Modern Motels Pty Limited v Fairfield City Council (No 2)

[2013] NSWLEC 1224

Land and Environment Court

New South Wales

Medium Neutral Citation:

Modern Motels Pty Limited v Fairfield City Council (No 2) [2013] NSWLEC 1224

Hearing dates:

4 November 2013

Decision date:

26 November 2013

Jurisdiction:

Class 1

Before:

Brown C

Decision:

1. The appeal is dismissed.

2. Development Application No. 114.1/2012 for the construction of two buildings to be used for take-away food premises (Red Rooster and Souvlaki Hut) and associated parking and drive through facilities at 161-167 Hume Highway Lansvale is refused.

3. The exhibits are returned with the exception of exhibit 1.

Catchwords:

REMITTED HEARING: appeal under s 56A against refusal of development application for construction of two buildings to be used for take-away food premises (Red Rooster and Souvlaki Hut) and associated parking and drive through facilities - whether "practicable, vehicular access to the land is provided by a road other than the classified road"

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Infrastructure) 2007

Cases Cited:

Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 138
Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 1075

Category:

Principal judgment

Parties:

Modern Motels Pty Ltd (Applicant)
Fairfield City Council (Respondent)

Representation:

Dr S Berveling, barrister (Applicant)
Mr A Seton, solicitor (Respondent)
Solicitors
Anthony Clive Parisi Solicitor (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

11165 of 2012

Publication restriction:

No

Judgment

1. COMMISSIONER: This matter comes before the Court in response to the decision of Preston CJ, on 12 August 2013, following an appeal under s 56A of the Land and Environment Court Act 1979 (Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 138). The appeal overturned the Courts refusal of Development Application No. 114.1/2012 (Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 1075) (the original hearing) for the construction of two buildings to be used for take-away food premises (Red Rooster and Souvlaki Hut) and associated parking and drive through facilities at 161-167 Hume Highway Lansvale (the site).

1. His Honours orders are:

(1)The appeal is allowed.

(2)The decision and orders of Commissioner Brown made on 7 May 2013 are set aside.

(3)The matter is remitted to Commissioner Brown for determination in accordance with the decision of the Court.

The remitted hearing

1. The remitted hearing focused on cl 101 of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure), and specifically cl 101(2)(a), as the site has a frontage to a classified road, being the Hume Highway. Clause 101 states:

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, 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.

1. While finding that there was no error of law in construing, in the original hearing, that cl 101(2)(a) requires vehicle access to the land is to be provided by a road other than a classified road (in this case Chadderton Road and not the Hume Highway), His Honour also found the decision in the original hearing created an error in law by stating the question of practicability did not arise or, if it did, the decision stated the wrong test concerning practicability.

1. The relevant part of His Honours judgment (including the question to be answered in the remitted hearing) is set out in par 42 and states:

42. .... The phrase "where practicable" regulates the desired outcome ("vehicular access to the land is provided by a road other than the classified road"). The consent authority is precluded from granting consent to a development on land that has frontage to a classified road unless it is satisfied that the desired outcome will be achieved, where that desired outcome is practicable. That is to say, the practicability is as to the outcome of providing vehicular access to the land by a road other than the classified road.

1. In this case, the "desired outcome" is the construction of two buildings to be used for take-away food premises (Red Rooster and Souvlaki Hut) and associated parking, drive through facilities and access arrangements. The access arrangements for the development, as proposed, involve:

• entry and exit from the Hume Highway via the service station on Lot 204 via a Right-of-Carriageway,
• two-way driveway via Right-of-Carriageway that benefits Lot 204 over Lot 21 to Chadderton Street,
• new two-way driveway at the northern end of the site to Chadderton Street.

The applicant's submissions

1. Dr Berveling, for the applicant, submits that there are three reasons why restricting all vehicular to Chadderton Street is not practicable. First, the exclusive use of Chadderton Street is not practicable as it creates unsatisfactory queuing impacts within the site for vehicles attempting to turn right from the Right-of-Carriageway over the service station site into Chadderton Street. This queuing occurs because of the proximity of the access point in Chadderton Street to the traffic signal controlled intersection with the Hume Highway, based on the evidence of Mr McLaren, the applicants traffic engineer.

