Built Developments Pty Ltd v Randwick City Council

[2021] NSWLEC 1234

Land and Environment Court

New South Wales

Medium Neutral Citation:

Built Developments Pty Ltd v Randwick City Council [2021] NSWLEC 1234

Hearing dates:

8 and 9 February 2021

Date of orders:

6 May 2021

Decision date:

06 May 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court directs:

(1)   The Parties are to prepare final agreed conditions of consent, including a settled version of proposed condition 110 reflecting the findings in this judgment, which are to be filed with the Court by no later than Friday 14 May 2021;

(2)   The matter is listed for mention on Tuesday 18 May 2021 at 4:15pm, by Teams;

(3)   If Parties comply the Direction above at [(1)], then the listing on Tuesday 18 May 2021 will be vacated and final orders will be made to dispose of the appeal;

(4)   The Parties are granted liberty to restore on 3 days’ notice.

Catchwords:

DEVELOPMENT APPLICATION – proposed warehouse – size and frequency of vehicles to attend warehouse facility – consideration of AS2890.2 concerning off street commercial vehicle facilities – application of EP&A Act s 4.15(3A)

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15(3A), 4.16, 8.7(1)

Environmental Planning and Assessment Regulation 2000, cl 77

Land and Environment Court Act 1979, ss 34, 39

Randwick Local Environmental Plan 2012, cll 2.1, 2.2, 2.3, 4.3, 4.4, 6.3, 6.4, 6.10

Roads Act 1993, s 138

State Environmental Planning Policy No 55—Remediation of Land, cl 7(1)

Texts Cited:

SAI Global, 2018, Australian Standard 2890.2:2018 Off-street commercial vehicle facilities

Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy, 10 December 2020

Randwick Comprehensive Development Control Plan 2013

Roads and Traffic Authority, Guide to Traffic Generating Developments, October 2002

Category:

Principal judgment

Parties:

Built Developments Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
A Gallasso (Applicant)
M Staunton (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/349152

Publication restriction:

No

Judgment

1. COMMISSIONER: Built Developments Pty Ltd (the Applicant) has appealed the deemed refusal by the Randwick City Council (the Respondent) of its development application DA/283/2019, made with owners consent, and seeking consent for the consolidation of the two lots into one lot, demolition of all existing structures, excavation, and construction of a part 2/part 3 level building including basement car parking, warehousing and ancillary office space, with associated works (the Proposed Development) at 84 to 86 Perry Street, Matraville (the Subject Site).

2. The development application had been notified consistent with the provisions of Randwick Comprehensive Development Control Plan 2013 and cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation).

3. The Applicant confirmed at the hearing that it had not secured a tenant nor other end user entity for the Proposed Development.

4. The Subject Site is currently comprised of two lots, identified as Lot 2 (86 Perry St) and Lot 3 (84 Perry Street) in DP 332544. If consolidated, the Subject Site would have a frontage to Perry Street of 24.38m and an area of 428.2m².

5. Vehicular access to both lots is currently gained via existing driveways on the respective lots off Perry Street.

6. The Subject Site is zoned IN2 Light Industrial under the provisions of cl 2.3 of Randwick Local Environmental Plan 2012 (RLEP) and the Proposed Development is permissible within that IN2 zone. It is located opposite land on the opposite side of Perry Street that is zoned R2 Low Density Residential.

7. The appeal comes to the Court pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and is determined pursuant to the provisions of s 4.16 of that Act.

8. The hearing was undertaken consistent with the Court’s COVID-19 Pandemic Arrangements Policy. An inspection of the Subject Site was undertaken prior to the hearing being convened on the Microsoft Teams platform.

9. Three objectors provided oral submissions and two objectors provided written submissions, in relation to the appeal, and they expressed concerns in relation to:

1. the size of vehicles proposed by the Applicant to access the Subject Site;

2. the need to reverse vehicles of a certain size into the Subject Site and the potential impacts of that vehicle manoeuvring on traffic flows in Perry Street;

3. the noise generated by vehicles manoeuvring into the Subject Site.

