Peregrine Corporation Pty Ltd v Wentworth Shire Council

[2018] NSWLEC 1647

Land and Environment Court

New South Wales

Medium Neutral Citation:	Peregrine Corporation Pty Ltd v Wentworth Shire Council [2018] NSWLEC 1647
Hearing dates:	29 & 30 November 2018
Date of orders:	17 December 2018
Decision date:	17 December 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1)   The Appeal is dismissed; (2)   Development Application No. 2017/004 to construct and operate a Highway Service Centre at 83-89 Hendy Road, Buronga is refused; (3)   The Exhibits are returned with the exception of Exhibits A, B and 2.
Catchwords:	DEVELOPMENT APPLICATION: new service station – access proposed off Sturt Highway – whether the safety, efficiency and ongoing operation of the highway will be affected by the development.
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Infrastructure) 2007 Wentworth Local Environmental Plan 2011
Cases Cited:	Benson McCormack Architects v Manly Council [2013] NSWLEC 1223 Mison and Ors v Randwick Municipal Council (1991) 73 LGRA 349 Modern Motels PTY Ltd v Fairfield City Council [2013] NSWLEC 138 Weal v Bathurst City Council and Anor (2000) 111 LGERA 181
Category:	Principal judgment
Parties:	Peregrine Corporation Pty Ltd (First Applicant) OTR 150 Pty Ltd (Second Applicant) Wentworth Shire Council (Respondent)
Representation:	Counsel: D Robinson (Applicants)   Solicitor: A Seton, Marsdens Law Group (Respondent)
File Number(s):	2018/136907
Publication restriction:	No

Judgment

Nature of the proceedings and the outcome

1. Peregrine Corporation Pty Ltd (‘Peregrine’) seeks consent to construct and operate a Highway Service Centre at 83-89 Hendy Road, Buronga. The subject site is located on the northern side of the Sturt Highway. The original application was refused by Wentworth Shire Council in November 2017. Peregrine has lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (‘the Act’).

2. The application was amended throughout the course of the appeal proceedings. On June 27 2018, the Court granted leave to the Applicants to amend their development application. The amended application proposes:

• The new control building positioned within the middle section of the site, with a drive through and pick up window on the eastern side of the building;

• The new fuel canopy with six filling points positioned to the western side of the control building, to be used for regular vehicles;

• A new diesel canopy with four filling points, to be located in the north-western section of the site;

• Eighteen car parking spaces are proposed with nine spaces to be positioned adjacent the shop (control building) front and the remaining spaces to the north of the control building and the north eastern corner of the site;

• Two extra-long parking spaces suitable for car and trailer/boat combination to be positioned to the east of the diesel canopy;

• Four truck parking spaces, to be positioned adjacent the eastern boundary;

• Underground fuel vessels;

• Access to the development and a right-of-carriageway adjacent to the northern boundary (one access point).

3. On October 30 2018, the Court granted leave for S J and A C Saunders PTY LTD (‘Saunders’), owners of Lot 1 in DP 1213735, to take part in the proceedings as their land is burdened with a right-of-carriageway through which Peregrine seeks access.

4. Saunders argues that the development application, as amended, should be refused because owner’s consent of the owners of Lot 1 in DP 1213735 to intensify and carry out works in the right of carriageway has not been obtained. Submissions were on behalf of this party by Mr S Flanigan, however they have been omitted as given my findings at paragraph [6] a determination was not required on the matters pressed by Saunders.

5. Council argues that the application ought to be refused on the following grounds:

• That consent in writing of the owner of Lot 1 in DP 1213735 to increase the intensity of the use of the right-of-carriageway burdening that lot, and benefiting the land the subject of the development application has not been provided;

• That it has not been demonstrated that the safety, efficiency and ongoing operation of the Sturt Highway (a classified road) will not be adversely affected by the development;

• That inadequate parking is provided onsite and that adequate internal maneuvering of vehicles has not been demonstrated;

• That the development is inconsistent with the relevant zone objectives;

• That approval of the development will set an undesirable precedent for similar inappropriate development in the area;

• That the approval is not in the public interest.

