Drummoyne Municipal Council v Roads and Traffic Authority of New South Wales - [1989] NSWLEC 169

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Drummoyne Municipal Council v Roads and Traffic Authority of New South Wales [1989] NSWLEC 169

PARTIES:
APPLICANT
Drummoyne Municipal Council
RESPONDENT
Roads and Traffic Authority of New South Wales

FILE NUMBER(S): 40160 of 1987

CORAM: Stein J

KEY ISSUES: :-

LEGISLATION CITED: Environmental Planning and Assessment Act

CASES CITED: F. Hannan Pty. Ltd. v. Electricity Commission of N.S.W. ((1983) 51 LGRA 353 at 365-6);
Guthega Development Pty. Ltd. v. The Minister (1986);
Jarasius v. Forestry Commission of New South Wales (Land and Environment Court, Unreported 4 March 1988);
Jones v. Dunkel ((1958-59) 101 CLR 298);
Randwick Municipal Council v. Crawley, (1985) 60 LGRA 227)

DATES OF HEARING:

DATE OF JUDGMENT:
03/22/1989

LEGAL REPRESENTATIVES: RESPONDENT
Mr. McClellan, Q.C

JUDGMENT:

HIS HONOUR: By application filed in the Court on 23 July 1987 the Drummoyne Municipal Council seeks declaratory orders and other relief against the Traffic Authority of New South Wales and the Commissioner of Main Roads. The application concerns peak hour "No Standing" signs erected in Lyons Road, Five Dock, between McCulloch Street and the Great North Road. At some point of time after the institution of the proceedings legislative change replaced the Traffic Authority and the Department of Main Roads with a new authority - the Roads and Traffic Authority of New South Wales. It is agreed that that Authority is now the proper respondent in these proceedings.

The stretch of Lyons Road with which we are concerned is about 1km in length. Along its sides are around 100 residential properties and a small number of commercial premises including 3 doctors' surgeries. Lyons Road has been a proclaimed Main Road for many years. In 1976 'No Standing' signs had been erected on the section of Lyons Road from McCulloch Street to Victoria Road. On 14 July 1981 the Technical Committee of the Traffic Authority considered and approved the proposal to erect "No Standing" signs in Lyons Road on both sides of the road between McCulloch Street and the Great North Road, restricting the standing of vehicles (except to pick up or drop off passengers) in peak hours between 6.30 - 9.30 a.m. and 3.30 - 6.30 p.m.

The difference between clearway restrictions and no standing restrictions is that the former does not permit any stopping of vehicles whereas the latter allows a passenger to be picked up or dropped off. The decision of the Technical Committee of the Traffic Authority was carried into effect by the erection of the signs in August 1982. The trigger for consideration of clearway or no standing restrictions is the exceedence of a warrant related to car movements per hour on a given piece of roadway. This warrant is to be found in the Department of Main Roads Interim Guide to Signs and Markings. It provides a warrant for clearways where the one-way hourly flow rate (for one flow lane) exceeds 800 movements.

While the decision was made by the Technical Committee of the Traffic Authority the decision making process also involves a local traffic committee, in this case the Drummoyne Traffic Committee. At the relevant time the Drummoyne Traffic Committee was composed of 2 Council representatives, the local Member, Police (the District Traffic Supervisor), the Department of Main Roads (a representative of the Metropolitan Engineer) and a representative of the Urban Transit Authority.

I will deal with the factual situation in greater detail a little later in my Judgment.

Three issues arise for deliberation:-

1. Did the respondent examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity? (Part V s.111 Environmental Planning and Assessment Act)

2. Was the activity one that is likely to significantly affect the environment? (Part V s.112 Environmental Planning and Assessment Act).

3. If the answer to (1) above is No, or the answer to (2) is Yes, then should relief be denied to the applicant in the exercise of the Court's discretion by reason of its delay in bringing the proceedings?

Because of the answers I propose to give to issues (1) and (2) above it is unnecessary for me to consider the question of discretion and delay. Suffice to say that the delay or inaction on the part of the Council in taking proceedings in the Court between October 1983 and July 1987 is a serious one and would have required very careful consideration should a breach of the Act have been found.

The s.111 Question

In 1985 the definition of 'activity' in s.110 was amended. However, in this case we are concerned with the definition of activity in its unamended form. The respondent admits that the carrying out of the project is an 'activity' within that definition.

