off/pick-up facility. Even though I have evidence of regular and frequent communications by the preparatory school to parents exhorting them not to behave in this fashion, those exhortations are frequently ignored by parents who see utilising the service road as a practical option for their drop-off/pick-up activities.

150 The second aspect of the use of the service road (and the third distinct concern expressed by the residents) arises from the habit of parents who have driven down the service road using the service road as a method of performing a U-turn when the service road debouches back onto Kambala Road. This concern not only relates to those parents who use the service road as a drive through option for the purpose of making the U-turn to access drop-off or pick-up on the eastern side of Kambala Road but also those who have used the service road for drop-off/pick-up activities and perform a U-turn for the purposes of returning to the south.

151 The concern raised by the residents was as a consequence of the comparative steepness of the rise and more diagonal angle of approach of the exit from the service road to Kambala Road. This, it was said, created potential blind spots and thus risk to pedestrians including children.

152 Having inspected the site, including looking at the exit from the service road both from an at grade location in Kambala Road and, in the service road, from the foot of the rise back to Kambala Road, I am unpersuaded that this should be regarded as a concern of any significance.

153 The next matter that was raised by the residents (and which the preparatory school foreshadows that it proposes to address, to a modest extent, in a lay-by application to the Council under the Roads Act for a lay-by across the frontage of 19 Kambala Road, the present access way and a minor element of the frontage of 17 Kambala Road) is that pick-up/drop-off traffic travelling from north to south in Kambala Road will frequently have a tail sticking out past parked cars to the south of the time-limited drop-off/pick-up zone with that tail protruding into the northbound traffic lane for through traffic in Kambala Road.

154 This, it is said by the objectors, as I understood their oral and written evidence, is both a risk (because of the conflict with northbound traffic) and a matter of inconvenience for those wishing to use Kambala Road for a through southbound movement.

155 Mr Morse undertook, on one Monday school morning a series of traverses up and down the relevant section of Kambala Road and provided a table of his transit times, in each direction, a table that was appended to the joint expert report prepared by him and Ms Edwards Davis (Exhibit 5).

156 Although the fact that Mr Morse's transits were carried out on Monday may diminish, to some extent, their reliability as a representative sample and the fact that the transits were carried out on a single school day rather than over a number of days may give a similar diminution of their utility, it is unlikely, in my assessment, that, if a more comprehensive survey had been undertaken, further transits on other days would disclose transits significantly longer than those recorded by Mr Morse.

157 Whilst it is selfevidently necessary for through traffic (in either direction) transiting in the vicinity of the drop-off/pick-up zone to exercise care because of potential conflicts with parental pupil delivery or collection traffic, I am not satisfied that the delays or need to take additional care are a matter of significance in my assessment of the impacts of the operation of pupil drop-off and/or pick-up. Whilst the existence of such conflicts can be regarded as a negative aspect of these activities, they are only so to a minor extent and certainly cannot sustain any adverse finding against the preparatory school nor make any significant contribution to such a finding.

158 The next matter raised by the residents' concerns the practice of some parents to perform 3-point turns using (and thus temporarily obstructing) driveways of residences in the vicinity of the access way to the Mansion Road campus. There is nothing, as far as I am aware, that is illegal in such a practice. Undertaking such turns can, I accept, cause temporary inconvenience to residents who may be blocked for a short period of time in gaining access to or egress from their own driveway. This is a matter of social convenience and is not, in my view, a matter appropriate to be taken into account in an assessment pursuant to s 79C of the Act.

159 The residents also complain about parents parking in or across driveways and then absenting themselves for periods of time whilst they deliver children to or collect children from the Preparatory school. As I understand it, this differs from the immediate proceeding complaint in that such an activity is unlawful and, to the extent that it is obviously evidenced by parking across a driveway, is readily able to be so identified and an infringement notice issued.

160 It was my understanding of the evidence of the residents that such occurrences occurred frequently and were virtually always for a comparatively short period of time. However, I do note that one resident objector gave evidence on site of an instance where a mother had returned to a vehicle parked across a driveway after an absence of more than 15 minutes and, when remonstrated with by the resident, was dismissive of the residents' displeasure, using a vulgar expression, at having been blocked from leaving his own driveway.

161 Such behaviours are in their primary impact, significantly antisocial. They are behaviours that, in the preparatory school's newsletter and other material, have been subject to regular exhortation by the preparatory school as behaviour to be avoided. Although their illegality might, in some marginal sense, be regarded as a contributory item to a possible rejection of the application, it could not, on its own, be regarded as being of any significance in such a context.

