CITY OF BELMONT and TOWN OF VICTORIA PARK
[2014] WASAT 100
CITY OF BELMONT and TOWN OF VICTORIA PARK [2014] WASAT 100
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 100 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:98/2013 | 29 AND 30 APRIL 2014 | |
| Coram: | MR J JORDAN (MEMBER) | 21/08/14 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Condition 2 deleted from the planning approval granted for the depot use | ||
| B | |||
| PDF Version |
| Parties: | CITY OF BELMONT TOWN OF VICTORIA PARK |
Catchwords: | Town planning Development Proposed deletion of condition of approval Site used as works depot for City of Belmont Site wholly within Town of Victoria Park Condition of approval required all commercial vehicles travelling between the depot and Orrong Road to use streets in the industrial zone Commercial vehicles from depot not permitted to pass through residential areas Application to remove restrictions on routes commercial vehicles can take Heavy and slow moving vehicles Impact on residential street Impact of Council vehicles on Orrong Road Orrong Road a primary regional road Licence restrictions on vehicle speed and hours of movement Objectives of precinct policies Safety of vehicles and pedestrians Residential amenity |
Legislation: | Planning and Development Act 2005 (WA), s 252(1) Town of Victoria Park Town Planning Scheme No 1, cl 6, cl 36 Metropolitan Region Scheme |
Case References: | City of Belmont and Town of Victoria Park [2014] WASAT 46 |
Orders | On the application heard on 29 and 30 April 2014 by Member James Jordan, it is on 21 August 2014 ordered that: ,1. The application for review is allowed.,2. Condition 2 is hereby deleted from the planning approval granted for the use of No 180 (Lot 100) Planet Street, Welshpool as a works depot |
Summary | The City of Belmont's works depot is located in Welshpool which is within the Town of Victoria Park. This matter involved an application for review of the refusal by the Town of Victoria Park to delete condition 2 from the planning approval issued for the works depot in 2002. Condition 2 required commercial traffic travelling between the works depot and the City of Belmont to travel on Orrong Road and specific streets within the Welshpool industrial area. ,The Town of Victoria Park said the condition under review was required to stop the commercial traffic using residential streets, which would preserve the safety and amenity of the residential streets and achieve the intent of the relevant precinct plans.,The applicant applied to delete the condition because it considered Orrong Road to now be unsafe for slow moving vehicles. The City of Belmont considered its commercial vehicles should be able to travel on any street chosen by the driver, including streets in the neighbouring residential zone, and that any impact on the residential streets would be minimal and of an acceptable level.,The Tribunal determined that because of changed planning circumstances since the planning approval was first issued for the depot use in 2002, deletion of the condition in dispute would be consistent with orderly and proper planning.,The Tribunal allowed the application and deleted condition 2 from the planning approval. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CITY OF BELMONT and TOWN OF VICTORIA PARK [2014] WASAT 100 MEMBER : MR J JORDAN (MEMBER) HEARD : 29 AND 30 APRIL 2014 DELIVERED : 21 AUGUST 2014 FILE NO/S : DR 98 of 2013 BETWEEN : CITY OF BELMONT
- Applicant
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords:
Town planning Development Proposed deletion of condition of approval Site used as works depot for City of Belmont Site wholly within Town of Victoria Park Condition of approval required all commercial vehicles travelling between the depot and Orrong Road to use streets in the industrial zone - Commercial vehicles from depot not permitted to pass through residential areas Application to remove restrictions on routes commercial vehicles can take Heavy and slow moving vehicles Impact on residential street Impact of Council vehicles on Orrong Road Orrong Road a primary regional road Licence restrictions on vehicle speed and hours of movement - Objectives of precinct policies Safety of vehicles and pedestrians Residential amenity
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Town of Victoria Park Town Planning Scheme No 1, cl 6, cl 36
Metropolitan Region Scheme
Result:
Application for review allowed
Condition 2 deleted from the planning approval granted for the depot use
Summary of Tribunal's decision:
The City of Belmont's works depot is located in Welshpool which is within the Town of Victoria Park. This matter involved an application for review of the refusal by the Town of Victoria Park to delete condition 2 from the planning approval issued for the works depot in 2002. Condition 2 required commercial traffic travelling between the works depot and the City of Belmont to travel on Orrong Road and specific streets within the Welshpool industrial area.