10. At the commencement of the hearing proper, the Parties confirmed that the following matters that had been in contention between them were resolved:

1. contamination of the Subject Site, and in particular the provisions of State Environmental Planning Policy No 55 – Remediation of Land, in relation to which the Respondent said that the Applicant had satisfied the provisions of cl 7(1), and it accepted that the Subject Site was suitable, or would be made suitable, for its intended use as a light industrial facility;

2. the height of buildings within the Proposed Development in relation to which the Respondent said that it was now satisfied that the Proposed Development complied with the provisions of cl 4.3 of RLEP;

3. the floor space ratio of the Proposed Development in relation to which the Respondent said that it was now satisfied that the Proposed Development complied with the provisions of cl 4.4 of RLEP;

4. the mitigation of potential flooding impacts in relation to the Proposed Development which the Respondent had now been addressed through the design of the proposed warehouse which it was now satisfied would be constructed above the 1% Annual Exceedance Probability (AEP) flood level plus 0.5m, and in doing so satisfied the provisions of cl 6.3 of RLEP;

5. the management and mitigation of stormwater flows, in relation to which the Respondent said it was satisfied that the Proposed Development complied with the provisions of cl 6.4 of RLEP;

6. the provision of essential services as required under the provisions of cl  6.10 of RLEP, which the Respondent said had been satisfied except in relation to the provisions of cl 6.10(e) concerning suitable vehicle access to and from the Subject Site which is the focus of the remaining principal contention in this appeal.

11. The Parties also advised that certain matters that had been in contention between them had been resolved on the basis of joint conferencing by, and the recommendations of, the Parties’ various experts, and which, as a consequence, the Parties agreed those experts would not be required for cross examination in the hearing. Those matters concerned:

1. the grade of the access driveway into the Subject Site, which the Parties agreed was capable of resolution by condition, and which the Respondent said would not be a reason for refusal of the Applicant’s development application; and

2. contentions concerning acoustics and planning (other than in relation to traffic) which the Parties agreed had been resolved by their respective experts either via recommended amendments to the Applicant’s plans which had been adopted by the Applicant, or via proposed conditions of consent which the Applicant had agreed ought to be imposed with any grant of consent to its Proposed Development.

12. As a consequence of the advice of the Parties, the remaining contention requiring resolution in this appeal concerns the classes of vehicles that should be permitted to attend the Subject Site on either an occasional or regular basis.

Statutory context

Environmental Planning and Assessment Act 1979

13. Section 4.15(3A) of the EP&A Act provides as follows:

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

Randwick Local Environmental Plan 2012

14. Development on the Subject Site is subject to the provisions of RLEP. The following provisions of RLEP are of particular relevance in this appeal:

1. Clause 2.1, which establishes land use zones within the area to which the plan applies as provided in cl 2.2 of RLEP.

2. The Subject Site is zoned IN2 Light Industrial, and the use of the land for a warehouse or distribution centre as proposed by the Applicant is permissible. Under the provisions of cl 2.3 of RLEP, the objectives of this IN2 zone are:

To provide a wide range of light industrial, warehouse and related land uses.

To encourage employment opportunities and to support the viability of centres.

To minimise any adverse effect of industry on other land uses.

To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.

To support and protect industrial land for industrial uses.

3. Clauses 4.3 and 4.4 of RLEP which concern the height of buildings and floor space ratio development standards, respectively, applicable to the Subject Site, and in relation to which the Parties advise, and I accept, that the Proposed Development is compliant;

4. Clause 6.3 concerning flood planning, and in relation to which the Parties advise, and I accept, that the Proposed Development has satisfied all provisions;

5. Clause 6.4 concerning stormwater management in relation to which the Parties advise, and I accept, that the Proposed Development has satisfied all provisions;

6. Clause 6.10 of RLEP concerns essential services, and provides as follows:

6.10 Essential services

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required -

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

1. The Parties advise that the Proposed Development is compliant with all provisions of cl 6.10 other than in relation to subcl 6.10(e).