6. Following a consideration of the evidence before the Court, and the submissions of the parties, I have determined that the development application should not be approved. For the reasons detailed at paragraph [48- 54] of this judgment, I am unable to be satisfied that the safety, efficiency and ongoing operation of the classified road (Sturt Highway) will not be adversely affected by the design of vehicular access to the site.

7. Given that I am not satisfied by this threshold issue, no power is available to grant consent to the development application and the consent is refused.

8. In making this finding, I note that it is not necessarily the case that the site is not able to accommodate a service station use. Rather that I find the scale of the development and the accesses proposed off the Sturt Highway are not justified or designed in sufficient detail to demonstrate that the new development does not compromise the effective and ongoing operation of the Sturt Highway.

The site and the locality

9. The subject site is vacant land located on the northern side of the Sturt Highway in Buronga. The allotment is regular in shape and has an area of 6940sqm and a frontage of 99.62m to the Highway. The site is benefited by a 15m wide easement for services and right of carriageway which the application relies on for access to the rear of the site.

10. The site is 60m east of the intersection of the Sturt Highway and Melaleuca Street, Buronga. To the rear of the site (beyond the right of carriageway) is residential development.

11. Adjoining the site to the east is an existing Shell service station. Adjacent to that site, Council has granted consent for a vacant site to be redeveloped for the purpose of a supermarket (DA/2016/137). This consent involves changes to the access arrangements from the Sturt Highway to the existing Shell service station and new line making to the Sturt Highway.

Planning Framework

12. The Sturt Highway is a ‘Classified Road’ within the meaning provided at cl 93 of State Environmental Planning Policy (Infrastructure) 2007 (‘SEPP Infrastructure’). Because the site has frontage to a classified road, the consent authority, in this case the Court, cannot grant consent to the development unless it is satisfied the preconditions expressed in cl 101(2) of SEPP Infrastructure are met.

13. 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 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.

14. The Council argues that the Court could not be satisfied either by cl 101(2)(a) or by cl 101(2)(b) and therefore could not grant consent for the development: Modern Motels PTY Ltd v Fairfield City Council [2013] NSWLEC 138.

15. Further, pursuant to cl 104 of SEPP infrastructure: ‘Traffic Generating Development’, the development proposed is required to be referred to the NSW Roads and Maritime Services (RMS) for consideration and comment. Their response is detailed later in the judgment.

16. Clause 104(3) of SEPP infrastructure states:

(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.

17. The site is within the RU5 Village zone under the Wentworth Local Environmental Plan 2011 (LEP 2011). The application seeks approval for a ‘highway service centre’, a use that is permissible with consent in the RU5 zone.

18. A ‘highway service centre’ is defined in LEP 2011 as:

highway service centre means a building or place used to provide refreshments and vehicle services to highway uses. It may include one or more of the following:

(a) a restaurant or cafe,

(b) takeaway food or drink premises

(c) service stations and facilities for emergency vehicle towing and repairs

(d) parking for vehicles

(e) rest areas and public amenities.

19. The objectives of the RU5 Village zone are:

• To provide for a range of land uses, services and facilities that are associated with a rural village

• To promote development in existing towns and villages in a manner that is compatible with their urban function

• To encourage well-serviced sustainable development

• To deliver new residential and employment growth in Buronga and Gol Gol

• To ensure business and retail land uses are grouped within and around existing activity centres

20. The Wentworth Shire Development Control Plan 2011 also applies to the site (DCP 2011). The relevant provisions of DCP 2011 are:

• The general objectives of the DCP at Part 1of Chapter 2 of the plan,

• The relevant locality objectives at Part 2.1of Chapter 2, and

• The car parking rates detailed at Part 5.1and 5.2.

