Barro Group Pty Ltd v Sunshine Coast Regional Council
[2021] QPEC 18
•23 March 2021
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18
PARTIES:
BARRO GROUP PTY LTD (ACN 005 105 724)
(appellant)
v
SUNSHINE COAST REGIONAL COUNCIL
(respondent)
FILE NO/S:
1257 of 2019
DIVISION:
Planning and Environment Court
PROCEEDING:
Applicant appeal against refusal
ORIGINATING COURT:
Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:
23 March 2021
DELIVERED AT:
Brisbane
HEARING DATE:
14, 17, 18, 19, 20, 21, 24, 25, 26 and 28 August 2020
JUDGE:
Williamson QC DCJ
ORDER:
1. The appeal is dismissed.
2. The respondent’s decision to refuse the appellant’s development application, communicated by way of decision notice dated 4 April 2019, is confirmed.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – appeal against decision to refuse a development application to re-start and materially increase the scale and intensity of an extractive use – where land designated a key resource area and locally significant extractive resource area in the respondent’s planning scheme – whether safe vehicle access to the site demonstrated – whether the development application should be refused for traffic safety reasons – whether the proposed haul route will have unacceptable impacts on character and amenity – whether there is a town planning and community need – whether the requirement to clear approximately 15 hectares of vegetation to carry out the material change of use warrants refusal – whether the development application complies with the respondent’s planning scheme – whether the development application should be approved or refused in the exercise of the discretion under s 60(3) of the Planning Act 2016.
LEGISLATION:
Planning Act 2016, ss 45, 59 and 60
Planning & Environment Court Act 2016, ss 10 and 45
CASES:
Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257
Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
Clarke and Storrer v Noosa Shire Council [1989] QPLR 261
Comiskey Group (a firm) v Moreton Bay Regional Council & Ors [2012] QPELR 168
Duncanson Brittian (Quarries) Pty Ltd v Brisbane City Council & Ors [1986] QPLR 330
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
McPherson v Caloundra City Council [1990] QPLR 272
Metroplex Management Pty Ltd v Brisbane City Council & Ors [2010] QPELR 270
SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24
Sellars Holdings Ltd v Pine Rivers Shire Council [1988] QPLR 12
Sincere International Group Pty Ltd v Council of the City of Gold Coast [2019] QPELR 247
Wilhelm v Logan City Council & Ors [2020] QCA 273COUNSEL:
Mr B Job QC and Mr J Ware for the appellant
Mr C Hughes QC and Mr M Batty for the respondentSOLICITORS:
Corrs Chambers Westgarth for the appellant
Sunshine Coast Regional Council legal services for the respondent
Table of Contents
Introduction
The issues to be determined
The land and surrounding locality
The proposed material change of use
The statutory assessment and decision-making framework
Traffic
Suitability of the proposed haul route
Ecological constraints
Exercise of the discretion
Disposition of the appeal
Introduction
On 28 March 2019, Council refused the appellant’s (Barro) impact assessable development application seeking approval to re-start, and materially increase the scale and intensity of a use involving the extraction of hard rock and sandstone on land situated at Beerburrum-Woodford Road, Beerburrum.[1] This is an appeal against that decision. It is for Barro to establish the appeal should be upheld.[2]
[1]Ex.1.49.
[2]s 45(1)(a), Planning and Environment Court Act 2016.
The issues to be determined
Barro’s development application is impact assessable. It is common ground that the statutory assessment and decision-making framework applicable to it is prescribed by the Planning Act 2016 (PA). The assessment required under that Act starts from a strong position favouring approval.
Geology and feasibility of quarrying are, as this court has held, fundamental matters for the assessment of an extractive industry.[3] Here, Barro has demonstrated there is a proven and valuable resource on the land in the order of 15 million tonnes, assuming a minimum quarry development scenario.[4] The resource includes hard rock of high quality. It was agreed by the geologists that the resource is strong, durable and capable of producing high quality aggregates and road base materials for use in concrete, asphalt and road construction.[5] These are not the only applications for the proven resource. The resource also includes sandstone, which is suitable for a range of applications. They include construction sand, binder additive to road base and engineered fill.[6] There was no suggestion the winning of the quarryable material here, for the range of identified applications, was attended with any feasibility concerns.
[3]Sellars Holdings Ltd v Pine Rivers Shire Council [1988] QPLR 12, 16-17.
[4]Ex.5.06, para 267.
[5]Ex.5.02, para 105.
[6]Ex.5.02, para 109.
That Barro has established there is a proven resource, which can be feasibly and viably extracted, is a matter of town planning importance favouring approval. This is because the resource is of significant value to the community. As has been recognised by this court, it is in the community’s interest that a proven deposit of quarryable material of high quality be availed of wherever possible.[7] The rationale for this is two-fold, namely: (1) a proven deposit of quarryable material is an essential resource (for construction and infrastructure) in finite supply and of significant economic value;[8] and (2) quarries can only locate where sufficient quality resources exist and are economically viable to extract.[9] There is no reason here to doubt that winning the resource is in the community’s interest having regard to these very matters.
[7]Duncanson Brittian (Quarries) Pty Ltd v Brisbane City Council & Ors [1986] QPLR 330, 349-350; Sellars Holdings (Supra), at 15.
[8]State Planning Policy (Ex. 12.02, p.23) and Ex. 5.08, para 20 and 62.
[9]Ex.5.08, para 62.
The value of the resource in this case is enhanced by reason that, if approved, its exploitation will increase choice and competition for those seeking access to hard rock resources. It is part of the town planning process to endeavour to provide, on a public or community basis, for that choice.[10] The additional choice and competition the resource would provide occurs in circumstances where it will be well located to serve areas of future demand, which is not anticipated to abate. Demand is anticipated from future residential development areas on the Sunshine Coast, particularly major development areas at the southern end of Council’s local government area and the northern part of the adjoining local government area.[11] Areas of future demand are within 30 to 60 kilometres of the land. Proximity of this kind to areas of future demand was described by Mr Brown, in economic terms, as ‘the ideal outcome’.[12]
[10]McPherson v Caloundra City Council [1990] QPLR 272, 279, citing Tod v Maroochy Shire Council [1981] QPLR 110 and Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13, 34.
[11]Ex.5.08, para 42.
[12]T4-54, Line 6-7.
Proximity of proven resources to target markets is a matter of planning importance given there is a well understood relationship between transportation distances and the end cost of quarried products to the community. The evidence establishes that extractive resources are high volume, low cost products sensitive to transportation costs. The costs average around 30 to 40% of the delivered cost, depending on distance and the relative value of the quarried material. It is for this reason quarries generally seek to establish as close as the resource will allow to target markets.
