Project 1876 v Baulkham Hills Shire Council

[2007] NSWLEC 545

Land and Environment Court

of New South Wales

CITATION:	Project 1876 v Baulkham Hills Shire Council [2007] NSWLEC 545
PARTIES:	Applicant: Project 1876 Pty Ltd Respondent: Baulkham Hills Shire Council
FILE NUMBER(S):	10318 of 2007
CORAM:	Roseth SC
KEY ISSUES:	Development Consent :- traffic impact
CASES CITED:	BGP Properties v Lake Macquarie City Council [2004] NSWLECV 399
DATES OF HEARING:	23/08/2007 an 24/08/2007
DATE OF JUDGMENT:	30 August 2007
LEGAL REPRESENTATIVES:	Applicant: Mr J Maston, barrister instructed by Mr T Bozouni of Veritys Legal Respondent: Mr I Hemmings, barrister instructed by Ms C Rose of Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

30 August 2007

10318 of 2007 Project 1876 Pty Ltd v Baulkham Hills Shire Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Baulkham Hills Shire Council (the council) of a development application to construct a medium density housing development containing 110 dwellings, parking and ancillary facilities on lots 3-6 and part lot 1 DP 866897, lots 20-22 and part lots 1-5 DP 8214, known as 257 Windsor Road, Baulkham Hills.

The site

2 The site is a former school site between the M2 expressway, Windsor Road and Russell Street. It is vacant, apart from two buildings considered to have heritage significance. The only characteristic of the site relevant to this appeal is that Russell Street is a cul-de-sac, its only access and egress being to and from Windsor Road. There are no traffic lights or restrictions at the intersection now.

The proposal and its history

3 The applicant proposes to develop the site for medium housing containing 110 dwellings. Since the parties agreed that the design of the proposal and the number of dwellings (other than from a traffic generation point of view) were appropriate, there is no need to describe the application in detail.

4 In 2001 Bignold J of this Court refused an appeal in respect of a development application for the site. Traffic was not an issue in those proceedings. Both sides assumed that there would be traffic lights at the intersection of Russell Street and Windsor Road. It was agreed that lights would be essential to the development.

5 The applicant lodged the subject application in September 2005. On referral to the Roads and Traffic Authority (RTA), the Authority responded that it had not objection to the development provided there was a left in left out restriction on traffic to and from Windsor Road during peak hours. The Authority made it clear that it would not support the installation of traffic lights.

6 In November 2005 the Minister gazetted Amendment 4 to Local Environmental Plan 2005, zoning the site 2(a1). The report recommending the rezoning relied on a traffic study that concluded that, with a left in left out restriction in peak hours, the traffic impacts of developing the site for 130 dwellings would be acceptable. The council followed the rezoning with a site-specific development control plan, DCP 38, which appears to be undated.

Relevant planning controls and policies

7 As mentioned above, Local Environmental Plan 2005 (Amendment 4) zones the site 2(a1). The amendment was made two months after the applicant lodged the application. It gave effect to the council’s Residential Strategy, which identified this site, among others, as a target site. (The Strategy used the term target site for sites that the council found suitable for increased density housing.)

8 Development Control Plan 38 (DCP 38) is a site-specific development control plan that establishes design criteria for the subject site and permits up to 130 dwellings on it. The DCP deals specifically with the issue of traffic. The DCP accepts the traffic implications of developing the site without traffic lights at Windsor Road. It states that the impacts on the surrounding network including Oakland Avenue and Ventura Road were examined and found to be minimal. Under the heading Opportunities, it states

Enhance level of service and minimise the number of accidents occurring at the Windsor Road and Russell Street intersection by controlled left turn entry and egress during peak hours only.

9 I take the above to mean that the development of the site is seen as the trigger to the introduction of the left turn entry and egress control, and that following this control the level of service and safety of the intersection will improve.

10 State Environmental Planning Policy 65 – Design Quality of Residential Flat Development applies; however, the council does not contend that the SEPP’s requirements have not been met.