Randwick Comprehensive Development Control Plan 2013

15. The Proposed Development is subject to the provisions of Randwick Comprehensive Development Control Plan 2013 (RDCP), and the following provisions of RDCP are of relevance to this appeal:

1. Part B7 concerning transport, traffic, parking and access. Section 3.9 of Part B7 provides guidance and controls for development in relation to service and delivery vehicles and requires under its control (ii) that service vehicle dimensions, layout and service/loading bays must comply with Australian Standard AS2890.2 in relation to off-street commercial vehicle facilities. It also provides within its Table 2 guidance on the number of service bays required for various types of development, including industrial warehouses.

2. Part D15 of RDCP provides guidance and controls for applications for new development, redevelopment, alterations, additions and changes of use in IN2 Light Industrial zoned land under Randwick LEP, including within the Perry Street precinct, in relation to which:

1. it states:

“This precinct is characterised by small and single lot industrial uses that mostly cater for localised industries, such as vehicle repairs. The future desired character for the precinct is to maintain a range of small and medium size lots (including strata buildings) to continue to cater for smaller industrial operations. Managing the residential interface is also important.”

2. it includes the following objectives in section 1.2 of Part D15 that are of relevance in this appeal:

“To facilitate industrial development that produces a range of goods and services and employment opportunities, without adversely affecting the amenity, health or safety of the nearby residential areas.

To ensure that new industrial development does not increase the cumulative risk of industrial hazards or its impact on surrounding properties.”

3. it also includes in section 5 of Part D15 specific objectives and controls in relation to parking and access, including the following that are of relevance in this appeal:

“Objectives

To ensure the safe and efficient movement in and out of an industrial development…

To ensure the provision of adequate separate loading/unloading areas.

Controls

All vehicles should enter and leave the site in a forward direction.

Vehicle movements within servicing areas should be designed to minimise reversing requirements or otherwise demonstrate design measures to maximise safety and minimise need for vehicle alarms/beepers.

The separation of service areas (loading/unloading) and parking areas is required. Service areas are to be located and designed to ensure safe and convenient usage

All loading and unloading operations are to take place wholly within the confines of the site at all times.”

4. Section 5 of Part D15 notes that loading facilities must comply with the current RTA “Guide to Traffic Generating Developments” and AS 2890.2, which is the Australian Standard Parking Facilities Part 2: Off-street commercial vehicle facilities (see below at [16]).

Australian Standard Parking Facilities Part 2: Off-street commercial vehicle facilities (AS2890.2)

16. As noted above (at [15(2)(d)]), Part D15 of RDCP requires that loading facilities must comply with AS 2890.2 which is entitled “Part 2 of the Australian Standard for Parking Facilities”.

17. The current version of AS2890.2 was published on 21 December 2018, and it:

1. provides guidance in relation to off-street parking facilities of commercial vehicles, and within its preface it notes that one of the major changes made to the document in relation to the previous edition is that AV class length had been extended to 20m to allow for National Heavy Vehicle Regulator (NHVR) performance based standards (PBS) level 1 vehicles;

2. notes that its objective is to provide designers of commercial vehicle docking facilities and off-street manoeuvring areas with a set of uniform standards and recommended design practices;

3. includes the following definitions of relevance in this appeal:

1. a ‘major road’ is defined as a road carrying predominantly through traffic, generally either a two-way roadway of generally more than 12m between kerbs, or a divided road. It was common ground in this appeal that Perry Street is a major road.

2. ‘occasional service’ is defined as service by a nominated vehicle less than once per day;

3. ‘regular service’ is defined as service by a nominated vehicle at least once per day;

4. identifies the following vehicle design classes:

1. small rigid vehicles (SRVs) with an overall length of 6.4m;

2. medium rigid vehicles (MRVs) with an overall length of 8.8m;

3. heavy rigid vehicles (HRVs) with an overall length of 12.5m; and

4. articulated vehicles (AVs) with an overall length of 20m.

