Perrymead Investments Pty Ltd v Western Australian Planning Commission
[2007] WASAT 305
•28 NOVEMBER 2007
IRONBRIDGE HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 305
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 305 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:345/2006 | 2 AUGUST 2007, 1 NOVEMBER 2007 AND 2 NOVEMBER 2007 - FURTHER SUBMISSIONS FILED 16 NOVEMBER 2007 AND 19 NOVEMBER 2007 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) MR J JORDAN (MEMBER) | 27/11/07 | |
| 37 | Judgment Part: | 1 of 1 | |
| Result: | Condition imposed requiring percentage contribution per lot for estimated cost of specified roadworks | ||
| B | |||
| PDF Version |
| Parties: | IRONBRIDGE HOLDINGS PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision Developer contributions Roadworks in adjoining local government area Subdivision part of wider urban development area Applicable principles Whether contribution can be imposed in relation to roadworks in different local government area Whether contribution inequitable where not sought for previous subdivisions Nexus What roadworks fairly and reasonably relate to proposed subdivision Apportionment of cost between developers Nexus and apportionment determined in context of whole urban development area Statutory trust for a public purpose |
Legislation: | Planning and Development Act 2005 (WA) State Administrative Tribunal Act 2004 (WA), s 9(b) |
Case References: | Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 Lloyd & Ors v Robinson & Anor (1962) 107 CLR 142 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 |
Orders | 1. The application for review is allowed in part.,2. The decision of the respondent made on 9 October 2006 to affix condition 31 to the granting of its approval to subdivision application No 130710 in relation to Lot 1 and Lot 2 on Diagram 73089 and Lot 6066 on Plan 23892/6066, Lot 1 Parade Road Dalyellup, is set aside and a decision is substituted that the following condition is affixed in place of condition 31:,"The applicant shall make satisfactory arrangements with the WAPC to make the following financial contributions to the City of Bunbury for the City of Bunbury to carry out the following works -,(a) 0.0166% per lot of the total cost of $393 745.59 for a dual use footpath and offroad cycleway on the western side of Parade Road between the northern boundary of the site and Crampton Avenue;,(b) 0.0146% per lot of the total cost of $12 147.67 for an unsignalised T-intersection at the intersection of Parade Road and Centenary Road incorporating a 25 metre long right turn lane for traffic on Parade Road wishing to turn east onto Centenary Road - the City of Bunbury may use this amount to cover part of the cost of constructing a single lane roundabout at the intersection of Parade Road and Centenary Road instead of a T-intersection and right turn lane;,(c) 0.0146% per lot of the total cost of $12 147.67 for a 25 metre long right turn lane on Parade Road for traffic wishing to turn west onto Crampton Avenue;,(d) 0.0146% per lot of the total cost of $944 077.90 for the installation of traffic lights at the intersection of Parade Road and Washington Avenue including any associated roadworks to convert the intersection from a roundabout to a signalised intersection and including adjustments to the set down/pick up area at the school;,(e) 0.0146% per lot of the total cost of $85 789.86 for a 25 metre long right turn lane at Westwood Street for traffic wishing to turn south onto Parade Road including a separation space between the vehicles at the stop line so as to improve the left turning vehicle's view of traffic approaching from the south;,(f) 0.0146% per lot of the total cost of $85 789.86 for a 25 metre long right turn lane at Knight Street for traffic wishing to turn south onto Parade Road with a separation space between the vehicles at the stop line so as to improve the left turning vehicle's view of traffic approaching from the south; and,(g) 0.0146% per lot of the total cost of $251 989.37 for improvements to the Parade Road leg of the Parade Road/ Blair Street/Brittain Road/Bussell Highway roundabout including a slip lane from Parade Road to Blair Street with a length of 60 metres in each of Parade Road and Blair Street and a second lane in the roundabout adjacent to Blair Street as shown on Attachment B of the Tribunal's reasons for decision delivered on 28 November 2007.",3. Order 2 is stayed until 27 December 2007 to enable either party to make application on or before that day to vary the estimated cost of the roadworks stated in pars (b), (e) or (f) of the condition affixed by that order. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : IRONBRIDGE HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 305 MEMBER : MR D R PARRY (SENIOR MEMBER)
- MR J JORDAN (MEMBER)
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision - Developer contributions - Roadworks in adjoining local government area - Subdivision part of wider urban development area - Applicable principles - Whether contribution can be imposed in relation to roadworks in different local government area - Whether contribution inequitable where not sought for previous subdivisions - Nexus - What roadworks fairly and reasonably relate to proposed subdivision - Apportionment of cost between
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developers - Nexus and apportionment determined in context of whole urban development area - Statutory trust for a public purpose
Legislation:
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 9(b)
Result:
Condition imposed requiring percentage contribution per lot for estimated cost of specified roadworks
Category: B
Representation:
Counsel:
Applicant : Mr MJ Hardy
Respondent : Ms LA Eddy
Solicitors:
Applicant : Hardy Bowen
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566
Lloyd & Ors v Robinson & Anor (1962) 107 CLR 142
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
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Summary of Tribunal's decision
1 This case concerned whether, and if so, to what extent, a developer of a residential subdivision should be required to make a financial contribution for the upgrade of road infrastructure in an adjoining local government area.
2 The Tribunal determined that there is no reason in principle why a condition cannot be imposed requiring a developer to make a financial contribution towards the upgrade of road infrastructure in another local government area. Such a condition can be imposed if it is demonstrated that the subdivision creates or contributes to the need for the upgrade of the road infrastructure and if the terms of the condition are reasonable and appropriate in the circumstances.
3 The subdivision in this case is part of a wider urban development area. The Tribunal determined that it is reasonable and appropriate in the circumstances for a developer contribution for roadworks to be determined in the context of traffic generated by the whole urban development area. Similarly, it is reasonable and appropriate that the cost of required infrastructure be apportioned between each of the constituent subdivisions that collectively generate the infrastructure need.
4 The Tribunal carried out a detailed, technical assessment of whether the proposed subdivision creates or contributes to the need for the upgrade of road infrastructure in 11 locations in the adjoining local government area. The Tribunal found that the subdivision contributes to the need for works in seven locations and determined what works are reasonable and appropriate to address the need.
5 Finally, the Tribunal determined how the cost of the required works should be reasonably apportioned between developers in the urban development area.
Introduction
6 The City of Bunbury (Bunbury), in the south-west of the State, has a population of approximately 34 000. Bunbury also serves as the regional centre for surrounding districts, including the Shires of Harvey, Dardanup and Capel. Whereas the population of Bunbury is unlikely to increase significantly in the short to medium term, considerable residential development has taken place and is expected to take place in the future in the surrounding Shires.
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7 Schools, sporting facilities and retail and commercial centres have been established or are planned to service the residential development in the surrounding Shires. However, the new residents of the Shires will also go shopping, obtain services, access facilities and work in Bunbury. The incoming population will therefore use roads and other public infrastructure within Bunbury for which its local government is responsible.
8 This case concerns whether, and if so, to what extent, a developer of a residential subdivision in an adjoining Shire should be required to make a financial contribution towards the upgrade of road infrastructure in Bunbury.
Background
9 On 14 September 2006, Ironbridge Holdings Pty Ltd (Ironbridge) applied to the Western Australian Planning Commission (Commission) for approval to subdivide land known as Lot 1 Parade Road, Dalyellup (site) into 194 residential lots.
10 The site forms part of the settlement of Dalyellup East which is the subject of a Structure Plan that has been approved by the Commission subject to modifications. The Dalyellup East Structure Plan shows approximately 2500 residential lots, predominantly with a residential density coding of "R20", but also including some codings of "R30" and "R40", a relatively large "aged persons" site with a residential density coding of "R40", a district retail and commercial centre, a State primary school, a State high school, a private school and public open space.
