Mercato on Byron Pty Ltd v Byron Shire Council

[2020] NSWLEC 1524

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mercato on Byron Pty Ltd v Byron Shire Council [2020] NSWLEC 1524

Hearing dates:

18 and 19 August 2020

Date of orders:

30 October 2020

Decision date:

30 October 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) The Applicant’s modification application 10.2013.587.5 seeking to modify parts (a) and (e) of Condition 23 of its grant of consent for the construction and operation of the Mercato on Byron Shopping Centre in Byron Bay is determined by way of refusal.

(3) The exhibits are returned, with the exception of Exhibits A and 1.

Catchwords:

MODIFICATION APPLICATION – development that fronts a classified road – condition of consent requires construction of a roundabout on classified road – whether roundabout is required – whether alternative conditions provide for safe and efficient operation of a classified road

Legislation Cited:

Byron Local Environmental Plan 2014

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Roads Act 1993

State Environmental Planning Policy (Infrastructure) 2007

Cases Cited:

Benson McCormack Architects v Manly Council [2013] NSWLEC 1223

Texts Cited:

Byron Development Control Plan 2014

Guide to Road Design Part 4A: Unsignalised and Signalised Intersections, Austroads 2015

Guide to Road Design Part 4B: Roundabouts, Austroads 2015

Guide to Road Safety Part 8: Treatment of crash locations, Austroads 2015

Guide to Traffic Generating Developments, NSW RTA, 2002

Guide to Traffic Generating Development, NSW RMS

Category:

Principal judgment

Parties:

Mercato on Byron Pty Ltd (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Fishburn Watson O’Brien (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/121192

Publication restriction:

No

Judgment

1. COMMISSIONER: The Mercato on Byron Shopping Centre (MoBSC) is centrally located at 108-114 Jonson Street in the town of Byron Bay (the Subject Site). Consent for the construction of the shopping centre was granted in 2018 (Development Consent No. 10.2013.587.1, referred to hereafter as ‘the original consent’), and the MoBSC has now been constructed and is operational.

2. The original consent described the development as:

“Redevelopment of an existing shopping centre to create a ground floor supermarket, first floor retail shops, restaurants, bowling alley (recreational facility), Art Gallery (commercial premises), cinema complex (place of assembly), two levels of basement car parking, terrace over Jonson Street road reserve, associated works and subdivision of four (4) allotments into two (2) lots.”

3. The conditions imposed with the original grant of consent have been modified through the approval of Council on four occasions prior to this appeal.

4. The owner of the shopping centre, Mercato on Byron Pty Ltd (the Applicant), has appealed the refusal by Byron Shire Council (the Respondent) of its further, fifth, application, made under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EP&A Act), to modify the conditions of consent imposed on the construction of its shopping centre. This most recent modification application seeks to amend parts of Condition 23 of the grant of consent for the shopping centre.

5. Condition 23 as imposed concerned works within the road reserve that fronts the Subject Site, and within its introductory paragraph states:

“23) Consent required for works within the road reserve

Consent from Council, with concurrence from roads and Maritime services (RMS), must be obtained for works within the road reserve pursuant to section 138 of the Roads Act 1993. Three copies of engineering construction plans must accompany the application for consent for works within the road reserve.

Such plans are to be in accordance with Council’s current Design and Construction manuals and are to provide for the following works:

…”

6. The Applicant now seeks to amend Condition 23(e) which requires that the Applicant should construct a roundabout at the intersection of Jonson and Carlye Streets in Byron Bay to facilitate the entry and exit of customer vehicles from the MoBSC. The terms of Condition 23(e) as imposed are:

“(e) Roundabout

A roundabout at the Jonson Street/Carlye Street intersection in accordance with AustRoads, Part 4B: Roundabouts. The design is to address pedestrians, cyclist movements (preferably by bicycle lanes), citing, signs, line marking, parking restrictions and night-time visibility. The pavement and the roundabout must be upgraded to a concrete pavement designed for the expected traffic loads and their turning movements. The design plans are to include swept paths demonstrating the roundabout can accommodate U-turns for heavy rigid and articulated vehicles.”

7. The Applicant’s amended application now seeks to modify Condition 23(e) of its consent, such that it should read as follows:

“(e) site access and Jonson Street/ Carlye Street

Access to the development sites and Carlyle Street is to be constructed as shown in the ‘access arrangement drawing P3414 1 005’ and in accordance with AustRoads Part 4A: Unsignalised and signalised intersections (2017 Edition). The design plans are to include swept paths demonstrating that the access can accommodate terms for heavy rigid and articulated vehicles.”

8. There is also a consequential modification proposed as part of the application in relation to Condition 23(a) of the conditions of consent that concerns the access driveway to and from the MoBSC.