1. Second, and based on the evidence of Mr Peter Leyshon, a research analyst and town planner, the exclusive use of Chadderton Street is not practicable from an economic/commercial viability perspective. Mr Leyshon states that the attraction of fast food chains is obvious given the large volume of traffic arterial roads carry and the times that arterial roads are busy. He identifies the two critical economic/commercial viability issues for fast food chains as visibility and accessibility. Visibility means the degree to which a site can readily be seen by passing motorists and quickly distinguished from surrounding development. Accessibility is the ability of a site to offer motorists a relatively direct and legible path from the arterial road into and out of the proposed facility. In his assessment, these factors are important because it prompts "impulse buying" and minimises the time for purchasing food.

1. In this case, Mr Leyshon claims that access from the Hume Highway is critical from the perspective of economic/commercial viability. While the traffic experts estimate that around 50% of sales will come from passing trade, Mr Leyshon maintains that this figure is conservative. If eastbound motorists are unable to be alerted to the existence of the development, a significant amount of potential patrons may "overshoot" Chadderton Street. Mr Leyshon also claims that from a customer convenience point of view, it is impracticable to deny access from the Hume Highway.

1. Third, the affidavit of Roman "Ray" Zygaldo, sworn 12 September 2013, the Property Manager for the applicant company and other related companies states that in discussion with the Property Manager for the company that owns the Red Rooster brand, that if access was not available from the Hume Highway then Red Rooster would not be interested in operating from the site.

The council's submissions

1. As there is no definition in the planning documents, Mr Seton, for the council, relies on the definition of "practicable" in the Macquarie Dictionary (Second Edition) which states:

1. capable of being put into practice, done, or effected, especially with the available means or with reason or prudence; feasible.

1. Relying on this definition, Mr Seton submits that restricting all vehicular to Chadderton Street is practicable for a number of reasons. First, there are no topographic or physical reasons why all access cannot be provided from Chadderton Street. Second, and despite the concerns of Mr McLaren, the evidence of Mr Pathee Rathan, a traffic engineer from the Roads and Maritime Services, is that there are no unsatisfactory queuing impacts within the site for vehicles attempting to turn right into Chadderton Street from the site. Third, Mr Seton submits that the evidence of Mr Leyshon is irrelevant as it deals with the financial viability of a particular commercial trader and this is inconsistent with the approach of dealing with economic impacts of a development application as set out in Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675 (1 May 1979). If individual commercial viability is relevant, then the applicant has provided no evidence to substantiate their claim that the lack of access from the Hume Highway is cost prohibitive for the fast food outlets. Mr Seton submits that Mr Leyshons evidence was general in nature and contained no data or financial records from either Red Rooster or Souvlaki Hut on which to base any conclusions on economic viability of either operator.

Is restricting all vehicular to Chadderton Street practicable?

1. In the absence of any definition of "practicable", I accept the definition proffered by Mr Seton. While Dr Berveling correctly states that dictionary definitions must be used with caution (see House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440), the use of the dictionary definition, in this case, provides some guidance in addressing the question to be answered.

1. In considering the submissions, I am satisfied that restricting all vehicular to Chadderton Street is practicable for a number of reasons. First, there was no disagreement that there are no physical constraints in providing access to the development from Chadderton Street. Chadderton Street forms a signalised intersection with the Hume Highway and has an appropriate alignment and width to accommodate the traffic anticipated for the development.

1. Second, the point of entry to the site on Chadderton Street is only some 40 m from the intersection with the Hume Highway. This relatively small distance could not be regarded as impracticable in terms of access to the site.

