Hoey and Shire Of Serpentine*Jarrahdale
[2009] WASAT 155
•14 AUGUST 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HOEY and SHIRE OF SERPENTINEJARRAHDALE [2009] WASAT 155
MEMBER: MS M CONNOR (MEMBER)
HEARD: 29 MAY 2009 (FURTHER EVIDENCE RECEIVED 5 JUNE 2009, FURTHER WRITTEN SUBMISSIONS RECEIVED 11 JUNE 2009 AND 16 JUNE 2009)
DELIVERED : 14 AUGUST 2009
FILE NO/S: DR 437 of 2008
BETWEEN: AIDEN HOEY
JULIE HOEY
ApplicantsAND
SHIRE OF SERPENTINEJARRAHDALE
Respondent
Catchwords:
Town planning - Development application - Review of conditional approval - Condition in disputed requiring upgrade of gravel road to sealed road for 1.15 kilometres - Validity of condition - Second Newbury test - Traffic volumes - Road maintenance - Dust nuisance - Nexus not established
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31, s 31(3)
Result:
The application for review is allowed
The decision of the respondent is varied
Category: B
Representation:
Counsel:
Applicants: Mr A Marsh (Representative)
Respondent: Mr C Slarke
Solicitors:
Applicants: AJ Marsh Pty Ltd (Surveying & Planning Consultants)
Respondent: McLeods
Case(s) referred to in decision(s):
Duckworth and Western Australian Planning Commission [2005] WASAT 337
Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98
Ironbridge Pty Ltd and Western Australian Planning Commission [2007] WASAT 305
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Perrymead Pty Ltd v WAPC (1996) 16 SR (WA) 181
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter concerned two conditions of development approval for a paintballing facility on No 301 (Lot 50) Boomerang Road, Oldbury. Agreement was reached between the parties with respect to one of the two conditions. Consequently, the matter proceeded to final hearing with the only issue in dispute being condition 11, which required the upgrading of Boomerang Road for a distance of 1.15 kilometres west of King Road.
The Tribunal was satisfied that the existing unsealed road would adequately and safely accommodate the additional traffic generated by the proposed development. Further, the Tribunal was satisfied that the additional traffic would only result in very minor changes to the existing road maintenance programme and based on the evidence, and given the nominated speed limit for Boomerang Road, considered the level of dust generated by vehicles would be within reasonable limits given the nature of the locality. The Tribunal did not consider that the development gave rise to a need for the road to be sealed. The Tribunal accepted that the proposed development would generate additional traffic which may ultimately contribute to the need for the road to be sealed if other activities on other properties along Boomerang Road intensified. However, the Tribunal was not satisfied that the other properties are likely to be redeveloped within the reasonably foreseeable future having regard to the characteristic of the area and given there is nothing in the planning framework that anticipates significant redevelopment of the area. Therefore, the nexus was not established and as such, the Tribunal found that it would not be lawful to impose a condition requiring the upgrading of the road.
The application for review was allowed and condition 3 was amended as agreed by the parties and condition 11 was deleted.
Introduction
An application for planning approval was lodged with the Shire of Serpentine-Jarrahdale (respondent, Shire or Council) on 5 August 2008 for the establishment of a private recreation - paintball gaming facility on No 301 (Lot 50) Boomerang Road, Oldbury (subject land or Lot 50).
The application was refused by the respondent at its meeting of 27 October 2008 for the following reasons:
1.The noise, traffic and dust generated as a result of this land use are likely to have an adverse impact on the amenity of the area and nearby landowners.
2.Boomerang Road is unsealed and would require substantial upgrading at the cost of the proponent to address the dust issues that would result from the significantly increase traffic volumes on the road.
Mr and Mrs Hoey (applicants), on 17 November 2008, made application under s 252(1) of the Planning and Development Act 2005 (WA) to have the decision reviewed.
Between December 2008 and March 2009, the parties engaged in a mediation process, facilitated by a Tribunal member. This process resulted in an invitation by the Tribunal to the respondent to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). At its meeting of 23 March 2009, the respondent reconsidered the reviewable decision and set aside the decision to refuse the application and substituted a new decision approving Private Recreation (Paintballing Facility) on the subject land, subject to 21 conditions and 6 advice notes.