9. Condition 23(a) currently reads:

“a)   Driveway

A driveway in accordance with the Traffic Report prepared by TTM dated July

2014, AS/NZS 2890.1:2004, AS 2890.2:2002 and Council’s standard “Northern

Rivers Local Government Development Design & Construction Manuals and

Standard Drawings”. The footpath crossing must be designed to provide a cross fall of 1 % or 1:100 (maximum 2.5% or 1 in 40) for a desirable width of a 2.4 metres to provide for pedestrians with access disabilities. Kerb returns with kerb ramps and a raised median with pedestrian refuge, should be provided to

minimise interference to vehicle flow. The driveway and any necessary traffic

islands must limit movements to left-in, right-in, left out only. The design plans are to include swept paths demonstrating that the driveway and associated traffic islands can accommodate turns for heavy rigid and articulated vehicles …”

10. The Applicant seeks to modify Condition 23(a), such that it should read as follows:

“a)   Driveway

The driveway shall be retained in current form. The left turn arrow within the site access will be removed to allow unrestricted access.”

11. A site view was undertaken prior to the commencement of the hearing at Lismore Local Court. No objectors sought to make submissions during the proceedings in relation to the Applicant’s proposals for modification of Condition 23.

Statutory context

Environmental Planning and Assessment Act 1979

12. Section 4.55(2) of the EP&A Act provides as follows:

(2) Other modifications 

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if –

(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)  it has notified the application in accordance with -

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

Byron Local Environmental Plan 2014

13. Development on the Subject Site is subject to the provisions of Byron Local Environmental Plan 2014 (BLEP). The following provisions of BLEP are of particular relevance in this appeal:

1. Clause 2.1, which establishes land use zones within the area to which the plan applies as provided in cl 2.2 of BLEP.

2. The Subject Site is zoned B2 Local Centre, and under the provisions of cl 2.3 of BLEP, the objectives of this zone are to:

• provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• encourage employment opportunities in accessible locations.

• maximise public transport patronage and encourage walking and cycling.

• encourage vibrant centres by allowing residential and tourist and visitor accommodation above commercial premises.

State Environmental Planning Policy (Infrastructure) 2007

14. State Environmental Planning Policy (Infrastructure) 2007 (the SEPP) facilitates the effective delivery of infrastructure across the State of NSW.

15. Clause 101 of the SEPP provides that:

101 Development with frontage to classified road

(1) The objectives of this clause are -

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that -

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of -

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

16. Clause 104 of the SEPP also provides as follows:

104 Traffic-generating development

(1) This clause applies to development specified in Column 1 of the Table to Schedule 3 that involves—

(a) new premises of the relevant size or capacity, or

(b) an enlargement or extension of existing premises, being an alteration or addition of the relevant size or capacity.

(2) In this clause, relevant size or capacity means—

(a) in relation to development on a site that has direct vehicular or pedestrian access to any road (except as provided by paragraph (b)) - the size or capacity specified opposite that development in Column 2 of the Table to Schedule 3, or

(b) in relation to development on a site that has direct vehicular or pedestrian access to a classified road or to a road that connects to a classified road where the access (measured along the alignment of the connecting road) is within 90m of the connection - the size or capacity specified opposite that development in Column 3 of the Table to Schedule 3.

(2A) A public authority, or a person acting on behalf of a public authority, must not carry out development to which this clause applies that this Policy provides may be carried out without consent unless the authority or person has -

(a) given written notice of the intention to carry out the development to RMS in relation to the development, and

(b) taken into consideration any response to the notice that is received from RMS within 21 days after the notice is given.

(3) Before determining a development application for development to which this clause applies, the consent authority must -

(a) give written notice of the application to RMS within 7 days after the application is made, and

(b) take into consideration -

(i) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, RMS advises that it will not be making a submission), and

(ii) the accessibility of the site concerned, including -

(A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and

(B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and

(iii) any potential traffic safety, road congestion or parking implications of the development.

(4) The consent authority must give RMS a copy of the determination of the application within 7 days after the determination is made.

Byron Development Control Plan 2014

17. The Respondent advised that there were no provisions of relevance to the appeal within the Byron Development Control Plan 2014.

Contentions

18. This Applicant’s modification application 10.2013.587.5, which is the subject of this appeal, was made under s 4.55(2) of the EP&A Act, the provisions of which are provided above at [12], and in relation to which the Respondent:

1. did not contend that the application was for anything other than a development to which the consent as modified related which is substantially the same development as the development for which consent was originally granted;

2. confirmed that the NSW Roads and Maritime Services (NSW RMS) had been consulted in respect of the application, and that agency had provided a response to the Applicant’s modification application, which was provided to the Court;

3. had confirmed in its amended statement of facts and contentions that modification application 10.2013.587.5 had been notified as required under the EP&A Act, and the Environmental Planning and Assessment Regulation 2000;

4. had also confirmed that there were no submissions received in response to notification of the application.

