Petroleum Design and Management Pty Ltd v Mackay City Council
[2004] QPEC 20
•2 June 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Petroleum Design and Management Pty Ltd v Mackay City Council [2004] QPEC 020
PARTIES:
Petroleum Design and Management Pty Ltd ACN 050 059 946 Appellant
V
Mackay City Council Respondent
FILE NO/S:
4522/2003
DIVISION:
Planning & Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
2 June 2004
DELIVERED AT:
Brisbane
HEARING DATE:
10, 11 May 2004 (at Mackay)
JUDGE:
Alan Wilson SC, DCJ
ORDER:
1 That the appeal be heard and determined notwithstanding changes to the application on which the decision being appealed was made; and, declare those changes are minor changes within the meaning of the Integrated Planning Act, 1997, s4.1.52(2)(b);
2 that the appeal be otherwise adjourned to a date to be fixed on two days notice in writing.
CATCHWORDS:
Refusal of application for material change of use – service station – traffic issues involving nearby roundabout – whether proposed development would create a traffic problem or increase an existing one – Local Government (Planning and Environment) Act 1990, s 4.4(3)
Jedfire v Council of the City of Logan [1995] QPELR 41
Reana Developments Pty Ltd v Thuringowa City Council [2002] QPELR 56
COUNSEL:
Mr M Hinson SC for the appellant
Mr C Hughes SC for the respondent
SOLICITORS:
Allens Arthur Robinson for the appellant
Wright Wright and Condie for the respondent
This appeal concerns the Council’s refusal of an application for a Development Permit for a Material Change of Use of premises for a service station and shop at the north-western corner of the central business area of the city of Mackay. As the evidence at trial fell out, the central issue is whether the development would create or increase a traffic problem at a nearby roundabout, or on the road leading south to the site.
The relevant parcel is on Mangrove Road between Victoria and River Streets directly opposite Caneland Central Shopping Centre, a large retail development which contains, relevantly, a Woolworths store. The service station is intended to provide a facility for Woolworths customers as part of a ‘loyalty rewards’ scheme - upon production of dockets showing the purchase of products at Woolworths, those customers are able to buy fuel at a discounted rate. Fuel is also sold, of course, to general customers. The service station is of a familiar kind, with the usual facilities.
The site presently contains a two storey office premises. Adjoining it on the northern side is a small building containing three retail tenancies. Immediately to the south is a new building used for tyre fitting. Properties to the east, on Wellington Street, contain multi-unit residential dwellings, office premises, governmental/community uses and commercial buildings.
Mangrove Road runs approximately northeast–southwest and is essentially straight and level, with four traffic lanes (two in each direction) and a raised central median. It is used by visitors to the Caneland Shopping Centre and the commercial premises on the opposite, eastern side and is also part of a bypass route through the immediate north-western area of the Mackay CBD, connecting directly to one of two bridge crossings over the Pioneer River within the Mackay metropolitan area. Large vehicles are permitted to use it during cane harvesting.
The proposed site is only a short distance southwest from a roundabout where Mangrove Road intersects River Street, which runs approximately east-west. Most vehicles using the western arm of River Street do so to visit or depart from the Caneland Centre. Vehicles approaching the roundabout from the eastern arm may traverse the roundabout and travel further west into the shopping centre, or turn left into Mangrove Road and travel down to a further roundabout in Victoria Street; or, alternately, turn left into a small street just past the relevant site, Peel Street, which enters Victoria Street slightly to the east of Mangrove Road. Vehicles travelling northeast on the western side of Mangrove Road past the shopping centre may also perform a U turn at the roundabout, and then travel south on Mangrove Road to the site.
There was some disagreement between the traffic engineers about the distance between the roundabout and the northern entrance to the proposed site but I accept the proper measure is about 35m between that entrance and the northern end of the median strip on Mangrove Road where it ceases at the perimeter of the roundabout, and about 40m to a raised, round structure in the centre of the roundabout itself.[1].
[1]T61: Mr Viney.