Pursuant to s 31(3) of the SAT Act, the review is taken to be the review of the decision as substituted. In orders made on 31 March 2009, conditions 3 and 11 were identified as issues in dispute between the parties. These conditions read as follows:
3.All proposed structures and screen fencing are to be of non reflective material and in a colour of natural and earth tones to compliment the surroundings and to be maintained to a high standard to the satisfaction of the Shire. Perimeter fence around the paintball field shall be clack chainwire mesh only; and
11.Arrangements being made with the local government for the upgrading of Boomerang Road for a distance of 1.15 kilometres west of King Road at the full cost of the landowner, to the satisfaction of Council.
The Tribunal, on 20 May 2009, received a minute of consent from the parties agreeing to the following wording of condition 3:
3.All proposed structures and screen fencing are to be of non reflective material and in a colour of natural and earth tones to compliment the surroundings. The perimeter fence or screen around the proposed paintball field must be at least 2 metres in height and constructed, and thereafter maintained, so that it is impenetrable by a projectile fired from a paint gun.
Given this agreement, the matter proceeded to final hearing with the only issue in dispute being condition 11.
Subject land and its surrounds
The subject land is 9.4 hectares in area and is currently vacant. There is some remnant vegetation in the south-west and south-eastern corners of the land with smaller patches in the northern portion of the land. The south-western corner of the land also contains a portion of wetlands. Other than these, there are no distinguishing features on the land.
The subject land is located on a section of Boomerang Road between Banksia and King Roads. This section of Boomerang Road is divided into two disconnected parts, separated by an inaccessible bush track. Boomerang Road between the subject land and King Road is an unsealed gravel road. There are eight other properties that share this same section of Boomerang Road. With the exception of the wholesale/retail nursery located on the corner of King and Boomerang Roads, these properties are all of a rural or rural residential nature, and include four private dwellings, equestrian activities, manuring processing and a disused poultry farm.
The proposal
The proposal involves the establishment of a paintball gaming facility on the subject land (see Attachment 1). The Shire's conditional approval places some restrictions on the operation of the paintball facility, which includes:
•The use is limited to operate between the times of 8 am and 6 pm only, Thursday to Monday inclusive;
•A maximum of two sessions are permitted to operate per day;
•A maximum of 45 patrons are permitted to attend the facility at any time per session; and
•Twelve car parking bays and two bus parking bays are to be provided on-site.
Disputed condition
The disputed condition requires the upgrading of Boomerang Road for a distance of 1.15 kilometres west of King Road at the full cost of the landowner, to the satisfaction of Council. By way of clarification, the Shire attached an advice note on the planning approval specifying that '[t]he upgrading of Boomerang Road shall consist of grading the gravel base, a double coat seal and an asphalted intersection at crossover and grading. The upgrading shall be provided from the proposed vehicular access to Lot 50 through to the intersection of Boomerang Road and King Road to the satisfaction of the Director of Engineering'. The cost of the upgrade was estimated to be approximately $120,000.
The contest in this review is whether the disputed condition fairly and reasonably relates to the development.
Applicable principles
In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57], McHugh J in the High Court of Australia endorsed the test for the validity of a condition of planning approval articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 in the following terms:
A condition attached to a grant of planning permission will not be valid therefore unless:
(1)The condition is for a planning purpose and not for any ulterior purpose …
(2)The condition reasonably and fairly relates to the development permitted.
(3)The condition is not so unreasonable that no reasonable planning authority could have imposed it.
A condition requiring a developer contribution can only be imposed on a planning approval if it is lawful and if its terms are reasonable and appropriate in the circumstances.
The former Town Planning Appeal Tribunal made the following findings in Perrymead Pty Ltd v WAPC (1996) 16 SR (WA) 181, '[f]or a condition to be valid and efficacious, it must be shown to have some nexus with the subdivision ... The test is that the condition fairly and reasonably relates to the subdivision not that it springs directly from the needs produced by the development … It is sufficient if the condition can be said to reasonably arise from the fact of the subdivision'.