19. I am satisfied that the jurisdictional prerequisites that must be satisfied in order that the Court has power to determine the Applicant’s modification application have been so satisfied.

20. The contentions in this appeal are narrow and relate to the Applicant’s proposed modifications to Condition 23(e) within the original consent. The Parties agreed that if the Applicant’s modification application were to be approved by the Court, a consequential amendment would be required to Condition 23(a) associated with the original consent.

21. The Court’s consideration of these matters was assisted by the testimony of the expert traffic engineers, Mr Craig McLaren, for the Applicant, and Mr Paul Corbett, for the Respondent.

22. As noted previously (see above at [6] and [7]), the appeal concerns the requirement under Condition 23(e) of the original consent for the Applicant to construct a roundabout at the intersection of Jonson Street and Carlyle Street, Byron Bay to facilitate entry to and exit from the MoBSC within which is located the Byron Bay Woolworths grocery store.

23. The location of this intersection and the subject shopping centre containing the Woolworths store, along with their positions relative to Marvell Street and Kingsley Street and their intersections with Jonson Street, all of which are relevant in the appeal, are provided in the figure below, which was taken from Google Maps.

24. At the commencement of the appeal, the Respondent noted that the traffic experts had agreed, within their expert joint report that had been tendered as evidence, that the construction of the roundabout at the intersection of Carlyle and Jonson Streets, as envisaged under Condition 23(e), was “not warranted by the Mercato development”. The experts had also agreed, based on a consideration of SIDRA modelling by Mr McLaren, that Condition 23(e) should be deleted, although they also said that this would not resolve issues associated with access to and from the Subject Site.

25. In response to these expert agreements, in particular their agreement that deletion of Condition 23(e) would not resolve issues in relation to site access, the Parties proposed that the Court should consider imposing one of two alternative version of modified Condition 23(e) that they proposed, as follows:

1. the Applicant explained that whilst initially it had sought to modify the conditions of the original consent by deletion of Condition 23(e), it now sought to amend that application and proposed that Condition 23(e) be modified to read as follows:

“Site access and Jonson Street/Carlyle Street

Access to the development sites and Carlyle Street, is to be constructed as shown in the ‘Access Arrangement drawing P3414 1 005’ and in accordance with AustRoads, Part 4A: Unsignalised and Signalised Intersections (2017 Edition).

The design plans are to include swept paths demonstrating that the access can accommodate u-turns for heavy rigid and articulated vehicles.”

2. The Respondent, while not opposing the Court granting leave to the Applicant to amend its modification application, nevertheless proffered an alternate Condition 23(e) for imposition by the Court as follows:

“Jonson Street

Within 3 months of Modification Application No. 10.2013.587.5 being approved, the Applicant shall lodge an application with Council for the installation of a traffic island/median on Jonson Street and a mountable roundabout at the intersection of Jonson and Kingsley Street in accordance with Concept plan Number 2814 – CP01 Issue B dated 3/7/20 prepared by Byron Shire Council and with AustRoads.

The design is to address pedestrians, cyclist movements (preferably by bicycle lanes), siting, signs, linemarking, parking restrictions and night-time visibility.

The design plans are to include swept paths demonstrating that the median strip exit on Jonson Street is of suitable width to accommodate heavy rigid and articulated vehicles.

The island must include a mountable section that is able to be traversed by trucks turning right out of the site, whilst also being undesirable for cars. Appropriate signage must also be provided at the driveway to enforce this restriction.

The works the subject of the above application shall be completed by the Applicant within 6 months of any consent being granted by the Council in relation to such an application.”

26. Further, the traffic engineering experts had agreed that should the Court grant consent to the Applicant’s modification application, Condition 23(a) of the consent should also be modified, as follows:

“ • Condition 23(a) of the DA Consent should be modified to permit service vehicles associated with the Mercato loading dock (including service trucks up to a 20m long Articulated Vehicle [AV]) to turn right out of the Mercato driveway onto Jonson Street.

• The central median in Jonson Street, immediately south of the Mercato driveway, should be modified in accordance with the concept plan of the required works shown in Annexure A to the joint expert report so that it would permit a 20m long AV to turn right out of the Mercato driveway.

• As per the imposed condition 23(a) of the DA Consent, cars should continue to be restricted to left-out exit movements only, although Mr McLaren noted that his SIDRA modelling demonstrated that the right turn out of the site for all vehicles operates at a good level of service such that there is no mandatory reason to preclude right turn exit for light vehicles (i.e. cars) that would have otherwise used the roundabout at Carlyle Street in accordance with Condition 23 (e). These restrictions should be enforced by appropriate signage at the access driveway.”