The appellant’s application was lodged with the Council on 18 June 2003. It relates, in particular, to the land at 3 Mangrove Road, Mackay described as lot 2 on RP 700706. Council issued an information request on 12 August 2003 and the appellant provided a response on 18 August. Council staff recommended approval of the application, with conditions[2] but on 19 November Council’s Planning and Environmental Services Committee resolved to refer the matter to a special meeting of Council with a recommendation for refusal. Council ultimately resolved upon refusal, on various grounds to do with traffic on Mangrove Road, and the roundabout, and because of the short distance between the roundabout and the site.
[2]Ex 1, document 11, p 115.
More particularly, the notified[3] grounds of refusal were:
[3]Ex 1, p 144
“(a) The proposed development would have a detrimental impact upon the flow of traffic along Mangrove Road.
(b) The site layout does not comply with the Transitional Planning Scheme, Section 5.4.4 or the Department of Transport Policy of Service Station Entrances with regard to the width of the proposed vehicular entrance and exit.
(c) The site layout does not allow for a refuelling vehicle to adequately or safety enter and exit the site.
(d) The distance of the site from the River Street/Mangrove Road Roundabout is not sufficient to allow for vehicles to safety change lanes to enter the site.
(e) Safety hazard of vehicles entering and exiting the site.”
As remarked previously, the issues at trial were reduced and, ultimately, revolved around matters raised in a report from Council’s Traffic Engineer, Mr Berry[4] (which were refinements of issues (a), (d) and (e)): namely, the prospective creation of a traffic problem (or an increased traffic problem) at the roundabout and in Mangrove Road, between the roundabout and the entrance to the site.
[4]Ex 10, p 13.
An aspect of the problems asserted by Council has to do with the present road markings on and around the roundabout. Mr Berry believes the present form of those markings enable (or perhaps induce) vehicles turning into Mangrove Road from the River Street (east) kerbside (left) lane to traverse the roundabout, and enter Mangrove Road, without conflicting with circulating traffic already within the roundabout; ie, without stopping or giving way to vehicles on it.
This happened, he said, because vehicles turning right into Mangrove Road from River Street (east) were obliged, with the present markings which effectively reduce the lanes on the roundabout to one, to enter Mangrove Road in the median lane; and similarly, vehicles which had been travelling north on Mangrove Road and then performed a U turn on the roundabout before proceeding south on the same road should also remain in that median lane.
In his opinion, the possibility that vehicles traversing the roundabout from River Street (west) and attempting to exit on Mangrove Road, or U turning vehicles from Mangrove Road itself, might attempt on entering the northern end of Mangrove Road to move across into the left hand lane (to enter the site) involved a risk of accidents with those vehicles “slipping” from the kerbside lane in River Street (east) (in the manner described in paragraph [10]); and, “short/sharp” movements which were unnecessary and should be categorised as “possible unsafe vehicle manoeuvres”[5].
[5]Ibid p 11.
Mr Berry is a proponent of what is called the “right in, right out” principle in regard to roundabouts, by which vehicles entering a roundabout from roads with more than one lane ought, for safety’s sake, remain in that lane on the roundabout and exit in the same lane on any two lane road leading out of it. Hence a vehicle entering on a median lane should exit in the same lane.
The appellant’s Traffic Engineer, Mr Viney, disagreed[6]. So, too, did Mr John Douglas, a Civil Engineer and Director of Traffic Engineering and Road Safety in the Department of Main Roads[7]. Both believed the road rules permitted a driver on a roundabout to change lanes upon it, or when leaving. In their opinion vehicles turning right from River Street (east) into Mangrove Road, or performing a U turn on the roundabout at the northern end of that road were permitted, even with the present markings, to enter Mangrove Road from the roundabout in the left or kerbside lane. The gravamen of this evidence was that those vehicles would, then, be in the kerbside lane as they headed south on Mangrove Road and traversed the short distance between the roundabout, and the site.
[6]T 60, ll 10-12.
[7]T 78, ll 49-54. .
The issue involved considerable debate about the meaning and effect of the relevant road rules[8] and the exemplary diagrams included with them. It is I think an acceptable, general observation that motorists remain unsure and often disagree about proper driving when entering, traversing, and leaving roundabouts. The rules, and the views expressed by the traffic engineers make it clear, with respect, that they are no more certain about these matters (and, by inference, that proper observation of the rules by all motorists would create intolerable bottlenecks at even moderately busy roundabouts).