Where good proximity is achieved between a proven resource and areas of demand, advantages flow to customers and, in turn, the community; it sounds in shorter travel distances, which yield shorter delivery times and lower delivery costs. The costs include what the economic experts described as ‘transport-related externality costs’, which are indirect and difficult to quantify with precision. They are associated with fuel burn/emissions, road wear and tear, and traffic safety. The cost reduction for the community is achieved as a consequence of less heavy vehicle kilometres travelled on public roads.[13] Irrespective of whether the costs saved by the community are direct, or indirect, they are savings nonetheless, and a public benefit. Here, the potential cost savings reinforce the importance of the resource to the community.
[13]Ex.5.06, para 210-212.
The need for, and significant value (to the community) of proven resources that are located proximate to target markets is an important planning consideration. This is reflected in contemporary planning controls. By way of example, Part D of the State Planning Policy, April 2016[14] deals with ‘state interests and plan making policies’. Mining and extractive resources are identified as a state interest. The explanation given for the state interest in resources includes the following:[15]
“The resource industry is a key driver of the Queensland economy and the state’s largest export earner. It is a diverse industry that supports the needs of other industries and the community through the supply of valuable commodities…
…The supply of extractive resources such as sand, gravel, rock, clay and soil is essential to the health of the construction industry and the delivery of infrastructure. Given the high-volume, low-value nature of extractive resource products, it is generally necessary to source extractive resources close to markets…”
[14]Ex.12.02.
[15]Ex.12.02, p.23.
Council’s planning scheme, Sunshine Coast Planning Scheme 2014 (Version 7), identifies natural resources in the local government area that are of state interest. The document also identifies locally significant extractive resources. Forward planning decisions relevant to resources of state and/or local interest are set out in the Strategic framework of the planning scheme.
Strategic framework map SFM 7 identifies, in a conceptual way, areas which include key extractive resource areas (KRA) and locally significant extractive resource areas. Both areas are intended to remain available for use.[16] The land the subject of the development application is a KRA and a locally significant extractive resource area.
[16]s 3.9.6.1(a).
Save for one exception,[17] s 3.9.6.1(c) of the Strategic framework makes plain that it is intended for new extractive industries to be located only on land identified as a KRA or locally significant extractive resource. The new uses are intended to facilitate, inter alia, the capacity for non-renewable natural resources to be supplied from local sources.[18] The community benefit in doing so is identified in s 3.9.1(b) of the Strategic framework, which states, in part:
[17]Which does not apply in the circumstances here.
[18]s 3.9.1(a)(ii).
“Natural resources continue to make a significant contribution to the regional economy and the wellbeing of the community by retaining the capacity of the Sunshine Coast to meet a significant proportion of its own needs in terms of:-
…
(iii) the supply of base materials for construction and infrastructure.”
The policy direction articulated in the Strategic framework is implemented through detailed lower order provisions of the planning scheme. Those provisions include zone codes. Here, the zoning of the land compliments the Strategic framework designations. It is included in the Rural zone where an extractive industry is a potentially ‘consistent use’.[19] This provides positive support for the use in the zone, but it is not unqualified; any new extractive industry in the zone must, inter alia, avoid or appropriately manage adverse environmental and amenity impacts.[20] It is this qualification that underlies Council’s opposition to this appeal.
[19]s 6.2.19(2)(v).
[20]s 6.2.19(2)(b).
Given the matters canvassed in paragraphs [2] to [12], there can be little doubt about the importance of the proven resource to the community. This is a significant matter in the exercise of the planning discretion, however, as Council correctly contends, is not determinative of the appeal.
Council contends an extractive industry use is one that has the potential to create significant conflict with, and serious impacts for, development in the locality. With this in mind, Council further contends that Barro has failed to demonstrate that specific impacts of the proposed development can be avoided or effectively managed.[21] This is said to result in a refusal of the application despite the importance of the resource. Such an outcome appears to be envisaged by s 3.9 of the Strategic framework, which includes the following statements:
[21]s 3.9.1(f).
“Key Concepts
…
(4)Recognition that some natural resources may not be suitable for exploitation due to their location and their potential for adverse environmental or amenity impacts.”
And:
“(c) Those natural resources which are not suitable to be exploited due to the potential for significant adverse amenity or environmental impacts on existing or proposed communities remain undeveloped.”[22]
[22]Strategic outcome for the natural resources theme, s 3.9.1(c).
The reasons said to warrant refusal of Barro’s development application do not take issue with on-site noise and dust impacts. Nor is it suggested that on-site development activities will cause adverse visual impacts. This is a fair position for Council to adopt. The evidence comfortably establishes that impacts of this kind can be conditioned, and do not warrant refusal. This is, in large measure, due to: (1) the proposed development being surrounded on all sides by a pine forest; and (2) the separation of the proposed use from existing residential uses. The nearest residential use is about 1.2 kilometres to the north-west of the resource.
In opposing the appeal, Council contends there are three specific impacts that call for the refusal of the proposed development. It is alleged Barro has not demonstrated the proposed development can effectively mitigate, or be conditioned to effectively mitigate/manage:[23]
(a)the impact of the development on the safe and efficient operation of the road network (site access);
(b)the impact of the proposed haul route on the amenity and character of adjoining development; and
(c)the impact of the development on the ecological values of the land.
[23]Ex.15.02, para 3.
In addition to the above, Council also contends there is no need, at this time, for the proposed development. The absence of need is relied upon to submit that the impacts of the proposed development are not overcome, or justified, by the existence of a town planning or community need for the resource.
Barro joins issue with Council’s case.
I will now turn to deal with the refusal issues raised by Council. Before doing so directly, it is necessary to set out some background.
The land and surrounding locality
The land the subject of the development application is described as part of Lot 589 on FTY1876. Lot 589 forms part of the Beerburrum West State Forrest. It is 2,851 ha in size[24] and has frontage to Beerburrum-Woodford Road.
[24]Ex.5.01, p.6, para 7.
The development application seeks approval to make a material change of use in respect of 23.47 ha of Lot 589.[25] The development site is irregular in shape, and is located towards the centre of Lot 589, about 405 metres south of the Beerburrum-Woodford Road frontage (the site).[26] An internal unsealed forestry track provides access to the site from Beerburrum-Woodford Road.
[25]Ex.3.01, p.5, Development Summary.
[26]Depicted at ex. 8.05, p.4, Figure 2.1 and ex. 3.01, p.4.
The site has historically been used for extraction purposes. There are two identifiable extraction pits, which can be observed in historical aerial photography;[27] one for gravel and one for sandstone. The evidence suggests the extracted resource was used to upgrade State forestry tracks and surrounding roads.[28]
[27]Gray: T3-8, Line 37 to 40.
[28]Ex.5.10, p.4, para 3.