Public Submissions

21. In accordance with the requirements of DCP 2011 the application was notified to adjoining and adjacent land holders and was advertised in the local newspaper. The amended application was also notified. The submissions raise the following broad concerns with the development:

• Objection to the increase in traffic (both trucks and passenger vehicles) arising from the development. In particular the increased noise pollution.

• Objection to the increased traffic congestion to surrounding streets that would arise from the ingress and egress to the site being proximate to Melaleuca Street.

• Concern that the increased traffic in the area will make pedestrian access and movement in proximity to the subject site difficult and unsafe.

• That the development is out of scale with the locality.

• That an additional service station is surplus to the needs of the community.

• Concern that the queuing for the proposed drive thru food outlet is not well designed and may cause conflict between light and heavy vehicles.

• That there are currently vacant or disused service station sites in proximity to the subject site that would be better suited for the use proposed.

• That the number of onsite parking spaces proposed is inadequate.

• That the application provides insufficient information for the nature of the development proposed.

• That the traffic impact assessment fails to consider and demonstrate how the existing road treatments (right and left turn lanes) and existing approved vehicle and truck movements are not impacted negatively by the purposely.

• The plans fail to provide a survey that details the existing levels of the Sturt Highway and a plan demonstrating how those levels relate to the proposed levels of the access driveway and the finished site levels in general.

• Multiple access driveways to the Sturt Highway will result in traffic delays and an increase in vehicle accidents.

• Multiple driveways will cause confusion for drivers as to how to navigate into the service centre.

• The lack of safe pedestrian access ways in proximity of the site make access to walk or ride to local facilities difficult and unsafe. There is concern that the additional traffic and traffic movements generated by the development will make walking in Melealeuca Street and crossing the Sturt Highway much harder and a greater risk.

• Specific concerns are raised about the impact of the development on a resident with a long term illness who resides at the rear of the site. Those concerns include:

• - exposure to the noise arising from the construction of the development

• - lack of acoustic or air quality monitoring to identify any impact on air quality arising from the increase in fumes emitted from the service station, or heavy vehicles access the site along the right of carriageway.

22. A number of interested residents addressed the Court during the on-site component of the hearing. In addition to reiterating many of the preceding concerns the residents raised:

• That the proposed development has not made accommodation for the 10m RMS land acquisition that affects properties in proximity to the intersection of the Sturt Highway and Melaleuca Street.

• That a number of residents utilise the existing service lane at the rear of the site (part of Lot 1 and part of the right of carriageway) to access the existing supermarket and the Sturt Highway in preference to crossing at the intersection of the Sturt Highway and Melaleuca Street.

Correspondence from the RMS

23. The RMS has provided two responses in accordance with cl 104 of SEPP Infrastructure during the assessment of this application.

24. Relevant to the amended development application before the Court their correspondence of 2 November 2018 states:

“Roads and Maritime agrees with the contentions as outlined in Part B2 of Councils Statement of Facts and Contentions.

Based on the documentation submitted Roads and Maritime is not able to provide an informed assessment of the potential traffic related issues posed by the development as the documentation fails to:

1. Address State Environmental Planning Policy (Infrastructure), particularly cl. 101(2);

2. Provide an adequate assessment of the internal and external traffic impacts posed by the development proposal in relation to the surrounding road network.

The subject site (lot 5 DP 1029509) is affected by a notation on title created by DP 811922. The intention of the notation is for future land acquisition for road purposes for the Sturt Highway and its intersection with Melaleuca Street. The submitted documentation and plans fail to address this notation on title.”

(Exhibit 5)

Expert evidence

25. The court was assisted by expert traffic engineering evidence from Mr Craig McLaren (for Wentworth Council) and Mr Tom Wheatley (for Peregrine). Prior to the hearing the experts participated in a joint conference and produced a joint report. The report was tendered as Exhibit 7.

Can the court be satisfied that the safety, efficiency and ongoing operation of the Sturt Highway will not be adversely affected by the development?