This approach has been followed by the Tribunal in Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98; Duckworth and Western Australian Planning Commission [2005] WASAT 337 and Ironbridge Pty Ltd and Western Australian Planning Commission [2007] WASAT 305.
Appropriateness of condition
The respondent contends that condition 11 is appropriate as traffic associated with the paintball facility will:
a)cause traffic on Boomerang Road to reach levels which are unacceptable or unsafe on a gravel road;
b)cause the gravel road to deteriorate thereby reducing the life of the road and increasing maintenance costs ; and
c)adversely affect amenity as the increased traffic on the road will generate dust and noise.
The respondent considered there to be a clear nexus between the condition and the proposed use to justify the application of the condition. The respondent contended that condition 11 goes to the very heart of the approval and can not be severed from the approval of the application as it is fundamental in addressing road safety, amenity and maintenance issues that arise from the additional traffic associated with the development.
The applicants submitted that the disputed condition is not clear, onerous as it places a significant financial burden on the applicants, and unfair and unreasonable as the increase in traffic does not warrant or justify the road being sealed.
Mr Slarke, counsel for the respondent, conceded that the condition may have been deficient in that it did not precisely express the upgrading required to be undertaken to Boomerang Road, but considered that this failing could be remedied simply by importing Advice Note 1 of the planning approval issued on 26 March 2009 into condition 11.
Expert evidence in this matter was given by Mr Peter Golder, a chartered professional engineer with 24 years' experience specialising in civil engineering particularly in works associated with land development, who was called on behalf of the applicants, and Mr David McKinley, Subdivision Co-ordinator at the Shire of Serpentine-Jarrahdale who holds an Advanced Diploma in Civil Engineering and has limited experience in the field of civil engineering, who was called on behalf of the respondent.
Traffic volumes
Both experts agreed that Boomerang Road is constructed to a standard where it has a reasonable camber and is well drained. Mr Golder considered the road to be in good condition and was safe, provided the respondent continued to complete a standard maintenance programme. There was, however, a discrepancy between the experts as to the width of road. Mr McKinley, in his witness statement, described the 1.4 kilometres section of Boomerang Road (west of King Road) as a '20 metre road reserve and an approximate 8m gravel driving surface with a crown'. Mr Golder, in his witness statement, described the width of the road from the end of the intersection treatment to the extent of the subject property as being 'formed up and gravel sheeted for a width of between 5.8 metres to 6.2 metres wide'. It was established during the hearing that Mr Golders' description accurately reflected the circumstances, whereas Mr McKinley's measurements had been taken where the traffic counter had been located, which was approximately 200 metres from the intersection, therefore the intersection treatment had been included in the measurement. Although this discrepancy does not amount to much in the calculations of traffic volumes in this instance, it does, however, highlight the difficulties the Tribunal experienced with some of Mr McKinley's evidence.
The following methodology was used by Mr McKinley to determine the likely increase in traffic generated from the proposed development:
i)Establish current usage of Boomerang Road - a traffic count of Boomerang Road was carried out over a period of 24 hours commencing on 22 April 2009. This count recorded a total of 86 vehicle movements per day (VPD) for the 24 hour period, of which none were commercial vehicles.
ii)Calculating the anticipated trips generated by the proposed development - based on the restrictions imposed on the paint ball facility, being two sessions per day with a maximum of 45 persons for five days a week, times in/out movements, with an added assumption that each vehicle would carry two persons (2 x 45 x 5 x 2 ÷ 2) equating to 450 vehicle movements per week. A further calculation was undertaken to determine the average vehicle movement per week day which was estimated to be 50 VDP (450 vehicles per week x 40 weeks of operation ÷ 52 weeks a year = 346 ÷ 7 days a week = 50 VDP).
iii)The sum of both figures gives an estimated total traffic volume of 136 VPD.
Mr Golder based his calculation on the proposed operation time, car parking and anticipated patronage of the business and estimated that the average annual daily traffic (AADT) is likely to be 30 AADT or a maximum of 56 VPD during operating days, which brings the likely total traffic volume for Boomerang Road to 116 AADT or 142 VPD during the paintball operation day.