The Town of Victoria Park said the condition under review was required to stop the commercial traffic using residential streets, which would preserve the safety and amenity of the residential streets and achieve the intent of the relevant precinct plans.
The applicant applied to delete the condition because it considered Orrong Road to now be unsafe for slow moving vehicles. The City of Belmont considered its commercial vehicles should be able to travel on any street chosen by the driver, including streets in the neighbouring residential zone, and that any impact on the residential streets would be minimal and of an acceptable level.
The Tribunal determined that because of changed planning circumstances since the planning approval was first issued for the depot use in 2002, deletion of the condition in dispute would be consistent with orderly and proper planning.
The Tribunal allowed the application and deleted condition 2 from the planning approval.
Category: B
Representation:
Counsel:
Applicant : Mr M Flint
Respondent : Mr J Skinner
Solicitors:
Applicant : Flint Moharich
Respondent : Jackson McDonald
Case(s) referred to in decision(s):
City of Belmont and Town of Victoria Park [2014] WASAT 46
Introduction
1 These proceedings involved an application brought by the City of Belmont (City or applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision by the Town of Victoria Park (Town or respondent) to refuse an application to delete condition 2 imposed on the 2002 planning approval to use as a works depot for the City No 180 (Lot 100) Planet Street, Carlisle (site or depot).
2 In 2001, the City had applied to the Town to relocate its works depot to the site. The site is located entirely within the Welshpool industrial area in the Town.
3 There is no dispute the City originally said:
… It is planned to have all commercial vehicles accessing the new depot site by Orrong Road, Kew Street and Planet Street while egress will be via Planet Street and Orrong Road. This should ensure minimum impact on Cohn Street properties.
4 On 12 March 2002, the Town granted planning approval for the use of the site as a works depot subject to conditions, which included condition 2, and an advice note as follows:
2. All commercial vehicles associated with the depot accessing the depot site via Orrong Road, Kew Street and Planet Street while egress is to be via Planet Street, President Street and Orrong Road.
Advice to applicant
2. With regard to condition no. 2 the City of Belmont is requested to include the routes indicated in any contract or tender document that includes travel to or from the subject site.
5 In effect, approval condition 2 required that all commercial traffic travelling between the depot and Orrong Road be restricted to using streets wholly within the Welshpool industrial area. The commercial vehicles would then be able to enter the City by turning east from Orrong Road into the section of Oats Street wholly within the City.
The site and the locality
6 The Tribunal was assisted in its consideration of this matter by knowing where particular streets were located relevant to each other, the site and the boundary between the City and the Town, which runs along Orrong Road. Figure 1 attached to these reasons does this. It is a copy of Figure 1 from the witness statement of Mr Darren Levey, a traffic engineer called as a witness by the applicant.
7 To be noted on Figure 1 is the location of Orrong Road and Oats Street relative to the site. Between Oats Street and Cohn Street, a distance of 200 metres, is single residential development, and south of Cohn Street is the Welshpool industrial area, which includes the site.
8 Mr Richard Lutey, the director of technical services at the City who was called as a witness, said that since 2002, the City has operated its entire outside workforce from the depot. The entrance to the works depot is located in Planet Street, and if condition 2 were removed, then the City's commercial vehicles could travel on any street to move between the depot and the City boundary. To travel between the site and Oats Street, the City's commercial vehicles would have to travel on streets, particularly Star Street, within the residential area. Vehicles are prevented, however, from travelling along Planet Street to Oats Street by a raised median island in Cohn Street across the intersection. There is a speed hump in Harris Street to discourage through traffic.
9 Star Street is one lane in each direction, and a roundabout has been constructed at the intersection with Cohn Street and the intersection with Oats Street. This section of Star Street is a bus route, with a stop for each direction, and has a footpath on the eastern side.
Planning framework
10 Clause 6 of Town of Victoria Park Town Planning Scheme No 1 (TPS 1) identifies the objectives and intentions of TPS 1:
6. OBJECTIVES AND INTENTIONS
…
(3) The general objectives of this Scheme are -
(a) to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing, business, employment, education, leisure, transport and access opportunities;
(b) to protect and enhance the health, safety and general welfare of the Town's inhabitants and the social, physical and cultural environment of the Town;
(c) to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which -
(i) recognises the individual character and needs of localities within the Scheme area; and
(ii) can respond readily to change;
(d) to ensure planning at the local level is consistent with the Metropolitan Region Scheme and wider regional planning strategies and objectives;
(e) to promote the development of a sense of local community and recognise the right of the community to participate in the evolution of localities;
(f) to promote and safeguard the economic wellbeing and functions of the Town[.]
