Focus Trading Group Pty Ltd v Cumberland Council

[2020] NSWLEC 1044

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Focus Trading Group Pty Ltd v Cumberland Council [2020] NSWLEC 1044
Hearing dates:	19 –20 November 2019
Date of orders:	17 March 2020
Decision date:	04 February 2020
Jurisdiction:	Class 1
Before:	Clay AC
Decision:	The Court orders that: (1)   The appeal is upheld. (2)   Development consent is granted for the construction of a vehicular crossing and layback for an existing service station at Lot 4 DP 21134 known as 449 Great Western Highway, Greystanes, including: (a)   the creation of an additional point of egress from the service station onto Berith Street; (b)   the rearrangement of traffic movements into the site such that the existing point of access and egress on Berith Street is amended to entry only; (c)   the rearrangement and provision of parking spaces on the site; (d)   the rearrangement of traffic movement within the site; (e)   line markings and signage on the site to give effect to each of the above; upon the conditions annexed and marked ‘A’. (3)   The exhibits, other than Exhibit A, are returned.
Catchwords:	DEVELOPMENT APPLICATION – service station – access – traffic and safety
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 Roads Act 1993
Texts Cited:	Holroyd Development Control Plan 2013
Category:	Principal judgment
Parties:	Focus Trading Group Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: M Sonter (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2018/256813
Publication restriction:	No

Judgment

Introduction

1. This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”) against a deemed refusal of Development Application No. 2018/209/1 for what is described in the application as “proposed vehicular crossing and layback” for an existing service station at Lot 4 DP 21134, known as 449 Great Western Highway, Greystanes (“the site”) on a corner of Berith Street.

2. The development application is more accurately described as having the following elements:

1. the creation of an additional point of egress from the service station onto Berith Street, an egress point which has already been constructed on the site but is presently chained off;

2. the rearrangement of traffic movements into the site such that the existing point of access and egress on Berith Street is amended to entry only;

3. the rearrangement and provision of parking spaces on the site;

4. the rearrangement of traffic movement within the site;

5. line markings and signage on the site to give effect to each of the above.

3. Whilst the proposed new point of egress has been constructed on the site, the crossover on the road reserve has not been constructed. The Applicant accepts, logically enough, that in order to carry out the development, if approved, it will require Roads Act 1993 approval for the work on the road reserve.

4. The dispute between the parties was not whether or not development consent should be granted, but whether it should be granted with those conditions that the Respondent presses. That is, the Respondent seeks the imposition of a condition requiring, subject to Roads Act approval, the construction of a median strip in the centre of Berith Road for the width of the new driveway and the Applicant opposes the imposition of that condition.

5. For the reasons which follow, I have determined that a median strip is not required given the level of risk but that additional measures are required beyond that which the Applicant proposes.

The Site and Surrounds

6. The site has a total area of approximately 1,646.02sqm and is rectangular in shape. The site is a corner lot and has two street frontages. The primary street frontage is Great Western Highway on the northern side of the site, and the secondary street frontage is Berith Road to the east. On the Great Western Highway there is a vehicular crossing to permit entry to the site at the eastern end of the site and a crossing for exiting traffic to Great Western Highway at the western end of the site. It is only possible to turn left onto the Great Western Highway.

7. There is also a vehicular crossing on Berith Street about 30m from the intersection with Great Western Highway which is used for both access and egress.

8. On the opposite side of Berith Street also on a corner site fronting Great Western Highway is a McDonald’s food and drink premises. McDonald’s has a single point of entry and exit which is on Berith Road about 35-40m from Great Western Highway and is slightly to the south of the proposed additional driveway to service egress from the site.

9. Berith Road continues in a southerly direction past the site for a short distance ending at a bulb to the north of the road reserve for the western motorway (M4). Cosby Street runs to the west of Berith Road. Both Berith Road and Cosby Street are residential in nature but there is no through traffic on either road.

10. Traffic enters Berith Road for four principal potential purposes:

1. the local residential traffic;

2. to turn at or near the end of Berith Road and then return in an easterly direction on the Great Western Highway;

3. to enter the service station after turning right into Berith Road;

4. to enter McDonald’s.