11 More broadly, the site forms part of the settlement of Dalyellup which, in addition to Dalyellup East, includes Dalyellup West, also known as the Dalyellup Beach Estate, and Dalyellup South. Dalyellup West is the subject of an approved Structure Plan showing approximately 2400 residential lots, overwhelmingly with a residential density coding of "R20" and a small number coded "R40", a State primary school, public open space, tourist precinct adjacent to the coast and foreshore reserve adjoining the coast. Dalyellup South is expected to contain approximately 710 residential lots. A Structure Plan has not yet been prepared for Dalyellup South.
12 Dalyellup is located in the northern part of the Shire of Capel where it adjoins the southern boundary of Bunbury. The northern boundary of the site abuts the southern boundary of Bunbury. Attachment A to these reasons is a map showing the location of part of Dalyellup East,
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- the Capel/Bunbury local government boundary and the principal roads in the south-western part of Bunbury (see Endnote 1) . The site is located in the northwestern part of Dalyellup East, to the west of the marked proposed extension of Parade Road.
13 Attachment A also shows the location of an area known as Tuart Brook which is in the Bunbury local government area a short distance north of the Capel/Bunbury boundary. Tuart Brook is zoned for future urban purposes under Bunbury's local planning scheme. It is common ground in this review that residential development of Tuart Brook into approximately 750 lots is likely to proceed within the next five to 10 years.
14 Development of Dalyellup West commenced in the year 2000. By August 2006, 1022 single houses were completed and occupied.
15 The subdivision which is the subject of these proceedings is the first in Dalyellup East.
16 It is expected that Dalyellup will be progressively developed and completed over the next 10 - 15 years. Once completed, Dalyellup is expected to contain approximately 5610 dwellings with a population of approximately 18 000 - 18 500 residents (see Endnote 2). Assuming, on the basis of the evidence presented in this case, that Bunbury's population grows at 1% per annum, once Dalyellup is fully developed in 2021, the population of Dalyellup will constitute approximately 32% of the combined population of Bunbury/Dalyellup.
17 On 9 October 2006, the Commission granted approval for the subdivision of the site subject to 34 conditions. Condition 31 was in the following terms:
"The Applicant shall prepare and implement a traffic management strategy to the satisfaction of the Western Australian Planning Commission to review traffic movements through the subject land and the City of Bunbury to the north. The strategy is to address road upgrading contributions and road network infrastructure requirements outside of the Dalyellup East Local Structure Plan area (Local Government)."
18 On 13 October 2006, Ironbridge sought review by the Tribunal of the Commission's decision to impose condition 31 on the basis that the
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- condition bears no proper relationship to the subdivision and does not arise as a consequence of any need created by the subdivision.
19 By consent of the parties during the proceedings, condition 31 was deleted and replaced with the following condition:
"The applicant entering into an agreement with the respondent the terms of which shall require the applicant to contribute to the upgrading of the road network in the City of Bunbury. The amount of the contribution and the terms upon which the contribution is to be paid are to be determined by the State Administrative Tribunal in matter DR 345 of 2006 Ironbridge Pty Ltd and WAPC."
Applicable principles
20 A condition requiring a developer contribution can only be imposed on a planning approval if it is lawful and if its terms are reasonable and appropriate in the circumstances.
21 In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57], McHugh J in the High Court of Australia endorsed the test for the validity of a condition of planning approval articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 in the following terms:
"A condition attached to a grant of planning permission will not be valid therefore unless:
1. The condition is for a planning purpose and not for any ulterior purpose …
2. The condition reasonably and fairly relates to the development permitted.
3. The condition is not so unreasonable that no reasonable planning authority could have imposed it."
22 Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 was a case concerning the review of a condition of subdivision approval which required that an existing unsealed road be upgraded and sealed. The Town Planning Appeal Tribunal said the following in relation to the second Newbury test:
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- "The test of the validity and scope of a condition in this State is whether it fairly and reasonably relates to the development. The decision of [Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386], although in the context of Queensland legislation, stands for the proposition that should have application in Western Australia: the condition can be said to reasonably relate if it arises from changes precipitated by the development or subdivision. If it does reasonably relate, then it is not fatal if the condition also benefits the public at large to a greater or lesser degree.
A condition cannot arise solely from the existence of a public need which bears no relationship to the subdivision. The requirement that a condition reasonably relates to the subdivision does not, therefore, allow the Commission or the local authority to use the subdivision or development as a trigger for a future need that does not arise, in part, from the project. There is no justification for the use of conditions to promote the community infrastructure simply because the developer has come forward for approval."
23 There is no reason in principle why a condition cannot be imposed requiring a developer to make a financial contribution towards the upgrade of road infrastructure in an adjoining local government area. Such a condition is for a planning purpose. It can be imposed if it is demonstrated that the subdivision or development creates or contributes to the need for the upgrade of the road infrastructure. If that is shown to be the case, then the condition reasonably and fairly relates to the subdivision or development and is not so unreasonable that no reasonable planning authority could have imposed it. The terms of the condition must be reasonable and appropriate in the circumstances of the case.
24 In Lloyd & Ors v Robinson & Anor (1962) 107 CLR 142, the High Court of Australia recognised at 153 that where:
"the subdivision for which [approval was sought] was one of a series by means of which an area, fairly to be considered as a whole, was being gradually carved up and placed on the market … it was well within the limits of a proper understanding of the [Commission's] functions under the Act to insist, at appropriate stages in the course of application for approval to the constituent subdivisions, that open space be suitably located
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- within the total area to satisfy reasonable requirements in respect of the total area."
25 Dalyellup/Tuart Brook is an urban development area which is fairly to be considered as a whole. The proposed subdivision is one of a series by which Dalyellup/Tuart Brook is being gradually carved up and placed on the market.
26 Just as the High Court recognised that it is appropriate and reasonable for a developer contribution for public open space for a subdivision to be determined in the context of a whole urban development area, so too it is reasonable and appropriate for a developer contribution for roadworks in the case of the proposed subdivision to be determined in the context of the whole of Dalyellup/Tuart Brook. The traffic generated by the proposed subdivision, which is a "constituent subdivision" of Dalyellup/Tuart Brook, can only be meaningfully assessed in terms of impact and infrastructure need if the traffic generation of Dalyellup/Tuart Brook is considered as a whole. Similarly, a reasonable developer contribution for the proposed subdivision towards roadworks can only be determined by appointment of the total cost of roadworks reasonably required by the development of Dalyellup/Tuart Brook between each of the constituent subdivisions that collectively generate the infrastructure need.
27 These principles are broadly reflected in the Commission's development control policies DC1.1 - Subdivision of Land - General Principles (DC 1.1) and DC 1.7 - General Road Planning (DC 1.7).
28 Clause 3.9.1 of DC 1.1 states, in part, as follows:
"The WAPC may impose conditions requiring developer contributions (including the ceding of land) for the provision of infrastructure and services which are necessary and relevant to the subdivision.
These contributions may be in the form of:
…
• monetary contributions to acquire land or undertake works by public authorities or others."
29 Clause 3.2 of DC 1.7, which is headed "Upgrading and construction of existing roads", includes the following:
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- "3.2.1 Existing roads shall be required to be constructed or upgraded as a condition of subdivision, where the Commission and the road authority agree that the subdivision should not proceed unless the construction or upgrading occurs. In imposing this condition the Commission and the road authority should be satisfied that the existing roads are either substandard or inadequate to accommodate the additional traffic generated from the subdivision and associated development.