Although different methodologies were employed by the experts to determine the likely total traffic volume, the experts agreed, and the Tribunal accepts, that the range identified would be reflective of the likely increase in traffic resulting from the proposed development.
The respondent, based on the approach documented in Roads 2020 - Draft Regional Road Development Strategy - South West and Peel Regions (Roads 2020), considers that the existing traffic levels on Boomerang Road are just beyond the upper limits of the recommended traffic level for a type 3 - gravel road (20 - 75 vehicles AADT) and that the increase in traffic generated by the proposed development triggers the need to convert the gravel road to a sealed road. Mr McKinley also informed the Tribunal that this approach was consistent with the respondent's practice where there was a sense that a 100 VPD was justification to move from gravel to sealed roads. This, however, was dependent on a number of factors such as budgetary constraints, the types of vehicles and road classifications.
Mr McKinley considered that the increase in traffic generated by the proposed development will result in unsafe conditions due to a combination of factors, that being, the driving surface being a latteric type material, the line of sight, the vertical profile being a reverse curve, heavy vegetation on both shoulders of the road, and the inexperience of gravel road drivers together with a high number of vehicles coming and going at the same time.
Mr Golder referenced Table 4.1 - Unsealed Roads Classification of the Unsealed Road Manual, Guide to good practice, ARRB (March 2009) which identifies four categories of Class 4 roads (municipal rural roads). Mr Golder considered that the current and proposed traffic volumes would be within the range suitable for a Class 4B Minor road (15050 ADT) and together with the low commercial and heavy vehicle component, justified the use of an unsealed road. He did not consider that the likely increase in traffic would create a more unsafe situation than the existing level of traffic as the range of traffic volumes is low, the design of the road is within the guidelines and the most recent traffic count showed that the 85 Percentile Speed was recorded at 51.8 kilometres per hour, indicating that the majority of the road users travel at low speeds.
In regard to the question of when is it appropriate to convert from a gravel road to a seal road, Mr Golder indicated that there are a range of factors that would be used to determine whether to seal a road, traffic volumes being only one of those considerations, and referred to the list of considerations contained in Attachment 4 of Mr McKinley's witness statement. He considered that the use of traffic volumes as the only indicator was too simplistic. He maintained that the likely traffic volume is still within the range of an unsealed road and far less than what is expected to economically warrant an upgrade to a sealed road. He considered the tipping point to be when it is the same price to maintain the unsealed road as it is to upgrade the road.
Mr Golder did not consider there to be any issue with sight distances, whereas Mr McKinley, in his witness statement, considered there to be a safety concern for vehicles leaving the paintball facility conflicting with vehicles travelling west along Boomerang Road. Mr McKinley, during the hearing, admitted that he had identified the entrance of the paintball facility in the wrong location and had miscalculated the entrance by as much as 300 metres. He was unable to say whether this distance would fully address the issue but conceded that the sight distance concern would reduce over distance.
Road maintenance
There are no maintenance records available for Boomerang Road to base future estimates and as such, both experts were reticent about committing to a timeframe for works, as such works would be dependent on a range of factors. The evidence given by Mr McKinley was speculative and in part internally inconsistent. For example, in his witness statement, Mr McKinley considered that the additional traffic generated by the proposed development would perhaps necessitate the resheeting of the road every six months. In his oral evidence, his view changed to 'maybe every 3 years'. The Tribunal does not believe that this was intentional on Mr McKinley's part, but rather probably demonstrated his limited experience in this area.
Mr Golder's evidence was statistically based relying on various Victoria Council documents attached to his witness statement and the ARRB documents that were subsequently filed with the Tribunal. Mr Golder was of the view that the additional traffic generated from the proposed development would result in very minor changes to the existing road maintenance programme. He explained that given the increase in traffic involves light vehicles only, the order of magnitude of the additional traffic was not sufficient to appreciably change the existing road maintenance programme and that similar road maintenance would be required whether the development went ahead or not. Mr McKinley expected that the maintenance of the road would increase as vehicle usage increased.