11. Vehicles leaving the service station by the Berith Road exit generally intend to travel east, either to continue an east bound trip (having turned right into Berith to access the service station) or to return to the east having traveled west only for the purpose of accessing the service station.

12. The overwhelming amount of traffic in Berith Road is related to McDonald’s and the service station rather than the local residential traffic.

The Statutory Controls

13. The site is within the former Holroyd Local Government Area and is subject to the Holroyd Local Environmental Plan 2013 (“HLEP 2013”). The site is zoned R2 Low Density Residential pursuant to HLEP 2013.

14. Development for the purposes of a service station is prohibited but the site has the benefit of existing use rights for the purposes of a service station pursuant to s 4.65 of the EPA Act. An existing use may be enlarged, expanded or intensified, or altered or extended: cl 41 Environmental Planning and Assessment Regulation 2000 (“EPAR”). Development consent is required for any such enlargement, expansion, intensification, alteration or extension: cll 42 and 43 EPAR.

15. There is no issue between the parties, and I accept, that there are existing use rights and there is power in the Court to determine the present development application.

16. Although not in issue, it should be noted that the site is subject to a flood planning level and cl 6.4 – Flood planning of HLEP 2013 applies. Without setting out cl 6.4 in full, in essence, it provides that development consent must not be granted to development on land on which the clause applies, unless the consent authority is satisfied that the development is compatible with the flood hazard of the land and that there is no significant adverse effect on flood behaviour or the flood affectation of other properties. The parties accept, and it is self-evidently so, that the creation of the additional point of egress has no impact on flood behaviour and is compatible with the land’s flood hazard given the present operation of the service station.

17. Holroyd Development Control Plan 2013 (“HDCP 2013”) also applies. The relevant control is in Part A Section 2 Roads and Access. It offers no real assistance to determination of the issues in this case.

18. The RTA Guide to Traffic Generating Developments and Australian Standard AS/NZS 2890.1: 2004 both provide guidance and informed to a degree the opinions of the experts. The relevant extracts are referred to in the discussion of the evidence below.

The Proposal

19. The proposal for an additional point of egress to Berith Road means that the internal arrangements will be such that there will be a one way to the west for vehicles exiting to Great Western Highway and one way, initially also to the west, around the shop and service area of the service station for vehicles exiting to Berith Road. There will also be a rationalisation of car parking and a more sensible parking arrangement than at present. An extract of what is proposed is below:

20. The Applicant says, and the Council agrees, that the present arrangement is less than optimal giving rise to a number of points of conflict. The question is whether the Applicant’s proposal is satisfactory in circumstances where it offers some improvements but introduces an additional point of conflict.

The Course of the Proceedings

21. The present appeal was commenced on 21 August 2018. At the directions hearing on 18 September 2018, the matter was fixed for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (“LEC Act”) to be held on 13 February 2019. The conference was duly held on 13 February 2019 and adjourned on three occasions until its termination on 10 April 2019. It appears, evidenced by the adjournments of the conciliation conference, that the parties were close to resolution in that period but ultimately the matter did not resolve.

22. A directions hearing took place on 17 April 2019 at which time the proceedings were fixed for hearing on 19 and 20 November 2019, a little over seven months from that directions hearing. The usual directions were made and the parties were required to lodge an online court communication seeking directions in relation to expert evidence by 15 May 2019.

23. It appears that there was no online court communication thereafter in relation to expert evidence.

24. As far as the Court’s records are concerned the matter then went into a deep slumber reawakening only with the filing of the Council Bundle of Documents by the Respondent on 8 November 2019. No evidence at all having been filed by either party I listed the matter for a telephone directions hearing on 18 November 2019.

25. At that directions hearing, Mr Sonter appeared for the Applicant and Ms Hudson for the Respondent. I was informed that the parties may reach an agreement but their position would not be known until the commencement of the hearing the following day. After making not unconventional observations about the difficulties inherent in succeeding in an appeal in the absence of evidence, and the often unfortunate fate of late applications for amendment and adjournment, the commencement of the hearing on 19 November 2019 onsite was confirmed.