162 However, the frequency and apparent inevitability of such conduct does have important significance in a different context that informs my conclusion that the application should be refused. That context is that it is a further demonstration of the inability of the preparatory school, despite its commendable hortatory endeavours, to influence or control unacceptable behaviour by parents of pupils at the preparatory school in their vehicle related activities in the vicinity of the drop-off/pick-up zone at the entrance on Kambala Road to the access way to the Mansion Road campus.

163 With respect to the final area of concern raised by the residents, parking on footpaths or in closer proximity to intersections than lawfully permitted, the position is the same as parking across driveways. Although illegal, the prime fault lies not in the illegality but, again, that parents wilfully choose to ignore the preparatory school's attempts (attempts, as I have acknowledged, I accept are ongoing and use as forceful language as might reasonably be expected) that endeavour to persuade parents to refrain from such behaviours.

164 As a final observation, obviously, this unlawful parking behaviours also has a safety dimension to it (that is such behaviours create inherently unsafe circumstances). This position that also contributes to my overall conclusion about the significance to be given to the uncontrollable unsafe behaviour in the vehicle activities of preparatory school parents in Kambala Road.

Conclusion about traffic and parking behaviour

165 It is clear from that which I have set out that, based not only on the resident objector evidence but also from the preparatory school's own limited traffic survey, that a significant number of parents dropping off and/or picking up children from the preparatory school pay no regard to the law, child safety or the instructions given by the preparatory school. In summary:

• As far as observing the schools instructions as to where such activities are to take place for the different elements of the pupil cohort, parents do not obey the preparatory school's instructions. Although the information demonstrating this comes from a limited traffic survey, it was not suggested on behalf of the preparatory school that there was some reason that the recorded behaviours were atypical. It is reasonable to assume, in my view, that parents regularly choose the drop-off and/or pick-up location that is most convenient for them for that activity whether or not the location they choose to use is that which has been designated as appropriate; and
• At least with respect to parental parking and drop-off/pick-up behaviour in Kambala Road, parents regularly and repeatedly perform these activities in a fashion that is unsafe, illegal and/or antisocial. As with parents choosing where to drop-off and/or pick-up their children, it is reasonable to assume, in my view, that the parental behaviours demonstrated in Kambala Road are those chosen as the most convenient under the circumstances on any occasion without having any regard, whatsoever, for the appropriateness and/or lawfulness and/or safety of the location chosen for that purpose. This, too, is a behaviour pattern adopted despite the best endeavours of the Preparatory school to influence parents not to behave in this fashion.

Use of 19 Kambala Road and future parental behaviour

166 The question requiring my consideration in these proceedings is not whether the present traffic and parking behaviours in Kambala Road of preparatory school parents are acceptable or not. They are clearly dangerous and unacceptable - posing significant pedestrian safety risks (particularly to young children).

167 The proper question to which I am required to turn my attention is "Can I be satisfied, to the degree of comfortable satisfaction necessary in light of the potential consequences if I am wrong, that there will be no increase in the exposure of pedestrians (particularly young children) to the unsafe parental driving behaviours in Kambala Road?"

168 Whilst some aspects of the driving behaviours in Kambala Road are illegal and/or antisocial (parking in driveways and parking at illegal locations), they are not of critical importance in this assessment. For the current purposes, I do not consider that the possibility of increases in these behaviours could potentially be so great as to warrant refusal of the application. I therefore do not propose to consider, further, those aspects of parental driving and parking behaviours in Kambala Road as, whilst they may or may not increase, in themselves, for the purposes of the incremental potentiality I need to assess, they are irrelevant.

169 On the other hand, despite the fact that there has not been, on the evidence before me, any accident to a child and/or parent that has warranted recollection for the purposes of these proceedings, the unsafe behaviours are such that the potentiality for this to occur arises as an ever present and unacceptable risk from the unsafe parental behaviours in Kambala Road.

170 As earlier noted, the preparatory school also commissioned the Monash report. This report was based on a limited site inspection - one described in the document (Folio 73) in the following terms:

5 Investigation

Site inspections were undertaken on Thursday the 20th of February during the afternoon pick-up period and Friday the 21st of February during the morning drop-off period. The aim of the site inspections was to gain an understanding of existing conditions at the site and observe the operation of the existing drop-off and pick-up areas. Additionally the site inspection of the Scots College grounds to help assess the feasibility of the proposed changes to the access lane, to gain an understanding of the internal pedestrian movements within the site and to assess the potential impact of the proposed changes on pedestrian safety.