The extent of disturbance associated with past extraction activities can be seen in a number of aerial photographs dating back to 1953.[29] Today, the disturbance footprint is in the order of 8.02 ha.[30] The balance of the site, approximately 15 ha, is vegetated. Relevant mapping indicates it is remnant vegetation comprising RE12.5.3, with a small area of RE12.8.20. The former is ‘endangered’ and the latter is ‘of concern’ for the purposes of the Vegetation Management Act 1997.[31]
[29]Ex.5.01, pp.7-8.
[30]Ex. 3.01, p. 5, Development Summary – ‘Operational Area (existing)’ plus ‘Internal Access Road’.
[31]Ex. 5.01, p.9, para 16.
The site is surrounded by a forestry road network and areas of pine plantation.[32] Native vegetation associated with Beerburrum Creek and its tributaries are located to the south, east and north of the site. This vegetation provides ecological corridors connecting the site with the local landscape and surrounding bushland.[33]
[32]Ex.5.01, p.10, para 17.
[33]Ex.5.01, p.10, para 17.
The nearest residential dwellings to the site are located approximately 1.2 km to the east and south-east of the site.[34]
[34]Ex.5.10, p.7, para 23.
Beerburrum-Woodford Road is a state controlled road. It is designated a ‘b-double’ route and has a posted speed limit of 100 km/hr.[35] The carriageway is sealed, typically in the order of 6.3 metres wide.[36]
[35]Ex.5.10, p.7, para 21.
[36]Ex.5.09, p.8, para 59.
Traffic survey data suggests the two-way traffic volume on Beerburrum-Woodford Road is in the order of 1,242 vehicles per day. Of that total, 174 (14%) are classified as ‘heavy vehicles’.[37]
[37]Ex.11.23A.
Beerburrum-Woodford Road intersects with Beerburrum Road about 2 kilometres to the east of the site. The latter is a state controlled road intersecting with Steve Irwin Way further to the east. It is also designated a ‘High Vehicle Detour’ road for south-bound vehicles travelling along Steve Irwin Way.[38]
[38]Ex.5.10, p.7, para 21.
Beerburrum Road passes through the Beerburrum township, which presents as a long-established ‘main street’ in a small rural town. Mr Buckley described the existing character of this area as ‘small scale’ and conveying a ‘very low key village’.[39] The character was said to be influenced by: (1) small scale land use and ‘movement elements’ and (2) the age and historical substance of buildings and mature trees. Mr Buckley identified a number of special features that accentuate this character, one of which is the separation of the township from Steve Irwin Way. It was pointed out that this separation has the desirable consequence of avoiding major north-south arterial traffic travelling through the township, which has a low level of daily traffic movements.[40] Mr Buckley’s evidence about Beerburrum township is made good having regard to a number of visual aids before the court. I also had the benefit of a site inspection with counsel to appreciate the visual aids in context.
[39]Ex.5.10, p.9, para 35(d).
[40]Ex.5.10, p.10, para 35(f).
The proposed material change of use
Barro’s development application seeks approval to permit the extraction of trachyte and sandstone from two existing pits on the site. The operational footprint for the development will be in the order of 22.8ha.[41] Facilities associated with the extraction of hard rock are proposed. They include a site office, amenities building and weighbridge.
[41]Ex.3.01, p.5, Development Summary – aggregate of existing and proposed ‘Operational Area’.
Extraction will generally occur in a progressive fashion from west to east. That process will involve:[42] (1) clearing vegetation and stripping topsoil/overburden via mechanical means; (2) drilling and blasting exposed underlying rock to create quarry benches approximately 12 metres in width and 15 metres in height;[43] (3) transportation of extracted raw material from the quarry face to a crushing and screening plant/stockpile area located in the north-west corner of the site;[44] (4) crushing and screening of raw material using mobile or fixed plant; and (5) stockpiling final product for transportation off-site.
[42]Ex.5.10, p.11, para 44.
[43]Ex.5.10, p.4, para 3.
[44]Ex.3.01, p.5.
The extraction area will be progressively rehabilitated, where practicable. This will involve the shaping and stabilising of quarry benches as they reach their final form in line with the sequence of extraction.
The final landform of the quarry is intended to comprise benches and a pit floor that have been stabilised and planted with native vegetation.[45]
[45]Ex.5.10, p.12, para 46.
The operating hours for the use will be limited to 6:00am to 6:00pm Monday to Friday, and 7:00am to 1:00pm Saturday. The use is not intended to operate on Sunday or public holidays.
The development application did not seek approval for a maximum annual extraction rate. The town planning joint report records this was intentional. Barro anticipated that the level of extraction will fluctuate throughout the life of the quarry, and operational flexibility was sought to respond to market demand and external forces.[46] This position did however alter during the hearing. It was indicated through Barro’s general manager, Mr Ridoutt, that a condition of approval limiting the maximum tonnage of quarry material hauled from the site in any rolling 12 month period to 1 million tonnes would be accepted.[47] The application is to be assessed and decided on the basis that such a condition would be imposed.
[46]Ex.5.10, p.11, paragraph 40.
[47]Ex.7.01, para 59 and confirmed in Ex.15.01, para 12.
Vehicle access to the site is obtained via an existing unsealed forestry track intersecting with Beerburrum-Woodford Road. It was agreed between the traffic experts that the access will need to be upgraded and, for safety reasons, the internal track will need to be sealed for a distance of about 50 metres.[48] The form of the access was an issue in dispute between the parties. Barro did not, through its traffic expert, seek to advance a design solution. It contended the design is a matter for conditions, rather than a matter going to approval/refusal.
[48]Ex.5.09, p.5, paras 40 and 41.
The proposed haul route requires heavy vehicles to obtain access to the Motorway via the existing forestry track, Beerburrum-Woodford, Beerburrum Road and Steve Irwin Way. If approved, this route would facilitate large trucks hauling extracted material: (1) along the ‘main street’ of Beerburrum township; and (2) past a small number of existing residential properties. At an extraction rate of 1,000,000 tonnes per annum, the proposed development will generate significant vehicle movements along the haul route. It will equate to one quarry truck every three minutes either going to, or from, the site.
The development application was subject to impact assessment. The public notification process attracted 182 properly made submissions.[49] Of that total, 85 submissions supported the proposal, 3 were neutral and the balance opposed an approval.[50]
[49]Ex.5.10, p.13, para 52.
[50]Ex.5.10, p.13, para 52.
The development application was referred to the Chief executive as a referral agency. On 3 July 2018, the Chief executive gave a response.[51] It required any approval to be granted subject to four conditions set out therein.
[51]Ex.1.50.