26. When the hearing commenced onsite on 19 November 2019 I was informed by the solicitor for the Applicant that the matter was not resolved and that he would seek to move to rely upon amended plans to which the solicitor for the Respondent anticipated taking objection.

27. I inspected the site in the presence of the solicitors for the parties and those advising them. Although some local residents had signed a petition opposing the proposal, no objector appeared at the hearing to give evidence.

28. When the matter returned to Court, the Applicant sought leave to file in Court a Notice of Motion seeking that it would be heard instanter and being granted leave to rely upon amended plans and supporting documents.

29. I briefly looked at the documents and noted that all the documents bore dates between February and April 2019. It transpired that the documents had been provided by the Applicant to the Respondent on a without prejudice basis some considerable time ago, although at no point had the Applicant informed the Respondent that it proposed to rely upon and tender the documents if the matter proceeded to a hearing.

30. The Respondent opposed the grant of leave, alternatively if leave was granted, it sought an adjournment in order to prepare expert evidence.

31. Before proceeding to deal with the Motion I made a number of observations to the parties to the following effect:

1. although settlement negotiations are encouraged, parties should be ready to proceed to a hearing in the event the matter is not resolved, no matter what degree of confidence the parties had in a likely settlement;

2. the parties should have re-listed the matter prior to the hearing to inform the Court of the negotiations and for amended directions to ensure that if the matter did not resolve it could proceed to a timely hearing with expert evidence;

3. any matter which is not ready for hearing and is adjourned causes additional delays in the Court and deprives other litigants of earlier hearing dates;

4. whilst the documents had previously been provided to the Council only on a without prejudice basis, there was no doubt a familiarity with the documents which may enable a swifter analysis by the Respondent than might otherwise had been the case;

5. it was not absolutely necessary for the experts engaged by the parties to prepare a joint report or any other additional evidence in writing, as I was prepared to simply take their oral evidence;

6. the issue, whilst an important one relating to public safety, was nevertheless a straightforward one;

7. the Court was understandably anxious to utilise the time allocated to the case to finalise it;

8. I would be prepared to adjourn the matter until the following morning because there would still be sufficient time to finish the case within the time allocated for it in that event;

9. If the Council expert considered he was not able to deal with the matter I was prepared to have the witness give oral evidence as to the reasons why rather than require an affidavit to be prepared.

32. I then adjourned the matter for some time to allow the parties to consider their positions having regard to the observations I had made.

33. When the matter resumed the solicitor for the Respondent informed the Court that she and her expert were able to deal with material and that it was agreed between the parties that the experts could meet and produce a joint report either later that day or by first thing the following morning. Leave was granted to rely on the additional documents.

34. I then adjourned the matter until 10am the following day.

35. The experts produced a joint report and the matter was able to proceed the following day although the commencement was slightly delayed while the parties and the Court came to grips with the experts’ joint report.

The Issues

36. It was common ground that there should only be a left-hand turn from the proposed additional egress onto Berith Road and therefore that right turn should be prohibited. The Applicant’s case was that the use of signage and markings on the site would be sufficient to achieve that goal. The Council’s case was that signage and markings would not be a sufficient deterrent and that a median strip was required to ensure the desired outcome.

37. The issue therefore was having regard to the traffic conflicts occasioned by the proximity of the McDonald’s exit, whether to ensure compliance with left turn exit only a median strip, or some other form of discouragement other than signage and markings on the site was required.

The Evidence

38. A number of residents had signed a petition in opposition to the development proposed. In essence, the residents were concerned about traffic and safety and their concerns were embraced by the Council’s contentions.

39. Expert traffic evidence was given by Mr K Martinez retained by the Applicant and Mr S Sivakumar the manager engineering and traffic of the Respondent.