There have been a number of cases which have considered s.111. In F. Hannan Pty. Ltd. v. Electricity Commission of N.S.W. ((1983) 51 LGRA 353 at 365-6) Cripps J. said:-

"It is difficult to over-estimate the importance of s.111. The real intention of the legislature is made evident from the terms of s.111 itself. Compliance with its requirements is, in my opinion, pivotal to a proper working of Pt V of the Act."

He expressed the opinion that compliance with its provisions was intended to be mandatory. In Guthega Development Pty. Ltd. v. The Minister ((1986) 7 NSWLR 353 at 366) Samuels J.A. agreed. He said:-

"I agree with respect, that its requirements are mandatory, and it is obviously intended to draw attention to the responsibility imposed upon a determining authority to protect the environment against the harmful effects of a projected development."

(In Jarasius v. Forestry Commission of New South Wales (Land and Environment Court, Unreported 4 March 1988) Hemmings J. held that this still remained the position notwithstanding the 1985 amendments to Part V.)

However, Samuels J.A. held in Guthega that the words of s.111 "can scarcely be read literally and without some modification of its terms". He continued:-

"For example, the phrase "to the fullest extent possible" would present an insoluble problem to an administrator since it would be necessary to search the aggregated knowledge of the experts of the world in order to discharge the almost limitless burden imposed by the word "possible". "Possible" is of a similar kind to "foreseeable", a word etched in the professional cores of common lawyers and capable of very extensive application indeed. Accordingly, in my view, some element of reasonableness must be introduced and may be achieved by reading the section as if the word "reasonably" was inserted before "possible". This is the conclusion to which Cripps J came and, in his judgment, he read the expression "to the fullest extent possible" as incorporating "a concept of reasonableness and practicability. The purpose of s.111 is to impose upon determining authorities an obligation to consider to the fullest extent reasonably practicable, matters likely to affect the environment"."

So understood it is necessary to rephrase the question - Did the respondent examine and take into account to the fullest extent reasonably practicable all matters affecting or likely to affect the environment by reason of the activity?

It is in this context that the applicant Council alleges a failure to comply with s.111. On behalf of the applicant Mr. Simpkins puts his argument in two ways. Firstly, he submits that the provision requires a weighing-up exercise - a balancing of the environmental effects as against the perceived benefits. According to the applicant the respondent did not embark on such an exercise. Secondly, the applicant submits that a number of specific environmental affects were not adequately (or at all) taken into account in the examination. These are as follows:-

(1) The existing and predicted speed or travel time of vehicles on the route.

(2) The existing and predicted traffic volumes for the route.

(3) The availability and suitability of off-street parking for affected premises.

(4) The existing and predicted effect on pedestrians and community severance.

(5) The existing and predicted noise and air pollution impact.

(6) The existing and predicted accident rates.

(7) Any ameliorative measures to minimise or overcome adverse impacts.

When considering the s.111 examination by the respondent it is important to keep the decision making process in mind. Of equal importance is the context of the decision making process.

Lyons Road and Great North Road have been classified Main Roads for more than 40 years ('Main Road No. 395'). This is because they provide an important link road between Victoria Road and the Great Western Highway. In 1976 "No Standing" signs were erected on both sides of Lyons Road between Victoria Road and McCulloch Street. In January 1978 the Traffic Authority resolved that clearway restrictions be imposed for the whole length of Lyons and Great North Roads between Victoria Road and the Great Western Highway. The Council objected, as did some members of the public, and implementation of the decision was deferred. During 1978 a number of reconsiderations of the clearway proposal took place. In April 1979 the Department of Main Roads advised the Traffic Authority that existing conditions did not warrant clearway restrictions for the whole length of the route and it was not intended to proceed with the proposal at that time.

However, the matter was again considered by the Drummoyne Traffic Committee on 26 February 1981. It resolved to advise the Department of Main Roads that peak "No Standing" restrictions be imposed in both directions on both Lyons Road and Lyons Road West. At the applicant Council's request the Drummoyne Traffic Committee again discussed the matter on 26 March 1981. It reaffirmed its decision on Lyons Road and deferred a decision on Lyons Road West until the Western Freeway was completed. Thereafter the local member made representations to the relevant Minister and no final decision was taken to proceed.

The Metropolitan Engineer of the Department of Main Roads decided to conduct further investigations. These were carried out by Mr. Wood, a Traffic Engineering Officer and also the DMR representative on the Drummoyne Traffic Committee. Mr. Wood made further inquiries on the proposal and compiled a report dated 19 May 1981. He directed his report to Mr. Sim, the North Area Traffic Engineer of the Department of Main Roads. Mr. Sim made a further report largely incorporating that of Mr. Wood. This report was made available to the Police, the Traffic Authority and the Council prior to a site meeting on 28 May 1981.