3.2.2 The condition will normally require the applicant to enter into satisfactory arrangements with the road authority for the construction/upgrading of the relevant road. The responsibility for the design and construction of the works is a matter for negotiation between the applicant and the road authority."
Issues for determination
30 The following four principal issues arise for determination in this review:
1. Is it contrary to the intent of the Commission's Planning Bulletin 18 - Development Contributions for Infrastructure (PB 18)to require Ironbridge to make a financial contribution for roadworks in Bunbury?
2. Is it inequitable to require Ironbridge to make a financial contribution for roadworks in Bunbury?
3. What, if any, roadworks in Bunbury are required in consequence of changes precipitated by the development of Dalyellup/Tuart Brook?
4. What developer contribution is reasonable and appropriate in relation to any such roadworks in the case of the proposed subdivision?
31 The Tribunal will now consider issues 1 and 2. It will then discuss expert evidence in relation to traffic and impact analysis methodology before proceeding to consider issues 3 and 4.
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Is it contrary to the intent of PB 18 to require Ironbridge to make a contribution?
32 Ironbridge relies on the evidence/submission of Mr Andrew McRobert, a consultant town planner, to the effect that requiring any contribution for roadworks in Bunbury is contrary to the intent of PB 18. Section 1 of PB 18 describes the purpose of this document as follows:
"This Bulletin has been prepared to provide a clear statement on the Commission's policy on developer contributions and the process for recouping these contributions. It provides guidelines on the scope and method of exacting developer contributions which can be applied uniformly and consistently in line with current policies of the Commission."
33 Schedule 1 of PB 18 refers to district distributor roads and sets out in separate columns "Developer Cost" and "Council Cost". The "Developer Cost" is:
"Land given up free plus initial stage of road construction: all earthworks, two lanes unkerbed, dual use path on one side only, grade separated pedestrian crossings where required, drainage."
34 The "Council Cost" is:
"Final stage of road construction where traffic demand warrants including second carriageway, full drainage, upgrading of initial carriageway, bus bays, turning facilities, lighting, all kerbing and landscaping."
35 Mr McRobert contends that because "Developer Cost" does not include any of the roadworks for which contribution is sought by the Commission or Bunbury in these proceedings, Ironbridge should not be required to make any contribution for these works.
36 However, Mr McRobert's evidence/submission is misconceived. Assuming that Parade Road is a district distributor road for the purposes of PB 18, the Bulletin does not purport to state exhaustively the scope of developer contributions in relation to roadworks affecting district distributor roads. Rather, it provides guidance by way of general policy in relation to district distributor roads which are required to service a subdivision or development.
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37 The general policy is that the developer must give up the land required for the district distributor road and fund the construction of two unkerbed lanes, one dual use path and drainage. The general policy is that the local government is to construct a second carriageway, full drainage, upgrading the initial carriageway and other facilities "when traffic demand warrants". PB 18 does not have the effect that where the traffic generation of a particular subdivision or development itself warrants a four lane road or some other roadworks on an existing road, the developer can avoid that liability. The applicable principles set out earlier would require the developer in such a case to fund whatever roadworks are required in consequence of traffic generated by the subdivision or development. Schedule 1 to PB 18 simply reflects the fact that generally the "Developer Cost" is all that will reasonably be required from the developer.
Is it inequitable to require Ironbridge to make a contribution?
38 Mr MJ Hardy, counsel for Ironbridge, submits that it would be inequitable to require a contribution in this case, because the Commission has not dealt with similar subdivisions in the Bunbury region in this way. Mr Hardy points to Dalyellup West, Eaton in the Shire of Dardanup and Australind in the Shire of Harvey, in respect of which the Commission has not required developer contributions to fund roadworks in Bunbury.
39 The Tribunal does not consider that it would be inequitable to require a contribution from Ironbridge where it is established that the proposed subdivision creates or contributes to the need for particular roadworks in Bunbury.
40 Although it appears that the Commission did not impose conditions on subdivision approvals requiring developers in Dalyellup West to contribute towards roadworks in Bunbury, there is no inequity in doing so in this case, because traffic generated by Dalyellup West is taken into account in both the impact analysis and apportionment between developers discussed in these reasons. The subdivision of the site forms part of the wider Dalyellup urban settlement. As a result of the development of Dalyellup East, and in particular as a result of the extension of Parade Road next to the site into Dalyellup, traffic generated by residential development in Dalyellup West and Dalyellup South will utilise Parade Road in Bunbury. It is appropriate and reasonable to take into account the traffic generation of the whole of Dalyellup (and Tuart Brook) to determine what roadworks in Capel and Bunbury are reasonably required in consequence of this new urban development.
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- Similarly, it is appropriate and reasonable to apportion the cost of the roadworks required by this urban development between all of its parts, even though the practical effect of the apportionment is that Bunbury will itself have to pay the contribution that could have been, but was not, required from the developers of Dalyellup West.
41 The Tribunal has not been provided with any technical assessment of whether the development of Eaton or Australind created or contributed to the need for roadworks in Bunbury. Although part of Eaton is still to be developed, and there have been some re-subdivisions in older parts, the evidence indicates that Eaton was initially developed 30 - 40 years ago. The Tribunal is not aware of when subdivisions in Australind were approved. In any case, even if the Commission failed to require developer contributions that could have been required at the time of a subdivision or development in Eaton or Australind, that does not make the imposition of a requirement in this case inappropriate or unreasonable. Each case needs to be assessed on its own merits, having regard to the applicable principles referred to earlier.
Expert evidence in relation to traffic
42 The Tribunal had the benefit of expert evidence in relation to traffic from the following witnesses:
• Mr Emmerson Richardson, a consultant transport planner and traffic engineer, with over 30 years' experience - called on behalf of Ironbridge;
• Mr Gary McCarney, Senior Transport Engineer in the Department for Planning and Infrastructure, State and Regional Policy division, with over 25 years' experience in civil and transportation engineering and planning - called on behalf of the Commission;
• Mr Evan Lloyd, a traffic and transport engineer who has practised as an engineer for over 50 years and has specialised in traffic and transport engineering for over 40 years - called on behalf of the Commission;
• Ms Beatrice Plant, Senior Engineer - Program and Asset Management with the City of Bunbury, who has seven years' experience as an engineer, but is not a specialist traffic engineer - called on behalf of the Commission; and
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- • Mr Christopher Gibbert, Senior Engineer with the City of Bunbury, who is a civil engineer with seven years' experience, but is not a specialist traffic engineer - called on behalf of the Commission.
43 In accordance with the Tribunal's usual practice, the five expert witnesses in relation to traffic -
• prepared and exchanged their own witness statements;
• conferred with one another in relation to the matters in issue over sessions lasting a total of 11 hours;
• produced a 48 page joint statement of the matters upon which they agree, the matters upon which they disagree, and the reasons for any disagreement; and
• gave evidence concurrently at the hearing.
44 The experts are to be commended for having participated in this process in a professional and diligent manner. While significant professional disagreement remained between them, their endeavours enabled the Tribunal to quickly grasp complex issues of traffic engineering involving a number of variables. Had this evidence been received in the way in which it is in most courts and tribunals, it is likely to have taken a week or more. In contrast, the concurrent evidence in the Tribunal took less than a day.
Impact analysis methodology
45 The five experts in relation to traffic each utilised, at least in part, the Bunbury Traffic Model developed in 2001 by Mr Lloyd's firm, ARRB Group Ltd, for Main Roads WA and which was updated in 2006 (ARRB model). The ARRB model forecasts traffic volumes on the primary road network in the Bunbury region comprising the local government areas of Bunbury, Harvey, Dardanup and Capel.