171 The report set out that which had been observed by the authors concerning the various aspects of the preparatory school's drop-off/pick-up activities. Those relevant to Kambala Road are described (Folios 74 and 75 - omitting two photographs not included due to poor reproduction in the Exhibit copy [nothing turns on these photographs]) as follows:

5.1.1 Kambala Road

Kambala Road is a local road with on-street parking provided on both sides. Kambala Road has a default urban speed limit of 50km/h with a 40km/h school zone on the approach to the Early Learning Centre entrance. Parallel to Kambala Road is a service lane around three metres below road level and approximately 100m in length on the opposite side of the school, along which the houses on this side of the road are built and can be accessed. The service lane comprises a single, narrow paved lane and a concrete footpath. The footpath is at the same level as the road and is traversable by vehicles (Figure 3).

[omitted photos]

Limited on-street parking is available during the afternoon pick-up and morning drop-off periods. This is largely due to parents parking cars on-street and walking into the Early Learning Centre campus. Generally parking appeared in accordance with parking restrictions, however several vehicles were observed to stop and or park in no-stopping zones or very close to driveways. While no serious safety issues were observed with this practice, it was noted that this may result in restricted sight lines for vehicles exiting driveways, which in turn may increase the potential for vehicle to vehicle and vehicle to pedestrian conflicts. A possible solution to this problem would be the installation of driveway clearance line markings to assist residents in maintaining access to their properties and by guiding drivers to park within an acceptable distance from driveways,

During both the morning and afternoon site inspections it appeared that a significant proportion of vehicles were travelling faster than the posted 40km/h school zone speed limit, while speed measurements were not undertaken during the site inspection it is estimated that approximately a quarter of vehicles would have travelled over the posted speed limit.

As noted above, speed is a critical determinant of collision and injury risk: the risk of serious and fatal pedestrian injuries has been shown to significantly increase when vehicles speeds are in excess of 30-40km/h. Moreover, vehicles travelling at high speeds require longer distances to safely stop, increasing the risk of serious pedestrian injury. Therefore, pedestrians are only safe when vehicle speeds are in the order of 30-40km/h. Due to the high number of young pedestrians during school periods there is a need to ensure that vehicles are compliant with the speed limit. In order to further reinforce the speed limit it is recommended that traffic calming measures be implemented on Kambala Road. Due to the high demand for on-street parking and the desire to maintain two-way vehicle flow it is recommended that vertical deflection should be considered, in particular the installation of two sets of speed humps near the school entrance designed to slow vehicles to 40 km/h or less in the vicinity of the Early Learning Centre.

The service lane located on the west side of Kambala Road providing access to several residential properties was observed being used as a parking area during the morning site inspection, particularly for those parents accompanying their students into the campus on foot. Due to the narrow width of the service lane, in order for vehicles to pass parked cars they were forced to drive on the at-grade footpath. This creates a dangerous situation for pedestrians using the footpath and has the potential to result in a collision. Although speeds were observed to be very low in the lane, it is recommended that parking should be banned in the service road as there is insufficient space to accommodate a mix of vehicle parking, through traffic and pedestrian activity.

It was also observed that Kambala Road was the subject of moderate levels of U-turn activity, with vehicles frequently entering driveways in order to turn around and pass back in front of the school, either in search of the limited parking spaces or in order to leave in the opposite direction subsequent to dropping off their children. While this activity presents less risk to accompanied children than vehicles reversing from driveways, it does increase traffic in the immediate school area and it is recommended that parents be discouraged from U-turning.

172 In addition to the behaviours of parents, the above observation concerning speed of other vehicles is also a matter for safety concern.

173 The Monash report sets out, on particular, the specific risks to child pedestrians. The relevant portion of the document says (Folio 70 - footnote reference numbers omitted):

3 Risk Factors to Child Pedestrians

The following is a brief discussion of the evidence regarding risk factors to child pedestrians. Included in the discussion is a review of the factors that contribute to an increased risk of serious injury for child pedestrians including child behaviour, driver behaviour and the impacts of the road environment.

Child pedestrians are one of the most vulnerable road user groups, experiencing an increased crash and injury risk relative to other pedestrian age groups. In Australia, crashes involving young children constitute a substantial proportion of all pedestrian fatalities and serious injuries, with children below the age of 10 years of age shown to have four to 11 times greater risk of collision compared to other pedestrians. In fact, vehicle collisions involving children pedestrians are considered as the most serious health risk facing children in developed worlds. Pedestrian crashes involving children tend to occur in local streets, as well as on arterial roads, often when the child is unsupervised.