Condition 1 requires the payment of a monetary contribution, calculated per tonne of material, for protecting and maintaining the safety and efficiency of the state controlled road network. Condition 2 requires road upgrade works to be carried out on the northern leg of the Beerburrum Road/Beerburrum-Woodford intersection. Condition 4 is in the following terms:
“Enter into an agreed delivery arrangement to deliver an environmental offset in accordance with the Environmental Offsets Act 2014 to counterbalance the significant residual impacts on the matters of state environmental significance being:
(a)15 hectares of regulated vegetation that is ‘endangered’ regional ecosystem 12.5.3; and
(b)0.30 hectares of regulated vegetation that is ‘of concern’ regional ecosystem 12.8.20; and
(c)15 hectares of regulated vegetation that is essential habitat for vulnerable wildlife – Koala (Phascolarctos cinereus).”
The statutory assessment and decision-making framework
The statutory assessment and decision-making framework for this appeal is prescribed by the PA. It requires the application to be assessed in accordance with, inter alia, s 45, and decided in accordance with ss 59(3) and 60.
The statutory framework is to be approached consistent with three recent Court of Appeal decisions, namely Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253, Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 and Wilhelm v Logan City Council & Anor [2020] QCA 273. Taken collectively, they confirm much of what was said in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793. The parties argued the appeal before me on the footing that Ashvan was correctly decided.
I pause to observe in passing that YQProperty confirms the ultimate decision called for when making an impact assessment under ss 45 and 60 of the PA is a ‘broad evaluative judgment’.[52] Abeleda also confirms, inter alia, that: (1) in contrast to its statutory predecessor, the discretion conferred by s 60(3) of the PA admits of more flexibility to approve an application in the face of non-compliance with a planning scheme; and (2) the exercise of the discretion is subject to three requirements, including that it be based upon the assessment carried out under s 45 of the PA.[53]
[52]YQ Property, per Henry J at [59].
[53]Abeleda, per Mullins JA at [53] and [58].
The clear words of s 45(5)(a)(i) of the PA mandate that Barro’s development application must be assessed against the applicable assessment benchmarks. The primary assessment benchmark for this appeal is the planning scheme. The agreed list of issues identify a number of alleged non-compliances with the planning scheme, including the Strategic framework; the Biodiversity, waterways and wetlands overlay code; the Extractive industry code; the Rural zone code; and the Transport and parking code.
I will now turn directly to deal with the three issues relied upon by Council to warrant refusal of the development application. Relevant planning scheme provisions are considered in the context of each issue.
Traffic
Access to the extraction area is proposed via an existing unsealed forestry track. As I have already observed, the track intersects with Beerburrum-Woodford Road. Council contends it has not been demonstrated that vehicle access to and from this road is safe and adequate.[54]
[54]Ex.15.02. para 78.
Barro and Council each relied upon a traffic engineer to examine the safety and adequacy of the site access. Mr Trevilyan was called by Barro. Mr Douglas was called by Council. They participated in a joint meeting and prepared further statements of evidence. The material reveals there are two matters of disagreement that engage public safety considerations, namely:
(a)whether it has been demonstrated the access will have appropriate geometry to allow for safe operation; and
(b)whether a sufficient sight distance will be achieved to ensure the safe operation of the access.
With respect to the issue of geometry, Barro did not advance a concept design of the access for consideration. Rather, to discharge its onus, Barro relied upon ‘swept path diagrams’ prepared by Mr Trevilyan.[55] The diagrams, which are rudimentary, depict the path of travel for the largest truck anticipated for quarry operations, namely a b-double truck.[56] It is executing a turning movement into, and out of, the existing forestry track. The diagrams were attached to an addendum statement of evidence prepared by Mr Trevilyan, which was served on Council after the hearing commenced. Mr Trevilyan relies upon the diagrams to demonstrate there is sufficient space to accommodate the largest anticipated vehicle turning into, and out of, the site.[57]
[55]Ex.11.23, pp. 24-25.
[56]Comprising a prime mover and two trailers with a combined length of 25 metres.
[57]Ex.11.23, para 21.
Mr Trevilyan was directed to the swept path diagrams in his oral evidence and asked to identify the ‘intent behind providing this information’.[58] In response, he acknowledged that a geometry issue had been raised by Mr Douglas, and considered it was reasonable to demonstrate: (1) ‘proof of concept’; and (2) that the works are ‘deliverable’.[59] In this context, Mr Trevilyan said the swept path diagrams were not design plans, but demonstrate ‘what a b-double would do under a number of circumstances’.[60]
[58]T7-12, L45 to 46.
[59]T7-12, L46 to T7-13, L5.
[60]T7-13, L6-7.
Having regard to the swept path diagrams, coupled with Mr Trevilyan’s explanation, I am satisfied that a b-double truck could turn from either direction on Beerburrum-Woodford Road into the site, utilising a width of 11.8 metres.[61] I am also satisfied that a b-double truck could turn from the site onto Beerburrum-Woodford Road, in either direction, utilising a width of 13.5 metres.[62] It was Mr Trevilyan’s evidence that these dimensions can be accommodated by the access to the site, which is 16 metres wide.[63] I also accept this evidence.
[61]T7-13, L11 to 13.
[62]T7-13, L16 to 22.
[63]T7-13, L10.
Three shortcomings can be identified with Mr Trevilyan’s swept path diagrams: (1) the diagrams do not demonstrate whether the truck turning movements would be impeded by road upgrade works discussed and recommended in the traffic joint report - the upgrade includes a ‘BAL[64] treatment’, and may require a ‘BAR[65] treatment’;[66] (2) the swept path diagram for the truck leaving the site and turning east demonstrates the movement cannot be completed within the existing sealed carriageway of Beerburrum-Woodford Road, even where the turning movement commences from the western edge of the access; and (3) the diagrams demonstrate that the width of the access is insufficient to accommodate two large vehicles at one time, meaning it is too narrow to permit two trucks to simultaneously enter and exit the site.
[64]A basic left turn treatment from Beerburrum-Woodford Road to the site access.
[65]A basic right turn treatment from Beerburrum-Woodford Road to the site access.
[66]Ex.5.09, p.5, para 43 and p.7, para 52 a).
Mr Trevilyan fairly acknowledged the above shortcomings. In response to items (1) and (2), he said these are matters that would need to be carefully considered in the detailed design process and did not undermine his intent to demonstrate a deliverable proof concept. To respond to item (3), Mr Trevilyan made the following recommendation:[67]
“… I would also recommend that the … drivers of the B-doubles or any vehicle leaving the site, most notably the B-doubles, should be instructed and required to not commence a right turn out of the site at the same moment that another B-double is entering the site, because it is plausible that a motorcyclist, for example, maybe following that B-double and choose to overtake, and that would be a scenario … that’s not a good outcome … so my advice would be that the driver’s code of conduct of the truck drivers leaving the site should include, in the event when you’re egressing the site, another quarry truck is entering the site, you must hold position until that entering movement has been completed, just as an additional safety element…”
[67]T7-13, L47 to T7-14, L11.
