GrainCorp Limited v Narrabri Shire Council

[2016] NSWLEC 1382

Land and Environment Court

New South Wales

Medium Neutral Citation:	GrainCorp Limited v Narrabri Shire Council [2016] NSWLEC 1382
Hearing dates:	5 July 2016
Date of orders:	05 July 2016
Decision date:	05 July 2016
Jurisdiction:	Class 1
Before:	Hussey AC
Decision:	The Court orders by consent 1. The appeal is upheld 2. Development Application No. 18/2016 for proposed upgrade of rail siding facilities at 230 Old Turrawan Road, Narrabri is determined by the granting of consent subject to the conditions in Annexure “A”. 3. No orders as to costs 4. The exhibits be returned except for 1,2, 5, A, D, E, F
Catchwords:	Review of condition of consent; restriction on time of train shunting operations, alternative access route
Legislation Cited:	Environmental Planning & Assessment Act 1979
Category:	Principal judgment
Parties:	GrainCorp Operations Limited (Applicant) Narrabri Shire Council (Respondent)
Representation:	Solicitors: Mr M Cotton (Respondent) Mr A Whealy (Applicant)
File Number(s):	2016/162083

This determination was given extemporaneously

and has been edited prior to publication

Background

1. This appeal relates to a development application that was lodged by GrainCorp seeking consent for the upgrade of an existing grain receivable facility at Old Turrawan Road, Narrabri. The development application sought consent for the replacement of an existing rail siding and the construction of three parallel 290m long rail sidings, and the recommissioning of an existing rail spur.

2. The site is zoned RU1 Rural Primary Production and the proposed works in the development application seek to improve efficiencies associated with a rural industry, which is permissible with consent.

3. According to the Applicant’s Statement of Facts and Contentions the proposal will result in a significant reduction in level-crossing blockages within the immediate locality. In the existing situation, there are 18 level-crossing blockages per train which results from the shunting of trains back and forth from Narrabri West holding yard to the Applicant’s terminal. There are proposed to be approximately 17 trains shunted per year. The proposal will reduce the number of level crossing blockages from 18 per train to 6 per train. The Applicant estimates this will result in the total time that level-crossing are blocked will be reduced from 54 minutes to approximately 18 minutes per train.

4. The Council granted conditional consent to the proposal subject to 19 conditions, including

19. To require there be no shunting between 7am to 10 am and 3pm to 6pm daily or that the proponent provide an alternate access to Fraser St.

5. The Applicant sought a s82A review of this condition for its deletion. However this was not approved and this appeal is against the refusal of the s82A review application.

6. Subsequently, there have been discussions between the parties and they now agree to consent orders, which delete condition 19 subject to amended conditions.

7. The proposal was originally modified to 15 neighbouring landowners and attracted 2 objections, two from Ms K Halcombe who is a resident of the southern portion of Fraser St and who relies on the crossing for access and is concerned about emergency and general access from business. Another was received from Rev. T Sadler.

8. Both objectors were notified of todays consent orders hearing and Ms Holcombe expressed her concerns via a telephone link, that there would likely be a lot more rail traffic is a result of the proposal and this will restrict access/egress to her property unreasonably. She also questioned the overall impact of the proposal in terms of other users of the siding.

The Evidence

9. Retailed evidence was presented by:

• Mr T Meppem;    Director of Development and Economic Growth (Exhibit 5)

• Mr R. Kinsella;    Applicant’s Consulting Surveyor/Plans (Exhibit F)

10. Mr Kinsella supports the deletion of condition 19 because he considers it is unreasonable on the following basis:

1. GrainCorp Operations does not have control of shunting times. The rail line and crossing in question is controlled and operated by ARTC and movements are scheduled on a property basis by ARTC and Grain Corp has to fit in to a schedule of other uses such as passenger trains and various freight haulers including direct competitors.

2. The shunting limitation outlines in (a) above may further disadvantage Fraser Street residents if it led to more frequent blockages.

3. The proposal will lead to an overall reduction in level crossing blockages in the immediate area. In this context, while there may be inconvenience to Fraser Street residents, the overall outcome for all parties affected is positive through less blockages on all level crossing in the immediate vicinity.

