McLoughlan v Bellingen Shire Council - [2008] NSWLEC 1304

Land and Environment Court

of New South Wales

CITATION: McLoughlan and Anor v Bellingen Shire Council [2008] NSWLEC 1304

PARTIES:
APPLICANT
Lea McLoughlan and Denise Pugh
RESPONDENT
Bellingen Shire Council

FILE NUMBER(S): 10249 and 10250 of 2008

CORAM: Hoffman C

KEY ISSUES: Development Consent :- turning a cafe into a tourist cabin and construction of two cabins, road works, noise, overlooking, conflict with farming, sewerage odours

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Bellingen Local Environmental Plan 2003

DATES OF HEARING: 13/06/2008

DATE OF JUDGMENT:
28 July 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr I. Hemmings, barrister,
Instructed by Mr D. Dunn, solicitor
of Stacks, Forster
RESPONDENT
Mr J. Reilly, solicitor
of Home Wilkinson Lowry Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Hoffman

28 July 2008

10249 of 2008 Lea McLoughlan and Denise Pugh v
10250 of 2008 Bellingen Shire Council

JUDGMENT

1 This is two appeals, 10249 and 10250 of 2008 between McLoughlan, Pugh and Bellingen Shire Council in regard to a rural property at No. 2749 Waterfall Way at Thora. The site is about 6 hectares in area and is situated on a spur ridge below the New England escarpment. The main road from Bellingen to Dorrigo runs up this ridge and adjoining the subject land is an intersection of the main road Waterfall Way and a stub Crown Road that is unnamed. The driveway to the subject site and to other properties come off this stub within 50 m of the main road. I refer to this in more detail later as it is the major issue in both appeals.

2 Appeal 10249 is in regard to the refusal of two tourist cabins each being a single bedroom with an ensuite and verandah.

3 Appeal 10250 is in regard to the refusal of the conversion of the existing café on the site into another cabin. This third cabin would have only one bedroom and retain the kitchen and convert the dining area of the café to a living area and retain the outside decks.

4 The attendance for the applicant were:

Mr I. Hemmings, barrister,
Ms D. Pugh, applicant
Ms L. McLoughlan, applicant and
Mr D. Dunn, solicitor.

5 Appearing for the respondent were:

Mr Reilly, solicitor,
Mr J. Rowe, council’s development engineer,
Mr A. Brandie, Council health and building surveyor, and
Ms D. Littler, Acting Director of Planning, Bellingen Shire Council

6 Also in attendance was Mr P. Smith and Ms Fifield, objectors from an adjoining property, west along Waterfall Way.

7 There is an existing house on the subject property and one passes by it to get to the existing café and the proposed cabins. The existing café looks south as will the two cabins. Being on a ridge and amongst trees the house and the three cabins have a splendid pastoral view across a valley to mountains in the south. Adjoining the site are two other rural properties of about 100 hectares each that run cattle and make hay. One of them, the eastern neighbour, has a development consent since 1993 to park and service logging trucks. The trucks are in a large rural shed and use the same Crown Road for access as the subject site.

8 The other property owned by Mr Smith and Ms Fifield have another private driveway about 3 or 400 m along Waterfall Way.

9 The parties agreed that in the time of the logging truck’s use there has been no accident relating to the intersection of the main road with the Crown Road access, although there was a fatal accident not long ago a little further uphill along the main road.

10 The draft conditions wanted a slip lane and a turning lane to be provided on Waterfall Way for traffic travelling east, to facilitate a right turn into the Crown Road.

Contentions

11 The issues between the parties are the same in each appeal and are summarised as:

1. Bellingen Local Environmental Plan 2003

1.1 Pursuant to clause 26(2)(a) schedule 7.13, the proposed development is considered to create ribbon development along Waterfall Way.

2.1 Pursuant to cl 27(3)(a) of the BLEP 2003, Council is not satisfied that consent should be granted as the proposed development is considered to have the potential to affect the safety and efficiency of traffic flow on Waterfall Way due to inadequate safe intersection sight distance and inadequate arrangement to turn right from Waterfall Way, as identified by the Road and Traffic Authority (RTA) in their correspondence dated 7 May 2007.

3.1 Pursuant to cl 37(2)(c) of the BLEP 2003, the proposed design and standard of the access point will not ensure that through traffic movements on Waterfall Way will not be impeded.

2. The Environmental Planning and Assessment Act, 1979

(b) Pursuant to cl 37(2)(e) the proposal is considered to be averse to the public interest due to the fact that the RTA objected to the proposal unless significant road works were carried out and the Applicant’s views towards the carrying out of such works did not result in the RTA’s concerns being addressed.