Mr Douglas conceded that the swept path diagrams contained in Mr Trevilyan’s addendum report demonstrate a b-double truck, approaching from either the east or west, can turn into and out of the site within the existing road reserve.[68] He was, however, strident in his view that the diagrams failed to demonstrate appropriate access geometry.
[68]T7-49, L30 to 40.
In support of his opinion, Mr Douglas pointed out that which is self-evident; the diagrams do not purport to be a design concept for the intersection upgrade.[69] This, as I understood his evidence, had the effect that the diagrams do not demonstrate appropriate geometry. In this regard, Mr Douglas said:[70]
“what I’m saying is, there is no geometry here. This is just a swept path …But that’s not overlaid on what I could call …a working concept that actually has the appropriate distances and dimensions, deceleration lane lengths, Q-storage in the right turn pocket, all of those things, which haven’t been done. And if you look at the egress, you actually see that the swept path of the B-double coming out actually runs off the edge of the pavement on the opposite side and drives on the dirt shoulder interface to the other side. Clearly that’s not acceptable. Clearly that needs to be designed as a proper intersection...”
[69]T7-50, L4 to 10.
[70]T7-51, L8 to 18.
Central to Mr Douglas’ opinion is an expectation that a concept design of the access would be produced to consider matters of safety and efficient operation. In his view, it is a design of this character that demonstrates whether appropriate access geometry could be achieved in the circumstances. This purpose is not achieved by swept path diagrams.
It was put to Mr Douglas that the swept path diagrams demonstrate that the safe and efficient operation of the access for b-double trucks will require management measures to be implemented.[71] Mr Douglas agreed, but made two points in response. He said: (1) there is no traffic engineering reason why an inferior solution such as this should be accepted in circumstances where the site is a ‘greenfield site’, and there is room to provide a design solution that does not require management measures;[72] and (2) the recommended management measures, in his experience, are a ‘barely workable solution’, unsafe and unsustainable in the long term.
[71]T7-51, L25 to 27.
[72]T7-51, L27 to 40.
With respect to item (2) above, Mr Douglas was highly critical of an access solution that relies upon two-way radio communication while a vehicle exiting the land is propped waiting for another vehicle to enter. Mr Douglas said this solution may be acceptable for the construction phase of the project, but inappropriate for the life of the use. His reasoning for this was articulated in the following passages of his oral evidence:[73]
“I don’t think it can be managed in the long-term. I think … it will give rise to errors and mistakes where there will be people whose radios don’t work, or people who are in other vehicles, because we’ve got a whole range of other vehicles that could be coming here. There could [be] mobile crushers, all sorts of things. You’ve got to make sure everyone involved has the radio, is on the same wavelength, knows the movements, you can do that for a concentrated construction phase, but I wouldn’t be propagating that for something that’s got a life of 20 years. It’s…likely to fail at some point over that time.”
And:[74]
“… I wouldn’t be seeking to rely on it. I’m not quite understanding why we wouldn’t have an intersection built here once and do it properly, rather than create an unsafe intersection that’s got management layers. Bear in mind, the onsite supervisor isn’t standing at the intersection either, they’re back in the quarry presumably, so it’s all done by radio. So it’s all done by checking in with drivers on where they are and where they’re approaching.”
[73]T7-52, L26 to 34.
[74]T7-52, L43 to T7-53, L2.
It was submitted on behalf of Barro that access geometry is not a reason for refusal and can, in any event, be addressed by way of ‘an appropriate, relatively routine condition’.[75] This submission is founded upon Mr Trevilyan’s evidence. Alternatively, it is founded upon two concessions attributed to Mr Douglas.
[75]Ex.15.01, para 116.
Dealing with Mr Trevilyan’s evidence first, I was not persuaded his opinion should be accepted in relation to access geometry. The evidence was not supported by a design that demonstrated, to use his words, a deliverable proof of concept. The absence of such a design was, unfortunately, not explained. Added to this, I was not persuaded, having regard to Mr Douglas’ evidence, that swept path diagrams are an appropriate substitute. The diagrams exhibit a number of shortcomings, which are discussed in paragraph [51]. Those shortcomings were not satisfactorily resolved by the matters referred to in paragraph [52]. As Mr Douglas’ evidence makes clear, the shortcomings cannot be lightly brushed aside and are not resolved through the implementation of management measures recommended by Mr Trevilyan. Indeed, I have little confidence the management measures recommended by Mr Trevilyan are appropriate for the reasons given by Mr Douglas (set out in paragraph [57]).
I also do not accept it was sufficient for Barro to contend that the design of the access is a matter for conditions. It did so in reliance upon Mr Douglas’ view that he could readily foresee an engineering design solution. However, such a contention ignores that Council has put in issue, as a reason for refusal, the design of the access. More particularly, Council has alleged non-compliance with Performance outcome PO2 of the Transport and parking code in the planning scheme, which is relevant to the design and operation of the access. The provision requires the ‘design’ of the site access to achieve specified objectives; one objective is that the design be ‘safe, convenient and legible’.
What level of detail is required to assess compliance with PO2?
The level of detail required to assess and decide a development application will often depend upon the matters a decision maker is called upon to assess in granting or withholding approval.[76] Here, the information should be sufficient for a judgment to be made about whether the site access will comply, or can be conditioned to comply with, inter alia PO2. I am not satisfied the information before me is sufficient to assess compliance in either respect.
[76]SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24 at [24].
That there is insufficient information to demonstrate satisfactory access geometry here is unfortunate. The issue was raised by Mr Douglas in the traffic joint report. It was not responded to until well into the hearing. The response, to be found in Mr Trevilyan’s evidence, is uncompelling. I am also unpersuaded the point is appropriately addressed by Barro’s reliance upon Mr Douglas’ evidence. The relevant submission in this regard, with footnotes omitted, was as follows:[77]
“In any event, Mr Douglas indicated he was satisfied an appropriate access could be designed, and that there were no insurmountable constraints to solving any issues associated with this.”
[77]Ex.15.01, para 116.
This submission is founded upon two passages of the transcript,[78] which I have reviewed.
[78]T7-50, L15-42 and T7-54, L17-22.
I do not accept that the two passages in the transcript establish, individually or collectively, that Mr Douglas conceded the geometry of the access is a matter for conditions. Read objectively, his evidence establishes that an appropriate access could be designed. He does not identify, with precision, the design. Nor did he suggest the design can be deferred to conditions of approval. The reason for this, as I understood his evidence, was for reasons of public safety. His underlying traffic concern being that the safe and efficient operation of the access is important, given Beerburrum-Woodford Road has a posted speed limit of 100 km/hr. Consistent with Mr Douglas’ evidence, I accept that the design of the access is an issue that should be resolved with a degree of certainty before the development is approved. Such an outcome may seem conservative and cautious. That may be so, but caution is appropriate where matters of public safety are involved.