46 Although each of the experts utilised the ARRB model, Mr Richardson and Mr McCarney proposed competing methodologies in order to analyse the impact of traffic generated by Dalyellup/Tuart Brook on the road system in Bunbury. Mr Lloyd indicated that impact analysis methodology is outside his area of practice and offered no comment. Ms Plant and Mr Gibberd agreed with Mr McCarney's methodology.
47 Mr Richardson's methodology is as follows -
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- 1. Use the ARRB model to determine 24 hour traffic flows as the base.
2. Assume future peak hour traffic will be 9% of 24 hour flow.
3. Assess the effect of Dalyellup traffic on the technical capacity of key intersections in Bunbury using Figure 3.3 of Austroads - Guide to Traffic Engineering Practice, Part 6 - Roundabouts (Austroads Guide), with and without construction of the Bunbury Bypass.
48 Mr McCarney's methodology is as follows -
1. Analyse existing operation of key intersections in AM and PM peak hour using actual traffic counts and SIDRA intersection analysis software which calculates intersection delay times.
2. Factor existing intersection counts up to 2021 assuming 1% growth per annum (for smaller scale redevelopment in Bunbury) to produce 2021 base intersection flows (without Dalyellup/Tuart Brook traffic).
3. Analyse each intersection under 2021 base flows in the AM and PM peak hour using SIDRA intersection analysis software.
4. Convert the ARRB model projected daily traffic from Dalyellup/Tuart Brook into AM and PM peak hour link flows.
5. Convert the Dalyellup/Tuart Brook generated peak hour link flows (from step 4) into intersection turning flows based on the existing count turning proportions and the ARRB model results.
6. Add the Dalyellup/Tuart Brook intersection flows (from step 5) to the 2021 base flows (from step 2) to produce 2021 ARRB with Dalyellup/Tuart Brook flows.
7. Analyse each intersection under 2021 ARRB with Dalyellup/Tuart Brook flows for the AM and PM peak hours.
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49 Both competing methodologies utilise the year 2021 for the purposes of analysis, because Dalyellup/Tuart Brook is expected to be fully completed by that time and because the ARRB model utilises that year.
50 The key differences between the competing methodologies are -
• whereas Mr Richardson uses the ARRB model to determineboth the base traffic flow at intersections in 2021 without Dalyellup/Tuart Brook, and traffic generated by Dalyellup, Mr McCarney uses the ARRB model to determine traffic generated by Dalyellup/Tuart Brook, but calculates base traffic flow on the basis of actual traffic counts increased by 1% per annum to account for redevelopment in Bunbury;
• Mr Richardson has not taken into account the effect of Tuart Brook, while Mr McCarney has;
• Mr Richardson's analysis is based on technical intersection capacity using Figure 3.3 of the Austroads Guide, whereas Mr McCarney's analysis focuses on intersection delay times by using the SIDRA computer program; and
• Mr Richardson's capacity analysis looks at the situation with and without the Bunbury Bypass, whereas Mr McCarney's delay analysis does not take the Bunbury Bypass into account.
51 The Tribunal prefers Mr McCarney's impact analysis methodology over Mr Richardson's methodology for the following four reasons.
52 First, although the ARRB model is a very useful resource and tool, as a regional model it is necessarily not as accurate in predicting base traffic at any given location as is an analysis based on actual traffic counts. Furthermore, the ARRB model predicts mid-block flows, not intersection flows.
53 Second, to be thorough, the impact analysis should include the impact of traffic generated by Tuart Brook. Tuart Brook will contain approximately 11.8% of the lots in the Dalyellup/Tuart Brook urban development area.
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54 Third, Mr Richardson's analysis essentially ignores delay at intersections, whereas delay is an important consideration in determining the impact of traffic generating development on intersections in a road network.
55 Fourth, we prefer Mr McCarney's use of the SIDRA computer program over Mr Richardson's reliance on Figure 3.3 of the Austroads Guide. Section 3.3 of the Austroads Guide says that "in situations where a high degree of accuracy is not required, Figure 3.3 … may be used to obtain general estimates of the capacity of a roundabout" (emphasis added). The reader is directed to s 11 of the Austroads Guide for design packages, in particular SIDRA, for the analysis of capacity and delay at roundabouts. We consider that a high degree of accuracy is required in this case. Mr Richardson said that his office checked two of his analyses using SIDRA. However, the base flow was taken from the ARRB model, rather than from actual counts. The result of the SIDRA analysis is necessarily affected by the input.
56 Mr Richardson criticised Mr McCarney's impact analysis methodology for two reasons.
57 First, Mr Richardson considers that it is preferable to determine base traffic using the ARRB model rather than traffic counts, because the model distributes all traffic onto the network so as to minimise travel time. As travel flows change, the ARRB model predicts traffic taking different routes to avoid congestion. However, as we said earlier, traffic counts are likely to produce a more accurate result than a regional model. As we also noted, the model determines mid-block flows, not intersection flows. Finally, the evidence suggests that relevant base traffic in 2021 without Dalyellup/Tuart Brook is not likely to meet congestion warranting a different route, except at one intersection which is not relevant, because it is near to the end of the route to the centre of Bunbury and there is an existing need to upgrade the road infrastructure in this location (see Endnote 3).
58 Second, Mr Richardson considers that the Bunbury Bypass should be taken into account in the analysis. While the Bunbury Bypass is an element of regional strategic planning, the evidence indicates that it is not funded to be commenced within the next five years, and that when it is built, it will probably be staged and constructed in a way that will give preference to road networks leading into the port. As the Tribunal is not satisfied that the Bunbury Bypass will be built by 2021, or within a
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- reasonable period thereafter, it should not be taken into account in the impact analysis in this case.
59 Mr McCarney expressed the opinion that the ARRB model underestimates the external residential trip generation potential of Dalyellup, by between 20% and 50%, depending on the proportion of retail and commercial trips from Dalyellup to the proposed district centre rather than to Bunbury. This is because, in Mr McCarney's view, certain key assumptions in the ARRB model for Dalyellup in 2021, namely, 2.8 persons per dwelling, 1.6 vehicles per dwelling and 6.8 vehicle trips per dwelling per day, are each too low. Mr McCarney refers to the 2006 census which shows 3.3 persons per dwelling and 1.9 vehicles per dwelling in Dalyellup. He considers that a trip generation rate of nine vehicle trips per day is more realistic for the Dalyellup area. Ms Plant and Mr Gibberd agree with Mr McCarney and point to the New South Wales Roads and Traffic Authority Guide to Traffic Generating Developments (October 2002) (RTA Guide), which nominates nine daily vehicle trips per dwelling for single houses.
60 We consider that the ARRB model does underestimate the likely external traffic generation from the residential component of Dalyellup in 2021, but only in the order of 1% 9%, rather than 20% - 50%. Importantly, while the 2006 census showed 3.3 persons per dwelling in Dalyellup in relation to 1022 dwellings that were constructed and occupied, 13% of dwellings at the time were unoccupied. Mr Richardson notes that surveys demonstrate that the number of persons per occupied dwelling is generally 12% greater than the number of persons per total dwellings, because generally 12% of dwellings are unoccupied at the relevant date. The experts agreed that the ARRB model takes into account this rate of non-occupancy. 3.3 persons per occupied dwelling, as reported in the 2006 census for Dalyellup, translates to approximately 2.9 persons per dwelling for all dwellings. 1.9 vehicles per occupied dwelling translate to approximately 1.67 vehicles per dwelling for all dwellings.
