Multi Span Australia Pty Ltd v Department of Main Roads & Anor

[2008] QPEC 14

[2008] QPEC 14

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

Appeal No 1461 of 2007

MULTI SPAN AUSTRALIA PTY LTD
(ACN 165 483 918)  Appellant

and

DEPARTMENT OF MAIN ROADS  Respondent

and

BRISBANE CITY COUNCIL  Co-Respondent

BRISBANE

..DATE 27/02/2008

JUDGMENT

HIS HONOUR:  This is an applicant appeal against the council's deemed refusal of a development application for a development permit, for a material change of use of premises, in order to facilitate the development of an office complex on a site situated at Beaudesert Road, Acacia Ridge.

The land the subject of the application fronts Beaudesert Road, Kerry Road and Postle Street.  It is proposed that access be via Postle Street.  It is evident that is the most appropriate location for an access point.

The application was not decided by the council within time, leading to the appeal against a deemed refusal.  Initially, the council notified a number of issues but, ultimately, those issues have reduced to one traffic issue.  That issue relates to the proposed access point in Postle Street.

The proposed access point is on the south-western side of the intersection of Postle Street and Kerry Road.  It is, depending on the point from which one measures, approximately 16 metres from the intersection.  The contention of the respondent is that the separation of the access from the intersection is insufficient, with the consequence that there would be an adverse impact on safety, contrary to performance criterion (5) of The Transport Access Parking and Servicing Code. 

Whilst that performance criteria says that development "must not impact adversely" on the safety or operations of the road system, Mr Job, for the council, rightly conceded that one must infer a qualifying adverb such as "unacceptably" or "unreasonably" (see Jedfire v Council of the City of Logan and White [1995] QPLR 41 at 43H).

The concern which the council particularly advances relates to vehicles which may turn right into the site from Postle Street, having proceeded through the intersection of Kerry Road and Postle Street.  Mr Holland, an experienced traffic engineer who was called by the respondent, expressed a concern with respect to two hypothetical, but possible, scenarios. Both relate to circumstances in which two vehicles would be arriving at the site access with the first wanting to turn right.  Mr Holland said that if those vehicles arrived in Postle Street having turned right from Kerry Road, then the lead vehicle would not have had sufficient time to put on its right indicator, turn from Kerry Road to Postle Street, turn it off and then turn it back on again, to indicate the  intention to subsequently turn right into the site.  His concern was that the following vehicle may then be unaware that the lead vehicle was about to stop, leading to the possibility of a nose-to-tail collision.

The second scenario was that if, in order to be able to take the right-hand turn into the site access, the lead vehicle proceeded slowly through the intersection, then the following vehicle might find itself caught short, in terms of the gap between it and oncoming vehicles travelling in a westerly direction along Kerry Road, creating a potential collision situation.  That was of particular concern to Mr Holland, given the fact that Kerry Road, which leads to a railway depot, carries a significant proportion of large vehicles.

To abate these concerns, Mr Holland favoured the imposition of a condition of approval, which would require roadworks in Postle Street, so as to construct a raised median to prevent right turns into the development.  The consequence is that site access would be left-in/left-out only.  In this respect, the respondent pointed to some provisions of the council's Transport Access Parking and Servicing Planning Scheme policy. 

That policy is referenced in the acceptable solutions to performance criterion (5) of the code.  Compliance with the policy is taken to achieve compliance with the performance criterion by way of meeting the acceptable solution.  However, a departure from the acceptable solution does not mean that the applicant cannot otherwise establish compliance with the performance criterion.  Adoption of the acceptable solutions is one way, but not the only way, of achieving compliance.

The planning scheme policy contains a table setting out minimum separation distances of a minor driveway from what is referred to as an "adjacent feature".  The distances differ depending upon the type of road with which the driveway intersects and the nature of the intersection from which the driveway is separated.  Both Postle Street and Kerry Road are designated under the Town Plan as major roads and so the stated minimum separation distance under the planning scheme policy is either 20 metres from the intersection or 30 metres from the intersection, depending upon whether the Postle Street-Kerry Road intersection is classified as a minor intersection or a major intersection.  There is no definition of what constitutes a minor intersection or a major intersection for the purposes of the planning scheme policy or, more particularly, for the purposes of Table 5.