Dust
One of the reasons put forward by the respondent for requiring the sealing of Boomerang Road is to minimise the dust nuisance. The respondent asserted that dust from the road traffic is already a source of irritation to residents and considers that it is likely that the increased level of traffic generated by the proposed development will bring with it an increased level of irritation associated with dust. The sealing of the road was considered to be a means of ameliorating the problem.
The applicants contended that resident expectation should encompass some expectation of dust given that the properties are located on a gravel road and considered that the dust issue is mitigated by the time the paintball operations is occurring, that is not in the summer months and by the road side vegetation.
Two photographs were submitted by the respondent to indicate the level of dust that might be expected to be generated from a vehicle using Boomerang Road. Mr McKinley estimated the speed of the vehicle as possibly as much as 90 kilometres per hour. The applicants also provided photographs to demonstrate that the speed of the vehicle directly correlated with the amount of dust likely to be generated by the vehicle. According to the applicants, the photographs were taken when road conditions would be considered to be dry. The photographs showed that at 50 kilometres per hour no obvious dust was evident and that as the speed of the vehicle increased, the amount of dust produced increased. As pointed out by the applicants, the photographs also demonstrated that the road side vegetation is effective in mitigating the dust.
The speed limit for Boomerang Road is nominated as 60 kilometres per hour on the traffic count data. According to Mr Golder, the traffic count data indicates that currently 85% of vehicles are travelling less than 51 kilometres per hour, which shows that vehicles are travelling at a reasonable speed on Boomerang Road. Mr McKinley suggested that the low figure may be attributed to the fact that the counter was placed about 200 metres from the intersection of King and Boomerang Roads and that vehicles may have been slowing down for the intersection.
Conclusion based on the evidence
To the extent that Mr Golder has a differing opinion to Mr McKinley, the Tribunal prefers the evidence of Mr Golder. It does so because in the Tribunal's view Mr McKinley demonstrated that he has less expertise in this area.
The evidence presented to the Tribunal clearly suggests that traffic volume thresholds alone are not the sole trigger for determining when a gravel road should be sealed and that there a many other factors that also need to be taken into consideration when determining this issue. The Tribunal is satisfied that the existing unsealed road will adequately and safely accommodate the additional traffic generated by the proposed development, resulting in very minor changes to the existing road maintenance programme. Further, based on the evidence and given the nominated speed limit for Boomerang Road, the Tribunal considers that the level of dust generated by vehicles will be within reasonable limits given the nature of the locality. The Tribunal, in this instance, does not consider that the development gives rise to a need for the road to be sealed.
The Tribunal accepts that the proposed development will generate additional traffic which may ultimately contribute to the need for the road to be sealed if other activities on other properties along Boomerang Road intensify. However, the Tribunal is not satisfied that the other properties are likely to be redeveloped within the reasonably foreseeable future having regard to the characteristic of the area and given there is nothing in the planning framework that anticipates significant redevelopment of the area. Therefore, the nexus is not established and it would not be lawful to impose a condition requiring the upgrading of the road.
Furthermore, even if the disputed condition were within power, the Tribunal considers that given the proposed development is only one of a number of commercially oriented activities contributing to the total traffic volume on Boomerang Road, it would not be reasonable to impose the full cost of the upgrade of the road on the applicants. The Tribunal considers that such a requirement would be disproportionate and some methodology of establishing an equitable contribution would need to be determined. The Tribunal does not need to consider such methodology in this instance given the above finding. In situations where cumulative development in a particular area is likely to give rise to an upgrade of a road, the Council should establish a methodology for determining equitable contributions, ideally in a local contributions planning policy.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 26 March 2009 to grant conditional approval for Private Recreation (Paintballing Facility) on No 301 (Lot 50) Boomerang Road, Oldbury is varied as follows:
(i)Condition 3 is deleted and replaced with a new condition 3 which states:
All proposed structures and screen fencing are to be of nonreflective material and in a colour of natural and earth tones to compliment the surroundings. The perimeter fence or screen around the proposed paintball field must be at least 2 metres in height and constructed, and thereafter maintained, so that it is impenetrable by a projectile fired from a paint gun.
(ii)Condition 11 is deleted.
I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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