3. Objections

The following issues were raised in objection to the proposal:

objection to intensification of the use of the site
unsafe vehicular access
rural conflict between the tourist facility and adjoining farming practices
odour from on-site sewerage system

12 The applicants reply to the contentions are:

2. The potential effect upon the safety and efficiency of traffic flow on Waterfall Way is most likely to be a positive and beneficial effect rather than causing any negative effect. The proposal will result in a significant improvement over the current situation, by reducing daily traffic movements into and out of the site by more than 90%..

3. The Road and Traffic Authority’s (RTA) objection against the proposed reduction in traffic movements into and out of the site makes no sense and should be rejected.

4. The objection to intensification of use of the site is unfounded when assessed against the existing consent for operation of the refreshment room.

5. The objection regarding rural conflict between the tourist facility and adjoining farming practices lacks substance. There has been no significant conflict between existing tourist facility in the form of the refreshment room and adjoining farming practices. The extent of any such potential conflicts arising from the overnight accommodation aspects of the proposal can be measured against the existence of any such conflicts with the current residential use of the site. There is no evidence to support the existence of any such conflict.

6. The objection regarding odour from the onsite sewerage system is unfounded. An earlier installation fault which caused an odour problem was rectified some time ago and the system has been tested and certified as operating correctly without generating odours. The existing system is capable of servicing the proposed development without generating odours.

The Evidence

13 Mr Smith gave objector’s evidence; his and Ms Fifield’s homestead is about 500 m down the valley. He complained of noise from the café at night, being overlooked, the potential of conflict with his farming activities and tourists that might occupy cabins. But his main concern is the safety of the intersection and the visual impact of more buildings to be seen from his homestead

14 In regard to noise from the café that would stop as the applicant accepts a surrender of that development consent if the cabins are allowed.

15 In regard to overlooking and visual impact, the 500 m separation is so great I cannot accept this as a reason for refusal. I was taken to the Smith/Fifield homestead and from areas near the house a stand of trees at the homestead creates a partial screen of the existing buildings and proposed cabins on the subject site. Apart from that the 500 m separation, the tall trees on the subject site and the neutral colours of the existing buildings cause the buildings to merge somewhat into the background. The two new cabins would be in similar colours and would merge into the background even though visible they could not reasonably be called intrusive.

16 In regard to conflict with farming activities; one cabin is about 20 m from the Smith and Fifield boundary, and the other cabin is about 40 m away. Mr Smith was concerned about his cattle foraging in the bushland near the boundary and that they may affect any cabin residents. I would think any tourists seeking a rural experience would not find the animals a nuisance. At the common boundary the land of both properties near the cabins is steep and treed. Ms Fifield said that the trees in this location would stay, but they may extend pasture and use fertilizer on lower parts of the slope.

17 I cannot see that short-stay tourists would find such farming activity unacceptable, as it would only occur at specific times of the year when fertilizer is applied. If it creates a short-term problem the tourists may choose not to stay. In any case the area that Ms Fifield indicated appeared to be a good thirty or forty metres from the boundary adjoining the nearest proposed cabin, that would give a separation distance of nearly sixty metres.

18 In regard to traffic safety at the intersection of the Crown Road, Mr Smith related an incident when he had to take evasive action. In listening to his description the near accident was due to a driver who commenced the right hand turn into the Crown Road travelling east. Whilst turning the driver changed its mind and veered back onto the main road in front of Mr Smith. He said he had to use the shoulder of the road to avoid an accident. When taken to the intersection I was shown a wide improvised shoulder to the main road allegedly made by the logging truck drivers so they could pull off the main road travelling east, and wait for sufficient gap in traffic to cross into the Crown Road safely.

19 The main evidence came from Mr Rowe and the letter from the Road and Traffic Authority which had sent the letter dated 4 May 2007. It said inter alia: “The RTA objects to the proposed development at this time unless the impacts on the safety and efficiency of the Waterfall Way are mitigated. The following matters need to be addressed:

(i) Provision of adequate Safe Intersection Sight Distance. At least 250 m is required for both approaches of the Waterfall Way unless it can be demonstrated that the 85% speed is lower than 100km/ph.

(ii) The Waterfall Way needs to be widened to provide a sealed shoulder; attached is the RTA Modified BAR right-turn treatment showing the improvement required.

(iii) The existing driveway is to be upgraded and sealed to the attached RTA’s Rural Access Standards. This will also need to provide for the shared access to the adjoining property.

(iv) All road works are to be at no costs to the RTA.