Mr Holland and Mr Viney, an experienced traffic engineer called by the appellant, differed on whether the 20 metre criterion or 30 metre criterion applied.  Mr Holland, in adopting the 30 metre criterion, viewed the intersection as a major intersection, because it is the intersection of two roads each of which is designated under the Town Plan as a major road.  Mr Viney, on the other hand, whilst acknowledging the defined classification of the roads under the Town Plan, pointed out that the roads carry relatively low volumes, relative to their classification, and pointed out other factors, such as the placement of stop signs at the intersection and the low speeds through the intersection, to suggest that the intersection, in this case, is more properly regarded as a minor intersection than a major intersection.

It is unnecessary to resolve that dispute for the purposes of determining this case.  Neither of the traffic engineers saw that difference as determinative in relation to their views.  The separation distance in this case fails both criteria, and the consideration as to whether it is acceptable notwithstanding, relates to a consideration of the safety of the arrangement in its particular context.

Mr Job, for the council, also drew attention to statements in the policy which include that, as a general rule, driveways are to be located as far as possible from intersections and that access to a major road, if permitted at all, will usually be restricted to left-in/left-out traffic movements by means of a raised median.  The position adopted by Mr Holland and the council, therefore, gains some support from the terms of the policy.

Mr Viney, on the other hand, whilst acknowledging the potential for some risk, formed the view that the risk was only minor; that the arrangement was, in the circumstances, not undesirable; and that the council's proposed solution - of requiring roadworks to construct a median strip - would be overkill. In that regard, he placed particular reliance on the combined effect of a number of factors specific to the particular context of the subject site. As a matter of approach that is appropriate. As the Court has said in the past, published standards and guidelines are of assistance, but the acceptability of traffic arrangements must also take account of the particular circumstances of the case (Comkey Pty Ltd & Anor v. Caboolture Shire Council & Ors [2006] QPELR 339 at 412).

Many of the factors which Mr Viney referred to were acknowledged by Mr Holland.  I will mention the more significant.  As Mr Viney pointed out, and Mr Holland agreed, the proposal is likely to be a relatively low generator of traffic.  The number of right-hand turn movements into the site access during peak hour might be something of the order of 20 or 25.  Accordingly, it is not every vehicle proceeding through the intersection which is likely to be faced with a stationary vehicle, about to turn right into the subject site.

Secondly, as Mr Viney pointed out and Mr Holland also acknowledged, the speed environment is likely to be relatively slow.  As Mr Viney's traffic survey shows, there are relatively few vehicles which turn left from Kerry Road into Postle Street.  Those vehicles which turn right from Kerry Road into Postle Street are relatively few in number (currently about 22 vehicle movements per hour in the peak period), and must turn across the face of any oncoming traffic proceeding in a westerly direction Kerry Road.  Vehicles proceeding north to south along Postle Street face a stop sign, before proceeding through the intersection.  Those vehicles which, having proceeded through the intersection, might encounter a vehicle about to turn right into the site, are vehicles which are likely to be travelling relatively slowly and, therefore, have time to react.

Further, the passing volumes of traffic in Postle Street are relatively low, particularly given the designations of the streets under the Town Plan.  Again, this was a factor which Mr Holland acknowledged, although he thought that the volumes may increase over time.

Further, there is sufficient room in Postle Street for a south-bound vehicle along Postle Street to pass a vehicle which may be stopped in Postle Street intending to turn right.  Mr Viney's evidence is that that passing opportunity does exist although, as he acknowledged, it would be fairly tight.  It is not inevitable therefore, that a vehicle which proceeds through the intersection and is presented with a vehicle in front of it, stopped wishing to turn right into the subject site, would necessarily have to stop behind that vehicle.  Some vehicles may be able to manoeuvre past.

Further, whilst the separation distance fails to meet the standards under the policy, it is sufficient to meet the relevant Australian Standard.  This is again a matter which Mr Holland acknowledged, although he was unprepared to put much store in the Australian Standard.