Young children's safety as pedestrians is of particular concern in view of their vulnerability in traffic situations and the special value society places on children. Young children (below the age of 12 years) are particularly vulnerable as pedestrians for a number of reasons, including:

● They are immature and have less developed cognitive, attentional, perceptual and visual skills;

● They are more likely to be distracted by irrelevant information and experience more difficulty controlling impulsive reactions compared with older children and adult pedestrians;

● They are inexperienced in traffic and are unable to independently make safe judgements concerning the speed and distance, and therefore time of arrival of approaching traffic when crossing vehicle paths. This ability to recognise and respond safely to traffic hazards remains under-developed, for the most part, throughout their primary school years;

● Experience difficulty choosing a safe crossing location (often involved in 'dart out' collisions from in between parked vehicles);

● They are small in stature and, therefore, have greater difficulty seeing hazards in traffic and being seen by motorists;

● Because of their small stature, in a crash they are more likely to be struck in the head or upper body, both areas having an elevated risk of producing severe injury. Additionally, their size makes them more likely to be driven over in a vehicle impact.

● Thus, even at low impact speeds, when the risk of serious injury is relatively low for pedestrians in general, injury risks to young children remains high due to their greater susceptibility to being run over by an impacting vehicle.

174 It is in this context of these risk factors that I turned to address the limited evidence in the proceedings concerning whether or not there is some potentiality if the use of 19 Kambala Road were to be approved for any increment in exposure of pedestrians (particularly young children) to the unsafe and risky parental behaviours in Kambala Road.

175 Unsurprisingly, there was a stark difference in overall opinion on these matters between Mr Morse and Ms Edwards Davis.

176 For the preparatory school, Mr. Morse expressed the opinion that there would be no such change. He reached this conclusion on the basis that the location at which the pupils are collected in the morning prior to being taken to their classrooms at the commencement of the school day will remain unchanged. There is, therefore, in his opinion, no practical reason why any existing parental choice as to drop-off and/or pick-up location would change. Mr. Hale submitted, in effect, that this was a self-evident and rational conclusion that should be adopted. Adopting it, in his submission, should lead me to a position of satisfaction in concluding that there would be no rational potentiality of an increased safety risk.

177 Mr. Morse's written statement of evidence was silent on this point whilst, in the joint expert report of Mr. Morse and Ms Edwards Davis, he said (Exhibit 5 at response to particular 2.4), relevantly - although in response to the through site proposal:

Under the current arrangement, students have no interaction with traffic on Kambala Road, provided that parents use the drop-off/pick-up area and that the student uses only the passenger side doors of the vehicle.

As part of this study, a video survey has been undertaken at the drop-off area, which highlights that the capacity of the drop-off area is able to accommodate the vast majority of the activity, but also that some improvements can be made in relation to the management of the drop-off activity. For example, a small number of students were observed to exit the vehicle on the driver's side and some vehicles stopped halfway along the drop-off area rather than stopping at the southern end, thereby reducing the usable capacity. A Traffic Management Plan has been prepared specifically for the ELC, which includes an information sheet to be provided to parents. The information sheet explains the correct use of the drop-off area including how to approach the area without using the service lane to the west of Kambala Road. The plan in conjunction with the use of an accredited traffic controller and continued communication with parents will largely alleviate the concerns raised by the Council.

178 I observe that the suggestion of an information sheet for parents would be of no assistance given the reception given to past exhortations seeking behaviour modification. The provisos in the first quoted paragraph can also be regarded as wishful thinking, at best, in light of the evidence of actual behaviour patterns.

179 During her oral evidence, Ms Edwards Davis said that there were two bases, as I understood her evidence, why I could not be so satisfied. The first was that the preparatory school, whether by Mr. Morse or otherwise, had not conducted a future parking intentions survey of parents to ascertain whether or not the relocation of children from the present Mansion Road campus to 19 Kambala Road could be expected to change behaviour patterns leading to an increase in use of Kambala Road. Her second concern was, effectively, a psychological one - namely that she could not conclude (and therefore, she implied necessarily that I should not conclude) that the psychological impact on parents of pupils being moved to 19 Kambala Road, a location more proximately Kambala Road would not trigger a change in parental behaviours leading to a greater use of Kambala Road as a drop-off/pick-up location.

