Perilya Broken Hill Limited v Broken Hill City Council

[2011] NSWLEC 1310

Land and Environment Court

New South Wales

Medium Neutral Citation:

Perilya Broken Hill Limited v Broken Hill City Council [2011] NSWLEC 1310

Hearing dates:

26, 27 October 2011

Decision date:

27 October 2011

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

(1)The appeal is upheld in part.

(2)Condition 11 of the amended consent granted in DA 448/2004 on 20 December 2010 is amended and shown in annexure A.

(3)The exhibits may be returned except for 1, 2, 4 and A.

Catchwords:

Development Application: Haulage route for heavy vehicles, safe intersection design, heavy vehicle route.

Legislation Cited:

EP & A Act 1979
SEPP (Mining, Petroleum Production and Extractive Industries, 2007
Broken Hill LEP 1996

Category:

Principal judgment

Parties:

Perilya Broken Hill Limited (Applicant)

Broken Hill City Council (Respondent)

Representation:

Mr I Hemmings (Applicant)
Ms J Reid (Respondent)

File Number(s):

10115 of 2011

Judgment

Background

1. In this matter, which is Perilya Broken Hill Ltd v Broken Hill City Council, appeal 10115/11 the matter is resumed for judgment. This appeal is against conditions of consent imposed on an amended development consent to permit the resumption of the Potosi open-cut and underground mine which is located approximately 5.5 kilometres to the north-west of Broken Hill along the Barrier Highway. It particularly relates to condition 11 which contained a number of requirements in terms of "traffic management and haul routes" as follows. In this regard, the SEE stated that:

11 Road Transportation

(a)   That the approved primary transportation route is the Barrier Highway, Menindee Road, Holten Drive and Eyre Street.

(b)   That the approved secondary transportation route is the Barrier Highway, Menindee Road, Holten Drive, Eyre Street, Comstock Street, Patton Street, Kanandah Road.

(c)   That Council reserves the right to alter the approved transportation routes depending on the classification of the roads and the ability to use alternative heavy vehicle routes in and around the City of Broken Hill.

(d)   That the intersection of the haul road with the Barrier Highway to be upgraded to provide an auxiliary left turn (AUL) lane in accordance with the RTA Road Design Guide, Widening on the Barrier Highway is to be provided to cater for vehicles turning right out of the haul road. The intersection treatment is to be designed for a 110km/h environment.

(e)   That the access to the Southern Operations on Kanandah Road (MR 7507) is upgraded to provide an auxiliary right turn (AUR) intersection treatment in accordance with the RTA Road Design Guide. The proposed haulage vehicles exiting the development must also be able to turn left without crossing the centreline of Kanandah Road. The guardrail at the access is to be removed and installed in accordance with the RTA Road Design Guide.

(f)   That the intersection of the Silver City Highway and Kanandah Road be upgraded to provide an auxiliary left turn AUL Lane in accordance with the RTA Road Design Guide and widening on the Silver City Highway to cater for vehicles turning right into Kanandah Road.

(g)   That the following intersections be upgraded to ensure that the proposed haulage vehicles are able to turn left or right at these intersections without crossing the centre line of the road in both directions:

(i)   Menindee Road and the Barrier Highway

(ii)   Eyre Street and Comstock Street

(iii)   Comstock Street and Patton Street

(h)   That any adjustments to the Eyre Street roundabout to cater for the haulage vehicles will be at full cost to the developer and will require RTA approval.

(i)   That all works associated with the upgrading of the intersections are to be completed prior to commencement of road transportation and shall be completed at no cost to the Council or the RTA.

(j)   That the developer is required to enter into a Works Authorisation Deed (WAD) with the RTA in order to carry out the proposed work. Any new pavement forming part of or joining the highway is subject to RTA approval which will form part of the WAD.

(k)   That a Road Occupancy Licence is required prior to any works commencing within three metres of the travel lanes of the Barrier Highway or the Silver City Highway. This can be obtained by contacting Mr Paul Maloney. Submission of a traffic control plan is required as part of this licence.