26. In his oral evidence Mr Wheatley accepted that to enable him to have fully informed opinion of the potential impacts on the Sturt Highway arising from the proposed development it would be necessary to understand how the access to the site from the Highway is proposed to be designed. Further Mr Wheatley accepts that the conceptual road design prepared by GHD Pty Limited for the original development application is unable to function in the form shown on those engineering plans with the three driveway proposal before the Court. In oral evidence he accepted that therefore there is no applicable engineering design for the access of the Sturt Highway for the proposed development.

27. In addition Mr Wheatley accepts that the conceptual road design prepared by GHD Pty Limited does not:

• Show the changes to the Sturt Highway arising from the supermarket consent on the nearby site

• demonstrate the extent of the line marking for the taper and the channelized right hand turn into Melaleuca Street

• or how the preceding road features will interact with the access and egress facilities proposed by the development.

• or whether the concrete median required at the entry to the Shell Service station (adjoining to the north) will be impacted by trucks exiting the proposed driveway adjacent the subject site’s eastern boundary.

28. Without the preceding information Mr Wheatley accepts he cannot have a fully informed opinion on whether an adverse impact to the Sturt Highway will arise from the development.

29. In the alternative Mr McLaren’s evidence on the adequacy of the information and analysis supporting the proposed access arrangements is detailed in the joint report is as follows:

“d. No details have been provided with respect to the extent of consultation with Council, the RMS or the adjacent land owners related to cumulative traffic impacts and design impacts related to approved vehicular access changes with the Sturt Highway associated with the existing Shell service station immediately east of the subject site once the approved supermarket on the site further east of the Shell service station is under construction. e. Council and RMS have advised that the existing right turn lane within the Sturt Highway serving the eastern driveway of the adjacent Shell site will be relocated to the west of the Shell site and along part of the Shell frontage. Details of this future change are not depicted on the swept path tests provided by TW.

…

f. The RMS has yet to provide formal advice or their concurrence with respect to the proposed vehicular access arrangements (i.e. 3 driveways from the Sturt Highway and 1 from the Right of Carriageway (RoC)). CM is advised that previous advice by the RMS (dated 6 July 2017) related to the earlier plan that had two (2) Sturt Highway driveways (now superseded by the current proposal) required ENTRY only at the western driveway with a right turn bay and an EXIT only at the eastern driveway with no right turns onto the highway, formalised by a concrete median in the highway. Further that July 2017 letter from RMS required the following outcomes, which the current development application does not achieve or justify by adequate detail:

Only two (2) driveways from the Sturt Highway.

All heavy vehicles are to only egress the site via Melaleuca Street.

Only light vehicles are permitted to turn left onto Sturt Highway when exiting the site.

A median prohibiting right turns onto the Highway is required.

A Channelised Right Turn (CHR) treatment for vehicles turning right into the site from the Highway.

The CHR design is not to affect the existing right turn into Melaleuca Street (which includes the taper that extends across part of the western frontage of the site by approximately 20m.

g. CM considers that point (f) above is sufficient in itself for the application before the Court to be rejected.

…

i. There is no evidence that supports the proposed three (3) Sturt Highway driveways and the one (1) driveway from the RoC. Accordingly, the proposed vehicular access arrangements cannot be supported due to the lack of supporting justification that has adequately considered all access options.

j. There is no cumulative impact assessment of the proposed development and the approved supermarket that will increase traffic activity along both the RoC and the Sturt Highway, including the approved vehicular access arrangements for the supermarket and changes to access arrangements on the highway for the adjacent Shell site. The lack of cumulative assessment of immediately adjacent developments is fatal to this proposal, particularly in view of the need to convince Council and the RMS that the proposed vehicular access arrangements inclusive of future traffic loads will not have an adverse impact on the traffic flow efficiency, safety and ongoing management of the classified main road (Sturt Highway) and the RoC.”

(Exhibit 7)

30. Prior the commencement of the second day of the proceedings the experts were requested by the Court to prepare a plan overlaying the existing and approved road markings and channelized turning bays in the Sturt Highway in proximity to the site. The documents produced by the experts were tendered as Exhibit 10 and Exhibit C.