180 The Council also asked from the preparatory school to provide a wide range of additional traffic related information. The nature of the material requested is set out in Exhibit 3, pages 7 and 8. It is unnecessary to repeat the list of that which was requested because the preparatory school chose not to provide it. Whether or not this information would have assisted, I cannot know because it is not available to me as a consequence of that decision.

181 In addition, during the course of oral evidence, Ms Edwards Davis observed that the preparatory school could also have undertaken what she described, as I noted it, as a "parking destination survey" but have not done so. Whether such a survey would have assisted the preparatory school is, again, an unknown.

182 Mr Lazarus submitted (written submissions at 20 - 22), on this point:

Has the applicant actually demonstrated to the satisfaction of the Court that there will not be any overall increase in impact? The answer is "no", because it has not even essayed that task. Its consultants have all blithely assumed that there will be no change in traffic conditions on Kambala Road as a result of approval of this DA.

However, the applicant has not even conducted a basic survey of parents to see whether their drop-off and pick-up behaviour would change as a result of the expansion of the school to the Kambala Rd site, which Mr. Morse conceded would have been a very easy thing to do. There is every possibility that parents who currently use Mansion Rd will now use Kambala Road, knowing that their children will be there, rather than on the Mansion Rd part of the ELC campus (and so leaving the children with a shorter distance to travel), and given the existing congestion on Mansion Rd compared to Kambala Rd. That is the view of Ms. Edwards Davis - hence the requests for further information which were declined by the applicant.

The applicant has therefore not demonstrated that there will be no increase in traffic impacts as a result of the proposal.

183 Although there is no relevant accident history, the potential consequences of a vehicle colliding with someone, particularly a very young child, are potentially catastrophic. Their vulnerability is very high as discussed in the extract from the Monash report reproduced earlier.

184 In Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256; (2006) 146 LGERA 10, Preston CJ set out (at 125 to 183), as part of his analysis of the role of and principles underpinning the concept of ecologically sustainable development, a discussion of the precautionary principle. Whilst, in its strictest terms, the precautionary principle does not apply in these circumstances, the threshold tests underpinning it are ones to which it is appropriate to have regard, in my opinion, to set the parameters for a precautionary approach to be taken to considering the potential impacts of the dangerous parental behaviours in undertaking drop-off/pickup activities at the Kambala Road entrance to the Mansion Road campus.

185 In Telstra His Honour set out, in the context of a proper consideration of the precautionary principle, two conditions precedent or thresholds that were necessary to be satisfied (at paragraph 128). These are:

A threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage.

186 His Honour continued to say:

These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage but it should be proportionate (reference omitted).

187 In the present context, I have considered whether it is appropriate to take a precautionary approach based on this process when considering the nature of and potential consequences from the dangerous and risky parental behaviours at the drop off/pickup facility in Kambala Road. Put in the structure that His Honour has referred to, the first of the conditions precedent or thresholds arising in these proceedings can be described as follows:

• The risk of serious injury or death to a pedestrian (particularly a child pedestrian) arising from the dangerous and unacceptable parental driving behaviours in Kambala Road (environmental damage).

188 There is, however, no uncertainty whether any additional children will be exposed to those risks if the present proposed use of 19 Kambala Road is approved. If there are additional child pedestrians, they will be so exposed. Thus, the second of the conditions precedent or thresholds is not satisfied and the analogy with the precautionary principle fails and the burden shifting discussed in Telstra at (150) is not triggered.

189 However, in Telstra at (149), His Honour also said:

The threat of serious irreversible environmental damage can be classified as relatively certain because it is possible to establish a causal link between an action or event and environmental damage, to calculate the probability of their occurrence, and to insure against them. Measures will still need to be taken but these will be preventative measures to control or regulate the relatively certain threat of serious or irreversible environmental damage, rather than precautionary measures which are appropriate in relation to uncertain threats (citations omitted).

190 The discussion in the Monash report concerning safety risks, particularly to children, when coupled with the factual evidence about the nature of parental behaviour at the drop off/pickup location causes me to conclude that there is a real and genuine risk of serious injury or death if additional pedestrians (particularly child pedestrians) are introduced into this behaviour pattern. I am also satisfied, for the reasons I have earlier set out, that I can be certain that any additional pedestrians (particularly child pedestrians) will be exposed to the risk if I were to permit the change of use for 19 Kambala Road.