18. Section 3 of AS2890.2 provides guidance in relation to the design of access driveways and circulation roadways, and provides the following guidance in relation to general design principles, and design principles concerning occasional and regular service by nominated vehicles using access driveways and circulation roadways, as follows:

1. in relation to general design principles, the standard provides that:

“The design of the access to a service area shall be dependent on a combination of –

a) the maximum size of vehicle likely to use the facility;

b) the frequency with which vehicles of different classification use the facility; and

c) whether the public road from which the facility is accessed is a major or minor road

Facilities shall be designed using one or more of the design vehicles specified in clause 2 which most nearly conform to the vehicles actually using the site and shall include provision for specialist vehicles where required”.

2. in relation to occasional service, the standard provides that:

“Requirements for providing occasional service shall be as follows:

a) the vehicle shall stand wholly within the site;

b) reverse manoeuvres at the property boundary, if permitted by the relevant authority, shall be limited to one only, either on entering or departing, and be subject to determination of both safety and obstruction to other on-street traffic;

c) the swept path plus clearances shall be accommodated within the access driveway or circulation roadway”.

3. in relation to regular service to a site on a major road the standard provides that:

“Requirements for providing regular service from a major road shall be as follows:

a) a service area unobstructed by other vehicles or on-site activities shall be provided;

b) all manoeuvring associated with parking, loading and unloading shall be able to be confined to the service area;

c) both entry and exit at the property boundary shall be in the forward direction;

d) circulation roadways shall be provided to connect the access driveway with the service area”.

Contentions

19. The remaining contentions in this appeal have been identified above (at [12]), and require the Court to determine the class of vehicles that should be permitted to attend the Subject Site in relation to its proposed use as a warehouse or distribution centre. The Applicant has proposed that access to the Subject Site by SRVs, MRVs, HRVs and AVs, should be approved subject to conditions as part of any grant of consent to its Proposed Development.

20. The Respondent submitted that it did not oppose the grant of consent to the Applicant’s development application provided that any consent was conditioned so as to restrict vehicles attending the site to SRVs. The Respondent noted that it was the agreed evidence of traffic experts that the SRV was the only class of commercial vehicle that could:

1. enter and exit the Subject Site in a forward direction; and

2. manoeuvre safely on the Subject Site.

21. The Applicant did not accept the Respondent’s position that access to the Subject Site should be limited to SRVs, and submitted that:

1. confirmation of vehicle classes that could attend the Subject Site would be a matter for Court;

2. it was not willing to state any particular outcome that would be acceptable in relation to the future operations of its proposed warehouse or distribution centre;

3. it would be content with the decision of the Court; and

4. it would not view any restrictions imposed by the Court in relation to vehicle access to the Subject Site as representing a constructive dismissal of its development application.

22. Based on the submissions of the Parties and their common position that SRVs should be approved to attend the Subject Site on a regular basis as defined under AS2890.2, the principal questions for resolution in this appeal are:

1. should MRV’s be permitted to attend the Subject Site, and on what basis?

2. should HRV’s be permitted to attend the Subject Site, and on what basis?

3. should AV’s be permitted to attend the Subject Site, and on what basis?

23. The Court was assisted in its consideration of these questions by the evidence of the Parties’ expert traffic engineers, Mr Michael Logan, for the Applicant, and Mr Craig McLaren, for the Respondent.

Should MRV’s be permitted to attend the Subject Site, and on what basis?

24. AS2890.2 requires, under the provisions of section 3.2.3.1(c) (see above at [18(3)]), that the provision of regular service by all delivery vehicles, including MRVs, accessing the site from a major road, such as Perry Street, shall require that “both entry and exit at the property boundary shall be in the forward direction”.

24. This requirement is mirrored within Part D15 of RDCP, which, as noted above at [15(2)(c)], provides specific objectives and controls in relation to parking and access, including control (i) that requires all vehicles should enter and leave the site in a forward direction.