61 Assuming, therefore, that the average number of persons per dwelling in Dalyellup in 2021 will be the same as in 2006, the ARRB model underestimates the average number of persons per dwelling for all dwellings by approximately 0.1 person per dwelling and the number of vehicles per dwelling for all dwellings by approximately 0.07 vehicle per dwelling.
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62 There was considerable debate between the experts as to whether the average number of persons per occupied dwelling or for all dwellings in 2021 will be the same or less than that shown in the 2006 census. Mr Richardson and Mr Lloyd consider that the average number of persons will be less, because, over time, the community will mature and become less homogeneously families with young children. Eaton, for example, which was established 30 - 40 years ago, had an average number of persons per occupied dwelling of 2.8 at the time of the 2001 census.
63 However, we do not consider that there is likely to be a significant reduction in the average number of persons per occupied dwelling or for all dwellings in the case of Dalyellup in 2021 owing to the maturing of the community. As at the date of the 2006 census on 8 August 2006, only 1022 out of 2400 planned dwellings in Dalyellup West were built and occupied. Over the next five years, new dwellings will continue to be constructed and new families will continue to move into Dalyellup West. Over the next 10 - 15 years, new dwellings will be constructed and new families will move in to Dalyellup East and Dalyellup South. The general character of Dalyellup is therefore not likely to change over the next 14 years.
64 However, whereas the Structure Plans for Dalyellup East and Dalyellup West both indicate that the residential areas will be generally low density, the Structure Plan for Dalyellup East shows considerably more medium density development than in Dalyellup West. It is likely, therefore, that once Dalyellup is fully developed, the average number of persons per occupied dwelling will be marginally less than 3.3, and the average number of persons for all dwellings will be marginally less than 2.9, because of the medium density component of Dalyellup East. It is also likely that over the 10 - 20 years following 2021, the average number of persons per dwelling for all dwellings in Dalyellup will reduce to the level predicted in the ARRB model.
65 In relation to the RTA Guide, we accept Mr Richardson's evidence that, while still relevant in relation to retail and commercial developments, its prediction of nine daily vehicle trips for single dwellings is excessive. Although the RTA Guide was most recently published in October 2002, the prediction of nine vehicle trips per day for single dwellings is based on surveys conducted in the 1980s and 1990s. As Mr Richardson said, "nine is old data". Indeed, even assuming 3.3 persons per occupied dwelling, which is well above the State average of 2.5 in the 2006 census, the resulting daily vehicle trips per dwelling is 8.63, not 9.0.
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66 Ultimately, nothing turns in this case on the question of whether, and if so, to what extent, the ARRB model underestimates likely traffic generation from the residential component of Dalyellup in 2021. The roadworks that we consider in the following section to be reasonably referable to Dalyellup/Tuart Brook are reasonably referable assuming the correctness of the ARRB model's prediction of Dalyellup traffic generation. The roadworks that we do not consider are reasonable referable to Dalyellup/Tuart Brook, or in relation to which we do not consider that a contribution is reasonable from Ironbridge, would not become referable, or be reasonable, even if the ARRB model underestimated traffic generated by Dalyellup.
What roadworks in Bunbury are required in consequence of Dalyellup/Tuart Brook?
Parade Road from Dalyellup to Washington Avenue
67 This section of road is currently a single lane in each direction. The traffic experts agree that an unsignalised T-intersection at Parade Road/Centenary Road, incorporating a short right turn lane for traffic turning right onto Centenary Road, so as to allow unimpeded access for northbound traffic, is reasonably required in consequence of Dalyellup/Tuart Brook, including the subdivision.
68 Mr McCarney considers that a single lane roundabout at this intersection is preferable, because it may encourage more vehicles to transfer onto Bussell Highway through Centenary Road, rather than continuing up Parade Road, and would act to reduce speeds along Parade Road.
69 However, as a T-intersection and short right turn lane is adequate to cater for the traffic generated by Dalyellup/Tuart Brook, we do not consider that a roundabout is reasonably required in consequence of the proposed subdivision. Nevertheless, the condition should allow the City of Bunbury to use the contribution towards the Tintersection and turning lane to pay part of the cost of constructing a roundabout, if it considers that a roundabout is preferable in terms of overall traffic planning.
70 The traffic experts also agree that Dalyellup/Tuart Brook gives rise to the need for a right turn lane on Parade Road at the Parade Road/Crampton Avenue intersection, so as to enable southbound traffic to continue along Parade Road unimpeded.
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71 Mr McCarney considers that Dalyellup/Tuart Brook gives rise to the need to provide a dual use footpath and off-road cycleway on the west side of Parade Road from the northern end of the site to Crampton Avenue. There is currently no footpath on Parade Road south of Crampton Avenue. Mr McCarney considers that there is a need to accommodate foot and bicycle traffic in this area, which would not arise without the Dalyellup development. We agree. The road pattern in the vicinity of the western side of Parade Road, between the northern boundary of the site and Crampton Avenue, is such that existing development in this part of Bunbury does not give rise to the need for a dual use pathway in this area. A dual use pathway is necessary to provide access for pedestrians and cyclists from Dalyellup, including the site of the proposed subdivision, to school and sporting facilities in South Bunbury.
72 Ms Plant and Mr Gibberd also consider that the following road improvements are required along this section of Parade Road:
• the addition of a second lane in each direction with median separation between the proposed entrance to Tuart Brook and Washington Avenue; and
• an on-road cycle lane, in addition to the dual use path between Centenary Road and Washington Avenue.
73 The other traffic experts do not agree that these roadworks are required. Mr McCarney's impact analysis methodology, which Ms Plant and Mr Gibberd accept, does not suggest that creating a dual lane between Tuart Brook and Washington Avenue is reasonably required in consequence of Dalyellup/Tuart Brook. Nevertheless, the Commission contends that creating a dual carriageway in this area is appropriate from a town planning perspective, because it would connect a proposed dual carriageway in Dalyellup with the existing dual use carriageway north of Washington Avenue. However, the dual carriageway proposed by Ms Plant and Mr Gibberd would still leave a section of single lane carriageway between the site and the Tuart Brook entrance. In any case, we do not consider that the objective of joining two dual carriageways provides the requisite nexus to the proposed subdivision. The situation would be different if traffic generated by Dalyellup/Tuart Brook gave rise or contributed to the need for a dual carriageway in the interests of traffic safety or convenience.
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74 We do not consider that an on-road cycle lane, in addition to the dual use path, reasonably and fairly relates to the proposed subdivision. Cyclists will be able to travel from Dalyellup to Bunbury using the dual use pathway. The development of Dalyellup/Tuart Brook does not therefore create or contribute to the need for an on-road cycle lane if a dual use pathway is constructed.
Parade Road from Washington Avenue to Bussell Highway
75 This section of road is currently a four-lane dual carriageway. Mr McCarney has calculated that this section would have sufficient capacity, mid-block, in its current dual carriageway layout to accommodate both base 2021 and Dalyellup/Tuart Brook traffic. The other experts agree.
76 The intersection of Parade Road and Westwood Street is currently a priority T-intersection. Westwood Street has a single lane at the Parade Road stop line. A vehicle waiting to turn right, that is, south, onto Parade Road, would therefore block any vehicles wanting to turn left. Mr McCarney's SIDRA operational analysis for the AM peak indicates that, despite the single lane, average delay for both left and right turn out of Westwood Street is currently only four seconds, and would only increase to five seconds under 2021 base traffic, without Dalyellup/Tuart Brook. With Dalyellup/Tuart Brook, the average delay in the AM peak would increase from five seconds to 56 seconds for both left and right turn movements. Mr McCarney recommends that a short, 25 metre long dedicated right turn lane should be constructed in Westwood Street. The SIDRA analysis indicates that this would reduce delays from 56 seconds to 21 seconds for left turn out of Westwood Street, and from 56 seconds to 44 seconds for right turn out of Westwood Street.
