Mount Annan Christian Life Centre v Camden Council

[2005] NSWLEC 769

Land and Environment Court

of New South Wales

CITATION:

Mount Annan Christian Life Centre v Camden Council [2005] NSWLEC 769

PARTIES:

APPLICANT
Mount Annan Christian Life Centre

RESPONDENT
Camden Council

FILE NUMBER(S):

10926 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Consent :- Section 96 modification applications - Section 98A appeal for security bond - traffic management - pedestrian barriers - street lighting - safety issues

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Camden Local Environmental Plan No. 48

DATES OF HEARING:

17/11/2005

EX TEMPORE JUDGMENT DATE:

11/17/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Newport, barrister
Instructed by:
Mr C Shaw, solicitor
Of: Shaw Reynold Lawyers

RESPONDENT
Mr K. Webber, solicitor
SOLICITORS
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

17 November 2005

10925-27 of 2005 Mount Annan Christian Life Centre v
Camden Council

JUDGMENT

1 This judgment is for three appeals lodged by the Mount Annan Christian Life Centre against the decisions of Camden Council. In 1997 the Council granted approval for the construction of a school and associated facilities, the Christian Life Centre, at 347 Narellan Road Currans Hill .

2 Two of the appeals are in respect of applications under s 96 of the Environmental Planning and Assessment Act (“the Act”) to modify the development consent issued by Camden Council No. 160/1997 (Appeal Nos. 10925 and 10926 of 2005). The third appeal No. 10927 of 2005 is an appeal under s 98A of the Act concerning a security lodged with the council for the amount of $250,000 in respect of traffic management works.

3 The site has access from Narellan Road and to the west of the subject site the Currans Hill residential precinct adjoins the site. Between the subject site and Narellan Road there is a retirement village with some 65 units.

4 The site is zoned 7(d) Environmental Protection Scenic under Camden Local Environmental Plan No. 48 and the development is permissible with consent.

5 By way of background subsequent to the approval for the school a major intersection has been constructed and other works carried out.

6 The applicant is seeking an amendment to Condition 13 that reads as follows:

The following traffic management works required for the development of the school shall be carried out as approved by the RTA prior to the occupation of the school's third stage (i.e. DA 769/2001 and a maximum student intake of 475). A bank guarantee for $250,000 (estimated partial cost of the proposed traffic light installation) is to be given to Council prior to the issue of the Construction Certificate for DA 769/2001 to ensure construction of the works:
(a) the installation of traffic lights by 1 December 2001 to be approved by the RTA in the location as shown on the engineering plans prepared by Rhodes Thompson & Associates and referenced 'Burton and Field S1587/43149 (4 sheets) issue B' dated 15 March 2001 and the draft traffic signal design referenced 'RTA 0178.075.W.xxxx', endorsed by David Thompson dated May 2001, and the closure of the current vehicular access to the Mount Annan Christian Centre/Collage site;
(b) provision of pedestrian barriers in the Narellan Road median strip to prevent pedestrians crossing Narellan Road away from the provided pedestrian crossing at the proposed traffic lights in access the bus stops or school;
(c) provision of street lighting at the entrance to the site, which is sufficient to illuminate the traffic light intersection and bus stops.

7 The amount of $250,00 referred to in Condition 13 of the consent relates to a bank guarantee that was required to cover:

(a) The estimated partial cost of the proposed traffic light installation and the closure of the previous vehicular access to the college;
(b) The provision of pedestrian barriers; and
(c) The provision of street lighting at the entrance to the site.

8 Mr G Pindar is the Court-appointed expert in these proceedings and he advises that the traffic signal installation has been completed to which the school made a contribution.

9 With respect to the pedestrian barriers Mr Pindar is of the opinion that given the amended location of where the traffic signals have now been installed that this is no longer warranted. However, the provision of lighting for the access road to Narellan Road should be monitored and the relevant accident data reviewed by a certifier over a three year period to determine whether there is a need for lighting. He explained this is standard practice in traffic engineering.

10 I accept the Court-appointed expert’s opinion that council should hold a bank guarantee of $52,000 in the event that an analysis warrants the need for lighting works to be carried out for safety reasons in the future. In the circumstances given the landuse it is particularly important to monitor the situation for safety reasons and not prematurely remove the option for the funding of lighting if an analysis demonstrates the need. However, specific criteria or objectives must be provided for a fixed time period to be able to determine on what basis the money may be required or returned.

11 The remaining issue is whether a condition can be framed to provide certainty and I am satisfied that in accordance with s 80A(4) of the Act that a condition expressed in terms of outcomes can be achieved by providing criteria for the assessment of the need or not for intersection lighting. And this would need to be carried out by an agreed accredited road certifier to determine whether lighting is warranted following review of accidents occurring within 100 m of the intersection along Narellan Road and 30 m of the intersection along the access road over a three year period.

12 Therefore on the basis of Mr Pindar’s evidence, and the appropriate framing of a new Condition 13 as set out below I am satisfied that the s 96 applications to modify the consent, and the s 98A collateral appeal concerning security, the appeal should be generally upheld.

13 Accordingly the orders of the Court are:

1. The appeals under s 96(6) and s 98A of the Environmental Planning and Assessment Act 1979 are upheld.

2. The s 96 applications to modify Condition 13 of the development consent No. 160/1997 issued by Camden Council and the collateral s 98A appeal concerning security, are determined such that Condition 13 is deleted and replaced by the following new Condition 13.

Condition 13
A bank guarantee of $52,000 is to be provided to Council pending a review of the warrants by the RTA (to the "Criteria for assessment of the need for intersection lighting" as set out below) for traffic signal lighting at the signal controlled intersection of the Mt Annan Christian Life centre access road with Narellan Road. This review should be undertaken by 31 March 2008. In the event that the warrant is met on the basis of the RTA's review, these funds will be made available to undertake the installation of street lighting as required by the RTA to an upper limit of $52,000.
If the review does not recommend the installation of street lighting, at the signal controlled intersection of the Mt Annan Christian Life centre access road with Narellan Road by 31 March 2008, then the bank guarantee should be returned to the Applicant forthwith.

Criteria for assessment of the need for intersection lighting:

(a) For the period 28 January 2005 to 1 January 2008 review the accident data relevant to accidents occurring within 100 metres of the intersection along Narellan Road and 30 metres of the intersection along the access road. Only those recorded accidents involving tow-away and/or casualty crashes are to be included in the review;

(b) Identify the accidents that occurred at night time over this section (i.e. occurring within 100 metres of the intersection along Narellan Road and 30 metres of the intersection along the access road) irrespective of either a tow-away and/or casualty accidents on the basis that all such tow-away and/or casualty accidents will be related directly or indirectly to the presence of the traffic signals within these distances;

(c) In the event that less than 3 night time accidents have occurred take no further action and release any bond/guarantee funds that have been set aside by the applicant;
(d) In the event that 3 or more night-time accidents occur over this period and the night- to-day accident ratio is over 1.3:1, appoint an accredited road safety auditor to undertake a cost-benefit analysis to identify whether the installation of lighting would achieve a positive cost-benefit outcome based on Austroad's Road Safety Audit publication (SAA HB 43-2002) and adopting standard accident reduction rates for lighting as published by the RTA at that time.
The appointment of an accredited road certifier is to be agreed to by the parties and the cost is to be shared equally up to a total maximum amount of $1,500 (i.e. $750 each party) and such certifier is to carry out the above analysis.
3. The exhibits are returned.
___________________
S J Murrell
Commissioner of the Court

rjs