Whilst Barro invited me to accept the concessions attributed to Mr Douglas above, I pause to observe that Barro also submitted, with equal force, that the same evidence should be treated with ‘caution’. More particularly, Mr Job QC and Mr Ware submitted Mr Douglas’ evidence should be treated with caution because he was unfair, unduly critical and negative towards Mr Trevilyan. In this vain, it was submitted Mr Douglas demonstrated a tendency to deride the work of his professional counterpart without foundation.
I cannot accept this submission.
It is true to say that Mr Douglas was critical of Mr Trevilyan’s work. It is equally true that, at times, Mr Douglas’ criticisms were expressed in strong terms. I did not however apprehend this was intended to be professionally discourteous. Nor do I regard this as being inconsistent with Mr Douglas’ duty to the court. In my view, the strong criticisms expressed by Mr Douglas were borne of frustration, and no doubt his concern that a public safety issue was not given the level of consideration it required and deserved. That frustration, and concern, was the product of: (1) the unexplained absence of a conceptual design for the site access; (2) the suggestion that a series of swept path diagrams could be treated as a substitute for a conceptual design for the access; and (3) Barro’s reliance upon an unsatisfactory and inferior access arrangement that involved unsustainable ‘management measures’.
Mr Douglas’ frustration was, in my view, well founded given the traffic safety issue being examined and the absence of a conceptual design.
Given the above, I am not persuaded Barro has demonstrated the site access will have, or can be conditioned to have, appropriate geometry required for safe and efficient operation.
I will now turn to deal with the sight distance issue. This is a reference to the available safe intersection sight distance (SISD) between a vehicle travelling on the carriageway of Beerburrum-Woodford Road and a stationary vehicle propped at the access to the land waiting to execute a turning movement onto the road. The available sight distance is considered to determine whether there is sufficient time, and distance, for the vehicle travelling on the carriageway to see, and safely react, to a turning vehicle, if the circumstances require.[79]
[79]T7-46, L18 to 25 and T7-29, L42 to 43.
The traffic engineers measured the available sight distance to the west and east of the proposed access.[80] The former is in the order of 250 metres. The latter is in the order of 150 metres.
[80]Ex.5.09, p.6, para 47.
The available sight distance to the east is constrained by a combination of three factors, namely: (1) a change in the horizontal alignment of the road, resulting in a dog-leg; (2) a change in the vertical alignment of the road, which crests at a location coincident with the change in horizontal alignment (dog-leg); and (3) the existence of vegetation parallel to the road reserve that impedes a driver’s line of sight to the access from a point preceding the change in horizontal and vertical alignment of the road.
Mr Trevilyan and Mr Douglas agreed the sight distance available to the west of the access is sufficient. However, they disagreed about the required distance to the east. Mr Trevilyan said a distance of about 150 metres was ‘fit for purpose’.[81] Mr Douglas said a minimum distance of 248 metres was required.[82]
[81]Ex.5.09, para 50.
[82]T7-42, L23.
The opinions expressed by Mr Trevilyan and Mr Douglas about the required sight distance were informed by a number of underlying assumptions. The assumptions made arise out of the following considerations:
(a)whether the access is to be treated as a driveway, or intersection?
(b)what is the reaction time (measured in seconds) to be assumed for the driver of the vehicle on the carriageway of Beerburrum-Woodford Road?
(c)what design speed is to be adopted for Beerburrum-Woodford Road?
(d)whether it is appropriate to rely upon existing crash data to assess the suitability of sight distances; and
(e)whether a ‘flashing sign’ installed at the change in horizontal and vertical road alignment alerting drivers to the presence of trucks is sufficient to justify a sight distance of about 150 metres?
As I understood the evidence, there was little disagreement between Mr Trevilyan and Mr Douglas in relation to the question posed in sub-paragraph (b). They each applied a reaction time of two seconds. This reaction time was considered to be appropriate, provided a condition was imposed requiring the ‘flashing sign’, referred to in sub-paragraph (e), to be installed at about the change in horizontal and vertical alignment of Beerburrum-Woodford Road.
Mr Trevilyan and Mr Douglas otherwise disagreed about the answers to the questions posed in sub-paragraphs (a), (c), (d) and (e) above.
In relation to sub-paragraph (a), Mr Trevilyan assumed the site access is to be treated as a driveway.[83] This was because it is the intersection of an access to private property and a road. It is not the intersection of two roads. This was expanded upon by Mr Trevilyan in his evidence-in-chief, where he said:[84]
“…this…is an access driveway to…private property,…it is not…an intersection…And the reason being [that] the vehicles turning in and out of them more routinely are quite familiar with the driveway whereas an intersection..[is available] for the general public to use and, therefore, the users…can be often less familiar with the intersection...”
[83]T7-28, L20 to 21.
[84]T7-12.
On the footing the site access is to be treated as a driveway, Mr Trevilyan assessed the suitability of the available sight distance by reference to Figure 3.2 in the Australian Standard described as AS/NZS2890.1:2004. The Standard was not in evidence before me. I was however informed by Mr Trevilyan that Figure 3.2 applies to sight distances at an access driveway.
Assuming a design speed of 93.8 km/hr, I was informed by Mr Trevilyan that Figure 3.2 of the Standard suggests a sight distance of 141 metres is appropriate.[85] Having regard to this assessment, Mr Trevilyan was satisfied the sight distance of 150 metres to the east of the access was satisfactory.
[85]Ex. 5.09, para 49.
To buttress his opinion, Mr Trevilyan examined the available sight distance by reference to Part 4A of the Austroads Guide to road design.[86] Again, assuming the access is a driveway, Mr Trevilyan assessed the available sight distance by reference to s 3.4 of the Guide. The Guide was not in evidence before me. Paragraph 46 of the traffic joint report includes the following quotation relied upon by Mr Trevilyan, which is said to be extracted from s 3.4 of Part 4A of the Guide:
“The criteria above often cannot be obtained at accesses on roadways with tighter horizontal and vertical alignments, or vegetation. For new roads comprising such geometry, minimum sight distances at accesses should comply with the following:
· minimum gap sight distance in Section 3.2.3…”
[86]Ex. 5.09, p.6, para 46.