25. The expert traffic engineers provided the following evidence that was of relevance on this question:

1. Mr Logan, for the Applicant, said that, in his opinion, MRV attendance to the Subject Site on a regular service basis should be approved because:

1. although not supported through any provision of swept path analyses, a MRV could enter and exit the Subject Site in a forward direction;

2. a MRV could, if required, reverse from Perry Street into the Subject Site in approximately 25 seconds which he said was reasonable and would not disrupt the efficient movement of traffic on Perry Street;

3. no roadway works were required to facilitate the entry of a MRV (or HRV) into the Subject Site;

4. based on his review of data published by the NSW Roads and Maritime Services (RMS) in relation to traffic generating activities and trip generation surveys, he had concluded that:

1. published survey data from the Riverwood Business Park was the data of most relevance to the Proposed Development;

2. the likely average attendance by rigid vehicles to the Subject Site if the Proposed Development were approved would be two vehicles per day and these could be either SRVs or MRVs.

2. Mr Logan agreed with a proposition put to him by the Respondent that the average two rigid vehicles per day that he estimated might attend the Subject Site could be any combination of SRVs, MRVs or HRVs.

3. Mr McLaren, the Respondent’s expert traffic engineer, said that, in his opinion:

1. notwithstanding the evidence of Mr Logan, he could not be satisfied that MRV’s could enter and exit the Subject Site in a forward direction as no swept paths had been prepared by the Applicant or its expert to confirm that such a movement was possible, and that such a manoeuvre would not cause unreasonable obstruction to the movement of traffic along Perry Street;

2. it was difficult to deconstruct the data that Mr Logan had relied upon from NSW RMS studies in order to reliably apply it to the Proposed Development and predict the average number and class of vehicles that would attend the Subject Site;

3. Mr Logan’s estimated reversing time for a MRV into the Subject Site of 25 seconds was reasonable on the basis that this would be undertaken at a speed of 5km/hour;

4. he did not dispute that it would be possible for a MRV (or HRV) to reverse into the Subject Site, and for any such vehicle to be parked wholly within the Subject Site for loading or unloading;

5. while a reversing MRV (or HRV) would have, compared to a reversing AV, superior sight lines to spot pedestrians or bike riders on the footpath outside the Subject Site, a driver’s sight lines while reversing would still be restricted by a blind spot arising from the canopy of the vehicle;

6. in order to address his observation above (at [(e)]), the reversing of a MRV (or HRV) into the Subject Site should be supported by a Traffic Control Plan (TCP), and this should be the subject of a condition of consent should the Court approve the Proposed Development.

27. I have considered the evidence of the experts and the submissions of the Parties in relation to the attendance of MRVs to the Subject Site, including the frequency of that attendance.

28. Turning first to the matter of frequency of attendance, I am not satisfied that the approval should be granted to attendance of MRVs to the Subject Site on a regular basis, as defined under AS2890.2. I base this conclusion on the following:

1. the provisions of AS2890.2 are clear that for a major road, both entry to and exit from the Subject Site should be in a forward direction, and notwithstanding the oral evidence of Mr Logan, I do not have swept path evidence before me that this forward in/out manoeuvre is achievable;

2. notwithstanding evidence of Mr Logan as to the likelihood of rigid vehicles attending the Subject Site, I am not satisfied that:

1. Mr Logan’s evidence in relation to the likely frequency of vehicle attendance to the Subject Site can be applied to the circumstances of the Subject Site, consistent with the evidence of Mr McLaren, which I accept;

2. an average of two rigid vehicles per day does not facilitate a full consideration of the potential impacts of approving attendance to the Subject Site by MRVs, in relation to both traffic disruption and safety considerations, as that predicted average attendance could be achieved through a wide range of daily attendance scenarios across any multi-day period;

3. based on my conclusion above [at [(2)]), I cannot be satisfied that:

1. the safety of pedestrians or bike riders using the footpath past the Subject Site could be assured should MRV attendance be approved on a regular basis; and

2. the efficient flow of traffic on Perry Street would not be interrupted on an unreasonable basis should MRV attendance be approved on a regular basis.