12 The statement of intent for the Welshpool precinct relevantly notes as follows:
A mixture of industrial uses will occupy the majority of this precinct. Generally only light industrial uses will be permitted west of Briggs Street in order to protect residential uses from the effects of heavy industrial activities, of an area to the east of Briggs Street will be available for general industrial use. … importantly, particular attention will be given to ensuring that the land uses in respect of the amenity of adjacent residential areas.
New developments confronting Orrong Road or Welshpool Road, or a street which abuts residential land shall generally take vehicular access from an alternative street or laneway where possible.
Traffic generated within the precinct shall be directed away from nearby residential streets. Development and redevelopment shall take into consideration pedestrian and cyclist's access, safety and convenience.
13 The statement of intent for the Carlisle precinct notes, relevantly, as follows:
The Carlisle precinct will remain a medium density residential area. Continued development of a range of planning types of this density is desirable given the proximity of the precinct to the City's centre and good accessibility to a wide range of support facilities and regional transportation networks.
Safe and accessible movement of pedestrians, cyclists and people using public transport and other vehicles is an important aim of the precinct. In addition, public places such as streets, parks and reserves will be enhanced and maintained so that they contribute to its pleasant environment.
14 Clause 36 of TPS 1 requires that when considering an application for planning approval, the Council:
…
(5) … is to have regard to
(a) The provisions of this Scheme and of any other written law applying within the Scheme area including the Metropolitan Region Scheme;
(b) any relevant planning policy;
(c) any relevant precinct plan;
(d) any Statement of Planning Policy of the Western Australian Planning Commission;
(e) any planning study approved by the Council;
(f) any submission accompanying or related to the application;
(g) the orderly and proper planning of the locality;
(h) the conservation of the amenities of the locality[.]
The recommendations of the structure plan address the integration of land use and traffic issues to ensure a holistic approach to future planning of the Carlisle precinct.
The industrial area will likely increase in intensity of use over time as land costs increase given proximity to the regional road network, public transport and the City. It is therefore essential that the structure planning will reflect the changing needs of the area while preserving the residential amenity of the northern part of the precinct.
The study of the resulting structure plan highlighted that the relevant issues were primarily focussed on traffic circulation within the industrial area and abutting residential streets. The significant recommendations thus focussed on a long term traffic management solution in the first instance. Various land use and other traffic management recommendations are then put forward …
16 Recommendations under the structure plan included the following:
Installation of traffic lights at the Orrong Road/Briggs Street intersection.
This will provide separate access for industrial traffic thereby improving safety and amenity for both commercial and residential areas. Retention of the fully permeable grid street pattern to maintain residential and commercial access …
The installation of traffic signals is seen as the best long term solution to traffic management in the study area and enhancement of residential amenity …
Opening up of Briggs Street between Star and Planet Streets.
… The introduction of traffic signals at the intersection of Briggs Street and Orrong Road will be the major attractor for traffic to use Briggs Street …
The above traffic management should negate the need for local residential traffic management measures north of Con Street. However, if industrial traffic does not redistribute to the Briggs Street/Orrong Road intersection then closing residential streets (starting with Star Street and Harris Street) would be recommended.
17 The applicant added that the structure plan also included the statement:
Traffic control measures should only be introduced to side streets between Oats and Briggs if necessary following the Briggs Street changes.
Main Roads WA is integral to this solution and the initial discussions with them have revealed some reluctance. Nevertheless the solution is the best outcome for residential and industrial landowners and occupiers and therefore should be pursued by the Town of Victoria Park.
18 The witnesses referred to the classification of the roads in the locality of the site. The Main Roads WA (MRWA) Metropolitan Roads Hierarchy, which is mostly reflected in Western Australian Planning Commission's Development Control Policy DC 1.4 Functional Road Classification for Planning (DC 1.4), sets out a road classification system that includes the following classifications:
Primary Distributors: Provide for major regional and inter-regional traffic movement and carry large volumes of generally fast moving traffic. Some are strategic freight routes and all are State Roads. They are managed by Main Roads Western Australia.