(iv) All roadworks are to be at no cost to the RTA.

(v) Road traffic noise will need to be mitigated in accordance with DEC guidelines”.

20 The Council felt that the speeds and sight distances required by (i) of the letter may be less in reality and Mr Rowe did his own study

21 Mr Rowe in carrying out the traffic study said that he observed that by and large traffic coming down hill or up hill are usually in a line behind the slow vehicle in front. This is of concern to him because it can influence the sight lines to the Crown Road intersection. For instance if there is a line of traffic going up hill on the Crown Road it can block the sight line for traffic coming down hill towards the intersection. This is particularly so if there is a stationary vehicle at the intersection waiting to turn right.

There are approximately 2000 vehicles per day on Waterfall Way and it is approximately 50/50 split between up hill and down hill. Mr Rowe checked the speeds of vehicles separately in the up hill and the down hill direction. Surprisingly he said the down hill speed is less than the up hill speed on average of about 3 km per hour. However, he settled on the 85th percentile average of 75 km per hour for both directions. This is obviously 25 km per hour slower than the 100 km per hour speed thought by the RTA to occur. Therefore the sight distances to the Crown Road intersection do not need to be as long.
23 In regard to commuter traffic he said that he had never observed any peaks in traffic due to before work or after work volumes. His observations indicated however that most of the traffic volume per day occurred in a 10 hour period mainly during the day time and he expected that to average 200-250 vehicles per hour meaning 100-125 going up hill and the same number coming down hill.
24 He agreed that traffic from the tourist cabins is likely to be at check-in and check-out times if there was a peak for that use. However, he acknowledged that the approved operating café had a peak of 25 cars per hour using the intersection at peak times and that the proposal to change to three cabins would would reduce traffic generation to about 3 vehicles per hour.
25 Also Mr Rowe acknowledged that there were some works required to upgrade the intersection of the Main road with the Crown Road included in the Conditions of Consent for the logging truck use of the adjoining property. Those works had never been constructed since 1993, and the council had never taken action to require them to be done, and there had been no accidents in connection with the Crown Road intersection.
26 In Mr Rowe’s calculations he had provided for a maximum two vehicles per hour utilising the intersection as a result of any cabin approval. Those two per hour could be split between the four possible movements of the intersection of somebody coming up hill turning left in, somebody coming out of the Crown Road and turning left out and continuing up hill, or somebody coming down hill and turning right into the intersection, or somebody coming out of the Crown Road and turning right to continue down hill on Waterfall Way.
27 The movement that was of concern to Mr Rowe was, as I have mentioned previously, a vehicle coming down hill with a line of vehicles going up hill in a position that would reduce the sight line to a car standing at the intersection on the Main road waiting to turn right into the Crown Road. He agreed that the split between the four movements meant potentially one car involved in that movement for every two hours.
28 Based on the peak use of the Main road 200 vehicles per hour they approximated one vehicle every 18 seconds split between uphill and downhill. That means coming down hill one vehicle every 36 seconds. It was put to him that the likelihood of the one car every two hours coming down hill that might wish to turn into the Crown Road and the cabins was very unlikely to experience the situation where the sight lines to a vehicle following would be restricted by cars going up hill. So the potential for an accident is so rare it should not prevent approval.
29 Mr Rowe said his concern was that it only took one event to occur and the result could be fatal. It was put to him that there is a shoulder on the down hill side of the main road with 90 metres clear vision as a minimum. Mr Rowe had calculated the 90 m to a car standing waiting to turn right into the Crown Road, so any vehicle coming down hill would be almost stopped by the time it got near the stationary car and at that point the shoulder of the road could be used. He agreed that the shoulder could be used but the vehicle would have to come to a stop as the wide part of the shoulder narrows considerably just down hill of the Crown Road intersection.
30 It was put to Mr Rowe that since there would be a 36 second gap between cars travelling down hill on average the same 36 seconds gap between cars travelling up hill, that provided plenty of time for the one movement that he was concerned about being only the right hand turn into the Crown Road by car going down hill on Waterfall Way. That there would be plenty of time to make that manoeuvre in safety between cars.
31 Mr Rowe said that his observations were that most cars travelled in a line behind the slowest vehicle going up hill and that was the cause inadequate of sight lines for the vehicle travelling at the average of 75 km per hour. It was put to him that if the cars are travelling in groups and not at the average of one every 36 seconds, then in fact there would be much longer time gaps for any car wanting to make the right hand turn travelling down hill into the Crown Road. He agreed that was the case however, on the occasion when the sight line is blocked by the line of cars going up hill with the vehicle travelling at 75 km an hour, the lack of safe sight distances could be catastrophic.