4. GrainCorp is only one of multiple users of the track. Hence requiring GrainCorp to solely provide a solution to the perceived problem is unfair and unreasonable.

5. The condition was contrary to Council’s Professional Planning staff advice.

6. Emergency services were consulted and did not have an issue with the proposal as probable response times due to potential level crossing closures were within acceptable time frames.

7. The cost and fairness of Council requiring GrainCorp providing an expensive alternative access for a small number of Fraser Street residents for infrequent occasions when it might be needed.

11. Mr Kinsella also says that the likely 2 new blockages, as a consequence of the approval, would occur on average once every 3 weeks or 17 times per year. The characteristics of the locality of the affected area is rural in nature and, in fact, zoned “Rural” zoned area and dissected by the train line that has been in existence longer than the complainants have resided in the immediate area. These characteristic would or should have been considered as well as the implications of level crossing blockages in making the decision to reside in the locality which is not residentially zoned land and has only one means of ingress and egress.

12. Consequently, it is not unusual for roads to be blocked by train movement in such a location. Such blockages are part and parcel of rural life in the vicinity of train lines. Usually they are an inconvenience and it would be rare when such blockages cause concerns in emergency situations as borne out by the response of Emergency Services when they considered this proposal.

13. Mr Meppem now also considers condition 19 unreasonable on the following basis:

• Given the limited frequency and duration of time that GrainCorp trains will affect the rail crossing comparative to other line users it is unreasonable to impose a condition of the development requiring the completion of the construction of an alternate vehicle access at their expense.

• The time restrictions imposed by Condition 19 are an imposition on the ARTC’s control of the public rail which includes the Fraser Street level crossing and unfair to GrainCorp who are unable to choose shunting times.

• Conditions 15 and 16 in the development consent were included in the consent to ensure adequate information was available for emergency access during site shunts and that an emergency plan was in place to ensure access could be provided as needed. It is considered that these conditions are a reasonable method of ensuring emergency access.

• In their letter issued 17 September 2016 GrainCorp indicated that trains could be shifted from the crossing in 50 seconds if an emergency situation occurred with shunting in progress. Waiting for a train to move would be more time effective than relying on any emergency access via an alternate escape route either through the GrainCorp worksite or through an extension of unformed Avon Street to Old Turrawan Road.

• The additional effect of the proposal on total blockages of Fraser Street has not been demonstrated and the delays referred to in Ms Halcombe’s submission are not necessarily caused by GrainCorp and to request them solely to solve this by constructing an alternate access is unreasonable.

• The chances of one of the nine residents being affected by the shunting activity caused by this development are very remote given expected blockage of the Fraser Street crossing of less than 30 minutes per week and in reality existing rail traffic will be the predominant cause of obstruction of the crossing.

Conclusion

14. In considering this matter I have taken into account the expert evidence, objections and submissions. I note that the subject land is within the RU1-Primary Productive zone where the zone objectors are:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To encourage diversity in primary industry enterprises and systems appropriate for the area.

• To minimise the fragmentation and alienation of resource lands.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To allow for non-agricultural land uses that will not restrict the use of other land for agricultural purposes.

15. Having regard to these objectives, there was no evidence to show that the proposal is inconsistent. Instead the submissions are that the proposal is entirely consistent by allowing for non-agricultural users that do not restrict others agricultural uses and therefore the approval of this development, subject to reasonable conditions, is entirely complimentary to the other agricultural uses.

16. With regard to the merits of condition 19, I accept the evidence that it is an unreasonable condition because the restriction on time for use of the crossing is not GrainCorp’s responsibility, instead ARTC has overriding conditions on the shunting times.

17. Notwithstanding, this I understand that the incremental change arising from the Grain Corp application is a “likelihood of 2 new blockages, on average once every 3 weeks or 17 times a year. This translates to a possible blockage in the order of less than 30 minutes/week for users like Ms Holcombe.