At the site meeting the issues were not resolved and the matter was therefore determined to be placed before the Technical Committee of the Traffic Authority for its consideration. On 14 July 1981 the Technical Committee gave consideration to the proposal and the objections and resolved to implement peak "No Standing" restrictions along the relevant section of Lyons Road, (McCulloch Street to Great North Road), as soon as possible. As I have said this length of Lyons Road is around 1km and implementation of "No Standing" restrictions completes similar restrictions already in place along Lyons Road from McCulloch Street to Victoria Road.

Following further representations from the Local Member, implementation of the decision was deferred pending a further review by a senior officer of the Traffic Authority. On 3 December 1981 the Minister advised Mr. Maher, M.P., that the Authority adhered to its previous decision. However, the Minister then met a deputation of Council representatives and implementation was again deferred pending the finalisation of plans for the Western Freeway connection to the Great Western Highway. Once the plans were finalised the Department of Main Roads considered them and advised the Minister that the "No Standing" restrictions proposed were unrelated to the Freeway opening. The Minister advised the local Member of this in July 1982. Thereafter the Department of Main Roads proceeded to install the signs and this was completed on 25 August 1982. Following further representations another review of the decision took place during 1983 and on 4 October 1983 the Technical Committee of the Traffic Authority resolved not to ch

ange the "No Standing" restrictions.

In the examination of compliance with s.111 of the Act it is important to note the constitution of the decision maker - the Technical Committee of the Traffic Authority - and determine what material was before the Committee and how it proceeded to decision.

Mr. Bruce Hazel, a civil engineer with 28 years experience with highway engineering, traffic and transport planning, was the Chairman of the Technical Committee of the Traffic Authority at the relevant time and indeed between 1979 and 1985. At the time of swearing an affidavit in the proceedings he was the Deputy Director of the Traffic Authority. Other members of the Technical Committee at the relevant time were a supervising traffic engineer from the Department of Main Roads, a representative of the Urban Transit Authority, a representative of the Department of Environment and Planning, Inspector Walden from the Police Traffic Branch and a union representative who was absent from the meeting of 14 July 1981. The Technical Committee, as its name implies, is an expert committee as distinct from Council aldermen. This may have relevance to the decision making process because the consideration of technical material may be different for a Council, made up of lay persons, than by a technical body well versed in t

echnical matters.

Prior to the meeting of 14 July 1981 Mr. Hazel says that he carried out a site inspection and met and discussed the issues with members of the Council, Police and the Department of Main Roads. Mr. Hazel deposes that prior to the meeting of 14 July the circumstances of traffic control in Lyons Road and the Council's objections had been considered by the Committee on a number of occasions.

For the meeting on July 14 members of the Committee had before them Mr. Sim's report, (incorporating Mr. Wood's), together with annexures consisting of the back-up statistical material referred to in the report. The relevant Traffic Authority file was also before the Committee. Mr. Hazel deposed that there was "considerable discussion" before the Committee decided to implement the proposal. In his affidavit read to the Court Mr. Hazel particularly recollects discussion on:-

*Traffic volumes and likely future traffic flows.

* Accident rates and comparison to the section of the road where traffic restrictions also applied.

* Traffic movements which were required because of parked cars in the kerb lane.

* The demand for parking along the section of Lyons Road and the alternative parking available.

* Pedestrian visibility.

In his sworn evidence Mr. Hazel also recalled discussing possible traffic diversion from other routes (which was not referred to in the reports before the Committee). It was the recollection of Mr. Hazel that the Committee concluded that "No Standing" restrictions would not divert any traffic onto Lyons Road.

I come now to consider the first way in which Mr. Simpkins put his case on s.111 - an absence or failure to weigh the environmental effects against the perceived benefits. It seems to me that it cannot be concluded that the Technical Committee of the Traffic Authority failed to properly undertake the exercise of examining and taking into account all matters likely to affect the environment by reason of the activity to the fullest extent reasonably practicable, because it did not indulge in a cost/benefit analysis. To the extent that such an exercise was necessary and reasonable it seems to me that the Committee, bearing in mind its expertise and comprehension of the technical material before it, sufficiently took into account the environmental and other relevant pros and cons of the proposal.