40. There was no issue about the number of vehicles using Berith Road, and in particular exiting from McDonald’s and from the present service station exit onto Berith Road. The relevant figures per hour are :

Morning Peak	Afternoon Peak	Saturday Peak
McDonald’s (R onto Berith)	119	140	164
Service Station (L onto Berith)	37	32	56
Service Station (R onto Berith)	0	4	2

41. It will be seen that there is significantly more traffic leaving McDonald’s in comparison to the service station. That is logical because all of the traffic from McDonald’s must come onto Berith Road, whereas the overwhelming amount of traffic from the service station leaves by Great Western Highway and only a percentage in the order of 10% leaves by Berith Road.

42. The speed of vehicles on Berith Road in the vicinity of the proposed driveway was generally accepted to be 22kph to 30kph as the norm

43. There was agreement between the experts as to the proposed internal arrangements, including as to the use of signage (apart from for the exit to Berith Road) and a speed bump just prior to the exit onto Berith Road.

44. Mr Martinez considered that “90% of people” follow signs and that the proposed signage would adequately deal with the potential risk associated with the new point of conflict. He observed that there was a very small number of people presently turning right out of the service station onto Berith Road in circumstances where it is permissible and that it is a low speed environment. He accepted that a median strip would ensure no right turns from the service station but that one could “try signs and markings first then consider median later”. I took that to mean that he was satisfied with the proposed arrangements but that it was open to the Council in the future to construct a median strip in the event it became necessary.

45. Mr Sivakumar was concerned about two potential conflicts :

1. vehicles leaving McDonald’s at speed and conflicting with vehicles turning left from the service station onto Berith Road;

2. vehicles turning right onto Berith Road against the signs and conflicting with other vehicles on the road.

46. Mr Sivakumar agreed that the proposed arrangements were superior to the present arrangements for access to and egress from the service station, but that the application of the RTA Guide to Traffic Generating Developments (RTA Guide) and Australian Standard AS/NZS 2890.1 :2004 (AS 2890.1) required that a median strip be installed opposite the proposed additional exit, the effect of which would be to slow traffic leaving McDonald’s and prevent the possibility of vehicles turning right from the service station.

47. The advocates made submissions in accordance with the evidence given by theory respective experts. Mr Sonter pointed in particular to the low level of potential conflict and described the proposal by the Respondent for a median strip as “overkill”. Ms Hudson emphasised the introduction of an additional point of conflict was unsafe without a median strip.

Consideration

48. The primary difference between the experts hinges on the application of the RTA Guide and AS2890.1. Unsurprisingly, neither document deals specifically with the present situation but the terms of those documents need to be considered.

49. The RTA Guide deals with Access and Parking Area Design in Section 6. Within Section 6.2.1 headed “Access Driveways – Safety Considerations” is the following:

“Potential Confilcts

Potential conflicts associated with driveways are often proportional to the traffic generating potential of the development which they serve.

Where possible, avoid positioning driveways with high traffic volumes in the following locations:

• On major roads.

• Close to intersections.

• Opposite other developments generating a large amount of traffic (unless separated by a median).

• Where there is a heavy and constant pedestrian movement along the footpath.

• Where right turning traffic entering the facility may obstruct through traffic.

• Where traffic using the driveways interferes with or blocks the operation of bus stops, taxi ranks, loading zones or pedestrian crossing.”

50. Mr Sivakumar accepted that the proposal complied with all the locations or criteria in the RTA Guide except for the third dot point – “opposite other developments generating a large amount of traffic (unless separated by a median)”.

50. It must be accepted as self-evident that potential conflicts associated with driveways will increase with greater numbers of vehicles using the driveway and on the road to which the driveway leads. The advice from RTA in the Guide is to avoid positioning driveways with high traffic volumes opposite other developments generating a large amount of traffic (unless separated by a median). The guide identifies the potential conflict as being a proposed driveway with a high traffic volume opposite another development which also generates a large amount of traffic. In those circumstances a median would be required.