The matter in contention

11 The council submitted its amended Statement of Contentions containing three matters, of which the first, accessibility to dwellings was resolved. The second matter related to traffic. The third matter related to the objections, which themselves predominantly related to traffic. Thus the main matter in contention was the proposal’s impact on traffic.

The objectors’ concerns

12 The Court heard the evidence of Ms Dorothy Muddle of 22 Russell Street, Mr John Longton of 3 Winton Avenue, Ms Virginia Johnston, Mr Charles Croswell of 20 Rutherglen Avenue, Ms Sue Whitley of 47 Canyon Road, Councillor David Bentham, Mr John Stevens of 24 Russell Street, and Mr Russell Whitney of 47 Canyon Road. In addition, 340 letters of objections were before the Court, though they were from a much smaller number of objectors, since most objectors wrote several letters. The objections included one from the Principal and Acting Parish Priest of Our Lady of Lourdes Primary School, which is located at the corner of Windsor Road and Oakland Avenue. There were also twelve petitions in evidence, the largest of them containing 333 signatures.

13 The bulk of the objections was traffic-related. The parties’ joint expert on traffic, Mr Christopher Hallam had examined the objections and summarised the concerns as follows:

· It is virtually impossible to turn left or right out of Russell Street now; the proposal will make it worse.

· Windsor Road/Russell Street intersection is currently an accident black spot and extra development traffic will make it worse.

· Traffic generation of proposal has been underestimated; part of the Telstra site will be redeveloped, adding to additional traffic loads.

· With current access difficulties, many Russell Street residents now turn left into Windsor Road, right into Woodland Street, make a U-turn and then turn left into Windsor Road to travel north.

· Woodlands Street residents wishing to travel south first turn left into Windsor Road, right into Russell Street, make a U-turn and then turn left into Windsor Road to travel south; proposed restrictions on right turns will prevent these movements.

· Drivers wishing to turn right into Russell Street will need to turn right into Oaklands Avenue, make a U-turn in that street and return to Windsor Road southbound. Residents and the school in Oaklands Avenue are concerned about the impact of drivers making U-turns, particularly with school traffic movements. The existing traffic situation in Oaklands Avenue has been exacerbated by a new child care centre nearby (Canyon Road).

14 Mr Hallam dealt with the above objections in his response to the Statement of Contentions. However, he identified the first three of the above concerns as falling outside the council’s contentions. In relation to the first concern, that about turning into Windsor Road, he noted that, once the development is built, only left in, left out turns would be allowed. He recognised the inconvenience of this, but did not think that it was of sufficient significance to justify refusal. In relation to the statement that the Russell Street/Windsor Road corner was an accident black spot, he studied the corner’s accident history and found that this was not correct. No accidents involving right hand turns have been recorded in the last five years. To respond to the claim that the traffic generation rates have been underestimated, he pointed out that it is the number and size of apartments that determines traffic generation, not the number of parking spaces.

15 The remaining concerns are dealt with under the heading Traffic.

Traffic
Previous traffic studies

16 The traffic issue in these proceedings is not new; it has been simmering for a long time. As mentioned above, when the previous proposal was before the Court in 2001, all parties assumed that there would traffic lights at Windsor Road. However, this assumption was made without knowledge of the RTA’s attitude. Some time between 2001 and 2006, however, it became clear that the RTA did not support the installation of traffic lights. The matter was discussed in November 2006 at a meeting between the council, the RTA and community representatives, some of whom are objectors in this appeal. The community representatives mentioned that a left turn restriction would add six minutes to travel time. The RTA representative responded that six minutes in the context of Sydney-wide travel are not onerous.

17 Separate traffic studies, albeit carried out by the same firm, formed the basis of the preparation of DCP 38, as well as of the Statement of Environmental Effects accompanying the application. Both studies concluded that, in the absence of traffic lights, the left turn in and out restriction during peak hours was an acceptable solution to the traffic problem.

