Aldi Stores (A Limited Partnership) v Richmond Valley Council

[2008] NSWLEC 1212

Land and Environment Court

of New South Wales

CITATION:

Aldi Stores (A Limited Partnership) v Richmond Valley Council [2008] NSWLEC 1212

PARTIES:

APPLICANT
Aldi Stores (A Limited Partnership)

RESPONDENT
Richmond Valley Council

FILE NUMBER(S):

10963 of 2007

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Shopping centre detailing amendments to conditions requiring major roadwork/roundabout

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Richmond Valley Local Environmental Plan

DATES OF HEARING:

12/12/2007, 5/03/2008, 14/03/2008, 22/05/2008

 
DATE OF JUDGMENT: 

4 June 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Pickles, barrister
Instructed by Mr J. Brophy
of Brophy Bridge & Mirow

RESPONDENT
Ms S. Duggan, barrister
Instructed by Mr W. Harvey
of Hannigans Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

4 June 2008

10963 of 2007 Aldi Stores v Richmond Valley Council

JUDGMENT

Background

1 Aldi lodged this appeal against some of Council’s conditions of consent imposed on a development application for a supermarket and associated works (the development) at Centre Street, Graham Place, Richmond Street and Terminal Parade, Casino (the site).

2 Subsequent conferencing by the parties resulted in the agreement to consent orders for most of the disputed detailing conditions, except those generally contained in Condition 55, which required construction of a roundabout at the intersection of Centre Street (Bruxner Highway – State Highway No.16) and Richmond Street, together with associated roadworks. Accordingly, the main appeal issue concerns the reasonableness of requiring Aldi to construct the roundabout as part of this development.

3 The site is currently vacant and comprises some 7482 sq m. The proposal involves the construction of new driveways off Centre Street to permit entry/exit of south-bound traffic and entry/exit from Richmond Street.

4 The RTA supports the conditions requiring the roadworks. During the proceedings, an estimate of the roundabout and associated works was produced with the upgrading works estimated to cost approximately $1,000,000.

5 In response to this issue, detailed traffic evidence was presented by:

• Mr C Hallam;Applicant’s traffic consultant,
• Mr M Baldwin; Development assessment officer (RTA).

6 Joint conferencing was undertaken by these experts and reference made to various traffic counts and assessments. Although there was some disagreement about the appropriate modelling (Hallam preferring the RTA INTANAL and Baldwin preferring the SIDRA model), nevertheless they agreed that:

• The current and future capacity of this intersection is a realistic issue;
• It is appropriate in reviewing intersection models to consider average movement delays, levels of service and degrees of saturation, plus standard considerations such as queue lengths and accident history;
• The practical (target) maximum degree of saturation for an intersection controlled by Signs is 0.80, for a Roundabout 0.85 and for signal control 0.90.
• The existing Richmond Street/Centre Street (T configuration with Signage) operates with a Level of Service (LOS) of F, on side street approaches in the PM peak period. Note - the LOS is graded through:
• Level A – average delay of less than 14 seconds, classified as good operation,
• Level C - average delay of 29 to 42 seconds, classified as satisfactory,
• Level F – average delay over 70 seconds, classified as over capacity.
• The Thursday 3.00 – 4.00 pm period has the highest hourly flows through this intersection, based on the Hallam traffic counts. This will coincide with the peak period of Aldi.

7 Basically Mr Baldwin considers the intersection currently has adequate capacity and that the delay currently being experienced by side street traffic only affects a small volume of traffic. With the existing traffic history, this is acceptable for the existing demand. As the Aldi development will attract additional traffic into this intersection, that would not otherwise use it, he says that there will be an increased safety risk for users and therefore should be responsible for its upgrading.

8 Against this, Mr Hallam says the crash history does not show any accidents associated with side street delay. Therefore he does not consider there will be any significant increase in accident risk arising from the development. Instead, he says that the Aldi traffic will only have a marginal effect on the intersection capacity. Under these circumstances he considers signage to Restrict Right Turns from Richmond Street into Centre Street during the afternoon peak adequate.

9 There was a considerable amount of examination of these two experts opinions in terms of their acceptance and calibration of the various models and associated input factors. One of the significant differences concerns the traffic distribution and consequential traffic entries into the intersection. This is influenced by any appropriate ‘passing trade’ allowance.