District Distributor A: Carry traffic between industrial, commercial and residential areas and generally connect to Primary Distributors. These are likely to be truck routes and provide only limited access to adjoining property. They are managed by local government.
District Distributor B: Perform a similar function to type A District Distributors but with reduced capacity due to flow restrictions from access to and roadside parking alongside adjoining property. These are often older roads with a traffic demand in excess of that originally intended District
Distributor A and B roads run between land-use cells and generally not through them, forming a grid which would ideally space them around 1.5 kilometres apart. They are managed by local government.
Local Distributors/Industrial Roads: Carry traffic within a cell and link District Distributors to access roads. The route of the Local Distributor and Industrial Roads discourages through traffic so that the cell formed by the grid of Local Distributors/Industrial Roads only carries traffic belonging to, or serving the area. These roads should accommodate buses but discourage trucks, except where they are servicing industrial development areas. They are managed by local government.
Access Roads: Provide access to abutting properties with amenity, safety and aesthetic aspects having priority over the vehicle movement function. These roads are bicycle and pedestrian friendly. They are managed by local government.
19 In the 2003 structure plan, Orrong Road was listed as a district distributor 'A'. In 2014, Orrong Road is an 'Other Regional Road' (also known as a 'blue road') in the Metropolitan Region Scheme (MRS). Under the MRWA Metropolitan Road Hierarchy, Orrong Road in 2014 is a primary distributor road, the same classification as Leach Highway and Albany Highway. Orrong Road connects to the Graham Farmer Freeway, intersects with Rowe Highway and Leach Highway and has a speed limit of 70 kmh. Oats Street is a district distributor 'B' and Star Street is a local distributor/industrial road.
Use of the depot and the applicant's proposal
20 The applicant seeks the removal of condition 2, imposed in 2002, on the planning approval to use the site as the City's works depot. A traffic impact assessment included with the applicant's application to the Town included three options. Option two was identified in the study as the preferred option, and this would approve commercial vehicles using Oats Street, Star Street, Briggs Street and Planet Street to move between the City and the depot. The applicant made it clear at the hearing, however, that the City was seeking the deletion of condition 2 so that the drivers of the City's commercial vehicles could choose a route that best suited them on any particular occasion when travelling between the depot and a works site within the City, including using Star Street in the residential zone to travel to Oats Street and then to the City.
21 To understand the application, it is necessary to identify the City's commercial vehicles the subject of condition 2. The applicant said the commercial vehicles at the depot included the following:
• a grader, leaving the depot and returning on the same day on about 25 weeks spread over of the year;
• a multiwheeled rubber tyred roller (road roller), leaving the depot at the project start and returning at project finish;
• three front end loaders small and medium sized to and from the depot daily, and a large front end loader needed about once per month;
• 3 to 4 tonne maintenance trucks (sometimes with trailer) travelling to and from the depot daily;
• 8 to 12 tonne tip trucks travelling to and from the site daily;
• bitumen patching truck (with trailer with plant or equipment) used daily;
• street sweeper used daily; and
• tractors (generally with mowers or other implements attached) used daily.
- Also identified were a utility with an enclosed equipment tray on the back, and a 'sports utility vehicle', also towing a trailer.
22 Mr Lutey described the operation of the depot as follows:
• Seventy two people were employed there and approximately 90% of these leave the facility during the work day to carry out their assigned tasks.
• Generally the road construction and drainage construction crews depart the depot each morning and return in the afternoon.
• Depending on the stage of the job and type of work being undertaken, trucks may return to the depot at intervals during the day to dump waste or pick up materials.
• Not all road construction plant returns to the depot each evening with steel drum and rubber tyre rollers generally being delivered to site on Monday and retrieved on Friday.
• Gardening, mowing and tree maintenance crews also generally leave the depot in the morning and return in the afternoon, but depending on the tasks being undertaken, they return to dump waste or collect materials during the day. Various stores and materials are also delivered to the depot on a daily basis and waste is occasionally carted away.
23 Mr John Berry traffic management supervisor for the city, said that he was familiar with all of, and had driven some of, the equipment owned by the City the subject of the restrictions under condition 2. Mr Berry said that while not ideal, he did not have a 'real issue' with certain vehicles using the approved travel route.