27. The works identified above as being provided at ‘Annexure A’ of the joint expert report refer to the removal of the yellow hatched areas of the Jonson Street median strip, as illustrated in the figure below, which was provided by the experts in their joint report:

28. As a consequence of the agreed position of the traffic experts, the Respondent submitted that Condition 23(a) should be modified to read as follows:

“a) Driveway

A driveway in accordance with the Traffic Report prepared by TTM dated July 2014, AS/NZS 2890.1:2004, AS 2890.2:2002 and Council’s standard “Northern Rivers Local Government Development Design & Construction Manuals and Standard Drawings”.

The footpath crossing must be designed to provide a cross fall of 1 % or 1:100 (maximum 2.5% or 1 in 40) for a desirable width of a 2.4 metres to provide for pedestrians with access disabilities. Kerb returns with kerb ramps and a raised median with pedestrian refuge, should be provided to minimise interference to vehicle flow.

The driveway and any necessary traffic islands must limit movements to left-in, left out only, with right out for service vehicles only, including appropriate signage.

The design plans are to include swept paths demonstrating that the driveway and associated traffic islands can accommodate turns for heavy rigid and articulated vehicles.”

29. However, the Applicant, noting the comment of Mr McLaren above at [26] that, based on his SIDRA modelling, the right turn out of the site for all vehicles operates at a good level of service such that there is no mandatory reason to preclude right turn exit for light vehicles, proposed that, should the Court grant consent to its application, Condition 23(a) should be modified to read as follows:

“The driveway shall be retained in its current form. The left turn arrow within the site access will be removed to allow unrestricted access.”

30. As a consequence of the submissions of the Parties concerning alternate conditions of consent that might be imposed by the Court, the questions requiring resolution in this appeal are as follows:

1. should the Applicant’s now proposed modification of Condition 23(e) (at [25(1)]) of the original consent be approved?

2. if the Applicant’s proposed modification is not approved, should the Respondent’s alternate proposal for modification of Condition 23(e) (at [25(2)]) be imposed?

3. if a modification of Condition 23(e) is approved, either through the imposition of the Applicant’s or the Respondent’s proposed condition, which of the Applicant’s or the Respondent’s proposed alternate versions of Condition 23(a) (at [26] and [28]) should the Court impose?

Should the Applicant’s proposed modification of Condition 23(e) of the original consent be approved?

31. The Applicant submitted, and I agree, that resolution of this question requires consideration of matters pertaining to the efficiency, safety, and the relative benefits of any alternative proposal for management of access to and from the MoBSC.

32. The requirement to consider the efficiency and safety of the Applicant’s proposed modification to Condition 23(e) arises directly from the provisions of cl 101 of SEPP in relation to development on a classified road, and more specifically the provisions of cl 101(2)(b) which are:

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that -

…..

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of -

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land,

33. I will initially consider the matters of efficiency and safety in relation to the Applicant’s now proposed modification to Condition 23(e).

34. The last of the considerations identified above (at [31]), concerning alternatives, goes to the second of the questions requiring resolution in the appeal (at [30(2)]), and I will consider it in that context.

Will the efficiency of the classified road be adversely affected by the development?

35. Within their initial joint expert report, the expert traffic engineers had agreed that, based on SIDRA modelling undertaken by Mr McLaren, if the Applicant’s proposed modification to Condition 23(e) were imposed:

1. the operation of the intersection was sufficiently efficient to meet the needs of traffic volumes using the MoBSC in that area of Jonson Street; and

2. it would not create unacceptable queuing of traffic seeking to access, or depart from, the MoBSC.

36. Notwithstanding these agreements in relation to modelling outcomes, Mr McLaren and Mr Corbett provided further oral evidence on the potential for “platooning”, that is the queuing of vehicles, at the right-hand turn lane in Jonson Street used by southbound vehicles seeking to enter the Subject Site, as follows:

1. Mr Corbett said that, while the SIDRA modelling has indicated that the Applicant’s poposed condition not result in any unacceptable queuing of traffic seeking to access, or depart from, the MoBSC, he had witnessed occasions of platooning, that is the backing up of southbound traffic on Jonson Street, as vehicles sought to enter the Subject Site from the right-hand turning lane on that street;

2. Mr McLaren said that, while not casting doubt on the evidence of Mr Corbett:

1. his SIDRA modelling results had indicated that the Applicant’s proposed modification to Condition 23(e):

1. would not create unacceptable queuing of traffic seeking to access or depart the MoBSC;

2. was sufficiently efficient to meet the needs of traffic volumes in the vicinity of the MoBSC, and on Jonson Street;

2. based on drone footage of the intersection taken by his firm, and on analysis undertaken by his staff, the likelihood of such platooning occurring was low, but that if it did occur any platooning would be short lived and not significant in terms of any potential adverse impact on maintaining an efficient traffic flow at that intersection;

3. the anticipated completion of a traffic bypass around the Byron Bay town centre at the end of 2020 would lessen traffic flow on Jonson Street by between 20 and 30%, and this would assist in mitigating any potential traffic impacts of traffic access to or egress from the Subject Site.

