Milestone (Australia) Pty Ltd v Wingecarribee Shire Council
[2012] NSWLEC 1312
•06 November 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Milestone (Australia) Pty Ltd v Wingecarribee Shire Council [2012] NSWLEC 1312 Hearing dates: 1 November 2012 Decision date: 06 November 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal Upheld
Catchwords: CONSENT ORDERS: Modification of consent conditions; Access from a classified road. Legislation Cited: Environmental Planning and Assessment Act 1979; State Environmental Planning Policy (Infrastructure) 2007; Road Act 1993 Cases Cited: Moto Projects (No 2) Pty Ltd v North Sydney (1999) 106 LGERA 298 Category: Principal judgment Parties: Milestone (Australia) Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)Representation: Mr P Clay SC (Applicant)
Mr A Seton
Carrol O'Dea Lawyers (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 10564 of 2012
Judgment
Milestone (Aust) P/L lodged an application under the provisions of s 96(2) of the Environmental Planning and Assessment Act 1979 (the EPA Act) which sought to modify conditions contained in Development Consent No. DA07/0613 (consent). That consent was issued by Wingecarribee Council on 18 December 2007 and authorised the construction of a supermarket and associated carparking on what was then known as Lots 1 and 2 in DP 858843, Old Hume Highway Mittagong. The conditions, which Milestone seeks to modify, relate to the prohibition of a right-hand turn by vehicles entering the site from the highway. The application remains undetermined and Milestone is appealing its deemed refusal.
The parties have agreed on appropriate roadworks that would facilitate safe ingress to the site and are seeking consent orders from the Court.
The site and its context
The site is located on the northern side of the Old Hume Highway and is subject to a reciprocal right-of-carriageway over land to its immediate west. That site contains a large shopping centre and the access is through the basement carpark of that centre, known as the Mittagong Marketplace. A further right-of-way has been created over a council reserve to the east of the site and that land is used for vehicular ingress and egress to the Aldi supermarket and the marketplace carpark.
Traffic movements along the Old Hume Highway in the vicinity of the site are restricted through medians and controlled access points. In accordance with the conditions of the consent, all vehicular access to the Aldi site from the highway is currently left in and left out only. The secondary access to the site is from the right-of-way through the carpark that provides access off Roscoe Street. The intersection of Roscoe St and the highway is controlled by traffic lights.
Background and the proposal
The council has modified the original consent on two occasions. The development has been completed and is operated by Aldi. The conditions of consent subject to the appeal are conditions 32 (b)(ii) dash point 6 and 52(i), (viii), (x) and the second (vii) (a typographical numbering error). Those conditions, where changes are sought to the material effect of the conditions are provided below and read:
32-The concrete median on the Old Hume Highway is to be extended outwards from the Mittagong Marketplace to include the frontage of ALDI and further east for a suitable distance so as to permit only left in and left out turns to and from the development.
52-The following are the requirements of the Roads an Traffic Authority with regard to road safety and traffic management:
(i)The developer shall provide a raised central median across the full frontage of the development. The median (and linemarking where necessary) shall be extending an appropriate distance in each direction to ensure integration with the Highway in accordance with the RTA Road Design Guide.....
(viii)All roadworks and/or traffic control facilities associated with this development will be at no cost to the Roads and Traffic Authority and completed prior to occupation.
The other changes are to correct reference to Roads and Maritime Services (RMS), the authority which has replaced the Roads and Traffic Authority and remove unnecessary conditions.
The application lodged plans that provided for a right-hand turn into the site off the highway by vehicles travelling in a westerly direction. That turn is currently prohibited under the terms of the consent.
The Senior Commissioner conducted a conciliation conference however no resolution of the contentions was reached and the conference was terminated. Since that time, the applicant's traffic consultant has prepared further amended plans and those plans have been considered by both the council and RMS and found to be unsatisfactory. Details of those reasons had been provided to the applicant but not resolved.
The contentions in the case are that the design of the access was contrary to the objectives of clause 101 of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure), did not prevent right hand turns out of the site, provide sufficient queue lengths, carriageway and median widths and would create vehicle and pedestrian conflicts.
The evidence
The hearing commenced on site and the parties discussed the options that had been proposed by the applicant's traffic engineer, Mr Hallam, detailed in his Statement of Evidence filed with the Court on 30 October 2012 (Exhibit A). As the council officers had not had time to review this alternate design, the Court facilitate further discussions on site to ensure an understanding of the proposal. Further amendments required to the plans were identified by council officers and agreed between the parties. As a result of the work conducted, the parties agreed that the matter could be the subject of consent orders.
The plans now before the Court, the Issue L plans, are subject to further amendments which provide for:
- Carriageway width widened to 5.5m in accordance with RMS standards;
- Median width increased to 0.5m in accordance with RMS standards;
- Driveway width increased to provide sufficient width for physical separation of ingress and egress movements;
- Provision of a pedestrian refuge between the ingress and egress driveway;
- Provision of a half-seagull type arrangement extending beyond the driveway to prevent right-turns out of the property.