Viewed against the historical background, the context of the immediate environment (set out in the reports before it and known to the Committee from a site inspection), and the fact that only approximately 1km of Lyons Road was involved while the balance of the road from McCulloch Street to Victoria Road had "No Standing" restrictions imposed from 1976, it is my opinion that the Technical Committee undertook a valid and balanced process of decision making. The consideration of the extensive material before the Technical Committee and its discussion of the matters enumerated in Mr. Hazel's affidavit and his sworn evidence reveal a process of a weighing up of the relevant considerations. In my opinion the length of deliberation and the detail of the considerations must, to some extent, be conditioned by the actual proposal. And when examining the considerations one must have regard to the context of the proposal and the environment which is likely to be affected by the proposed activity. That is not to say that

the examination by the Committee need not be a thorough one, nor indeed that it need be a minute examination of every conceivable affectation on the environment without regard to reasonable practicality.

Turning to the specific complaints of the applicant that the Committee failed to adequately (or at all) take certain matters into consideration:

Speed of vehicles, travel times and volumes of traffic: According to Mr. Hazel's affidavit, these were considered by the Committee. Information as to traffic volumes were undoubtedly before them. I cannot believe that the issues were not addressed. They were central to the whole decision. The fact that Mr. Wood's affidavit before the Court deposes that in making his report he did not consider, inter alia, the reduced travel time for vehicles as relevant is beside the point. He provided the material to the Committee and made comments in his report, as did Mr. Sim.

Incidentally, in my view, Mr. Wood's deposition that this issue was not considered by him to be relevant, should not be taken literally. It seems to me that when one reads the material in his report together with the back-up investigation, it is clear that Mr. Wood did consider reduced travel time and the other issues referred to in para. 29 of his affidavit (sworn 23 November 1987). I think rather Mr. Wood is trying to say that after consideration he believed he need not specifically refer to them in his report because he could not perceive any likely effect on the environment. In any event it seems to me that "travel time" is inherent in the warrant procedure alluded to in the report before the Traffic Committee, a concept with which the Traffic Committee would have been well acquainted.

Off-street parking: The discussion on this issue by Messrs. Wood and Sim, together with the back up investigation to be found in the report annexures, was reasonably comprehensive. The Traffic Committee specifically discussed the demand for parking along the relevant stretch of Lyons Road as well as alternative parking. It is not reasonable to criticise the decision by saying that the investigation should have gone further and have included a door knock or questionnaire to ascertain the suitability of the parking. The question is - in the context of the size of the proposal and the examination of the residences and businesses affected, was the consideration sufficient and thorough? I am satisfied that it was.

Effect on pedestrians and community severance: In my opinion the issue of pedestrian safety was sufficiently addressed by the Committee. This is clear from Mr. Hazel's affidavit as amplified by his oral evidence. Consideration of the accident history of the road is also relevant to this issue and was considered by the Committee.

Noise and air pollution: There does not appear to have been any specific consideration of these issues. But should there have been? So far as noise is concerned it is clear that during peak hours more vehicles will travel in the kerbside lanes on either side of the street and this will bring their noise source closer to the residences and commercial premises. But the expert evidence before the Court suggests an increase of only 1Db(A) or a little more. This increase, according to the evidence, would be barely susceptible. In my opinion I should prefer the expert evidence on noise to the lay opinion placed before the Court by the applicant. In terms of noise the likely effect on the environment does not seem to be more than a minor one. It would have been preferable for it to have been considered but again, in the context of the proposal and the environment I would not be prepared to find that the failure to specifically consider any noise impact would constitute a breach s.111.

As to air pollution, the evidence does not indicate any likely effect on the environment or, at most, a marginal effect. Again, failure to address air pollution in the circumstances would not lead me to find a lack of compliance with the section.

Accident rates: In my opinion accident rates and accident potential were quite sufficiently addressed - see again the affidavit and evidence of Mr. Hazel. Further, this is an area, as are many of the others, that the specific expertise of the Technical Committee must be borne in mind. The 2 year detailed analysis of accident history, particularly in Mr. Sim's report, is in my opinion sufficient for the matter to be adequately considered.

Ameliorative measures: There is no evidence of any consideration of ameliorative measures except that, in the examination of the various issues by the Committee, it would have been aware of the suggestion made earlier urging reduced hours of restriction. It seems to me implicit in the consideration and decision that this was considered and rejected. It is difficult to see what other ameliorative measures, short of not proceeding with the proposal, should have been reasonably entertained by the Committee.