37. Having considered the evidence of the experts, and while I accept that the evidence of Mr McLaren concerning the outcomes of his SIDRA modelling results (at [36(2)], I also accept:

1. the evidence of Mr Corbett, which Mr McLaren said he did not doubt, that, notwithstanding the outcomes of Mr McLaren’s modelling, platooning can, and does, occur at the right hand turn lane intersection on Jonson Street upon which vehicles rely for southbound access into the Subject Site; and

2. the platooning observed by Mr Corbett has the potential to impact adversely the efficiency of traffic flows on Jonson Street;

38. As a consequence of my findings above (at [(1)] and [(2)]), I conclude that the Applicant’s proposed modification of Condition 23(e) does have the potential to impact adversely on the efficiency of operation of Jonson Street, which is a classified road.

Will the safety of the classified road be adversely affected by the development

39. A further joint expert report of the traffic engineers was tendered at the hearing and contained a traffic conflict analysis prepared by Mr Corbett.

40. This analysis is reproduced in the following figure and is referenced below (at [41(5)]).

Corbett traffic conflict point assessment (as included within Exhibit 10)

41. The Applicant submitted that:

1. while cl 101(2)(b) of the SEPP requires that the operational safety of the classified road must not be adversely affected by a proposed development, the instrument does not provide guidance as to how that operational safety should be determined;

2. the Part 4.4 of the RTA Guide to Traffic Generating Development and the Austroads Guide to Road Safety Part 8: Treatment of Crash Locations make use of accident and crash data in relation to their consideration of road safety;

3. based on an examination of crash data in relation to access to, and egress from, the MoBSC presented by Mr Corbett on behalf of the Respondent, the MoBSC had not had a discernible impact on traffic safety on Jonson Street since the commencement of its operations;

4. Mr Corbett had said in cross examination that not enough was known of the limited crash data available for Jonson Street to discount competing hypotheses as to the cause of any crashes that had occurred in the vicinity of the MoBSC;

5. the traffic conflict analysis prepared by Mr Corbett had identified twelve so-called traffic conflict points in the vicinity of the MoBSC associated with the Applicant’s now proposed modification of Condition 23(e), and:

1. did not take account of pedestrian movements or parked cars in the vicinity of the Subject Site;

2. did not include as potential conflict points the locations of two accidents that had occurred in the vicinity of the Subject Site since the commencement of the shopping centre’s operation;

6. it had concluded that:

1. the arrangements for access to and egress from the MoBSC that would be result from its now proposed modification to Condition 23(e):

1. were consistent with the provisions of relevant Australian Standards and Austroads Guides;

2. had not given rise to any accidents that were attributable to the operation of the shopping centre;

3. had not triggered any corrective actions or road safety audits as a result of any crashes in the vicinity of the shopping centre;

2. there was sufficient evidence provided for the Court to conclude that the Applicant’s proposed modification should not be refused for reasons of safety.

42. The Respondent submitted that:

1. the RTA Guide to Traffic Generating Developments identified that safety is a concern affecting all roads and is arguably the most important area of potential impact although its assessment does not lend itself to quantitative review;

2. the Austroads Guide to Road Safety Part 8: Treatment of Crash Locations identifies a set of principles for the safe design and operation of intersection that it says should all be achieved in the design of intersections, and which includes, inter alia, the following principles:

“• minimise the number of high exposure conflict points;

• define and minimise conflict areas;

• simplify the driving task”

3. the Applicant’s proposed modification of Condition 23(e) would introduce at least three additional potential points of conflict for vehicles making a right turn movement out of the Subject Site, and it would retain at least two conflict points for the right turn into the Subject Site;

4. the design of the access into the Subject Site that would follow the imposition of the Applicant’s proposed modified Condition 23(e) would, based on the evidence of Mr Corbett:

1. not minimise the number of high exposure conflict points;

2. not simplify the driving task.

5. the accident history data available for that part of Jonson Street in the vicinity of the Subject Site, while a possible indicator of past safety issues, could not be used to confirm the safety of the proposed design of an intersection with a classified road;

6. clause 4.4 of the RTA Guide to Traffic Generating Activities, in relation to the impact on safety of such developments, notes that accident numbers alone are not sufficient for safety appraisal. It added that, on this basis, the Applicant’s submission (see above at [41(6)(a)(ii)]) that the use of the shopping centre driveway since the centre commenced operation had not given rise to any accidents that were attributable to the operation of the shopping centre, was not a sufficient basis upon which to conclude that the implementation of the Applicant’s proposed modified Condition 23(e) would be safe with respect to traffic movement;

7. it concluded, relying on the evidence of Mr Corbett, that:

1. the design of the vehicular access to and from the Subject Site as a consequence of the Applicant’s proposed modified Condition 23(e), insofar as it would allow right hand turns into and out of the Subject Site by light vehicles, would give rise to multiple conflict points that would adversely impact upon the safety of Jonson Street which is a classified road; and

2. the potential traffic safety implications of the Applicant’s proposed modified Condition 23(e) were unacceptable and on this basis the Applicant’s modification application should be refused.