(l)   That an independent assessment of the pavement condition be presented to Council prior to commencement of transportation.

(m)   That a road maintenance agreement with Broken Hill City Council be entered into prior to commencement of transportation in relation to the contribution for maintenance costs and works to be carried out.

1. The main issues initially arising from this condition concern the haulage route location for the heavy vehicles and associated upgrading works to be undertaken. In this regard I note that the statement of environmental effects (SEE) stated:

Perilya anticipates that on average approximately two heavy vehicle movements (one return load) per hour would be required, with an average of 48 movements (24 loads) per day. However, in recognition that, at times, a higher rate of transportation may be required, Perilya would ensure that:

No more than six heavy vehicle movements (three return loads) per hour would be undertaken between 7.00am and 10.00pm; and

No more than two heavy vehicle movements (one return load) per hour would be undertaken between 10.00pm and 7.00am

1. However, during the course of the appeal further discussions between the parties reduced the outstanding issues, particularly with an agreement to the preferred transport route from the Potosi mine to the existing mine headquarters at Karandah Road.

1. Insofar as the parties now agree on this preferred transport route, this would still require approval of the Local Traffic Committee and gazettal of part of the route.

1. However, there is still an unresolved issue concerning the standard of upgrading at the intersection of the Barrier Highway and the Potosi access road. From the statement of facts I note the site details and planning controls.

The site

1. The land which is the subject of this modification application is located approximately 505 km northwest of Broken Hill Township.

1. The site comprises the following parcels of land owned by the Applicant:

• Part Lot 2 OP 757268;
• Part Lot 4 OP 757268;
• Part Lot 6 OP 757268;
• Part Lot 8 OP 757268.

1. The project site covers a total area of approximately 128 hectares.

Planning controls

1. The following statutory controls are relevant to the assessment of this appeal:

• Environmental Planning and Assessment Act, 1979;
• Environmental Planning and Assessment Regulation, 2000;
• State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries), 2007;
• Broken Hill Local Environmental Plan, 1996. The project site is entirely within land zoned Zone 1 (A) - General Rural under the Broken Hill Local Environmental Plan 1996.

1. The project site is located entirely within Consolidated Mining Lease- 5 (CML).

The evidence

1. Detailed evidence was presented by Mr J Coady, the respondent's traffic consultant and Mr C Hazell, the applicant's traffic consultant in the form of a joint expert report. This conferencing has led to the expert's agreement on the alternate heavy vehicle route that would be most appropriate. This follows advice from the RTA that the Silver City Highway bridge has sufficient capacity to cater for B triple vehicles. Consequently, the preferred route now involves Barrier Highway extending through to Crystal Street over the Silver City Highway bridge and entry to the mine via Gypsum Street. However, it is the latter part of this route that requires Local Traffic Committee approval and gazettal.

1. I have had the benefit of a view and after considering the evidence, I am satisfied to rely on the agreement of the traffic experts that this preferred route should result in a satisfactory environmental outcome.

1. Notwithstanding this, I also note that there is another alternative route, which is longer and extends along the Silver City Highway via Wentworth Road to the mine entrance in Kanandah Road. The traffic experts agree that it is an appropriate heavy vehicle transport route. Consequently, I am satisfied that there are acceptable heavy duty transport routes available that can be included in an amended condition 11 subject also to appropriate upgrading works.