Mr. Simpkins makes a further submission on this aspect of the case. Apparently some 10 months after the decision of the Technical Committee, Mr. Fleming, a traffic analyst employed by the Department of Main Roads, carried out traffic counts in Lyons Road (21-22 April 1982). These results showed that the warrant of 800 car movements per hour was exceeded on only one occasion in the morning and two occasions in the afternoon. Mr. Simpkins submits that these figures should have lead to further investigations before the project proceeded. However, no further inquiries were apparently made and the signs were installed in August 1982.

On behalf of the respondent Mr. McClellan, Q.C., notes that Mr. Fleming's counts were in respect of one location only and submits that the applicant, who bears the onus of demonstrating the substance of the point, has not discharged that onus. In any event he submits that the results of the traffic count do not necessarily speak against the warrant.

When examining Mr. Fleming's report of 11 January 1983, which refers to the April 1982 counts, I note his opinion that the "flow rates satisfy the warrant". This is also noted in his conclusions which recommended that the peak period "No Standing" restrictions be maintained. Assuming Mr. Fleming's April 1982 traffic counts should have been taken into account before the Technical Committee's decision was implemented, (and I do not know that they were not), it is difficult to see that they were of significant relevance or would have affected the implementation of the proposal. I specifically reject the submission of Mr. Simpkins that the applicant is entitled to the benefit of Jones v. Dunkel ((1958-59) 101 CLR 298). I fail to see how the so-called principle in Jones v. Dunkel applies to the situation. In my estimation Mr. Fleming's traffic counts do not take the applicant's case any further.

In my opinion no breach of s.111 of the Act has been established by the applicant.

The s.112 Question

Is the activity one that is likely to significantly affect the environment?

In my opinion the question of significant effect on the environment is to be approached by first examining the affected environment and the context of the proposal. In Jarasius Hemmings J. was content to adopt my interpretation of "likely" in Randwick Municipal Council v. Crawley, (1985) 60 LGRA 227), albeit in a different statutory context. However, it seems to me appropriate to interpret "likely" in s.112 as meaning a "real chance" or "possibility" rather than "more probably than not". Rephrasing the question then, is there a real chance that the activity will significantly affect the environment?

There has been some criticism of the Court's suggested chariness in defining the word 'significantly'. In Jarasius Hemmings J. said that he was prepared to adopt (but without deciding) a dictionary meaning as appropriate, viz., "important". Bearing in mind the infinite number of possible "activities" which may be sought to be carried out in a myriad of different environments, it is difficult if not impossible to be precise about what may be considered as a significant affect. What may or may not be significant will be conditioned by the circumstances of the environment. The determining authority must examine the environment and the effect of the activity on that environment and determine whether it is likely to be significantly affected by the activity. In my opinion it would not be helpful for the Court to attempt to closely define what may be seen as a significant effect on the environment. Indeed, it may be a process fraught with danger.

However, for those who feel more comfortable with definitions I am prepared to suggest that a significant affect must be an important or notable affect on the environment, as compared with an affect which is something less than that, i.e., non-significant or non-notable. But I must stress that the assessment of the significance must depend upon an assessment of the facts constituting the environment and the activity and its likely affect on that environment.

Applying these remarks to the instant case I cannot be satisfied that in 1981, when the Technical Committee of the Traffic Authority made its decision that the activity be carried out, the activity was one likely to significantly affect the environment. Hence no Environmental Impact Statement was required. In my estimation the affect of the activity on the environment was not a significant or notable one. It was something less than significant or notable. That is not to say that the effect was insignificant or unimportant. Indeed, clearly there were likely to be a number of effects (some of them adverse) on the immediate environment of Lyons Road, the residences and commercial premises along that stretch of road. But on the material before the Technical Committee and its consideration, I could not conclude that the activity was likely to significantly affect the environment.

Indeed, were I to take into account the additional expert material placed before the Court by the parties, I would come to the same conclusion. However, I do not believe that I should substitute my opinion for that of the determining authority (Leichhardt Municipal Council v. Maritime Services Board (1985) 57 LGRA 169 at 177). The question is not do I agree or disagree with the decision.

My judgment in this matter should not be construed as meaning that no Environmental Impact Statement is required for any road management activity. It must be stressed that each case must depend on its own facts and an assessment of the likely affect on the environment by the activity must be undertaken by the determining authority. Peak hour "No Standing" restrictions in another location may be likely to significantly affect that environment. Clearway restrictions may also significantly affect the environment, as well as other traffic management strategies. Each activity needs to be appropriately assessed for impact on the environment before it is determined whether an EIS is required or not.

In all the circumstances the application before the Court must be dismissed. At the request of the parties I reserve all questions of costs. The exhibits may be returned.