The parties have agreed that the works required can be accommodated within the site without impacting on the right-of-carriageway or the adjacent public reserve and within the road reservation. It was also agreed the works will ensure that the proposed access arrangements provide a safe environment for both motorists and pedestrians.
The RMS, as roads authority, will still have to provide concurrence for the works in accordance with s 138(2) of the Road Act 1993. The Court is not being asked to assume that concurrence.
The application seeks to modify conditions of a development consent and the appropriate considerations are well established applying the decision of Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney (1999) 106 LGERA 298. The parties agree that the development as proposed would be substantially the same as that approved under the original consent.
Conclusion and findings
Having regard to the evidence in the case, I am satisfied that the prohibition of the right-hand turn into the site was not an essential or material feature of the development. The evidence is that the condition was imposed to ensure safe traffic movements occur. With the amendments proposed to the design as outlined at [11], the evidence is that safe movements into and out of the site can occur. For that reason, I find the proposed works to constitute a development that is substantially the same to that approved under the consent.
I am also satisfied that the proposal is lawful and consistent with relevant legislation.
There being no reason why the Consent Orders should not be made, by consent, the Orders of the Court are:
(1) The appeal is upheld.
(2) Development Consent No. DA 07/0613 granted by the Respondent on 18 December 2007 for a supermarket and associated car parking and passenger lift on the land at 181-183 Old Hume Highway, Mittagong (as modified on 15 August 2008 and 26 July 2010) is modified pursuant to Section 96(2) of the Environmental Planning and Assessment Act 1979 as follows:
a) Omit the following from condition 32(b)(ii):
"-The concrete median on the Old Hume Highway is to be extended outwards from the Mittagong Marketplace to include the frontage of ALDI and further east for a suitable distance so as to permit only left in and left out turns to and from the development."
and insert instead:
"-Enabling vehicles travelling from the east along the Old Hume Highway to turn right into the driveway that is located on the right of carriageway that burdens Lot A in Deposited Plan 26366 and benefits Lot 1 in Deposited Plan 1164633 and physically preventing vehicles egressing from the said driveway making a right turn onto the Old Hume Highway. In that regard the work to be carried out on the Old Hume Highway shall be generally in accordance with the concept shown on the drawing prepared by Acor Consultants Pty Ltd being Drawing No. C1.01 Issue L dated 29 October 2012 but is subject to such design changes as may be required by either Wingecarribee Shire Council or Roads and Maritime Services in order to grant the consent that is required under section 138 of the Roads Act 1993 so as to ensure that the safety, efficiency and ongoing operation of the classified road will not be adversely affected including:
(i) increasing the width of the proposed 0.3m median on the Old Hume Highway to 0.5m;
(ii) providing for a suitable pedestrian refuge in the footpath that adjoins the driveway and consequential widening of the driveway crossover and driveway. The widening is to be generally by:
(a) widening of up to about 600mm into the garden bed to the west of the driveway continuing to a point adjacent to the existing stop valves in the footpath;
(b) widening the eastern alignment of the driveway from the south eastern right of carriageway boundary to the point immediately to the west of the water services in the footpath.
(iii) increasing the kerb face to median width of the eastbound lane and shoulder to 5.5m from the edge of the driveway to proposed pedestrian refuge shown on the drawing.
b)Omit the whole of condition 52 (i) and insert instead:
"(i)The works that are proposed to be carried out on the classified road known as the Old Hume Highway to enable vehicles travelling from the east along the Old Hume Highway to turn right into the driveway that is located on the right of carriageway that burdens Lot A in Deposited Plan 26366 and benefits Lot 1 in Deposited Plan 1164633 must:
(a) include a raised concrete median that extends past the driveway in a half-seagull type arrangement that is designed and constructed to the satisfaction of Wingecarribee Shire Council and Roads and Maritime Services so that it physically prevents vehicles turning right from the said driveway onto the Old Hume Highway;
(b) be designed and constructed to comply with Austroads Guide to Road Design and the Roads and Maritime Services supplements to the said Guide and the relevant Australian Standards;
(c) be designed and constructed to the satisfaction of Wingecarribee Shire Council and Roads and Maritime Services so as to ensure that the safety, efficiency and ongoing operation of the classified road will not be adversely affected."
c) Omit the words "Roads and Traffic Authority and completed prior to occupation." from condition 52 (viii) and insert instead "Wingecarribee Shire Council or Roads and Maritime Services."
d) Omit the whole of condition 52 (x) and insert instead "(x) Consent must be obtained under section 138 of the Roads Act 1993 before any work is carried out in, on or over the Old Hume Highway and such consent must not be given except with the concurrence of Roads and Maritime Services."
e) Omit the whole of the second condition 52 (vii).
(3) No orders as to costs.
(4) The exhibits, other than exhibit 1, may be returned.
_____________________
Sue Morris
Commissioner of the Court
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Decision last updated: 06 November 2012
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