Barrier Highway/Potosi access road intersection

1. The intersection of the Barrier Highway at Potosi access road involves the upgrading issues and the extent of the upgrading works at this intersection is then the main question for the Court. Insofar as the Barrier Highway is a state highway with 110 kph speed limit at the subject intersection, the proposal was referred to the RTA on a number of occasions. The RTA indicated that it would not object to the development subject to a number of upgrading works being undertaken, including intersection upgrades, as follows:

Intersection upgrades are required due to the expected increase in heavy and corresponding light vehicular traffic due to the mining activity and transport of ore. It should be noted that under "Note" in Figure 4.5.12 - Warrants for Rural Turn Lanes of the RTA's Road Design Guide it states that "on high speed roads with substantial volumes of heavy vehicles, the use of type "AU" or "CH" is preferred for safety reasons". The Barrier Highway and Kanandah Road (an AB Triple approved route) fall into the above category. Further it would be negligent of the RTA not to ask for the upgrades as part of its responsibility of "Mainstreaming Road Safety" as required by the Government's State Plan which identifies road safety as one of its key priorities.

1. Consequently, the traffic consultants have assessed the upgrading works at this intersection on the basis of the RTA Design Guide and Austroads 2010 'Guide to Road Design - Part 4A, 'Unsignalised and Signalised Intersections'. Whilst there was some discussion about the significance of each, I am satisfied that there is no material difference relevant to the subject intersection and rely on Austroads.

1. Mr Hazell says that Austroads then provides a graph (Figure 4.9) indicating warrants for an intersection, which is dependant on the level of through traffic and turning volumes. As the Perilya proposal is for a maximum of 3 heavy vehicles per hour, that is 6 trips, the experts initially agreed that there was no need for a passing lane for westbound vehicles in regard to trucks making a right hand turn from the Potosi access road on to the Barrier Highway.

1. With regard to the eastbound traffic with the trucks making a left turn into the Potosi access road, Mr Hazell said that irrespective of the traffic volumes along the Barrier Highway there is only a warrant for a basic left turn (BAL), which is consistent with the existing intersection. He considers that with some additional minor widening at the intersection this would be satisfactory as demonstrated at the site inspection.

1. Furthermore he says that reference to the available traffic counts, (i.e 2005), indicates a maximum of 66 combined directional vehicles in an hour and even with some vehicle increases it is still well below the designated 500 vehicles per hour in the eastbound direction that would warrant the suggested AUL (deceleration) lane.

1. Mr Coady acknowledges that the inputting of the additional traffic demand into the warrants criteria in figure 4.9A of the Austroads, or the consideration of other physical features does not trigger the need for an auxiliary left turn AUL lane along the Barrier Highway.

1. But in his opinion the left turn deceleration lane on the Barrier Highway, on the approach to the access road, is required so that slowing, left turning B doubles do not affect the efficiency and safety of the eastbound traffic on the Barrier Highway. In the absence of a left turn deceleration lane he says that B doubles slowing down to make the left turn movement will cause delays to other eastbound traffic on the highway. Such delays for the eastbound traffic will also create an additional traffic accident potential with eastbound vehicles moving to the wrong side of the road to pass left turning B doubles in order to avoid the delay. Those potential traffic efficiency and safety effects are exacerbated by the 110 kph speed limit on this section of the highway, such that if an accident occurs it is likely to be a serious one.

1. In view then of the disparate opinions that there was further discussion between the experts concerning the provisions of Austroads including the introductory comments which deal with intersection safety. The following aspects are relevant:

1.6 Intersection Safety

Road designers should be aware that intersection design takes place in a broader context where designs are influenced by many factors including cost and economic considerations however it's important that intersections should perform the intended function and operate as efficiently as possible but it is paramount that intersections are designed to be as safe as possible.

1. Section 1.3 describes a safe systems approach whereby "safer roads and roadside safer speeds and safer vehicles combine to produce a reduction in road trauma". Therefore, a key objective of an intersection is that it should function as safely as possible and make a major contribution to the development of a safe system.

1. The following of turn treatments are identified in section 4.3:

a basic turn treatment (BA) where turning vehicles may share the lane with through traffic movements.

an auxiliary lane turn treatment (AU) where a separate lane is provided to enable the turn to be performed in an additional lane.

a channelised treatment which provides a traffic island to enhance the safety of right turning or left turning vehicles.