24 Mr Berry said there were, however, safety concerns about the use of Orrong Road, as required by condition 2, by the City's tractors, road grader, the road roller, a 12 tonne tip truck when fully loaded, a truck with a chipper attached, and the front end loaders. His concern with these vehicles is the lack of acceleration when turning into and across Orrong Road and having to move across lanes to turn into Oats Street. He said the slow moving vehicles have difficulty getting onto Orrong Road and then moving across the lanes to turn into Oats Street or to get across the lanes to the right turn lane to turn into Kew Street.
25 The applicant argued that the safety concerns were reinforced by restrictions imposed by the Government of Western Australia Department of Transport on the vehicle licences. These conditions are imposed on the three tractors, the road grader, the road roller and the front end loaders and include:
0013 daylight use only
018 not to be used on laned carriageway in metro area in peak hours unless working between signs of a competent authority or to drive by most practicable route to a secondary road.
26 The road grader, the road roller and the front end loaders also have imposed as a condition:
038 speed limited 40kmh.
27 Mrs Amanda Butterworth, a town planner called as a witness by the respondent, cited a peak hour definition of 7.30 am and 9 am from MRWA regulations for oversize vehicles, although the parties made anecdotal reference to peak hour traffic build up prior to that time. Mr Lutey said the licence conditions and condition 2 reduced the time when workers could relocate and use the City's commercial vehicles. The applicant said that if condition 2 was deleted the drivers could choose the most appropriate time and route for a particular vehicle.
Issues
28 The issues to be considered in this matter as identified by the parties can be expressed as follows:
1) whether omitting industrial traffic to use residential streets would be consistent with the intent of the Carlisle precinct plan P8, the Welshpool precinct plan P9, and the Carlisle precinct structure plan;
2) whether Orrong Road is an available and acceptably safe route for industrial traffic in this instance; and
3) whether allowing industrial traffic to use residential streets would be consistent with orderly and proper planning principles.
Whether permitting industrial traffic to use residential streets would be consistent with the intent of the Carlisle precinct plan P8, Welshpool precinct plan P9 and the Carlisle precinct structure plan
29 The evidence of the witnesses and the submissions of the parties focussed mainly on the City's commercial vehicles travelling between Oats Street and the depot through the residential zone on Star Street. Traffic control devices prevent and discourage, respectively, the use of Planet Street and Harris Street for this purpose. Mr Berry, who appeared as a witness, said that all of the City's commercial vehicles could safely negotiate the roundabouts in Star Street.
30 The structure plan included recommendations that industrial traffic and residential traffic be separated 'as far as possible'. This included suggested streetscape treatments and signage. The suggested 'primary measure' was the installation of traffic lights at the Briggs Street and Orrong Road intersection and also that Briggs Street be constructed between Planet Street and Star Street.
31 The section of Briggs Street has now been constructed and Mr Donald Veal a traffic expert called by the respondent observed that vehicles from the depot appeared to be using Briggs Street as a preferred route to travel to Orrong Road. The respondent said it would not object to condition 2 being amended to include Briggs Street.
32 As commented above, it was common ground that to date, MRWA had supported the installation of the traffic lights and this was unlikely to occur at a future time relevant to the resolution of this matter. It is also relevant to note that since 2003 Orrong Road has become a primary distributor road.
33 The statement of intent for the Carlisle precinct requires safe and accessible movement for pedestrians, cyclists and people using public transport. Mr Veal and Mrs Butterworth were of the opinion that condition 2 was essential because it ensured that commercial vehicles from the depot were kept away from residential streets, particularly at the peak times for movement of local traffic and pedestrians. Mr Veal was concerned that a driver's restricted field of vision towards the front of those machines where the driver sat well back from the front of the machine, such as the front end loaders and the grader, posed a safety risk to other users of Star Street. Mr Veal and Mrs Butterworth were of the opinion that allowing the commercial vehicles from the depot to use residential streets was inconsistent with the intent of the Carlisle precinct plan.
34 Mr Levey was of the view that all the City's commercial vehicles were licenced to travel on all public roads and could do so safely because of the low speed of the vehicles and the elevated viewing position of the driver. Mr Levey said that deleting condition 2 would not be inconsistent with the Carlisle precinct objectives because it would not encourage industrial traffic to use residential streets, but would allow the drivers of slower moving vehicles to choose the most appropriate and safest route at any given time.
35 The Welshool precinct plan includes the statement:
Traffic generated within the precinct shall be directed away from nearby residential streets. Development and redevelopment shall take into consideration pedestrian and cyclist's access, safety and convenience.