31. It was the experts agreed evidence that Exhibit 10 demonstrates that:

• it is not feasible to accommodate the proposed channelized right turn bay into the service station for the design vehicle (a 3.6m A Double); and

• the required deceleration and taper for the design speed of 60km/hr; and

• not impact the existing channelized right hand turn bay for Melaleuca Street within the remaining frontage of the site.

32. As such Mr McLaren argues there is not means of providing a compliant right turn facility off the Sturt Highway into the proposed development.

33. Further the experts agree that the proposed exit movement of heavy vehicles (A Double’s) on the Sturt Highway via the eastern driveway will impact the verge of the road in order to avoid a collision with the concrete median. The experts agree that this detrimental impact to the Highway could be alleviated by the deletion of the eastern most bay of truck parking proposed by the development.

34. It is Mr McLaren’s conclusion that the driveways proposed by the development have a detrimental impact on the Sturt Highway. His reasoning is as follows:

• the three driveways increase the number of locations for potential conflict between highway traffic and road users accessing the service centre.

• there has been no road safety audit demonstrating the safety of the proposal.

• the number of driveways will result in a reduction of vehicle speed on the highway reducing the performance of the Sturt Highway.

• the middle driveway (proposed as egress for passenger vehicles only) will create confusion for drivers attempting to determine which access is correct for them. Mr McLaren argues this may result in passenger vehicles attempting to access the site via this driveway creating potential for direct conflict with exiting cars.

35. In his oral evidence Mr Wheatley agrees that the greater the number of access points off the Sturt Highway to the development the greater the potential for conflict or accidents occurring between road users. However he argues that whilst there is an increase in the locations for potential conflict, there is not necessarily an increase in frequency of conflict and accidents.

36. In cross examination Mr Wheatley agreed that the limiting of driveways is consistent with the achievement of the objective of cl 101 of SEPP Infrastructure, namely: ‘to ensure that new development does not compromise the effective and ongoing function of classified roads...’

37. Both experts agree that the level of safety of road users of the Sturt Highway will be reduced given the increase in conflict points proposed by the development application.

38. It was the agreed evidence of the experts that if the diesel fuel bowsers servicing of heavy vehicles (A Doubles and B Doubles) within the facility were in use, and an additional heavy vehicle entered the site, they would be unable to maneuver fully off the Sturt Highway. This would create a further potential conflict point.

Submissions

39. Broadly Mr Robinson’s submissions are as follows:

• the site is ideally suited to the establishment of a highway service centre in terms of the site’s physical and planning context;

• the traffic engineering fundamentals of the design are sound, subject to resolution of discrete matters that can be resolved appropriately by conditions of consent.

40. In support of the suitability of the site for the development proposed Mr Robinson states:

“Service stations serve a fundamental economic need, but they are not easy to locate.

Intrinsically they need to be located on a main road to serve the traffic which passes, ideally on a highway.

…

It (the subject site) is on a highway, accessible to but adequately separated from sensitive residential uses, at the edge of an area that is beginning to develop as a small commercial precinct of complementary uses and without any meaningful pedestrian focus – a service station already there and a supermarket to come.”

(Applicants written submissions: 27.11.18)

41. Mr Robinson argues that:

“118. In response to the balance of the Council’s contentions relating to impacts on the safety and operation of the highway, the applicants rely upon the expert evidence and submit that some of Council’s grounds of contention have not been borne out at all, while others have brought to light the need for further discrete design work which can be accommodated as a ‘deferred commencement’ matter.

119. In respect of the latter category, it can be plainly stated that the traffic impacts of Saunders’ approved supermarket development have not be factored into the experts’ assessment, and that will need to be cumulatively assessed in order to ascertain precisely what form of works will now be required to most appropriately facilitate access to the site from the highway (and possibly, though not necessarily, at the intersection of Melaleuca Street.)”