43. Having considered the submissions of the Parties and the evidence of the expert traffic engineers, Mr Corbet and Mr McLaren, I have concluded that I cannot be satisfied that the Applicant’s proposed modified Condition 23(e) would result in a design for the vehicular access to the Subject Site that would be safe such that the operation of Jonson Street, which is a classified road, would not be adversely affected, for the following reasons:

1. while I accept the submission of the Applicant above (at [41(3)]) in relation to crash data since the commencement of operation of the MoBSC, I agree with the submission of the Respondent that, consistent with the provisions of clause 4.4 of the RTA Guide to Traffic Generating Activities in relation to the impact on safety of developments, accident numbers alone are not sufficient for safety appraisal and on this basis the Applicant’s submission;

2. the Austroads Guide to Road Safety Part 8: Treatment of Crash Locations identifies that the design of intersections should, inter alia, minimise the number of high exposure conflict points, and:

1. I accept the evidence of Mr Corbett, that the modified Condition 23(e) would increase the number of conflict points in the vicinity of the Subject Site on Jonson Street;

2. as Jonson Street is one of the principal thoroughfares leading into and out of the Byron Bay town centre, and as the shopping centre is a traffic generating development, I accept the submission of the Respondent that the conflict points identified by Mr Corbett are of the type to which the principle requiring the minimisation of conflict points in the Austroads Guide to Road Safety Part 8 should apply;

3. I agree that the Applicant’s proposed modification of Condition 23(e) does not minimise high exposure conflict points and so is not consistent with the principle above (at [42(2)]) as required by the Austroads Guide to Road Safety Part 8: Treatment of Crash Locations for the design of intersections;

4. I agree with the Respondent that the imposition of the Applicant’s proposed modified Condition 23(e) would give rise to multiple conflict points that would adversely impact upon the safety of traffic in Jonson Street, which is a classified road;

5. in my assessment, that evidence of Mr Corbett (above at [(a)]) is consistent with the features of Jonson Street observed during the site view prior to the commencement of the hearing.

44. I note that in its closing submissions in reply the Applicant had stated that:

“The Applicant raises a matter of some significance: being the manner in which the Council is now conducting its case that was not any part of the Contentions, nor the written expert evidence, nor the oral evidence through cross-examination or otherwise. The Council appears to be attempting to recreate its case in respect of safety in its closing submissions. The thrust of the Council’s fresh argument relates to a late reading of sections of the Austroads Guide to Road Safety Part 8: Treatment of Crash Locations (Ex. C) and sections of the RMS Guide to Traffic Generating Development (Ex. G).

The Council cites extensive passages of these documents that were never put to Mr McLaren in cross examination or Mr Corbett for that matter (see paragraph 26 – 38 of the Respondent’s submissions).

These references were not raised once by the experts as relevant in evidence in chief or in the two joint expert reports.

The Court must be reluctant and extremely cautious in the interpretation of a technical document via closing submissions from Council without the benefit of expert assistance (in a way that no expert thought relevant to raise in evidence). The Austroads Guide to Road Safety Part 8 (Ex. C) is specifically directed in its title to “Treatment of Crash Locations”. The evidence establishes that there are no crash locations with nexus to the Applicant’s development. Further, there are presumably at least 7 other volumes of the Austroads Guide to Road Safety which may have more direct bearing on acceptable design parameters for safe intersections.

The risk to the Court is that Council has cherry-picked items without fully understanding the Guide as a whole (for example highlighting a citation of a 3rd party text (Ogden) at paragraph 31 without any evidence having been previously provided of its application to these circumstances).”

45. While I note the Applicant’s submission, I do not embrace its suggestion that the Respondent had raised matters for consideration that were not the subject of evidence at the hearing.

46. In this respect I observe that the documents produced by the NSW RTA and Austroads, as referred to by the Applicant as being the focus of submissions by the Respondent, were tendered into evidence at the hearing by the Applicant.

47. These documents had also been referenced within the Respondent’s amended statement of facts and contentions in relation to its contention concerning the matters raised by the NSW RMS.

48. Further, the matters relating to safety, and specifically the issues pertaining to the conflict points analysis prepared by Mr Corbett within the expert joint report that formed Exhibit 10, draw their relevance from the provisions of the Austroads Guide to Road Safety, and this material was the subject of significant cross examination during the hearing, and they form a legitimate matter for consideration in relation to the Applicant’s modification application, as amended.