10 In this regard, Mr Hallam refers to the RTA “Guide to Traffic Generating Developments”, which he considers suggests an average discount for ‘linked trips’ of 20%, noting that this figure reduces with increasing centre size. His opinion is that:

“The passing traffic from Centre Street North is assumed to make a left turn directly into the site and on leaving, a left turn back to Centre St southbound. From Centre Street North, cars are assumed to turn right into Richmond Street East and then left into the site. For the exit, they have been assumed to split via two routes, with 50% turning right from the site into Richmond Street and then right into Centre Street and the balance leaving the site by Graham Place, and travelling Walker Street - Barker Street and making a right turn into Centre Street North. This distribution reflects likely delay patterns on the two alternative route, assuming that the Centre Street/Richmond Street junction is priority-controlled.
With the new Aldi-generated traffic, trips have been assumed to be two-way from/to the origins stated above. Drivers arriving from Centre Street South would turn right at Richmond Street and a left turn back to Centre Street South. From Centre Street North drivers would make a direct left turn into the site, and return split 50/50 between a right-turn from Richmond Street and a route via Graham Place-Walker Street and then right-turn onto Centre Street North. Most of this traffic has been assumed to use Barker Street, with a small proportion using Canterbury Street. Drivers from Richmond Street West would travel directly eastbound across the Centre Street intersection and back the same way.”

11 Mr Baldwin argued against this, saying that substantiation was required to allow any discounts. Notwithstanding this, he initially considered that 100% of the patrons would leave via Richmond Street. Although after cross- examination he conceded this could be reduced in the order of an 80/20 split.

Conclusions

12 Having considered the evidence, the submissions and undertaken a view, it is apparent that the threshold question for the Court is whether it is reasonable to maintain the condition requiring Aldi to be responsible for the full reconstruction of the Centre Street/ Richmond Road intersection.

13 Insofar as Council has approved the development and imposed condition 55, I accept that the development will likely lead to an increase in the amount of traffic using the intersection. Despite the different modelling approaches by the experts, I am satisfied to rely on the surveys and assessment undertaken by Mr Hallam because it takes into account an overall distribution of traffic in the town centre. This includes his allowance of a traffic distribution split of 50/50 rather than Mr Baldwin’s 80/20 split.

14 I note the that the SIDRA model was utilised with Mr Hallams outputs and presented in Tables 1-4 of the joint report. Table 2 shows that the intersection currently experiences a LOS – F, for right turns from Richmond Street into Centre Street during the afternoon (3.00 – 4.00pm) peak.

15 The current delay is in the order of 78.8 secs/veh – representing a LOS of F- with a degree of saturation 0.500. With the Aldi development, then reference to the comparative tables shows the estimated delay increases to 112secs/veh, still with a LOS of F and a degree of saturation 0.746 and less than 0.80.

16 Whilst I accept that Mr Baldwin considers the delays will be somewhat greater and this movement could have a degree of saturation of 0.875, nevertheless I am satisfied that in any case, the incremental change due to the Aldi development is marginal. The LOS remains at F level and the critical degree of saturation is substantially meets the 0.80 saturation criteria.

17 With regard to Mr Baldwin’s concerns for safety, Mr Hallam says that the incremental change could be addressed by way of a ‘NO RIGHT TURN’ restriction during the afternoon peak, but this suggestion is not favoured by respondent. However, taking into to account the significant number of buses that currently make this turn, I consider it reasonable the applicant be required to make arrangements for this signage, if required by the Local Traffic Committee. The conditions of consent can require this.

18 Under these circumstances then, I do not consider condition 55, requiring the substantial upgrading of the intersection by the construction of a roundabout, which would presumably increase the LOS significantly for the benefit of the broader community, can reasonably imposed on this development. Therefore this part of condition 55 is deleted, and I note the condition still requires the construction of a central median in Centre Street to prevent north bound traffic making right-hand turns into the development. I consider this is a reasonable condition as the development proposal directly creates the need for this traffic safety device.

19 In determining this matter, I note that Council has been undertaking various traffic studies to determine appropriate road hierarchies in the town centre. But the subject land has been zoned to allow the type of development such as the currently approved supermarket development for some time. Presumably the future development of the site for this or other similar commercial premises envisaged some increase in traffic for this site. However there is no Section 94 Contribution Plan to reasonably apportion any incremental changes and costs between new development and existing users.

20 Under these circumstances, my assessment is that it is unreasonable for Aldi to be fully responsible for the construction of the new intersection, which is now required if the LOS is to be increased to a satisfactory level for the benefit of the general community, irrespective of the Aldi development.

21 In the ultimate, I am satisfied that it is reasonable to amend the conditions of consent, particularly no. 55, for this development approved by Council.

22 The Court Orders

1. The appeal is upheld.
2. Development Application No 2007/0380 for a supermarket and associated works at Casino is granted consent subject to conditions in Annexure A.
3. The exhibits may be returned except 4, 6, A D.

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____________________

R Hussey
Commissioner of the Court