[8]Ex 15: Transport Operations (Road Use Management – Road Rules) Reg 99, Pt 9.
Uncertainty is compounded by some government publications suggesting Mr Berry’s ‘rule’ may enjoy official imprimatur (Ex 13) but I was ultimately persuaded by the evidence of Mr Viney and Mr Douglas that the view they propound is consistent with the road rules, and lawful. Broken lines on a roundabout and on the roads leading away from it clearly indicate that drivers are permitted to change lanes. There would be many instances where that is necessary, and practical.
Further, as a view of the area (and other roundabouts in Mackay) confirmed, whatever difficulties might exist at this roundabout are compounded by the presence of solid white lines in a “V” shape at the eastern end of it, confronting drivers approaching from River Street (east). Mr Berry agreed the easternmost of these lines should be removed, but Mr Viney and Mr Douglas thought both should be changed in a way which, I am satisfied, would significantly reduce the concern raised by Mr Berry, mentioned earlier – that drivers approaching the roundabout from River Street (east) in the left or kerbside lane might believe, or be encouraged to act as though they could “slip” into the southbound kerbside lane in Mangrove Road notwithstanding the presence of traffic on the roundabout. The present markings, I accept, might serve to encourage that assumption, so that vehicles on the roundabout wishing to leave it in the same, kerbside lane in Mangrove Road create the potential for what the engineers called “conflict” with those vehicles “slipping” into the same lane from River Street (east). Verbal attempts to describe these visual effects are necessarily imprecise; in summary, I accept the evidence of Mr Viney and Mr Douglas that the potential for confusion is removed, or reduced, if these markings are changed.
The engineers did agree the relatively short distance between the roundabout and the entry to the site might make changing lanes in Mangrove Road to enter it something which carried a risk of conflict but, again, I was satisfied by the evidence of Mr Viney and Mr Douglas that while this potential hazard existed, it did so not least because of the present road markings, and their proposals for change would ameliorate the risk.
The respondent’s Planning Scheme is a transitional one so it is necessary to revert to the former legislation, the Local Government (Planning and Environment) Act 1990. Section 4.4(3) states:
“In considering an application to amend a planning scheme … a Local Authority is to assess each of the following matters to the extent they are relevant to the application:
(a) whether the proposal, if approved … could –(i)create a traffic problem, increase an existing traffic problem or detrimentally affect the efficiency of the existing road network.”
In Jedfire Pty Ltd v Council of the City of Logan and White (1995) QPELR 41 Skoien SDCJ said of this sub-section, at 43:
“the raw words of the section have to be taken with a grain of salt. Any rezoning for a proposed development might be said in some degree to create or increase a traffic problem and to affect detrimentally the efficiency of the roads if it creates any extra traffic, which is what almost all developments will do. One must inject a qualifying adverb such as ‘unreasonably’ or ‘intolerably’ into the section. Traffic in modern urban settings is not assessed in Utopian terms. In Utopia all cars, driven only by skilful, courteous drivers would carry the maximum number of passengers at reasonable speeds on roads perfectly designed for safe, swift travel. But the legislature must be taken not to have been acting with Utopia in mind. So in this case I consider that what I have to do is to decide whether the proposal for a reasonable or tolerable traffic arrangement in the context of modern, urban motor vehicle movement”.
This proposed development will generate more traffic than the present use, as a commercial office. At present, however, this roundabout is not heavily trafficked[9]. Available records suggested there had been five accidents at the roundabout in the past five years, but there is no information about possible causes. If any were caused by the line markings discussed earlier, that risk will be reduced.
[9]Respondent’s Traffic Engineer, Mr Berry : T 108 ll 12-14.