1. In section 4.4 there are intersection selection considerations which provide that the selection of an appropriate type of intersection for a particular site may be influenced by:

• Transport planning environmental considerations.
• Traffic management and road safety objectives.
• A range of road design considerations that are not necessarily related to traffic management.
• Environmental considerations.
• Economic considerations (cost and benefits).

1. Furthermore, s4.4 states:

In many cases there will be more than one option considered for the intersection treatment at a particular site. In these cases it will be necessary to list the relative advantages and disadvantages of the various options to assist in deciding between them and this may take the form of a balance sheet that compares all the operational, safety, physical, environmental and economic considerations...

Designers should be aware that the selection of a treatment may also require an economic evaluation and consideration of road safety and environmental aspects of competing options. The economic evaluation should include consideration of construction costs and both crash costs and operating costs over the life of the treatment....

1. From the further discussions of options, the traffic experts prepared a hybrid intersection option, as shown in Exhibit 'A' for an AULS with an 82 metre slip lane including taper and curved radius to enable a double B turning movement at 30 kph. It includes a safety fence adjacent to the existing road culvert.

1. This represents a considerable reduction in the normal application of the controls whereby a slip lane in the length approximately 180m would be required. Notwithstanding this, Mr Hazell still maintains his position that there is no warrant for this type of hybrid intersection upgrade. However, in accordance with the economic consideration references, the engineers undertook very preliminary estimates as follows:

i. Mr Hazell's basic intersection widening is approximately $15,000,

ii. The hybrid AULs is approximately $65,000 which includes safety fences and a $10,000 contingency allowance.

CONCLUSION

1. Having considered the competing evidence, the submissions, and undertaken a view I am initially satisfied that the Austroad Guidelines encourage consideration on a number of factors and options to ensure that intersections perform as efficiently as safely as possible. In the subject circumstances, the Barrier Highway at the subject intersection is a high speed environment, which is posted at 110 kilometres per hour. Also, there will be a regular flow of the larger double B wagons that may restrict passing visibility.

1. Consequently, for some inexperienced or impatient drivers, I accept Mr Coady's opinion that this may give rise to the likelihood of some eastbound vehicle drivers making poor overtaking decisions thereby increasing the accident risk as larger vehicles slow to make the turn into the Potosi access road. In relying on this opinion, I note that Mr Hazell otherwise considers the potential for an accident sequence is very low but I think it reasonable, in the circumstances, to give greater weight to Mr Coady's more cautious approach.

1. In doing so I give determining weight to his concern about the potential increase in traffic risk due to the presence and size of the double B vehicles. In this regard I also note that the RTA has been involved since the outset and it was presumably aware of the relatively low volume increase in traffic, both heavy and light, which includes the incremental employees trips for the 70 employees. Nevertheless the RTA indicated its requirement for a more substantive upgrading than proposed by Mr Hazell in order to satisfy the responsibilities under the "Mainstream Road Safety", which is part of the key State road safety priorities. In any case I understand that approval for appropriate works on the state highway is required by the RTA.

1. I have also considered the basic references to economic considerations in the Austroads, taking into account the number of vehicles generated by the development of its overall 5 year operating period. Accordingly I do not consider that the increase cost of approximately $40,000 for the hybrid option is unreasonable relative to the significant increase in road safety by providing an adequate slip lane for all vehicles, particularly the double B slowing to turn into the Potosi access road, to better allow through eastbound vehicles to maintain safe travel speeds in accordance with the posted 110 KPH speed limit.

1. I also note there was a brief discussion regarding advisory signage for turning vehicles and consider this could be an item that the relevant merits of could be discussed by the local traffic committee.

1. Accordingly, the Court makes the following orders:

(1)   The appeal is upheld in part.

(2)   Condition 11 of the amended consent granted in DA 448/2004 on 20 December 2010 is amended and shown in Annexure A.

(3)   The exhibits may be returned except for 1, 2, 4 and A.

R Hussey

Commissioner of the Court

ANNEXURE A

ATTACHMENT A

ATTACHMENT B

Decision last updated: 02 November 2011