51. In the present circumstances it can be accepted that the McDonald’s development generates a large amount of traffic – the various peak hours ranging from 119 vehicles to 164 vehicles exiting the site giving rise to the potential conflict. However the proposed driveway (as distinct from the service station as a whole) is not a driveway with high traffic volume evidenced by the various present hourly peaks of 37 vehicles, 32 vehicles and 56 vehicles turning left onto Berith Road and 0, 4 and 2 vehicles per hour turning right onto Berith Road.

52. In my opinion it is plain that the Berith Road driveway exit is not a high traffic volume driveway. It was not suggested by either expert that the new driveway is likely to attract any significantly greater number of vehicles than presently use the Berith Road driveway to exit the subject site nor that the range of likely use was in fact a high traffic volume.

53. Australian standard AS2890.1 provides in section 3.2.3 that:

“Driveways in categories 3 and 4 (see table 3.1) shall not be located –

i) on arterial roads…;

ii) closer to intersections than permitted for category 1 and 2 driveways…

iii) opposite other developments generating a large amount of traffic unless all projected traffic flows are provided for in a properly designed and constructed intersection treatment, including the installation of signals if necessary;

iv) where there is a heavy and constant pedestrian movement along the footpath…

v) where right turning traffic entering the facility would obstruct through traffic; or

vi) where traffic using the driveways will interfere or block the operations of bus stops, taxi ranks, loading zones or pedestrian crossings.”

55. It is immediately to be noticed that the criteria in AS2890.1 are substantially the same, albeit with slightly different language, as those in the RTA Guide.

56. Mr Sivakumar said that the proposed driveway was in category 4 having regard to table 3.1 of AS2890.1. That table deals with the class of parking facility, the frontage road type and the number of parking spaces at the facility to determine the category of the facility numbered 1 to 5. That category is then used to apply to other criteria in AS2890.1.

57. There is a difficulty in applying table 3.1 in its terms because it applies to the whole of a facility rather than directing attention to the use of a particular driveway (as does the RTA Guide). There are multiple driveways for the facility in this case.

58. Further, the criterion in (iii) above refers again to other developments generating a large amount of traffic. Applying that criterion to the present situation, it would be wrong to apply it to the development as a whole but rather it should be applied to the driveway creating the potential point of conflict. Such an approach accords with the RTA Guide which focuses on a conflict created by a particular driveway as I identified above.

59. Whilst AS2890.1 is of general assistance, it does not command in the present circumstances, a “constructed intersection treatment”, that is a median strip, because that need is directed to the traffic generated by the development as a whole. Applying it to the relevant driveway, AS2890.1 would only apply when that driveway itself generates a large amount of traffic because of the use of the phrase “other developments generating a large amount of traffic”. The proposed driveway will not generate a large amount of traffic.

60. It follows that in my opinion neither RTA’s guide nor AS2890.1 would require installation of a median strip on Berith Road.

61. There remains to determine as a matter of merit whether the signage proposed together with the speed bump is sufficient to both deter motorists from turning right from the driveway into Berith Road and overall to mitigate the risk of conflict and collision, or whether a median strip is required in any event.

62. In my opinion the safety risk is low and therefore I do not consider a median is required for the following reasons.

63. First there is no history of collisions involving vehicles exiting the service station on Berith Road from the present driveway. Whilst that is not determinative, because not all collisions are reported and recorded, it is some indication of the level of safety of the present arrangement, albeit one accepted as less than optimal. It is likely to be reflective of the low numbers of vehicles exiting the site onto Berith Road and the low speed environment.

64. Second, vehicles exiting the new driveway will be drawn to a virtual standstill by the proposed speed bump at or about the boundary of the subject site and the road reserve.

65. Third there is a clear line of sight from the exit both left and right, and in particular traffic exiting McDonald’s is clearly visible. Similarly, there are excellent sight lines for vehicles leaving McDonald’s.

66. Fourth, the McDonald’s exit is not directly opposite the site. The vehicles from McDonald’s enter the roadway and complete their turn before any potential encounter with vehicles leaving the site.

67. Fifth, the number of vehicles leaving by the Berith Road exit is modest.

68. Six, it is a low speed environment.

69. It follows that the question is the adequacy of signage to sufficiently mitigate what I find is a relatively low safety risk environment.