29. Further, as a consequence of my conclusion above (at [28(3)]), I cannot be satisfied that attendance of MRVs to the Subject Site on a regular basis would achieve the objectives of control (i) in section 5 of Part D15 of RDCP (see above at [15(2)(c)]) and the Applicant’s proposed attendance of MRVs to the Subject Site on a regular basis is not a reasonable alternative solution that would merit the application of flexibility as provided within s 4.15(3A)(b) of the EP&A Act.

30. Notwithstanding this, I do accept that MRV attendance to the Subject Site on an occasional basis, as defined under AS2890.2, and subject to certain conditions, would be acceptable because:

1. although the provisions of AS2890.2 are clear that for a regular service on a major road forward entry and exit of a vehicle are required, the standard does envisage the possibility of reversing manoeuvres by vehicles, including MRVs (or HRVs) in relation to occasional service, subject to “determination’” of matters relating to safety and obstruction to other vehicles;

2. although the provisions of section 5 of Part D15 include a control (control (i)) requiring that all vehicles should enter and leave a site in a forward direction, the provisions of s 4.15(3A) of the EP&A Act require a consent authority, or the Court on appeal, is to be flexible in the application of such a control and allow reasonable alternative solutions that achieve the objects of those controls, and I must assess the Applicant’s proposal in this context;

3. the relevant objects of the control in section 5 of Part D15 are those provided above (at [15(2)(c)]) and concern matters related to the safe and efficient movement into and out of the Subject Site. This is a similar consideration to that identified above (at [(1)]) in relation to the circumstances envisaged within AS2890.2 for reversing of vehicles into a site on an occasional basis;

4. while I have already concluded that attendance to the Subject Site of MRVs on a regular basis, as sought by the Applicant, would not, in my assessment, achieve the objectives of control (i) in section 5 of Part D15 of RDCP, the Applicant also indicated above that it would accept any decision made by the Court in relation to the attendance of vehicles to the Subject Site in relation to its Proposed Development;

5. I am satisfied that the safety of pedestrians and other vehicles, as well as the efficiency of traffic movement on Perry Street, would be addressed adequately in circumstances where MRV attendance was on an occasional basis of less than once per day, because:

1. consistent with the agreed evidence of the expert traffic engineers, a MRV is likely to complete this reversing manoeuvre in less than 30 seconds which, if approved on an occasional basis, would create, in my assessment, minimal impact to the efficient movement of traffic on Perry Street;

2. I assess that the risks to public safety from such a reversing manoeuvre arising from a MRV attending the Subject Site on an occasional basis capped at less than one vehicle per day, would be low;

3. as suggested by Mr McLaren in his oral evidence at the hearing, I agree that any residual risk to public safety or disruption to traffic flow on Perry Street that may exist in relation to a MRV reversing into the Subject Site could be mitigated through the imposition of a condition requiring preparation and implementation of a TCP for MRVs of the sort proposed by the Applicant in relation to its proposed attendance to the Subject Site by AVs. I note that Mr McLaren observed that such a TCP might equally be implemented to mitigate any residual safety risks or traffic disruption associated with the potential attendance of HRVs to the Subject Site;

4. I note that the Applicant has also proposed a condition of consent that would require any MRV (or HRV) attending the Subject Site on a regular basis to be parked wholly within the building proposed as part of the Proposed Development, and I am satisfied that such a condition would also be appropriate for imposition in relation to attendance by MRVs (or HRVs) on an occasional basis;

5. the imposition of a condition such as envisaged above (at [(d)]) would also achieve, to my satisfaction, the second objective of relevance in relation to control (i) of section 5 in Part D15 of RDCP, that being the need to provide adequate separate loading/unloading areas on the Subject Site;

6. I am also satisfied that the imposition of conditions requiring the preparation of a TCP in relation to the occasional attendance of MRVs to the Subject Site and the parking of MRVs wholly within the building proposed on the Subject Site are consistent with the Applicant’s submissions in closing at the hearing that:

1. it would be content with the decision of the Court; and

2. it would not view any restrictions imposed by the Court in relation to vehicle access to the Subject Site as representing a constructive dismissal of its development application.