191 I am satisfied that refusing the application is a proportionate response in taking a preventative approach. I have reached this conclusion for two reasons:

• First, if a pedestrian (particularly a child pedestrian) is hit by a car as a consequence of the dangerous and risky behaviours earlier discussed, the outcome is potentially devastating injury or even death; and
• Second, refusing the application will not deny educational access to additional children to the facilities of the preparatory school given that there is no intention to add to the pupil cohort as a result of this application. Refusal will merely mean that there will be an inability to create additional music and dance space within the existing buildings of the Mansion Road campus, a loss that will limit the educational spread of opportunities available to children but not so great a loss, in my opinion, compared to the potential risks arising.

192 I am satisfied that the mere adding of any additional child to this circulation pattern in light of the present unsafe and risky behaviours would be unacceptable.

193 Whether or not any additional vehicles introduced into the Kambala Road drop-off/pick-up circulation pattern would also add to the level of unsafe and risky behaviours is irrelevant to my present consideration but if it were to occur (and I think it would be likely given the regularity of the present behaviours - but this conclusion is unnecessary to found the unacceptability of the possible adding of additional children to the Kambala Road mix), the risk to children would be further heightened and the unacceptability increased.

194 I have not, however, assessed the acceptability of this proposal against that latter conclusion; I have confined myself only to the question of any increment in exposure of pedestrians (in particular young children) to the dangers inherent in the present Kambala Road drop-off/pick-up circulation pattern rather than increases in risky behaviours.

195 I cannot be satisfied, to the degree of comfortable satisfaction appropriate given the potential consequences if there were to be a collision between a person (particularly a child) and a vehicle, that there is no foreseeable possibility of any increment if this application were to be approved. The extent and nature of the present unsafe and risky behaviours is such that any increment, whatsoever, of exposure of children to those risks is completely unacceptable.

196 It may be, based on the failure of the past persuasive endeavours on the part of the preparatory school that these risky and unacceptable parental behaviours are ones that are simply incapable of being modified by intervention in any fashion by the preparatory school. Absence being able to demonstrate, conclusively, a negative proposition (namely that there will be no increase in exposure of pedestrians [particularly children] to the dangerous and unacceptable behaviour patterns), it may well be that the school will continue to face what I consider to be an insurmountable barrier to its use, by pupils of the preparatory school, of 19 Kambala Road.

197 That possibility, however, does not provide any basis, in my opinion, to set aside assessing even the slightest incremental increase of drop-off/pick-up activities with its potentially catastrophic consequences from the dangerous and unacceptable behaviours in Kambala Road. Any increase in the number of children (even a single additional child) given the present dangerous parental activities could cause a collision between a vehicle and a child pedestrian resulting in injury or death. This cannot be risked.

Conclusion

198 In light of the matters that have been set out in the body of this judgment, I have reached the following conclusions:

• Non-compliance with the numerical control set out in table 2.1 of the Parking Development Control Plan for the number of parking spaces required for the Mansion Road campus with the addition of 19 Kambala Road does not provide any basis to refuse the application;
• There is no need to comply with control C5 in part 2.6 of the Educational Establishments Development Control Plan requiring the provision of an onsite drop-off/pickup area for pupils as that which is proposed in this application does not constitute major development and therefore does not attract the operation of the control; however,
• If I am wrong in concluding that the development is not major development and that, on the first of the tests in control C5, that control is engaged, then it is feasible to provide an onsite drop-off/pick-up facility and thus the failure to do so would warrant refusal of the application;

199 Despite being satisfied that, properly considered, neither the Parking Development Control Plan or the Educational Institutions Development Control Plan pose any impediment to approval of the application, the present parking, traffic and road safety risks from parental behaviour in Kambala Road are unacceptable (despite the hortatory endeavours of the preparatory school to prevent them) and I am unable to be satisfied that there is no likelihood of any increase whatsoever in the safety risks to pupils and parents arising from the present application. Any increase in risk to young children because of risky and/or illegal behaviours (ones regularly warned about and counselled against by the preparatory school and the college) is completely unacceptable. There is no incremental threshold as any such possibility (if there be one - a proposition I would reject) has long been exceeded.

200 Therefore, on prudent, precautionary grounds, it is not appropriate to approve the application as it is contrary to the public interest in child safety to do so.

Orders

201 The orders of the Court, therefore, are:

(1) The appeal is dismissed;

(2) Development Application DA 559/2013 to incorporate 19 Kambala Road into the Scots College Preparatory School together with associated internal and external works to facilitate that incorporation is determined by the refusal of development consent; and

(3) The exhibits, other than Exhibits 3, A and C, are returned.

Tim Moore

Senior Commissioner

Decision last updated: 28 October 2014