The joint expert, Mr Hallam’s evidence

18 Mr Hallam applied the INTANAL model to the existing operation of the Russell Street/Windsor Road intersection and found it to be unacceptable. The waiting time for right hand turns varied from 57 minutes in the morning peak to 38 minutes in the evening peak. In oral evidence he added that the actual situation appeared to be better than indicated by the theoretical model. Apparently cars were getting though turning to the right. However, if the model were correct, one would have to conclude that during peak hours right hand turns are not made, since no driver would wait 38 minutes at an intersection to avoid a slightly more circuitous route.

19 Mr Hallam then applied two theoretical models to the future situation, assuming that right hand turns would be prohibited in peak hours. The second model, called aaSIDRA, delivered worse results for the proposal than the INTANAL model. According to aaSIDRA, the level of service of the intersection would go from C to E in the morning peak and remain at B for the afternoon peak. A level of service of E means that the intersection is at capacity and requires other control modes. None is foreseen or possible in the case of this intersection.

20 Despite this, Mr Hallam did not consider that the aaSIDRA result for the intersection should be interpreted that the proposal’s traffic impact is unacceptable. Placing a reality check on the results of the theoretical model, he came to the opinion that:

Looking at both the INTANAL and the aaSIDRA results for the design flows, with left turns only, I consider that with the peak period restrictions on both right turn movements, the situation will be satisfactory, albeit marginally so.

21 The development will have an impact on three roads apart from Russell Street, namely Woodlands Street, Ventura Road and Oaklands Avenue. This is because the prohibition on right hand turns out of Russell Street in peak hours will result in an increase in cars making U-turns in these streets. Mr Hallam had assessed the impact on Ventura Road on the assumption that all U-turns will take place in that street and found it to be acceptable, or at least not significant enough to justify refusal. He has paid less attention to Woodlands Street and Oaklands Avenue. In cross-examination, however, he stated that these impacts are also not sufficient to justify refusal, although, of course, they may be inconvenient to people already using those streets.

22 In summary, Mr Hallam’s advice to the Court was that the traffic impact of the proposal was not sufficient reason to justify refusal of the application.

Consideration

23 The council’s advocate, Mr Ian Hemmings, relied on McClellan J’s findings in BGP Properties v Lake Macquarie City Council [2004] NSWLECV 399. At paragraphs 117-119, his Honour wrote:

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development, which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development, which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.
118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.
119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.

24 I read the above to say that in general zoning should be given weight as a factor in favour of development that is consistent with the zoning (subject to environmental impact), but in exceptional circumstances other factors override the zoning consideration, even if it means that as a result of a refusal a site is effectively sterilised. The question is: does this case have any exceptional circumstances that would justify a refusal? In my opinion, it does not.

25 The distinctions between this case and BGP are numerous. In BGP the zoning in question was 20 years old, applied to an area larger than the site, and a new LEP had changed the zoning after the application was lodged. There was no site-specific development control plan. The matters that finally led to a refusal (ie impact on threatened species and noise disturbance to nearby housing) had not been considered twenty years earlier. The Threatened Species Act 1995 was not inexistence. In the present case the zoning was made in November 2005, after the application had been lodged. The zoning applies specifically to the site and does not include areas around it. There is a site-specific development control plan that affirms the zoning in the LEP. The matter now in contention, ie traffic, had been addressed by traffic studies and was found to be resolved. There can be no argument here, as there was in BGP, that contemporary standards have overtaken an earlier zoning made at a time when environmental planning practice was less advanced.

26 Given that it is common ground that the design of the proposal is satisfactory and the number of apartments is 20 fewer than the number allowed by DCP 38, a refusal of the application would be tantamount to saying that the site cannot be developed. Such a refusal would fly in the face of every recommendation that has been made in respect of this application, including two reports by the council’s own planning staff, as well as the report by the traffic expert selected by the parties themselves. It would be inconsistent with every decision of the council in respect of this site’s development taken before its refusal of this application.

27 For the above reasons the appeal is upheld.

Orders

1. The appeal is upheld.

2. Development application to construct a medium density housing development containing 110 dwellings, parking and ancillary facilities on lots 3-6 and part lot 1 DP 866897, lots 20-22 and part lots 1-5 DP 8214, known as 257 Windsor Road, Baulkham Hills is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 5, B and C.

________________
Dr John Roseth
Senior Commissioner