After quoting from s 3.4 of the Guide, the following opinion was attributed to Mr Trevilyan in the joint report:[87]
“Adopting this approach for the subject scenario (interpreting “new roads” to reasonably incorporate the situation of upgrading the subject access driveway), the required minimum gap sight distance (MGSD) for the proposed site access (with a critical gap acceptable time of 5 sec and design speed of 100 km/h {noting the measured designed speed of less than 100 km/h proximate to the site access – ‘Appendix 4’ of Appendix F}) is 139m. The sight distances available from the site access to the west is ~250m and to the east is ~150m, and therefore the MGSD is more than satisfied.”
[87]Ex.5.09, p.6, para 47.
Mr Douglas did not accept the site access should be treated as a driveway. It was his opinion that the access should be treated as an intersection for the following reasons:[88]
“…It can be …an intersection between a private road and a public road. There’s nothing to say that you can’t have an intersection formed with a private road…if you read all of the references to driveway and the relevant guidelines and standards, they basically relate to a concrete apron turned out for the purposes of vehicles entering and exiting, which is a lesser standard than an intersection where the [pavement] will continue through, rather than concrete contrasting with bitumen. I think in this case, we need to have this as an intersection because we’ve got large trucks quite frequently. In fact, more trucks turning out of this side road, for want of a better term, than we do going through on Beerburrum-Woodford Road under the million tonne per annum scenario. Something like double the amount of trucks are turning in and out as they’re going through. I think that needs to be a fully bitumen sealed intersection as opposed to a driveway, which is effectively a [concrete] apron butting up to the edge of the [pavement].… Once you’re needing to do those things, you’re really building an intersection, so it should be treated as an intersection…The driveway is designed for low speed turning, and intersection is designed for a high speed turning, which we need here because of the limited sight lines and the fact we’re dealing with heavily laden quarry trucks…”
[88]T7-56, L18 to T7-57, L10.
Is the access a driveway or intersection?
This question is not an easy one to resolve in the circumstances of this case. It is complicated by reason that Barro did not tender a copy of the Australian Standard, nor the Austroads Guide to design, both of which were relied upon by Mr Trevilyan to examine the adequacy of the available sight distance. It is unknown whether these documents define the terms driveway or intersection. It is unknown whether the documents distinguish a driveway from an intersection, and for what reasons. This, as a consequence, means an underlying and essential assumption for Mr Trevilyan’s opinion cannot be properly tested.[89] That the opinion cannot be tested means I am not persuaded that[90] “Mr Trevilyan’s approach correctly identifies the difference between an intersection and an access and he applies the appropriate standards for an access” and that “those standards are met”.
[89]Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, [71].
[90]Ex.15.01, para 123.
In the absence of the Australian Standard and Austroads Guide to design referred to by Mr Trevilyan, I am inclined to accept Mr Douglas’ opinion that the access should be treated as an intersection. It accords with ordinary experience, namely that a private driveway or road intersecting with a public road can create an ‘intersection’. There are everyday examples that make good Mr Douglas’ opinion. An access arrangement for a large sub-regional retail facility is one such example. It is not uncommon for development of this kind to include internal roads that intersect with public roads, and that intersection is signalised. In that example, the internal road is one of a number of legs of the intersection, rather than a driveway.
Putting examples to one side, what is of greater significance, in my view, is that the access here will need to be constructed to a standard higher than a driveway. This is a consequence of the nature, and number, of traffic movements turning into and out of the site. That the access will be constructed to a standard higher than a driveway is a compelling reason to accept Mr Douglas’ evidence.
An assessment of the sufficiency of an available sight distance requires an assumption to be made about, inter alia, the design speed for Beerburrum‑Woodford Road. It was uncontroversial that this road has a posted speed limit of 100 km/hr and, as a matter of general practice, traffic engineers start with a design speed that is 10% above the posted speed limit. Both Mr Douglas and Mr Trevilyan adopted a lesser design speed in this case.
Mr Douglas assumed a design speed of 100 km/hr. He did so having regard to traffic counts undertaken in 2017, which reveal an 85th percentile speed for the road in the order of 94 km/hr. As a factor of safety, Mr Douglas rounded the survey speed up to 100 km/hr. Mr Trevilyan, adopted the 85th percentile speed of 94 km/hr as the design speed. He did not round the survey speed up to include a factor of safety.
Mr Trevilyan’s assumption as to the adopted design speed changed during the hearing. In an addendum statement, he adopted a design speed of 81 km/hr. This speed was derived from a survey carried out by a consultant at Mr Trevilyan’s direction. The survey was conducted after the exchange of expert reports. It was not the subject of any discussion with Mr Douglas prior to the preparation of the addendum statement. The consultant who carried out the survey was not called to give evidence to prove the methodology adopted or the results.
Mr Douglas did not accept the additional survey data was sufficient to adopt a design speed of 81 km/hr. In his oral evidence, he pointed out: (1) the identified location of the radar gun measuring traffic speed for the survey was inappropriate because it would likely return a favourable result, i.e. a reduced design speed; (2) the size of the ‘statistical sample’ obtained for the survey was insufficient; (3) whilst accepting the survey was undertaken by a reputable firm, he was hesitant to accept its accuracy in the absence of more detail regarding the survey methodology; and (4) one week of ‘tube counts’ was the appropriate statistical sample required to vary the assumption made about the design speed given the clear disparity between the survey considered in the joint report (which yielded a design speed of 94 km/hr) and the survey undertaken at Mr Trevilyan’s direction.
I accept Mr Douglas’ criticisms of the additional survey material are valid. The criticisms undermine its use in determining a safe sight distance for the access to the land. As a consequence, I give the additional traffic speed survey no weight. I would also add that I am not persuaded the survey should be given weight because of: (1) its late delivery in the hearing; and (2) the absence of an explanation as to why the survey was carried out after the completion of the joint report and further statements of evidence.
Given the posted speed limit for Beerburrum-Woodford Road, and given the nature (including laden b-double trucks) and number of traffic movements proposed in and out of the site access, I am persuaded that a conservative view should be adopted for the design speed assumed to assess the safe sight distance. This is the approach adopted by Mr Douglas.
As part of his analysis, Mr Trevilyan referred to available crash data to examine the safety of the access to the land. I accept data of this kind is relevant and, as Mr Trevilyan did, can be called in aid to inform an assessment of the safe sight distance. Here, that data revealed there was no relevant crash history. Mr Trevilyan said this was an indicator suggesting the existing sight distance to the east of the access was sufficient, and safe.
This can be accepted, but only to a point.
The existing access is used by forestry vehicles to travel to pine plantations. Whilst the vehicles utilising the access include heavy vehicles, the nature and number of vehicles doing so is not comparable to the proposed development. Indeed, it was not suggested the forestry activity on the land, and associated vehicle numbers utilising the access will approach one heavy vehicle every three minutes (entering or leaving the site). This difference in utilisation was a point made by Mr Douglas. In his view, the difference is a material one and impacts on the utility of the crash data for examining the safety of the sight distance to the east. I accept his evidence. The crash data does not permit a like-for-like comparison. As a consequence, the crash data does not, in and of itself, establish that a sight distance of about 150 metres will be acceptable, and safe, assuming the proposed development is approved.