Conclusion concerning the safety and efficiency of the Applicant’s proposed modified Condition 23(e)

49. Based on my findings above (at [3737] and [43]), I conclude that the Applicant’s proposed modified Condition 23(e) is contrary to the provisions of cl 101(2)(b) of SEPP (at [15]) as I am not satisfied that the efficiency and safety, and as a consequence the ongoing operation, of the classified road will not be adversely affected by the development should the Applicant’s proposed Condition 23(e) be imposed.

50. I note that my conclusion above at [49] is consistent with the interpretation and application of cl 101(2)(b) by the Court in other cases, including in the matter of Benson McCormack Architects v Manly Council [2013] NSWLEC 1223 in which Commissoner Dixon (as she was then) said (at [12] to [13]):

“12 Having regard to that evidence I cannot be satisfied as required by cl 101(2)(b) that "...the safety, efficiency and ongoing operation of the classified road will not be aversely affected by the development as a result of:

(i) the design of the vehicular access to the land

13 Therefore, I agree with the council if I am not satisfied on the evidence then cl 101(2) precludes me from granting development consent to this application.

14 I cannot accept the applicant's submission that a slight adverse impact does not preclude satisfaction. The clause does not contemplate varying degrees of satisfaction it invites satisfaction or not and a slight adverse impact does not satisfy me in this case as required by cl 101(2)(b).”

51. My conclusion above at [49] is also consistent with comments made by NSW RMS on 19 June 2019, in response to the referral of the proposed condition to it by Byron Shire Council, in which the NSW RMS stated:

“The amendment of Condition 23(e) proposed by Urbis Consultant’s in the letter dated 21 December 2018 is not supported. The supporting justification does not adequately address the suitability of the design with consideration for pedestrian and bicycle safety, guidance and delineation of pavement design, street lighting and swept path analysis for relevant design vehicles undertaking all directional movements.

52. The NSW RMS also recommended that “Council consider suitable alternatives and be satisfied that the proposed access arrangement addresses all relevant guidelines and standards prior to making a determination”.

53. For completeness, I note that the Applicant submitted that the comments provided by the NSW RMS on 19 June 2019 were made a point prior to the preparation of the SIDRA traffic modelling prepared by Mr McLaren. However, I note that the comments of the NSW RMS go to matters beyond those that might be resolved by the provision of Mr McLaren’s SIDRA modelling outcomes.

54. Having assessed that the Applicant’s proposed arrangements as reflected in its proposed amendment to Condition 23(e) is not acceptable, I will move to assess the Respondent’s alternative access arrangements as reflected in its proposed Condition 23(e).

Should the Respondent’s proposed modification of Condition 23(e) be imposed?

55. As noted above (at [25(2)]), as an alternative to the Applicant’s modification application, the Respondent had submitted that the Court would have the power to determine the application by amending conditions 23(a) and 23(e) in terms that it proposed, and which it said reflected an alternative proposal for management of traffic flows into and out of the Subject Site that had been put forward by Mr Corbett in the joint expert report. That alternate Condition 23(e) was as follows:

“Jonson Street

Within 3 months of Modification Application No. 10.2013.587.5 being approved, the Applicant shall lodge an application with Council for the installation of a traffic island/median on Jonson Street and a mountable roundabout at the intersection of Jonson and Kingsley Street in accordance with Concept plan Number 2814 – CP01 Issue B dated 3/7/20 prepared by Byron Shire Council and with AustRoads.

The design is to address pedestrians, cyclist movements (preferably by bicycle lanes), siting, signs, line-marking, parking restrictions and night-time visibility.

The design plans are to include swept paths demonstrating that the median strip exit on Jonson Street is of suitable width to accommodate heavy rigid and articulated vehicles.

The island must include a mountable section that is able to be traversed by trucks turning right out of the site, whilst also being undesirable for cars. Appropriate signage must also be provided at the driveway to enforce this restriction.

The works the subject of the above application shall be completed by the Applicant within 6 months of any consent being granted by the Council in relation to such an application”.

56. The Respondent had submitted, supported by the evidence of Mr Corbett, that:

1. its alternative Condition 23(e) was capable of resolving the traffic safety implications of the Proposed Development;

2. the alternative condition involved the construction of a low-cost mountable roundabout and pre-cast traffic islands at the intersection of Kingsley Street and Jonson Street with an extension of the existing vegetated median in Jonson Street in a southerly direction past the Carlyle Street intersection as shown on a plan, referred to as Annexure B to the joint report of the traffic experts tendered as evidence at the hearing;

3. Mr McLaren had not raised any safety or engineering concern in relation to the Respondent’s alternative condition in the joint report, and had agreed with Mr Corbett, at par 1.4(h) of that joint expert report, as follows:

“PC and CM agree that the Jonson Street / Kingsley Street roundabout will likely operate satisfactorily with an acceptable Level of Service under Council’s proposal, given the roundabout will be an improvement to the existing priority-controlled intersection. Accordingly, modelling of the proposed Jonson Street / Kingsley Street roundabout was not undertaken or considered necessary.”