77 Whilst right turn delay in the peak would still be high, Mr McCarney considers that there are sufficient alternative routes to avoid the right turn out. He does not consider that the low volumes warrant signalisation of this intersection, given the existence of these alternative routes.
78 Mr Richardson does not agree that a second lane at the stop line is warranted in Westwood Street. He reasons that the intersection would be at only 45% absorption capacity under the Austroads Guide. He also considers that Mr McCarney's suggestion is likely to increase accidents, as two vehicles positioned next to one another at a stop or give way line obstruct each other's view.
(Page 22)
79 We prefer Mr McCarney's evidence over Mr Richardson's evidence in relation to this matter, because Mr McCarney's evidence is based on actual traffic counts rather than model predictions and because we consider that an increase in average delay in the AM peak from five seconds to 56 seconds is unacceptable, even if the intersection remains within maximum absorption capacity. We find that Dalyellup/Tuart Brook gives rise to the need for a short right turn lane at this intersection and therefore that a condition requiring contribution towards this roadwork reasonably and fairly relates to the subdivision in question.
80 However, the other experts recognise the sense in Mr Richardson's concern about the lefthand vehicle's view of northbound traffic being blocked by the righthand vehicle at the stop. Mr Richardson suggested that there should be a separation between the two vehicles at the stop line to improve the left-hand vehicle's view. The condition should reflect this requirement.
Parade Road/Knight Street intersection
81 This intersection is currently a priority T-intersection. Knight Street has a single lane at the Parade Road stop line. A vehicle waiting to turn right out of Knight Street onto Parade Road would therefore block any vehicles wanting to turn left onto Parade Road. Mr McCarney's SIDRA analysis indicates that this intersection is currently operating at well below capacity during the AM peak hour, with delays of only six seconds for either left turn or right turn out of Knight Street, and that this would increase to only eight seconds for 2021 base traffic, without Dalyellup/Tuart Brook. Mr McCarney said that although he observed longer delays for part of the hour when school arrivals/departures were at their peak at the nearby Newton Moore High School and Adam Road Primary School, overall, over the whole hour, the average modelled delay of six seconds appears to be reasonable.
82 Mr McCarney's SIDRA analysis indicates that Dalyellup/Tuart Brook would have the effect of increasing the average delay both left and right out of Knight Street from eight seconds to 345 seconds or 5.75 minutes. An increase in delay from six seconds to nearly six minutes is plainly unacceptable.
83 Mr McCarney has considered what improvements would reduce delays to an acceptable level. A short right turn lane would reduce average delays from 345 seconds to 54 seconds left turn out of Knight Street and to 56 seconds right turn out of Knight Street. However,
(Page 23)
- these delays assume a fairly even spread of traffic over the hour. Demand during the AM peak will be concentrated around the school opening, with delays much higher than the hourly averages. Mr McCarney, therefore, considers that additional improvements would be required to keep delays to acceptable levels. He rejects a two-lane roundabout, because of the difficulties it would present to pedestrians trying to cross and considering the high number of school children. Consequently, he considers that a signalised intersection is the most appropriate option to both reduce delays to acceptable levels and provide a safe crossing facility for pedestrians.
84 Mr Richardson disagrees with Mr McCarney's opinion that the Knight Street/Parade Road intersection should be signalised. Mr Richardson considers that the intersection would be at between 87.5% and 91.2% of maximum design capacity, that is, it would still have some capacity. For reasons set out earlier, we prefer Mr McCarney's impact analysis methodology and consider that the delays that would be caused by Dalyellup/Tuart Brook at this intersection are unacceptable.
85 However, on balance, we do not consider that signalisation at this intersection is superior to a short right turn lane. The effect of signalisation compared to a right turn lane would be to reduce average delays left turn out of Knight Street by 39 seconds, from 54 seconds to 15 seconds, and reduce average delays right turn out of Knight Street by four seconds, from 56 seconds to 52 seconds. However, signalisation would increase delays for right turn into Knight Street by 32 seconds, from 18 seconds to 50 seconds. The overall improvement would be marginal. Furthermore, as Mr Richardson points out, signalisation of Knight Street and Parade Road would result in a significant overall increase in delay for traffic, both in peak periods and throughout the day. This is because Parade Road carries over 85% of the traffic through this intersection. Without signals, this traffic has no delay. With signals, the average delay per vehicle would be 34 seconds northbound and 10 seconds southbound in the AM peak.
86 We, therefore, find that although there is a need for roadworks to reduce the significant delays that would occur as a result of Dalyellup/Tuart Brook for vehicles exiting Knight Street onto Parade Road in the AM peak, on balance, a short right turn lane is preferable to signalisation in terms of the overall delays that would be experienced at this intersection. It would not, therefore, be reasonable to require a contribution to signalisation as opposed to a short right turn lane.
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87 In relation to safety of pedestrians, and particularly schoolchildren, crossing Parade Road, we do not consider that the need to provide safe crossing is reasonably referable to Dalyellup/Tuart Brook, but rather is a present need. As Mr Richardson points out, one option that could be considered is a warden guard controlled crossing on Parade Road, south of Knight Street. This would facilitate pedestrian crossing on Parade Road where and when it is most needed, without increasing delay for traffic along Parade Road at other times. This would also create more gaps in northbound Parade Road traffic during the AM peak, thereby increasing the capacity of the existing Knight Street unsignalised intersection.
Parade Road/Washington Avenue intersection
88 This intersection is currently a single lane roundabout. Mr McCarney's SIDRA analysis indicates that average delay per vehicle in the AM peak is currently one to two seconds and that this would not change with base traffic in 2021, excluding Dalyellup/Tuart Brook. With Dalyellup/Tuart Brook, delay would increase from one second to three seconds on the Parade Road north leg and Washington Avenue east leg, from two seconds to 12 seconds on the Washington Avenue west leg, and from two seconds to 180 seconds or three minutes, on the Parade Road south leg. The increase in delay on the Parade Road south leg from two seconds to three minutes as a result of Dalyellup/Tuart Brook is plainly unacceptable and gives rise to the need to carry out some form of roadworks to reduce the delay to an acceptable level.
89 Mr McCarney considers that widening the roundabout to two circulating lanes would be inappropriate at this location due to the proximity of a primary school and the difficulties pedestrians have trying to cross a two-lane roundabout. Mr McCarney, therefore, considers that traffic signals would be the most appropriate form of control, providing extra capacity for vehicles and a high level of safety for pedestrians. He notes that as part of the conversion of the intersection from roundabout to traffic signals, and to accommodate the significant increase in traffic, some traffic management around the school would also be required, including adjustments to the set down/pick up area.
90 Mr Richardson considers that the southern approach in the AM peak with Dallyellup traffic would be only at 81% degree of saturation. However, for reasons set out earlier, we prefer Mr McCarney's methodology over Mr Richardson's methodology.
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91 We find that Dalyellup/Tuart Brook gives rise to the need to convert this intersection from roundabout to traffic signals and associated adjustments to the intersection and to the school set down/pick up area and therefore that a condition requiring contribution towards these roadworks reasonably and fairly relates to the subdivision in question.
Parade Road/Bussell Highway/Brittain Road/Blair Street intersection
92 This intersection is substantially a two-lane, four leg roundabout, with the only single entry onto the roundabout being from Parade Road and the only single lane part of the roundabout being the section adjacent to Blair Street which is the immediate continuation of the path travel for a vehicle entering the roundabout from Parade Road. Parade Road approaching the intersection is, in fact, two lanes with the left-hand lane forming a partial slip lane into Blair Street without entering the roundabout.