36 The respondent's witnesses said deleting condition 2 would not be consistent with this intent. Mr Levey, by contrast, said that in the Welshpool precinct plan there was no suggestion that specific travel routes should be implemented. He referred to the recommendation in the structure plan that control measures should only be introduced to streets between Oats Street and Briggs Street if necessary following the proposed Briggs Street changes and only if the traffic signals at the Briggs Street Orrong Road intersection were installed.
37 The two planning experts agreed that the precinct plans have similar intents of limiting the impact of industrial traffic on residential streets. It was common ground between the parties that no other industrial use within the Welshpool precinct has had conditions imposed restricting which streets can be used. Mr Veal and Mrs Butterworth, however, said this matter was unique in that the traffic generated by the depot was mostly travelling northeast to Oates Street east of Orrong Road, whereas other traffic generators within the industrial precinct had multiple origins and destinations outside the precinct. Mrs Butterworth commented that while there may not be any restrictions on the movement of other commercial vehicles, from her limited observations, there was currently only limited commercial vehicle movement on the residential sections of Star Street, and no heavy machinery equivalent to the vehicles from the City's depot with the restrictions on the licence.
38 The Tribunal accepts that the structure plan and the precinct plan for Welshpool have as an intent the separation of industrial traffic and residential traffic in the residential section of Star Street, and the Carlisle precinct plan refers to safe movements for pedestrians, cyclists and public transport users. Condition 2 was imposed in 2002 on the approved depot use as appropriate to serve the planning intent of the relevant planning documents.
39 While these planning documents have remained unchanged since 2002 and 2003 respectively, the Tribunal is of the view that since then there has been a change in the planning circumstances that affect how those documents might be applied in considering conditions appropriate for the ongoing use of the depot site. The evidence shows that Orrong Road has become a primary distributor, and while there remain some remnants of previous use as an access road and local distributor, its role in the road hierarchy has changed. In addition, the traffic lights at Orrong Road and Briggs Street have not been installed and no other industrial use has had imposed a condition of approval similar to condition 2.
40 The Tribunal has formed the view that when looking at whether condition 2 remains appropriate to the ongoing use of the City's depot some 12 years after approval, it is necessary to have regard to the changed circumstances and what weight is now to be placed on the current traffic and planning situation.
41 This leads then to consideration of the next issue.
Whether Orrong Road is an available and acceptably safe route for industrial traffic
42 There was no evidence before the Tribunal to the effect that Orrong Road was not available for use by the City's commercial vehicles. Most of the vehicles could use Orrong Road at any time. The exceptions are the frontend loaders, the tractors, the grader and the road roller, which have imposed on the licences conditions requiring those vehicles to travel only in daylight hours and not to use multi-lane roads in peak hours. It is arguable whether Orrong Road is available to these vehicles during peak hours as the most practicable route to a secondary road, as allowed by the licence restriction, because it is a planning condition that dictates the vehicle movement, not the practicability of the route.
43 Mr Levey and Mr Veal agreed that, of the full complement of about 119 commercial vehicle movements per day identified in September 2012 in the Uloth and Associates report, the commercial vehicles that were not slow moving would generate about 100 vehicle trips per day and could safely use Orrong Road via Briggs Street, Kew Street or President Street for travelling to and from the depot.
44 Mr Veal and Mr Levey agreed that the slow moving vehicles related to approximately 20 vehicle trips per day to and from the depot. They also agreed that the speed differential between the slower moving vehicles from the depot and vehicles travelling the stipulated 70 kph on Orrong Road could give rise to road safety concerns. The slower moving vehicles would be those with a maximum speed of 40 kph because of the licence condition, and laden trucks.
45 Mr Berry's evidence was that these vehicles had no suspension and balloon tyres and so must travel at a speed considerably less than 40 kph, and they are unable to swerve because of their high centre of gravity. In Mr Berry's opinion, because there was a roundabout at the Star Street and Oats Street intersection, there would not be the same concerns. The longer vehicle, the grader, was articulated to turn at a roundabout, which was simpler and safer than attempting to cross through traffic on Orrong Road.