18. In response to these concerns about safety and convenient access due to the use of the level crossing, I note the evidence that in an emergency situation, a shunting train could be shifted in 50 seconds. Considering that the application was referred to the emergency services authority and they raised no objections, I am satisfied that there concerns are reasonably addressed.

19. In terms of public interest considerations, I have considered that Council assessment report which states:

• The changes in rail movement resulting from the development will reduce the cumulative affect rail movements associated which the site have on Narrabri Road and level crossing. Currently movements between the site and the Narrabri West Rail Yard involve eighteen (18) rail movements across level crossings, including ten (10) movements across the Newell Highway level crossing. As a result of the proposal the amount of rail movements affecting Narrabri level crossing will be reduced from the current eighteen (18) to six (6) and the number of movements affecting the Kamilaroi Highway level crossing reduced to two (2).

20. Furthermore, reference to the details in the SEE (Exhibit A) show the effect of current operations compared to future operations, whereby it is projected that there will be 60% less rail movements past Narrabri West Public School. The comparison is:

Current operations

Movements past Public School:       8

Level crossing blockages:               18

Total time level crossing are blocked during loading:    54 mins

Future operations

Movements past Public School:        1

Level crossings blockages:               6

Total time level crossing are blocked during loading   18 mins

21. In the absence of any contrary evidence I think that this results in a significant public benefit that supports the granting of the Consent Orders.

22. Aside from the proposed time restrictions in condition 19, it also required the provision of an alternate access. In firstly considering the appropriateness and reasonableness of this condition it seems to me that it lacks specificity and has an unreasonable degree of uncertainty.

23. Insofar as an alternate route may have some better outcomes for some of the residents in the nearby area, I note from the attachments to the Applicant’s Statement of Facts and Contentions, Council is apparently considering an alternative access as follows:

… that Council has resolved a motion in relation to this matter which requires Council staff to investigate provision of public road access from Fraser Street to Old Turrawan Road. Preliminary investigations indicate Avon St Road reserve actually extends all the way from Fraser St through to Old Turrawan Rd. A report will be prepared for a future Council meeting to allow consideration of the up-grading of this road to a similar standard described above and this may alleviate the DA condition requirements.

24. Presumably this initiative would allow input from all the affected stakeholders. As there was no compelling evidence put before the Court to justify the imposition of the alternate road upgrading component,. I agree with the experts it is unreasonable in the circumstances.

25. Insofar as the Consent Orders delete condition 19, nevertheless the following conditions 15 and 16 remain.

Conditions that Must be Complied with at All Times

1. 15.   Should any emergency services vehicle require immediate access to the southern portion of Fraser Street whilst train shunting affecting the Fraser Street level crossing is being carried out the train driver shall act to immediately clear the Fraser Street level crossing to allow emergency access in accordance with the procedures outlined in GrainCorps letter issued Thursday 17 September 2015.

2. 16.   At all times the operator of the site shall keep a register of anticipated train arrivals/departures to and from the site. This register is to be publicly available via a link on the operator’s website and details of anticipated train movement provided to residents on request (via a direct contact telephone number which must be displayed on the operators website).

Note: The register is to be updated when rail slots are booked. In accordance with Grain Corp and Pacific National’s current policies rail freight in booked one (1) week in advance of any rail movement, it is not noted that this mat change in line with changed company requirements.

26. Considering that the shunting timetable is available about 1 week ahead, and GrainCorp will take measures for public notification of shunting times, it seems to me that in most cases this would allow residents reasonable time to make alternate access/egress arrangements to avoid the possible 30 minutes shunting delay.

27. In summary, I am satisfied to rely on the aforementioned expert evidence that condition 19 is unreasonable so as to grant the Consent Orders.

Orders

28. The Court orders by consent

1. The appeal is upheld

2. Development Application No. 18/2016 for proposed upgrade of rail siding facilities at 230 Old Turrawan Road, Narrabri is determined by the granting of consent subject to the conditions in Annexure “A”.

3. No orders as to costs

4. The exhibits be returned except for 1, 2, 5, A, D, E, F

R Hussey

Acting Commissioner

162083.16 Hussey (C) (142 KB, pdf)

Decision last updated: 02 September 2016