Unsurprisingly, Mr Viney's evidence was that, in the circumstances, the potential for the risks identified by Mr Holland to be realised, was relatively low.

Mr Holland acknowledged that any occurrences of the type for which he expressed a concern would be infrequent.  When pushed, he said he thought that there might be perhaps one incident in a peak hour period where one vehicle, that is, a following vehicle, is presented with a vehicle in front of it wishing to turn right into the access.  Of course, even that scenario does not necessarily lead to the difficulties of which Mr Holland was concerned.  To have such difficulties arise in practice, one must assume not only that a vehicle wishing to turn right into the subject site has a vehicle immediately following it, but that the vehicle which follows is either not allowing a sufficient gap between it and the vehicle in front to allow it to stop or steer clear of the vehicle turning into the subject site; or in relation to the other scenario referred to by Mr Holland, that the following vehicle stays closely behind the leading vehicle, as they both enter the intersection, with the leading vehicle travelling sufficiently slowly to cause the following vehicle to become, in effect, stranded and vulnerable to oncoming vehicles, by reason of not being able to get through the intersection quickly enough.

The scenarios are certainly possible but, in the particular circumstances of this case, having regard to the various factors referred to by Mr Viney, these are scenarios which are likely to be rarely encountered and do not persuade me that the development would have an unreasonable or unacceptable adverse impact on safety.

It might be added that the suggested solution by the council, that is, the raised median, itself would introduce some undesirable consequences.  It is likely that the majority of vehicles arriving at the site would access it via Kerry Road and Postle Street, if it was possible to do a right-hand turn.  If that is not possible, because of the raised median, then other options will have to be found.  One option would be for vehicles to continue down Beaudesert Road, turn right into Mortimer Road, and then left into Postle Street before backtracking, effectively, back to the subject site.  That would add a not inconsiderable distance to the route for anyone who was arriving by driving in a southerly direction along Beaudesert Road.  It would involve not only the elongation of travel time, but also further traffic through parts of Postle Street which have direct residential frontage, although the impact on amenity is unlikely to be significant in the circumstances.

More likely however, as Mr Holland acknowledged, vehicles would take a shortcut which would be available by treating the car park of the Acacia Marketplace Shopping Centre as a through-traffic route to get from Beaudesert Road to Postle Street.  It is obviously undesirable and contrary to appropriate planning, to treat the car park of a shopping centre as a through-traffic route to commercial development situated at the subject site.  Mr Holland acknowledged that, although he pointed out that some traffic already is attracted into the car park by the Woolworths fuel outlet located therein.  He acknowledged that that was a matter which ought be balanced in the consideration of the relative merits of the council's approach, to that put forward by the applicant.

Another possibility is that vehicles will arrive at Postle Street via Kerry Road and, being unable to carry out a right-hand turn into the subject site, would either attempt a U-turn at the end of the median, which would itself be undesirable -and a matter Mr Holland said should perhaps then be dealt with by way of the design of the width of the road and the placing of No U-turn signs - or potentially by the use of nearby commercial premises, which would provide a convenient location for people, by use the driveways and car parks, to complete a U-turn.  That also would be undesirable.

I should say that, in looking at this matter, I have not simply weighed up the relative merits of the council's approach and that of the applicant.  The onus is upon the appellant to satisfy me that the appeal should be allowed and the application ought be approved.  I am conscious that I need to be satisfied that the proposal put forward by the applicant is appropriate, not just that it is more appropriate than what the council is prepared to accept.

As I have already indicated however, I am satisfied that, whilst the arrangements proposed by the applicant do not meet the acceptable solutions to performance criterion P5 of The Transport Access Parking Services Code by reason of their departure from the terms of the policy, in the circumstances I am satisfied, on the basis of Mr Viney's evidence, which I prefer, that the proposal does not offend the performance criterion and I am prepared to approve the proposal without imposing the condition which has been suggested by the council.

...

HIS HONOUR:  I will adjourn the further hearing of the appeal for mention on the 19th of March 2008.

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