4. if the alternative proposal put forward by Mr Corbett was implemented, it would:

1. limit the conflict points at the intersection of the vehicular access with Jonson Street;

2. enable the development to operate in a safe manner without affecting the efficiency and ongoing operation of the classified road because it would:

1. require vehicles approaching from the north to turn at a roundabout at the Jonson/Kingsley Street intersections, and then make a left turn into the Subject Site; and

2. facilitate departure from the Subject Site via a left turn onto Jonson Street requiring vehicles to depart in a northerly direction.

3. facilitate entry of vehicles approaching the MoBSC from the south via:

1. a left turn in; and

2. an exit turning left out of the Subject Site before making a right turn at Marvell Street and returning south via a loop road arrangement that would return vehicles to the Jonson/Kingsley Streets roundabout.

57. Finally, the Respondent said that in cross examination Mr Corbett had opined that installation of the roundabout would not involve any encroachment upon the driveway of the ‘motel site’, being the driveway of the Byron Backpackers Motel, at the intersection of Kingsley Street and Jonson Street.

58. In response, the Applicant had submitted that:

1. the Court would not countenance the Respondent’s alternative condition as:

1. Mr Corbett’s evidence did not provide a sound basis for conclusions he had reached in respect of the safety that alternative;

2. the Respondent’s alternate condition would require construction of a roundabout the design of which may have what it called “deflection issues” which it said the NSW RMS had found to be unacceptable in relation to the Carlyle St roundabout that was required under the originally proposed version of Condition 23(e);

3. it was unlikely that the Respondent’s local traffic committee would approve the Respondent’s alternative design solution given that, as stated in the oral evidence of Mr McLaren, any such approval would result in the loss of between four and six on-street car parking spaces, including the loss of an accessible parking space;

4. a detailed design of the proposed Jonson/Kingsley Streets roundabout would require the use of land owned by the Byron Village Backpackers and this would require that any application be made with landowners’ consent;

5. the Respondent’s proposed roundabout at the intersection of Jonson and Kingsley Streets would give rise to potential safety impacts in relation to the access to and egress from the Byron Village Backpackers would be impacted or that access would need to be reconfigured to make the roundabout safe and functional;

6. the Respondent may not obtain the concurrence of the NSW RMS for its alternative modified condition and this concurrence was required under the Roads Act 1993 for any such a proposal.

59. The Applicant concluded its submissions on the Respondent’s alternative condition by opining that the Respondent’s “putative proposal’” was speculative and should not be imposed by the Court.

60. In response to the Applicant’s submissions, the Respondent said that the Applicant’s suggestion that the Respondent may not obtain the concurrence of the NSW RMS as required under the Roads Act 1993 was no different to Applicant’s proposed modified Condition 23(e) which would also require the concurrence of the NSW RMS.

61. Having considered the submissions of the Parties, I agree with the submission of the Applicant in relation to the Respondent’s alternative Condition 23(e) that, without a detailed design for the alternative roundabout at the intersection of Jonson and Kingston Streets, it is not possible for the Court to determine that the works that would be required to fulfil the condition were feasible and reasonable, for the reasons that the Applicant provided above (at [58]).

62. I therefore conclude that the Respondent’s alternative Condition 23(e) should not be approved.

Should the Court impose the Applicant’s or the Respondent’s proposed modification of Condition 23(a)?

63. As I have not approved either the Applicant’s modification application, and nor have I determined that the Respondent’s alternative Condition 23(e) should be imposed, I do not need to consider either the Applicant’s or the Respondent’s versions of the proposed modified Condition 23(a).

Conclusions

64. Having considered the submissions of the Parties, and the testimony of the experts, I conclude that:

1. the Applicant’s proposal to modify Condition 23(e) of consent no. 10.2013.587.1 is not approved for reasons provided above at [49];

2. the Respondent’s proposed alternative modified Condition 23(e) is also not approved for reasons provided above at [61].

65. I note that, as a consequence of the dismissal of the Applicant’s appeal in relation to its proposed modification application, as well as the non-imposition of the Respondent’s proposed alternative condition 23(e), as identified by the expert traffic engineers (see above at [24]), the matter of the safe and efficient access to, and egress from, the Subject Site remains unresolved.

Orders

66. The orders of the Court are:

1. The appeal is dismissed;

2. The Applicant’s modification application 10.2013.587.5 seeking to modify parts (a) and (e) of Condition 23 of its grant of consent for the construction and operation of the MoBSC in Byron Bay is determined by way of refusal;

3. The exhibits are returned, with the exception of Exhibits A and 1.

………………….

M Chilcott

Commissioner of the Court

Decision last updated: 30 October 2020