The final assumption informing the sight distance analysis related to the allowance, if any, that is made for a flashing sign installed to warn drivers of the presence of heavy vehicles entering and leaving the road. I can accept without hesitation that the recommendation to install the sign is an appropriate one and should be taken into account in the assessment of the safe sight distance.
With knowledge of the flashing sign, Mr Douglas reduced the assumed reaction time for drivers travelling along Beerburrum-Woodford Road from 2.5 to 2 seconds. Mr Trevilyan did the same. That is how the sign is accommodated in the assessment. It is, however, another matter to suggest that the existence of the sign supports Mr Trevilyan’s view that a safe sight distance is in the order of 150 metres. In isolation, I do not accept the sign establishes such a view is correct. The sign is but one of a number of factors to be taken into account in the assessment.
For the reasons given in paragraphs [71] to [98], I accept that the approach to be adopted in relation to the assessment of a safe sight distance for the proposed access is that consistent with Mr Douglas’ evidence. His assessment requires a sight distance of 248 metres to be achieved to the east. This distance cannot be achieved absent considerable earthworks and the clearing of vegetation along the edge of the road reserve.
The position I have reached in relation to the design of the access, and safe sight distance leads me to accept the following submission made by Council. It submits the following reason warrants refusal of Barro’s application in its own right:[91]
“Barro has not demonstrated that the traffic engineering impacts of the proposed development would be acceptable.”
[91]Ex. 15.02, para 77.
Should the application be refused for this reason alone?
This question, in my view, is resolved in the affirmative. The design of the access and provision of a safe sight distance go to matters of public safety. The significance of which comes into sharp focus once it is appreciated that: (1) the posted speed limit for Beerburrum-Woodford road is 100 km/hr; and (2) the nature of traffic generated by the proposal will involve a significant increase in heavy vehicular traffic on that road. Impacts on public safety are important town planning considerations. That the impacts have not been satisfactorily resolved calls for refusal of the application in its own right.
That the development application should be refused for traffic safety reasons is supported by the Transport and parking code, which forms part of the planning scheme and applies to the proposed development. Two particular provisions of the code are relevant, namely:[92]
“(2) The purpose of the Transport and parking code will be achieved through the following overall outcomes:-
…
(c)transport infrastructure is designed and constructed to acceptable standards and operates in a safe and efficient manner that meets community expectations, prevents unacceptable off-site impacts and reduces the whole of life cycle costs, including reduced ongoing maintenance costs; (emphasis added)
And:
[92]s 9.4.8.2(2) and s 9.4.8.3, Table 9.4.8.3.1.
Site Access
PO2
Development ensures that the layout, design and construction of access:-
(a) is safe, convenient and legible for all users, including people with disabilities, pedestrians, cyclists and public transport services, where relevant;
(b) does not interfere with the planned function, safety, capacity and operation of the transport network;
(c) minimises the impact of turning traffic from the development on external traffic systems;
(d) provides sufficient sight distances to ensure safe operation;…
AO2.1
AO2.2
The location and design of any new site access is in accordance with the standards specified in the Planning scheme policy for the transport and parking code.
For assessable development, the number of site access driveways is minimised (usually one), with access to the lowest order transport corridor to which the site has frontage, consistent with amenity impact constraints.
Council contends it has not been demonstrated that three impacts of the proposed development will be avoided, or managed/mitigated in the manner anticipated by the planning scheme. The impacts relate to: (1) site access; (2) amenity and character impacts from the haul route; and (3) ecological impacts.
For the reasons given above, Barro has failed to establish that the site access will be safe and appropriate for the proposed development. An issue of this kind, involving public safety considerations, is one that calls for refusal of the application in its own right.
A refusal also follows from my findings with respect to the amenity and character impacts from the proposed haul route and ecological impacts. In simple terms, this is because I am not satisfied the public interest in winning the proven resource should prevail in the face of: (1) the adverse amenity, character and ecological impacts identified; and (2) non-compliance with the planning scheme that follows by reason of these impacts.
In saying this, I am conscious that in some circumstances, impacts on a few are often seen as acceptable when the greater community good involves access to a proven hard rock resource that: (1) is well located; and (2) can be extracted viably and feasibly. This is however not such a case. The significance of the impacts, taken in combination, outweigh the substantial public benefit associated with the winning of the proven resource.
Barro identified a number of matters said to warrant approval of the development application. They are set out at paragraphs [333] – [341] of its written submissions. In summary terms, the matters are as follows:
(a)the site is very well located for a quarry given its location within a large state forest surrounded by intervening pine forest screening, and direct access to higher order roads;
(b)the site has been used for a hard rock and sandstone extraction activity for many years, and the proposed development seeks to restart, and increase, the intensity of the use;
(c)the proposal will provide economic benefits to the locality and the region, particularly where the planning scheme seeks economic benefits to be derived from local sources such as here;
(d)the ecological values present on the land are at the lower end of the scale of ecological significance in the planning scheme;
(e)the State’s assessment of an approval of the proposed development is relevant – it considers the impacts on ecology associated with the proposed development are appropriate and a net conservation benefit could be achieved; and
(f)the development is consistent with the purpose of the Act in that it promotes the sustainable use of a non-renewable resource, encourages investment, economic resilience and economic diversity, seeks the supply of infrastructure in a co-ordinated, efficient and orderly way, and contemplates avoiding, if practicable, or otherwise minimising, adverse environmental effects of development.
I accept each of the above matters are made out, save for sub-paragraphs (e) and (f). The matters I accept, support approval.
I accept sub-paragraphs (e) and (f) are relevant to the exercise of the discretion. The difficulty arises by reason that each contention assumes it has been established that ecological impacts of the development are acceptable, or the net ecological benefit sought by the planning scheme can be conditioned and deferred for later assessment. For the reasons given above, I do not accept this has been established.
On balance, the matters relied upon by Barro in support of approval fall well short of persuading me that an approval should follow in circumstances where a traffic safety issue is unresolved, and known impacts of the use will not be avoided, or managed/mitigated in the manner anticipated by the planning scheme. Put simply, an approval does not withstand scrutiny against the planning scheme.
Barro has not discharged the onus.
The appeal will be dismissed.
Council’s decision to refuse the development application will be confirmed.
Disposition of the appeal
It is adjudged that:
1.The appeal is dismissed.
2.The respondent’s decision to refuse the appellant’s development application, communicated by way of decision notice dated 4 April 2019, is confirmed.
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