46 Mr Berry said that a working day for the restricted vehicles would be longer and more flexible without the restrictions of condition 2. In his experience, there were no hours during working time of low traffic volumes on Orrong Road. He acknowledged that large vehicles turn onto major roads in the metropolitan area, but said it was stressful and potentially unsafe for the drivers of the City's slower vehicles to use Orrong Road. Mr Berry said it still remained difficult to get into the right hand lane, even in the 500 metres from President Street to the right turn slip lane at Oats Street, and the drivers had to rely on other drivers to cooperate. Mr Berry also had to acknowledge that there appeared not to be a systematic reporting of safety incidents by drivers of the slow vehicles, of the recording of 'road rage' incidents, or pursuing any particular action before the current application of finding a solution.
47 Mr Lutey said that the City was happy to accept the original condition 2 in 2002. Since then, however, the volumes on Orrong Road had increased significantly and now the safety of the City's drivers was an urgent issue.
48 There was no dispute that traffic on Orrong Road had increased since the 2002 approval of the depot. Figure 2 of Mr Levey's statement illustrated that MRWA counts showed that in 2002 there were about 43,000 vehicles per day (vpd) on Orrong Road, and in April 2013 it was 53,710 vpd. Both traffic experts agreed that the slower moving vehicles should therefore be removed from Orrong Road, if at all possible.
49 It must be said, however, that Mr Veal did not support shifting the City's commercial vehicles to residential streets. He was of the opinion that there was not sufficient danger to the drivers of the City's vehicles to set aside the planning intent for Precinct 8 and Precinct 9 and allow Council vehicles to travel through the residential area. Mr Veal suggested further study be done to determine the impact of moving the slow moving vehicles to other streets and to examine other options for shifting the vehicles, suggesting one way might be to move them by truck.
50 Mr Berry and Mr Lutey were both of the view that Mr Veal's suggestion of placing the slow moving vehicles on a truck to move them to where they were required in the City would likely result in a larger slow moving loaded truck entering Orrong Road. They considered that power lines might need to be raised and that the trucks might even require an escort. In their opinion, this solution was not practical. The City was seeking a solution now, rather than await the outcome of further studies.
51 As stated above, the Tribunal has noted that while the planning instruments have essentially remained the same, circumstances have changed since condition 2 was imposed in 2002. Briggs Street has been constructed, but there is no prospect, at least in the medium term, if ever, of traffic lights being installed at the Orrong Road Briggs Street intersection. There has been a significant increase in traffic flow on Orrong Road, which, as a blue road, is an important link in the regional road system.
52 The Tribunal has formed the view that it would be safer, both for the drivers of the slow moving vehicles and also for the drivers of vehicles on Orrong Road, if the slow moving vehicles did not have to turn into, travel on, weave across and then turn across this blue road.
53 This, however, leads to the questions of whether this concern is sufficient to allow the commercial vehicles from the depot to travel on other roads and whether it would be consistent with orderly and proper planning to allow these commercial vehicles to use residential streets, particularly Star Street, to get access to Oats Street to travel to and from the City.
Whether allowing industrial traffic to use residential streets would be consistent with orderly and proper planning
54 In determining how a development might be controlled by conditions of approval, the dictates of orderly and proper planning require not only that consideration be given to planning objectives in the local planning scheme and related planning policies, but also to sound planning practice and town planning principles.
55 Central to this matter are the safe management of the City's commercial vehicles and the safety and amenity of the nearby residential area.
56 Difficulty arises because the road hierarchy of DC 1.4, and the MRWA Metropolitan Road Hierarchy, is imposed on the established urban areas of Welshpool and Carlisle. DC 1.4 refers to landuse cells as defined by district distributors, but in this instance, the landuse cell by such a definition includes a mixture of both residential and industrial uses, not a homogenous land use.
57 The site has an access road, Planet Street, which feeds via Briggs Street into a local distributor road, Star Street, which in turn feeds into a district distributor, Oats Street. Of concern in this matter is that Star Street is a local distributor that passes from industrial through a residential area to get to the district distributor. Alternatively, the commercial traffic from the site travels via local access streets, or Kew Street, another local distributor, direct to a primary distributor, Orrong Road. The ultimate function of a primary distributor would not usually include the function of a local distributor, collecting traffic from access roads within a cell and delivering the traffic to a district distributor.