31. On the basis of my findings above (at [30]) I conclude that MRV attendance to the Subject Site on an occasional basis, and in the circumstances I have identified above, is a reasonable alternative solution that achieves the objective of control (i) of section 5 in Part D15 of RDCP, and that a consent to the Applicant’s Proposed Development should be subject to the conditions identified above at [30(5)(c)] and [30(5)(d)] .

Should HRV’s be permitted to attend the Subject Site, and on what frequency

32. On the basis of the evidence of the expert traffic engineers, including various of the points identified above (at [26(3)]), together with my conclusions in relation to MRV attendance to the Subject Site (see above at [31]), I am satisfied that, notwithstanding the additional 3.7m length of HRVs compared to MRVs, the constraints and potential impacts of attendance by HRV to the Subject Site are almost identical to those of a MRV.

33. I note that it was the evidence of Mr Logan that a HRV would require 35 seconds to reverse from Perry Street into the Subject Site, but accept the marginal extra time required by a HRV attending the Subject Site on an occasional basis would not give rise to any significantly greater impact to the efficiency of traffic movement on Perry Street than would arise in relation to a MRV, and no greater safety risks.

34. I am satisfied that if it is acceptable to approve attendance of MRVs to the Subject Site on an occasional basis, then it would be reasonable to conclude that the attendance of HRVs on the same basis should be approved for the same reasons.

35. Consequently, for reasons provided above at [32] to [34], I conclude that the attendance of HRVs to the Subject Site on an occasional basis, and subject to the same conditions as those provided in relation to a MRV, should be approved.

36. I note again, that it was the evidence of the Respondent’s expert traffic engineer, Mr McLaren, that preparation and implementation of a single TCP would suffice in relation to attendance by HRVs and MRVs to the Subject Site, and I embrace this proposal and its implementation through imposition of a condition of consent.

Should AV’s be permitted to attend the Subject Site, and on what frequency?

37. The Applicant, supported by the evidence of its expert, Mr Logan, said that, while it agreed that access to the Subject Site was not possible for AVs of 20m in length, the Court should approve access to the site of AVs of up to 16.9m in length, on an occasional basis, which would constitute one vehicle per 2 to 3 days per week. The Applicant said that such AVs could access the Subject Site in circumstances where:

1. an AV of 16.9m length might be considered a specialist vehicle for the purposes of section 3.2.1 of AS2890.2;

2. the AVs reversed into the access driveway to facilitate exit in a forward direction;

3. the Court, relying on its powers under s 39(2) of the Land and Environment Court Act 1979 , and under the provisions of s 138 of the Roads Act1993, should approve works to modify the median strip on Perry Street to facilitate the required reversing manoeuvre of a 16.9m long AV; and

4. successful reversing of an AV of up to 16.9m in length, subject to modification of the Perry Street median strip, had been confirmed through the provision of video evidence obtained by Mr Logan;

5. the attendance of AVs of a length up to 16.9m could be managed effectively and safely through implementation of the Applicant’s proposed TCP.

38. The Respondent submitted, supported by the evidence of its expert traffic engineer, Mr McLaren, that:

1. the Applicant’s interpretation of the term specialist vehicle in section 3.2.1 of AS2890.2 was in error and, as suggested through its application to a waste service vehicle in section 4.1 of AS2890.2, the term referred to vehicles other than AVs;

2. under AS2890.2, the standard length of AV for assessment of the Proposed Development, including their attendance at the Subject Site, was 20m;

3. any proposed facility on the Subject Site that sought approval for attendance of AVs should be designed to accommodate AVs of 20m length as per Australian Standard;

4. a 20m AV could not access the Subject Site, which was acknowledged by both experts;

5. section 3.2.1 of AS2980.2 requires that facilities shall be designed using one or more of the design vehicles specified in section 2 of the standard which most nearly conforms to the vehicles actually using the site and shall include provision for specialist vehicles where required;

6. the only AV class vehicle identified in the standard as the basis for designing access to a site such as that proposed by the Applicant is of 20m length;

7. as the AV proposed by the Applicant for attendance to the Proposed Development is a 16.9m V, it does not conform to the requirements of the Australian Standard; and

8. on the basis of the above submissions, the Court should not approve attendance at the Subject Site by any AV.