(Applicants written submissions: 27.11.18)

42. Finally it is Mr Robinson’s submission that in the context of cl 101(2)(b) of SEPP Infrastructure it is enough for the Court to be satisfied that those matters can be addressed, and to require them to be addressed as a deferred commencement matter in accordance with the draft conditions.

43. Mr Seton maintains that the Court will be unable to be satisfied that the threshold issue in cl 101 of SEPP Infrastructure is met. He notes that this state of satisfaction is required as a prerequisite to consent, and can’t be satisfied by conditions (even if they are required to be satisfied prior to the consent operating).

44. Mr Seton argues that, on the agreed evidence of the experts, there will be an adverse impact to the highway arising from the development and therefore the required state of satisfaction cannot be met.

45. Further Mr Seton submits that the Court held in Benson McCormack Architects v Manly Council [2013] NSWLEC 1223 at [14] that cl 101(2)(b) ‘does not contemplate varying degrees of satisfaction, it invites satisfaction or not’.

46. Mr Seton argues given the state of the agreed evidence of the experts, as follows, the Court cannot be satisfied that that the safety, efficiency and ongoing operation of the Sturt Highway will not be adversely affected by the development:

• the proposed channelized right turn into the site from the Sturt Highway is unable to be accommodated without impacting the existing turning facility in Melaleuca Street;

• • that the level of safety of road uses would be reduced given the increase in conflict points; and

• • there is no provision for onsite queuing of the heavy vehicles if the diesel fuel bowsers are occupied and that a waiting vehicle would create a further potential conflict point.

47. On the basis of his submission that the precondition is not met, Mr Seton submits that the Court has no power to consent to the application.

Findings

48. The decision of the Chief Judge in Modern Motels Pty Ltd v Fairfield Council made clear that the three matters in cl 101(2) of SEPP Infrastructure are conjunctive; therefore I need to be satisfied of each of them before consent can be granted.

49. I agree with Mr Seton that if I am not satisfied on the evidence that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: the design of the vehicular access to the land, and the nature, volume or frequency of vehicles using the classified road to gain access to the land then cll 101(2)(b)(i) and (iii) precludes me from granting development consent to the application.

50. I do not accept the submission of Mr Robinson that such satisfaction can rely on a deferred commencement condition. The provision of access safe and efficient access to the development is an essential part of the application that should not be deferred beyond the determination of the application: Mison and Ors v Randwick Municipal Council (1991) 73 LGRA 349 and Weal v Bathurst City Council and Anor (2000) 111 LGERA 181.

51. In these proceedings, there is agreement between the experts that:

• the greater the number of access points off the Sturt Highway to the development the greater the potential for conflict or accidents occurring between road users.

• the level of safety of road users of the Sturt Highway will be reduced given the increase in conflict points proposed by the development application.

• that if the diesel fuel bowsers servicing of heavy vehicles (A Doubles and B Doubles) within the facility were in use, and an additional heavy vehicle entered the site, they would be unable to maneuver fully off the Sturt Highway. This would create a further potential conflict point.

52. I am satisfied that this agreed evidence, along with the acknowledged deficiency in the design, documentation and analysis demonstrating the feasibility of the three driveway design before the Court is sufficient for me to conclude that: the safety, efficiency and ongoing operation of the classified road will be adversely affected by the development as a result of the design of the vehicular access to the land; and the nature, volume or frequency of vehicles using the classified road to gain access to the land.

53. As a consequence, I do not have jurisdiction to approve this development application.

54. Having reached that conclusion, I do not need to deal with any other issues discussed at the hearing including whether owners consent is required for the intensification or works to the right of carriageway.

Orders

55. The Court orders that:

1. The Appeal is dismissed;

2. Development Application No. 2017/004 to construct and operate a Highway Service Centre at 83-89 Hendy Road, Buronga is refused;

3. The Exhibits are returned with the exception of Exhibits A, B and 2.

……………………….

D M Dickson

Commissioner of the Court

**********

Decision last updated: 17 December 2018