1. Third, I do not accept that the likely traffic queuing in the site waiting to turn right into Chadderton Street is impracticable. Mr McLaren and Mr Rathan prepared their own SIDRA analyses on the level of performance of the intersection of the Hume Highway and Chadderton Street that included the queuing effects in Chadderton Street using the two different scenarios, being with access from the Hume Highway and Chadderton Street (scenario 1) and with access only from Chadderton Street (scenario 2). Using different input data for their analyses, Mr McLaren calculated a queuing distance of 43 m along Chadderton Street from the intersection with the Hume Highway for scenario 2. For scenario 1, the queuing distance is 27.7 m. Mr Rathan calculated 55 m and 43.2 m for the scenarios 2 and 1, respectively. In terms of the ability to exit the site, the difference in the conclusions of Mr McLaren and Mr Rathan from Chadderton Street is not significant as both distances for scenario 2 extend beyond the exit from the site from the Hume Highway. Mr McLaren described the queuing effect as "unacceptable" whereas Mr Rathan described the queuing as having "only a slight impact".

1. I accept the conclusions of Mr Rathan that there will be only a slight impact on the operation of the proposed fast food outlets in terms of queuing. I have formed this opinion as:

• the modelled scenario is at the peak time (4.15 pm and 5.15pm on Fridays) and other times would likely have smaller queues,
• 1 to 2 vehicles could leave the site during the 105 second cycle of the traffic lights,
• access to Chadderton Street is available from the most northern driveway, that is well beyond the queuing distances calculated by both parties, and
• alternate access to the Hume Highway is available by turning left onto Chadderton Street, albeit via a more circuitous route.

1. For these reasons, I am satisfied that the queuing of vehicles in the site does not affect the practicability of providing access from Chadderton Street.

1. Fourth, the SIDRA analyses carried out by Mr McLaren and Mr Rathan both show that the Level of Service (LOS) of the Hume Highway/ Chadderton Street intersection remains unchanged under both scenario 1 and 2. The LOS is Level B in the range from Level A to Level F where Level B is described as "Good with acceptable delays and spare capacity".

1. Fifth, and even if I accept the economic/commercial viability argument of Dr Berveling could form part of an assessment of practicability, I do not accept that it can be the only or the predominant determinant. The test of practicability should be given its widest meaning. If the economic/commercial viability of the proposed development is to be used to support an argument on practicability, then it is encumbent on the applicant to support the argument with the necessary evidence. I accept the submission of Mr Seton that there is no evidence to substantiate their claim that the lack of access from the Hume Highway is economically prohibitive for the fast food outlets.

1. In response to the evidence of Mr Leyshon, I acknowledge that there is a clear benefit for an operator of a fast food establishment to have direct access from an arterial road. As stated by Mr Leyshon, direct access can provide increased visibility and accessibility however this direct access can also create traffic safety issues and hence, the reason for s 101. In relation to visibility, I am not satisfied that access only via Chadderton Street impacts on the ability to identify the operators on the site to such an extent that it could be said that it was impracticable to gain access other than from the Hume Highway. In my view, the ability to identify the site is more of a function of signage or building location. In this case, a sign 5.2 m high and with a size 2 m x 3.5 m is proposed (and not opposed by the council) near the Hume Highway frontage. The sign provides a significant indicator of the existence of the Red Rooster outlet. The Red Rooster building is set back nearly 20 m from the street and is largely obscured by the adjoining hotel building when travelling in an easterly direction. The building itself provides little in the way of identifying the Red Rooster use on the site, particularly when travelling in an easterly direction.

1. The Souvlaki Hut building fronts Chadderton Street and would be largely unseen from the Hume Highway. Its presence is only noted by a sign 800mm x 2 m located on the larger Red Rooster sign on the Hume Highway. I do not accept that that the location of the Souvlaki Hut use sits comfortably with the evidence of Mr Leyshon that access from the Hume Highway is critical from the perspective of economic/commercial viability for fast food outlets.

1. In relation to accessibility, I am not satisfied that access only via Chadderton Street impacts on the ability to access the operators on the site to such an extent that it could be said that it was impracticable to gain access other than from the Hume Highway, if appropriate signage was provided to direct patrons to the site via Chadderton Street. Chadderton Street is only some 50 m past the proposed entrance off the Hume Highway. There are many fast food outlets that provide access from a side street (including a McDonalds restaurant on the opposite side of the Hume Highway) and are continuing to operate, presumably in a financially acceptable way to the operators.