39. Having considered the submissions of the Parties and the evidence of their experts in relation to the attendance of AVs to the Subject Site, I have concluded that:

1. I agree with the Respondent’s interpretation of the term specialist vehicle in section 3.2.1 of AS2890.2, and that the term does not, in the circumstances of the standard, apply to AVs;

2. the Applicant’s proposals in relation to the attendance to the Subject Site of AVs, on either a regular or occasional basis, should not be approved, for the reasons provided by the Respondent’s expert, Mr McLaren (see above at [38]) with which I agree, and which I adopt.

40. Further, I have considered:

1. the Applicant’s alternative solution that consent be granted to the attendance to site of AVs of 16.9m length and that it should undertake works in the median strip in Perry Street to facilitate safe reversing of a 16.9m length AV into the Subject Site, and

2. the evidence from Mr Logan concerning the greater time (two minutes) required to reverse an AV into the Subject Site from Perry Street; and

3. the evidence of Mr McLaren that the sight lines available to a driver of a reversing AV would be more restricted than those available to drivers of MRVs and HRVs.

41. Based on the considerations above (at [40]), I have concluded that I cannot be satisfied that the Applicant’s alternative solution:

1. avoids giving rise to significant disruption to the efficient functioning of Perry Street including significant delays to traffic flows on a major road;

2. is safe in the circumstances of the Subject Site, and also given its proximity to an adjacent R2 Low Residential zone;

3. achieves the objectives of control (i) of section 5 of Part D15 of RDCP, and in particular its first objective of ensuring the safe and efficient movement in and out of an industrial development;

4. merits the application of flexibility under the provisions of s 4.15(3A) of the EP&A Act.

Conclusions

42. As a consequence of my consideration above of the experts’ evidence, and the submissions of the Parties, I have concluded that:

1. the Applicant’s development application should be determined by the grant of consent, subject to conditions to provide for:

1. attendance to the Subject Site by SRVs on a regular basis, as agreed to by the Respondent in the proceedings;

2. attendance to the Subject Site by MRVs only on an occasional basis, and subject to conditions, consistent with reasons provided above (at [31]);

3. attendance to the Subject Site by HRVs only on an occasional basis and subject to conditions, consistent with reasons provided above (at [36]);

2. the Applicant’s proposals for attendance to the Subject Site by AVs should not be approved on either a regular or occasional basis, for the reasons provided above at [39] and [41].

43. Further, based on my conclusions above at [42], and having had regard to the objectives of the IN2 zoning of the Subject Site, I am satisfied that:

1. the Proposed Development, subject to the imposition of conditions to reflect findings in this judgment, is compliant with all relevant provisions of RLEP, RDCP and AS2890.2;

2. approval of the Proposed Development, subject to conditions, is in the public interest.

44. Following the hearing, the Parties filed agreed draft conditions of development consent for my consideration. These included alternate versions of proposed condition 110 concerning vehicular movements and which reflected the differing submissions of the Parties at the hearing.

45. As is evident from my conclusions above (at [42]) further work is required by the Parties to confirm a final agreed version of proposed condition 110 in relation to Vehicle Movements so conditions can be settled and orders made to dispose of the appeal. As a consequence, I make the following directions.

Directions

46. The Court directs:

1. The Parties are to prepare final agreed conditions of consent, including a settled version of proposed condition 110 reflecting the findings in this judgment, which are to be filed with the Court by no later than Friday 14 May 2021;

2. The matter is listed for mention on Tuesday 18 May 2021 at 4:15pm, by Teams;

3. If Parties comply the Direction above at [(1)], then the listing on Tuesday 18 May 2021 will be vacated and final orders will be made to dispose of the appeal;

4. The Parties are granted liberty to restore on 3 days’ notice.

...…………….

M Chilcott

Commissioner of the Court

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Decision last updated: 06 May 2021