Eldridge v ACT Planning and Land Authority - [2020] ACAT 22

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ELDRIDGE v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2020] ACAT 22

AT 76/2019
Catchwords: ADMINISTRATIVE REVIEW – application to review development approval of road upgrade and associated construction – impact track development – whether access road is necessary – whether roundabout is appropriate at intersection – effect of development on recreational use of track – statutory criteria

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Environment Protection & Biodiversity Conservation Act 1999 (Cth)
Land (Planning and Environment) Act 1991
Planning and Development Act 2007 ss 128, 129, 148

Subordinate

Legislation cited: Parks and Recreation Zone Development Code (2012)
Cases cited:ACT Rural Landholders Association Inc and Ors v ACT Planning and Land Authority [2014] ACAT 22
Downer Community Association and ACT Planning & Land Authority & Anor [2007] ACTAAT 20
Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96
Morozow v ACT Planning and Land Authority & Ors [2017] ACAT 79
Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority [2018] ACAT 38

Tribunal:President G Neate AM
Senior Member A Davey

Date of Orders:  31 March 2020
Date of Reasons for Decision:      31 March 2020
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 76/2019

BETWEEN:
JAMES LIAM ELDRIDGE
Applicant

AND:
ACT PLANNING AND LAND AUTHORITY
Respondent

TRIBUNAL:President G Neate AM
Senior Member A Davey

DATE:31 March 2020
ORDER

The Tribunal orders that:

The decision of the ACT Planning and Land Authority to approve, subject to specified conditions, Development Application DA201935514 is confirmed.

………………………………..
President G Neate AM
For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

On 30 July 2019, a delegate of the ACT Planning and Land Authority (the Authority) approved, subject to conditions, Development Application DA 201935514 (the Development Application) for the construction of a new 130 metre access road and a new roundabout intersection on Dudley Street and associated works at Block 1 Section 127 and Block 3 Section 94 Yarralumla in the Australian Capital Territory (the decision).[1] The Development Application was made by Gerard Coffey of Land Release Infrastructure/Transport Canberra and City Services (TCCS).[2] Notifiable instrument N1 2019 described the approval as having been given for “Canberra Brickworks Precinct Access Road and Dudley Street Upgrade project.”[3]
[1] T documents pages 34-39
[2] T-documents pages 1107-1108, 1222-1223
[3] T documents page 67
James Liam Eldridge and his family live near the area that is the subject of the decision. On 30 August 2019, he applied to the ACT Civil and Administrative Tribunal (the Tribunal) for review of that decision. In summary, Mr Eldridge asked the Tribunal to either:
(a)set aside the decision; or
(b)vary the decision to make the approval also subject to conditions in relation to a positive review by an independent expert of the proposed road design and roundabout, and the approval of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] ACAT 22
Decision Date: 31 March 2020

CaseChat Overview and Summary

Eldridge sought judicial review of a decision by the ACT Planning and Land Authority to approve a development application for a road upgrade and associated construction. The development included an access road, a roundabout at the intersection of Cotter Road and Dudley Street, and the removal of a walking and cycling track. The primary concern raised in the review was whether the access road was necessary, whether the roundabout was an appropriate design for the intersection, and the impact of the development on the recreational use of the track.

The court had to consider whether the decision to approve the development application was unreasonable and whether the statutory criteria under the Planning and Development Act 2007 had been properly applied. The court examined the evidence provided, including the SIDRA network intersection software analysis, which indicated that the proposed roundabout would effectively manage traffic flow during peak periods. The analysis demonstrated that the roundabout could handle the expected queue without significant delays, and any potential for unsafe driving behaviours could be mitigated through design changes. The court also considered the benefits of a roundabout in terms of capacity, free flow movement, and reduced weaving movements in comparison to a signalised intersection.

The court concluded that the decision to approve the development application was reasonable. The analysis indicated that the roundabout would effectively manage traffic flow and mitigate any potential safety risks. The statutory criteria had been appropriately considered, and the benefits of the development, including improved traffic flow and safety, outweighed the impact on the recreational use of the track. The decision to approve the development application, subject to specified conditions, was confirmed.

The court confirmed the decision of the ACT Planning and Land Authority to approve the development application, subject to the specified conditions.

Orders

Orders of the court

The decision of the ACT Planning and Land Authority to approve, subject to specified conditions, Development Application DA201935514 is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

There was an analysis of the ratio of the queue distance over the available storage space (the queue storage ratio) using SIDRA network intersection software. A network model of both the signalised and roundabout intersection was tested with the traffic signals timings at the Cotter Road/Dudley Street simulated by SIDRA. Results for both the 50th percentile (that is, the average case) and the 95th percentile (that is, the worst case) traffic demand were produced for both morning and afternoon peak periods. As the storage distance between the traffic signals and the proposed roundabout is 50 metres, a queue storage ratio of 1 indicates this section is fully used and a 50 metre queue exists.[98][98] Exhibit R2 Attachment B pages 14-18 According to that analysis, the queueing for the morning and afternoon peaks were similar. The results show that for the 95th percentile, traffic demand in the morning peak (the period with the least favourable traffic conditions) is such that a queue is likely to form on Dudley Street that will extend from the traffic signals at Cotter Road to the roundabout and then for a peak distance of around 50 metres along Dudley Street. That would result in a queue of seven or eight vehicles. The proposed left turn lane is 80 metres, which can accommodate the expected maximum queue. If the left lane turn capacity is exceeded, that might increase the likelihood of a vehicle undertaking a U-turn manoeuvre. However, Mr Hogan wrote, “as the queueing is accommodated within the nominated lane and the Queue from the roundabout will clear with each signal phase, the risk of multiple U-turn movements is considered low.”[99][99] Exhibit R2 Attachment B page 14 Mr Hogan explained the methodology used in preparing the report, including the use of traffic count data and references to the phasing of traffic lights.[100] The data that resulted from the SIDRA analysis was used to determine aspects such as the queueing, the delays, and the level of service.[100] Transcript of proceedings 10 January 2020 pages 101-105 There was evidence that if drivers were to use the roundabout in particular ways to “slingshot” their way around any traffic queue, certain design changes could be made. Although they would not be design features ordinarily seen at such a roundabout, all three would comply with road safety legislation and could be retrofitted to the constructed roundabout if “unlikely aggressive and unsafe vehicle movements” or the “full loop” occur.[101][101] Exhibit R2 paragraphs 59 – 61, Transcript of proceedings 9 January 2020 page 89 According to Mr Hogan, a roundabout has better capacity and free flow movement, particularly in the morning peak. When a lot of moving traffic is entering, vehicles entering a roundabout need to give way to their right. The expected ingress of vehicles to a residential area at that time is quite low (estimated at about 20 per cent of vehicle movements). Some would be coming along Dudley Street and others along Cotter Road. Vehicles approaching from Cotter Road to continue onto Dudley Street are relatively unopposed in the morning peak within a roundabout because there is very little traffic continuing from Dudley Street across into the new access road. The improved capacity of a roundabout reduced the need for weaving movements in a signalised configuration.[102][102] Transcript of proceedings 10 January 2020 pages 116-117