Even with increased traffic, however, I am not persuaded the proposed development would create or increase any existing traffic problems; and, certainly, that it would not do so to an unreasonable or intolerable degree. Mr Berry’s evidence seemed to me, with respect, excessively cautious, and gave insufficient credit to the fact that motorists and pedestrians are likely to quickly adapt to any changes in the environment, and the roundabout and its configuration. Even without those changes the existing intersection should be considered in the light of a reasonable assumption that motorists will, as a whole, comply with the road rules and obey give-way signs[10]. With the benefit of a view of the site, and the evidence of Mr Viney and Mr Douglas and the application of practical commonsense I am unpersuaded the proposal presently creates a traffic problem or increases an existing one, or detrimentally affects the efficiency of the existing road system; and, I am persuaded that the relatively minor alterations the experts propose to the road markings will, more probably than not, further reduce any risk which might exist.
[10]Reana Development Pty Ltd v Thuringowa City Council (2002) QPELR 56 per Wall QC, DCJ at 57.
Other traffic issues, to do with the use of the site by large refuelling vehicles and the risks of cars queuing back into Mangrove Road appeared to evaporate during the hearing and, certainly, were not raised in submissions by the respondent’s counsel, Mr Hughes SC. Mr Berry recommended the imposition of a condition that no vehicle longer than 16.9m have access to the site[11] but in cross-examination appeared to concede that vehicles of 19m might operate safely[12]. He also recommended the imposition of a condition that the respondent submit a traffic management plan to ensure appropriate traffic control so that queuing vehicles did not extent beyond the bounds of the proposed site but, as his oral evidence again indicated, the plan itself would involve no more than the application of reasonable foresight by the site operator and there was presently no evidence to suggest there was a risk a hazard would be created, or increased[13]. Finally, Mr Berry suggested a change to the exit driveway of the southern end of the site which was accepted by the appellant.
[11]Ex 10, p 7.
[12]T 115, ll 10-42.
[13]T 117-118.
The Council conceded there was no town planning reason for a refusal of this application; but also contended there was no good town planning reason warranting approval if traffic issues presented an impediment. For the reasons set out earlier, I am not persuaded the traffic issues warranted refusal. The Strategic Plan places this site within the commercial designation[14] and the appellant’s Town Planner, Mr Brown, concluded the terms of the plan “strongly encouraged” the proposal[15]. Certainly, some general statements may be construed as sympathetic but others are neutral vis-à-vis the benefits of a service station on this site, and it is more accurate to say the Plan is, on balance, generally supportive.
[14]Strategic Plan Map 1, Preferred Dominant Land Uses.
[15]Ex 2, p 12.
In the Planning Scheme provisions the site lies within the Central Business zone and, on the Tables of development assessment, is impact assessable. As Mr Brown pointed out there are a number of existing and conceivable uses in the CBD which do not appear in the Tables but are of a retail kind (car repair workshops, tyre stores and service centres); and the proposed use is certainly complementary to the adjacent Canelands Shopping Centre. On balance, I am satisfied a service station on this site is an appropriate use which is not inconsistent with the intent of that zone.
The performance criteria for a service station are set out at paragraph 5.4.4 of the Planning Scheme provisions[16] and Mr Brown initially concluded the proposal satisfied them to the relevant extent. In cross-examination he deviated slightly from that position and conceded the proposal did not strictly satisfy the requirements but contended it was, nonetheless, supportable in the circumstances. The concession occurred when his attention was drawn to requirements about the distances between the proposed points of ingress and egress for the service station, and entrances to other business premises, but the non-compliance is minor.
[16]Ex 9, p 131.
These matters are also to be assessed, of course, in light of the respondent’s entirely appropriate concession that there is no town planning reason to refuse this application. Had the traffic issues been more troubling, planning matters may have required closer scrutiny. The resolution of traffic issues in the appellant’s favour means planning matters do not tell against the proposal.
Since the original application the plans for the development have been amended and, during the course of the hearing, the appellant sought an order under the Integrated Planning Act s4.1.52(2)(b) that the appeal be heard and determined notwithstanding those changes. They were numerous, but minor, and the respondent did not oppose the order sought, conceding the changes were essentially responsive to matters raised by it.
Having signified the appeal should be upheld, I will adjourn the matter to enable the parties to settle conditions and the terms of an appropriate order.
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