93 Mr McCarney's SIDRA operational analysis shows that the average delay per vehicle in the AM peak for traffic from Parade Road turning left through the slip lane into Blair Street is currently six seconds, and will increase by 2021 to 12 seconds, without Dalyellup/Tuart Brook, and to 550 seconds, or approximately nine minutes, with Dalyellup/Tuart Brook. The average delay per vehicle in the AM peak for traffic from Parade Road travelling straight ahead through the roundabout is currently 13 seconds, and will increase by 2021 to 48 seconds, without Dalyellup/Tuart Brook, and to 370 seconds, or over six minutes, with Dalyellup/Tuart Brook. Dalyellup/Tuart Brook, therefore, will give rise to an unacceptable level of delay for traffic approaching the roundabout from Parade Road. Roadworks are clearly required in order to reduce delays caused by traffic generated from Dalyellup/Tuart Brook to an acceptable level.
94 Mr McCarney proposes that the left-hand slip lane from Parade Road to Blair Street should be converted into a second through lane entering the roundabout and that a second lane should be created within the roundabout adjacent to Blair Street. In addition, Mr McCarney suggests that a dedicated free slip lane should be constructed for a distance of 60 metres in Parade Road and 60 metres in Blair Street. These roadworks would reduce the average delay per vehicle in the AM peak from 550 seconds, or approximately nine minutes, to zero for vehicles travelling from Parade Road to Blair Street, and from 370 seconds, or approximately six minutes, to 40 seconds for vehicles travelling from Parade Road onto the roundabout.
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95 Mr Richardson calculates, using Figure 3.3 in the Austroads Guide, that although the intersection would be close to capacity in 2021, it would still have sufficient capacity to cater for the vehicles generated by Dalyellup/Tuart Brook. However, for reasons set out earlier, we prefer Mr McCarney's methodology over Mr Richardson's methodology.
96 Ms Plant and Mr Gibberd consider that Dalyellup traffic will make the intersection unsafe for pedestrians and that detailed analysis of the intersection in relation to pedestrian movement is likely to indicate that traffic control signals would be required. However, Mr McCarney and Mr Richardson, who are both experienced, specialist traffic engineers, each gave evidence that a two-lane roundabout is, in itself, unsafe for pedestrians. We do not consider that the need for signalisation at this intersection in order to facilitate safe pedestrian access across it is reasonably referable to Dalyellup/Tuart Brook. Rather, there is a current need to provide safe pedestrian access.
97 We consider that the intersection is inadequate to accommodate the additional traffic generated from Dalyellup/Tuart Brook and that the roadworks suggested by Mr McCarney are reasonably referable to the proposed subdivision.
Blair Street/Mangles Street intersection
98 This intersection is currently a priority T-intersection. Mr McCarney's SIDRA operational analysis shows that the average delay per vehicle in the AM peak for traffic turning right out of Mangles Street into Blair Street is currently 220 seconds, or 3.67 minutes, and by 2021 will increase to 430 seconds, or over seven minutes, without Dalyellup/Tuart Brook. Mr McCarney indicated that the right turn manoeuvre from Mangles Street will be impossible within a couple of years, simply due to base traffic.
99 Mr McCarney suggests that signalisation of this intersection is required for safety and efficiency. However, as Mr Hardy submits on behalf of Ironbridge, the need for signalisation at this intersection arises independently of Dalyellup/Tuart Brook and is not reasonably referable to the proposed subdivision. Consequently, a condition cannot be lawfully proposed requiring Ironbridge to contribute towards signalisation of this intersection.
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Blair Street/Clarke Street intersection
100 This intersection was recently converted from a priority Tintersection into a three leg roundabout. Mr McCarney's SIDRA operational analysis shows that the average delay per vehicle in the PM peak for vehicles entering the roundabout from Clarke Street is currently seven seconds, and would increase by 2021 to 13 seconds, without Dalyellup/Tuart Brook, and to 57 seconds, with Dalyellup/Tuart Brook. The increase in delay for Clarke Street traffic from 13 seconds to 57 seconds as a result of Dalyellup/Tuart Brook is unacceptable.
101 Mr McCarney considers that signalisation of the Blair Street/Mangles Street intersection would address the delay problem, resulting in a likely transfer of traffic from Clarke Street to Mangles Street. He considers that this transfer would be sufficient to return delays on the Clarke Street leg to acceptable levels. Mr McCarney suggests that, if the Mangles Street intersection were not signalised, then a short second lane on the Clarke Street leg would be required to bring delays down to acceptable levels.
102 Ms Plant gave evidence that the City intends to carry out signalisation of the Blair Street/Mangles Street intersection and that Main Roads WA now supports this proposition. Consequently, on Mr McCarney's evidence, a short second lane on the Clarke Street approach to the Blair Street/Clarke Street intersection is unnecessary and is not reasonably referable to the proposed subdivision.
What developer contribution is reasonable?
103 The need for the dual use footpath and off-road cycleway on the western side of Parade Road between the site and Crampton Avenue arises solely as a result of the development of Dalyellup. Residents of Tuart Brook would require their own dual use path from the entrance to that development to Washington Avenue. Residents of Tuart Brook are unlikely to use the dual use path on the opposite side of Parade Road. The need for each of the other roadworks referred to earlier in these reasons arises as a consequence of both Dalyellup and Tuart Brook.
104 We consider that the cost of carrying out the roadworks necessitated by Dalyellup/Tuart Brook should be apportioned to the proposed subdivision by the following method -
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- 1. The cost should be discounted by the proportion of Dalyellup/Tuart Brook traffic on Parade Road generated by the proposed district commercial and retail centre at Dalyellup which, according to the ARRB model, is approximately 6.9% of generated traffic.
2. 93.1% of the cost should be apportioned equally among the 5610 residential lots in Dalyellup for the dual use footpath and off-road cycleway and among the 6360 lots in Dalyellup and Tuart Brook for the other roadworks.
105 The net result is that Ironbridge should pay 0.0166% of the cost of constructing the dual use footpath and cycleway for each lot in the subdivision and 0.0146% of the cost of carrying out each of the other required roadworks for each lot in the subdivision.
Conclusion
106 The Tribunal considers that a condition of subdivision approval that requires Ironbridge to pay to Bunbury the following proportion of the City's estimated cost of carrying out the following works reasonably and fairly relates to the proposed subdivision, and is reasonable and appropriate in the circumstances -
(a) 0.0166% per lot for a dual use footpath and off-road cycleway on the western side of Parade Road between the northern boundary of the site and Crampton Avenue;
(b) 0.0146% per lot for an unsignalised T-intersection at the intersection of Parade Road and Centenary Road incorporating a 25 metre long right turn lane for traffic on Parade Road wishing to turn east onto Centenary Road (see Endnote 4);
(c) 0.0146% per lot for a 25 metre long right turn lane on Parade Road for traffic wishing to turn west onto Crampton Avenue;
(d) 0.0146% per lot for the installation of traffic lights at the intersection of Parade Road and Washington Avenue including any associated roadworks to convert the intersection from a roundabout to a signalised intersection and adjustments to the set down/pick up area at the school;
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- (e) 0.0146% per lot for a 25 metre long right turn lane at Westwood Street for traffic wishing to turn south onto Parade Road including a separation space between the vehicles at the stop line so as to improve the left turning vehicle's view of traffic approaching from the south; and
(f) 0.0146% per lot for a 25 metre long right turn lane at Knight Street for traffic wishing to turn south onto Parade Road with a separation space between the vehicles at the stop line so as to improve the left turning vehicle's view of traffic approaching from the south; and
(g) 0.0146% per lot for improvements to the Parade Road leg of the Parade Road/Blair Street/Brittain Road/Bussell Highway roundabout including a slip lane from Parade Road to Blair Street with a length of 60 metres in each of Parade Road and Blair Street and a second lane in the roundabout adjacent to Blair Street, as shown on Attachment B.