32 Given the scenario that even with the blocked sight line any vehicle travelling down hill would have 90 metres of sight line, and would commence to brake in that distance, Mr Rowe agreed that the down hill car would have reduced it’s speed to between 10 and 15 kms an hour at the time it would reach the car stationary waiting to make the right hand turn.
Conclusions
33 I have dealt with the other matters of concern except for the intersection. In respect of that the Bellingen Shire Local Environmental Plan in zone 1(a2) has objectives for the quality of access. In cl 26 sch 7 it requires the consideration of potential traffic hazards at access points and disruption of traffic flow on main roads. In cl 27(3)(a) it requires that access be adequate and safe and under cl 37(2)(c) it requires that through traffic should not be impeded.
34 It is true that Mr Rowe was the only expert giving evidence on the traffic matters and that he remained of the opinion that the down hill road shoulder on Waterfall Way should be widened. However, it seems to me that his cross-examination has shown that his concerns are so unlikely to occur that it could not possibly justify the extent of works required to the intersection, particularly in the light of its history of being used by logging trucks since 1993 with no accident recorded at the intersection, and also being used for the café which has generated 25 vehicles per hour since its approval and there have been no accidents recorded at the intersection. This proposal will eliminate the café use and reduce the generation of the subject site to a maximum of 3 vehicles per hour or as Mr Rowe had adopted in his calculations 2 vehicles per hour.
35 The key consideration under cl 26 and sch 7(13) is that the proposal should not create or worsen an existing traffic situation and the evidence clearly shows that the traffic situation will be significantly improved and the potential hazard reduced due to the reduction of traffic generation from the subject site.
36 In cl 27 a proper reading of the requirement is that it is intended to apply in a broad sense in regard to the transport network within the shire, not such minor localised situations as the subject proposal. I am satisfied that under cl 37 the key consideration of not impeding through traffic is not infringed.
37 I have formed the opinion that the evidence shows that the requirements of the RTA letter of 4th May 2007, particularly items (i) and (ii) have been superseded by the evidence in this hearing and that (iii), (iv) and (v) can be complied with and that traffic noise given the reduction of traffic generation on the site and the isolated location of the driveway does not justify any mitigation of noise from inside the property.
38 Also the location of the cabins is on the opposite side of the ridge to Waterfall Way which as it passes the property is in a cutting. During the period on-site, traffic on the main road could not be heard from the location of the cabins and I have formed the opinion that there is no need for further mitigation of main road traffic noise.
39 Therefore the appeal should be upheld and development consent granted in both cases.
40 In regard to the draft conditions the respondent thought that the consent for the existing café should be surrendered within 7 days of the grant of this consent. The applicant objected and it seems to me that it is reasonable to operate the café until such time as the two extra cabins are either built or the existing café ceases operation to enable its conversion to a cabin and occupancy certificate granted. Therefore I amend Condition 1 in both cases. Condition 2 appears to contain a sentence that relates to a council approved development requiring all documents to have a council stamp and authorised signature that particular sentence is deleted.
41 In Condition 5 in Appeal No. 10249 of 2008 I note that the erection of any signage requires RTA concurrence and I note the applicant’s concern that refusal by the RTA of signage should not vitiate the consent. A similar condition appears in Appeal 10250 of 2008 in Condition 6 and I make a similar note to the same effect. In the draft conditions for Appeal 10250 of 2008 Condition 8 is the engineering condition requiring the slip lane and given the evidence I delete that requirement. A similar condition is contained in Condition 28 in Appeal 10249 of 2008 and I delete that condition.
42 Therefore the Orders of the Court are:

___________________

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McLoughlan v Bellingen Shire Council [2008] NSWLEC 1304

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CITATION:	McLoughlan and Anor v Bellingen Shire Council [2008] NSWLEC 1304
PARTIES:	APPLICANT Lea McLoughlan and Denise Pugh RESPONDENT Bellingen Shire Council
FILE NUMBER(S):	10249 and 10250 of 2008
CORAM:	Hoffman C
KEY ISSUES:	Development Consent :- turning a cafe into a tourist cabin and construction of two cabins, road works, noise, overlooking, conflict with farming, sewerage odours
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Bellingen Local Environmental Plan 2003
DATES OF HEARING:	13/06/2008
DATE OF JUDGMENT:	28 July 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr I. Hemmings, barrister, Instructed by Mr D. Dunn, solicitor of Stacks, Forster RESPONDENT Mr J. Reilly, solicitor of Home Wilkinson Lowry Lawyers