58 In 2002, condition 2 was imposed as a solution to diverting commercial traffic from the depot away from the residential area, and this was consistent with the intent of the precinct plans. The Tribunal has accepted that the circumstances have now changed and that Orrong Road now more closely functions as a primary distributor. Traffic travelling to and from the Welshpool industrial area is discouraged from using certain routes, particularly Planet Street or Harris Street, by traffic control devices. Mr Veal recorded the use of median islands, speed humps, signage, roundabouts and restrictions on turning movements at some intersections. Star Street, however, remains a local distributor.
59 The Tribunal notes that, as set out in the structure plan, important to the distribution of industrial traffic was the installation of traffic lights at the Briggs Street Orrong Road intersection. This has not happened.
60 The evidence also has revealed that while no other industrial uses in Welshpool have the same restrictions on vehicle movement as the depot, and drivers can choose the route to take to the district distributors and the primary distributor that best suits, this has not resulted in a significant proportion of traffic on Star Street being commercial vehicles. The evidence from Mr Levey's statement was that Star Street has 5,222 vpd, comprising 4,654 'light' vehicles (cars, utilities and small vans) and 568 'heavy' vehicles (trucks and buses). The Tribunal has accepted that a further 119 commercial vehicle movements per day would be a significant proportional increase if all the vehicles were 'heavy' vehicles. The Tribunal has further accepted, however, that some of the movements would be by the City's 'light' vehicles and that not all of the approximately 119 commercial vehicle movements from the City depot, spread over a day, would necessarily travel on Star Street. The Tribunal has noted in this regard that commercial vehicles on the residential section of Star Street have to accommodate a single lane in each direction, stopping buses and vehicles turning to enter and leave residential properties.
61 The Tribunal is aware that residents of this section of Star Street would have to watch out for buses, and if condition 2 is removed, perhaps the City's machinery the subject of the additional licence conditions. The maximum speed limit for the street is 50 kph. To this might be added up to about 20 movements per day of slow moving heavy machinery.
62 The Tribunal acknowledges that the configuration of the City's vehicles with the licence restriction are different, particularly in respect of the driver's view of the road, but the Tribunal has concluded that the vehicles themselves, other than the obvious difference from a domestic vehicle, do not pose such a threat to local traffic safety that the exclusion of them from the street would be warranted. In this regard, the Tribunal considers the vehicles would be obvious and therefore not necessarily more of a threat to pedestrians than that posed by other commercial vehicles using Star Street.
63 In respect to impact on the amenity of Star Street, some of the slow moving restricted licence vehicles from the depot would be a visual intrusion, and may be noisy compared to passenger cars. However, the number of trips by these vehicles per day, when weighed against the volume of traffic in the street, is not considered of its own to be a reason for maintaining condition 2.
64 The Tribunal has formed the view that the deletion of condition 2 would not be inconsistent with the principles of orderly and proper planning. This is because, in 2014, the use of Orrong Road as a local distributor by the commercial vehicles is an undesirable traffic solution and having alternative routes available is an appropriate response. For the Welshpool industrial area, access to district distributor roads is through a residential zone if moving to the north out of the industrial area. If the City's commercial vehicles choose to travel on Star Street to Oats Street, the Tribunal has concluded that the movement of pedestrians, cyclists and people using public transport in Star Street would be impacted upon, but not to a completely unacceptable extent. The intent of the Welshpool precinct plan and the structure plan to keep industrial traffic from residential areas has to be viewed in 2014 in the light of Orrong Road becoming a regional distributor, the traffic lights not being installed at the Orrong Road Briggs Street intersection, and the absence of a consistent application of planning controls to specifically exclude the commercial traffic of other industrial uses from choosing the most apt route for the vehicle, time of day and destination.
Conclusion
65 The circumstances of this matter beg the question of what conditions might be appropriately imposed if the depot use were applied for and approved today. The Tribunal has before it, however, the ongoing approved use of the site as the City's depot. What the Tribunal is now required to consider, as determined in City of Belmont and Town of Victoria Park [2014] WASAT 46, is whether condition 2 imposed in 2002 is to remain having regard to the planning circumstances prevailing in 2014.
66 The Tribunal has concluded, as set out above, that allowing the commercial vehicles from the City's depot to choose the time and route of travel consistent with other commercial traffic in Welshpool would be consistent with orderly and proper planning and therefore deletion of condition 2 can be supported.
Orders
1. The application for review is allowed.
2. Condition 2 is hereby deleted from the planning approval granted for the use of No 180 (Lot 100) Planet Street, Welshpool as a works depot.
I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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