107 The need for these works arises from changes precipitated by the development of Dalyellup/Tuart Brook of which the proposed subdivision is a constituent element. These works are necessary and relevant to the proposed subdivision (DC 1.1 cl 3.9.1). The existing roads in Bunbury are inadequate to accommodate the additional traffic generated from the subdivision (DC 1.3 cl 3.2.1).
Form of condition
108 Following the hearing, the Commission filed a draft form of condition for consideration by the Tribunal and made submissions in relation to it. The Commission's suggested condition adopts specific costings for roadworks put forward by Ms Plant and Mr Gibberd on behalf of Bunbury.
109 Ironbridge filed submissions in response. Ironbridge accepts the form of the Commission's draft condition, but submits that it should include the following addendum:
"Any cost contribution by [Ironbridge] shall exclude any profit component on the part of the City of Bunbury and any pro rated contingency element not utilised by the City of Bunbury is to be refunded to [Ironbridge]."
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110 The Commission notes that Bunbury's costings include a 30% contingency and submits that such a contingency is reasonable in the circumstances, given that the costings have been determined without detailed plans and are based on current costs, whereas the roadworks will be required by 2021. We agree. A contingency of 30% is reasonable in the circumstances.
111 Any developer contribution is subject to a statutory trust for the public purpose for which the contribution is required and must be expended for that purpose within a reasonable period, that is, in this case, by about 2021: Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566. Any amount that is not expended within a reasonable period, or not expended at all, for the relevant public purpose, must be refunded to the developer in accordance with the statutory trust. There is therefore no need for the condition to specifically require the refund of an unutilised contribution.
112 As the Commission contends, Bunbury's costings do not, on their face, contain a profit component. It is therefore unnecessary to specifically exclude any profit component.
113 Bunbury has not provided costings for items (b) or (f) referred to at [106] above, because it supported Mr McCarney's preferred, alternative roadworks at these intersections. We have assumed that the cost of item (b) is the same as item (c) and that the cost of item (f) is the same as item (e). We have also assumed that the cost of the separation space for items (e) and (f) suggested by Mr Richardson is $10 000 in each case. We have made these assumptions, rather than call the parties back, because the Tribunal is required to minimise the costs to the parties: State Administrative Tribunal Act 2004 (WA), s 9(b). We will stay the operation of the order substituting condition 31 for 28 days to enable either party to make application to vary the cost of items (b), (e) or (f) stated in the substituted condition. However, we expect that the parties will not make an application to vary the condition unless there is a substantive argument to be made.
Orders
114 The Tribunal makes the following orders:
1. The application for review is allowed in part.
2. The decision of the respondent made on 9 October 2006 to affix condition 31 to the granting of its approval to
- subdivision application No 130710 in relation to Lot 1 and Lot 2 on Diagram 73089 and Lot 6066 on Plan 23892/6066, Lot 1 Parade Road Dalyellup, is set aside and a decision is substituted that the following condition is affixed in place of condition 31:
- "The applicant shall make satisfactory arrangements with the WAPC to make the following financial contributions to the City of Bunbury for the City of Bunbury to carry out the following works -
(a) 0.0166% per lot of the total cost of $393 745.59 for a dual use footpath and offroad cycleway on the western side of Parade Road between the northern boundary of the site and Crampton Avenue;
(b) 0.0146% per lot of the total cost of $12 147.67 for an unsignalised T-intersection at the intersection of Parade Road and Centenary Road incorporating a 25 metre long right turn lane for traffic on Parade Road wishing to turn east onto Centenary Road - the City of Bunbury may use this amount to cover part of the cost of constructing a single lane roundabout at the intersection of Parade Road and Centenary Road instead of a T-intersection and right turn lane;
(c) 0.0146% per lot of the total cost of $12 147.67 for a 25 metre long right turn lane on Parade Road for traffic wishing to turn west onto Crampton Avenue;
(d) 0.0146% per lot of the total cost of $944 077.90 for the installation of traffic lights at the intersection of Parade Road and Washington Avenue including any associated roadworks to convert the intersection from a roundabout to a
- signalised intersection and including adjustments to the set down/pick up area at the school;
- (e) 0.0146% per lot of the total cost of $85 789.86 for a 25 metre long right turn lane at Westwood Street for traffic wishing to turn south onto Parade Road including a separation space between the vehicles at the stop line so as to improve the left turning vehicle's view of traffic approaching from the south;
(f) 0.0146% per lot of the total cost of $85 789.86 for a 25 metre long right turn lane at Knight Street for traffic wishing to turn south onto Parade Road with a separation space between the vehicles at the stop line so as to improve the left turning vehicle's view of traffic approaching from the south; and
(g) 0.0146% per lot of the total cost of $251 989.37 for improvements to the Parade Road leg of the Parade Road/ Blair Street/Brittain Road/Bussell Highway roundabout including a slip lane from Parade Road to Blair Street with a length of 60 metres in each of Parade Road and Blair Street and a second lane in the roundabout adjacent to Blair Street as shown on Attachment B of the Tribunal's reasons for decision delivered on 28 November 2007."
- 3. Order 2 is stayed until 27 December 2007 to enable either party to make application on or before that day to vary the estimated cost of the roadworks stated in pars (b), (e) or (f) of the condition affixed by that order.
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- I certify that this and the preceding [114] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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Endnotes
Endnote 1 (refer par 12)
Attachment A is headed "Recommended Improvements" and is taken from the supplementary witness statement of Gary Stephen McCarney (Exhibit 11). As discussed in these reasons, the Tribunal does not consider that Ironbridge should be required to make a contribution for certain of the "recommended improvements", namely signalisation at the intersection of Blair Street and Mangles Street, signalisation at the intersection of Parade Road and Knight Street, dual use path on the eastern side of Parade Road and single lane roundabout at the intersection of Centenary Road and Parade Road.
Endnote 2 (refer par 16)
The 2006 census indicates that Dalyellup West contained 3.3 residents per occupied dwelling. This figure reflects the fact that Dalyellup West is comprised almost exclusively of single houses. Although Dalyellup East will comprise predominantly single houses, it will contain considerably more medium density housing than Dalyellup West. By 2021, a small number of houses in Dalyellup West will have been occupied for approximately 20 years. While Dalyellup is likely to be a suburb characterised by families with children when it is fully developed, it is probable that the average number of residents per dwelling will be marginally less than indicated by the 2006 census, principally because of the medium density development in Dalyellup East. 18 000 – 18 500 residents is likely to be the total population of all dwellings in Dalyellup, assuming full occupation, although the evidence in this case shows that approximately 12% of dwellings are unoccupied at any given time.
Endnote 3 (refer par 57)
Blair Street/Mangles Street intersection
Endnote 4 (refer par 106(b))
Bunbury should be permitted to use this amount to cover part of the cost of constructing a single lane roundabout at the intersection of Parade Road and Centenary Road instead of a T-intersection and right turn lane. While a roundabout is not
(Page 35)
- reasonably required in consequence of Dalyellup/Tuart Brook, it may have other traffic planning benefits and would obviate the need for a T-intersection.
(Page 36)
Attachment A
(Page 37)
Attachment B
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