1. Sixth, the affidavit of Roman "Ray" Zygaldo, sworn 12 September 2013, the Property Manager for the applicant company which stated that if access was not available from the Hume Highway then Red Rooster would not be interested in the site, was untested. It is understandable that direct access from the Hume Highway would be sought for the reasons set out by Mr Leyshon however it does not follow that access from Chadderton Street is not practicable given that other fast food operators are continuing to operate with access from streets other than a classified road. Mr Seton is correct in stating that the economic/commercial viability for a fast food outlet is dependant on a range of matters, including the lease costs; none of which were provided to the Court.

1. For these reasons, I am satisfied that it is practicable to provide vehicular access to the land by a road other than the classified road, and as such development consent should not be granted and the appeal dismissed.

Access from the Hume Highway

1. The original hearing proceeded on the basis that traffic experts, Mr Goudanis from the RMS and Mr Saverimuttu from the council, required a slip lane on the Hume Highway to gain access to the site as direct access produced unsafe traffic movements into the site. The applicant opposed a slip lane as Mr McLaren maintained that traffic movements into the site from the Hume Highway were safe without the need for the slip lane.

1. As the original hearing was determined solely on the basis of cl 101 rather than the merits associated with access from the Hume Highway, Mr Seton submitted that even if I find that the vehicular access is practicable from a road other than a classified road, for caution I should also make findings on the issue of whether access from the Hume Highway is acceptable. This requires consideration of the evidence provided in the original hearing on this issue. He submits that the evidence of Mr Goudanis should be accepted over that of Mr McLaren.

1. Mr Goudanis states that to reduce vehicular conflict it is best to separate and limit traffic conflict points through the removal of turning vehicles from through lanes. With direct access from the Hume Highway, the proposal does not do this. The provision of a left hand storage lane will assist in the reduction of potential driveway related turning movements and rear end collisions. On the potential internal traffic conflicts, Mr Goudanis states that there are a multitude of movements given there are three vehicle streams potentially in conflict near the Hume Highway entrance. First, traffic coming from the driveway in the site from the north, second, traffic from the Red Rooster drive through and third, traffic turning left from the Hume Highway. Mr Goudanis states that this creates indecision by drivers and potential conflict that could result in unsafe movements and potential accidents.

1. Mr McLaren disagrees. He states that eastbound motorists are aware of the presence of driveways and intersections along this part of the Hume Highway. Based on his experience, he concludes that the reaction times of drivers in this situation will tend to be more alert when driving along the commercial strip in the vicinity of the site. The primary issue in relation to rear end collisions is the available sight distance of approaching vehicles to left turning vehicles as well as the reaction times of drivers. In this case, extremely good sight distances are available for drivers to observe the stream of traffic in the kerbside lane. Of all the accident types, the rear end collision is often attributed to driver error and not the road environment. The highest severity type incidents are usually associated with right turning traffic and head on collisions; neither of which are associated with turning movements into the site from the Hume Highway. Overall, the proposal has low accident potential and this should not be a reason to either deny access or require the provision of a deceleration lane.

1. In balancing the evidence of Mr McLaren and Mr Goudanis, I agree with the conclusions of Mr Goudanis. I accept that the accident potential, particularly rear end collisions, with vehicles entering the site directly from the Hume Highway is unsatisfactory. I agree with Mr Goudanis that the most desirable approach is to separate and limit traffic conflict points. I do not accept that supposedly alert drivers, good sight distance and the comparatively low severity of rear end collisions is a suitable response to the question of potential vehicle accidents, particularly given that the Hume Highway carries over 56,000 vehicles per day.

1. I also agree with Mr Goudanis that the potential for vehicular conflict within the site is unacceptably high given the different and potentially conflicting routes that vehicles need to use to access the different facilities on the site, and the service station. While three potential traffic steams were identified that could potentially cause conflict, a fourth traffic stream exists from the car park at the Hume Highway frontage although the notation that this area be dedicated as staff parking will likely reduce any potential conflict.

Orders

1. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 114.1/2012 for the construction of two buildings to be used for take-away food premises (Red Rooster and Souvlaki Hut) and associated parking and drive through facilities at 161-167 Hume Highway Lansvale is refused.

3. The exhibits are returned with the exception of exhibit 1.

____________

G T Brown

Commissioner of the Court

Decision last updated: 26 November 2013