70. The Applicant proposes signage at the boundary of the subject site including “GIVE WAY”, “NO ENTRY” and “LEFT TURN ONLY”. Mr Sivakumar, whilst maintaining his view that a median was required, expressed the concern that if there was no signage in the public domain, then a driver could disobey the “LEFT TURN ONLY” sign, for example, without public sanction. That is, the Australian Road Rules (as applied in New South Wales) do not create an offence of disobeying a sign on private property. I share that concern.

71. I accept the evidence of Mr Martinez that only a very small minority of drivers are likely to disobey the signage. But that does not mean steps should not be taken to ensure as much as reasonably possible that circumstance is created whereby drivers act in accordance with the relevant signage.

72. It seems to me that in order to better ensure the appropriate behaviour of drivers using the proposed driveway something other than signage simply within the site is required. This has two benefits:

• it reduces the prospect of engendering a belief that internal signage is only a “suggestion”; and

• engenders recognition that a failure to comply is a breach of the law and the driver can be subject to a traffic infringement notice.

73. In my opinion the proposed signs at the northern and southern end of the proposed driveway at the boundary should say “GIVE WAY” facing the departing drivers and on the reverse side “NO ENTRY” facing Berith Road. There should be two additional signs on the road reserve just inside the curb, the northern one saying “LEFT TURN ONLY” and the southern one saying “NO RIGHT TURN”, and the reverse of those signs saying “NO ENTRY”. There should also be a marking on the concrete surface of the vehicular crossing and the road reserve being a large arrow indicating the left hand turn.

74. In my view with that additional signage there is sufficient discouragement or deterrent to drivers to turn right out of the proposed driveway, and for the reasons set out above it is a safe manoeuvre for the vehicles to turn left onto Berith Road.

Conditions

75. The parties filed amended draft conditions, but those conditions will have to be amended in accordance with these reasons and the plans amended. I will direct the parties to file an agreed set of conditions taking into account the terms of this decision but also addressing the following matters:

• the proper description of the development;

• the location of the speed bump;

• retention of the “keep clear” signage as initially proposed (both experts thought this was desirable, Mr Sivakumar simply indicated that the RTA may not approve such signage);

• Roads Act consent for the work in the road reserve including the signage.

76. The plans should also be amended to provide for one way movement on the eastern side of the car wash, the location of the speed bump and the signage I require.

Conclusion

77. There was no issue as to whether or not development consent should be granted, the issue was the conditions upon which such consent should be granted. I have determined that the median strip which Council pressed is not required but that additional measures beyond those proposed by the Applicant are required to reduce the potential for conflict as a consequence of the introduction of the proposed driveway.

Directions

78. The Court directs the parties to:

1. File agreed amended plans and conditions within 14 days whereupon I shall make final orders. If the parties cannot agree on conditions then within the same 14 days the competing conditions shall be filed together with any brief commentary or submission as to the area of dispute.

Addendum made on 17 March 2020

79. On 4 March 2020, the parties provided amended plans and agreed conditions as required by the directions of the Court made on 4 February 2020 following the reasons published that day and set out above.

80. The plans and conditions reflect the Court’s findings and accordingly I make the following orders:

1. The appeal is upheld.

2. Development consent is granted for the construction of a vehicular crossing and layback for an existing service station at Lot 4 DP 21134 known as 449 Great Western Highway, Greystanes, including:

1. the creation of an additional point of egress from the service station onto Berith Street;

2. the rearrangement of traffic movements into the site such that the existing point of access and egress on Berith Street is amended to entry only;

3. the rearrangement and provision of parking spaces on the site;

4. the rearrangement of traffic movement within the site;

5. line markings and signage on the site to give effect to each of the above;

upon the conditions annexed and marked ‘A’.

3. The exhibits, other than Exhibit A, are returned.

……………………

P Clay

Acting Commissioner of the Court

Annexure A (75.7 KB, pdf)

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Amendments

20 March 2020 - See Addendum at [79]-[80] for final orders.

Decision last updated: 20 March 2020