Rauchle v Gatton Shire Council
[2007] QPEC 76
•4 September 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Rauchle v Gatton Shire Council & Ors [2007] QPEC 076
PARTIES:
GUY PETER RAUCHLE
Appellant
v
GATTON SHIRE COUNCIL
Respondent
and
MT SYLVIA DIATOMITE PTY LTD
First Co-Respondent
and
CHIEF EXECUTIVE OF THE DEPARTMENT OF MAIN ROADS
Second Co-Respondent by election
and
CHIEF EXECUTIVE OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION AGENCY
Third Co-Respondent by election
FILE NO/S:
Toowoomba No 1 of 2007
Brisbane No 965 of 2007DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Gatton
DELIVERED ON:
4 September 2007
DELIVERED AT:
Brisbane
HEARING DATE:
23, 24 August 2007
JUDGE:
Rackemann DCJ
ORDER:
The appeal will be dismissed. The further hearing is adjourned to enable amended conditions to be formulated.
CATCHWORDS:
COUNSEL:
Mr Rauchle appeared in person
Mr Cochrane appeared for the respondent
Mr Haydon appeared for the first co-respondent
Mr Morzone appeared for the second co-respondent by election
SOLICITORS:
Corrs Chambers Westgarth for the respondent
Clayton Utz for the first co-respondent
Crown Law for the second co-respondent
Introduction
Mr Rauchle is an adverse submitter who appeals against the Council’s decision to approve an application, by the first co-respondent, for a development permit for a material change of use for an extractive industry and for environmentally relevant activities (ERA’s) on land situated at Chalk Mine Road, Junction View, Gatton.
The first co-respondent operates an open cut diatomite mine at the subject site. In order to win the chalk, overburden must be removed. That material has, to date, been stockpiled. The value of that material for road construction and other uses has now been recognised and it is proposed to extract and export that material from the site, after crushing and screening. The ERAs would limit the extraction and the screening to less than 100,000 tonnes per annum.
The diatomite mine generates vehicle movements, including heavy vehicle movements, to and from the site. The proposal would increase such movements. Any approval would be subject to a condition designating the appropriate haul route which, in this case, is via Chalk Mine Road, Black Duck Creek Road and Mt Sylvia Road. The last of those falls under the jurisdiction of the Department of Main Roads (DMR), while the other two are local roads. Those roads exist in a rural setting and, as with many rural roads, are not ideal in every respect. Each has been, or is to be, the subject of some works. The conditions of approval contemplate works on Chalk Mine Road. The Council has almost completed new signage works on Black Duck Creek Road, while the DMR has let a contract to upgrade part of Mt Sylvia Road. That upgrading is about to commence and should be completed in the next few months.
Mr Rauchle, who resides at Black Duck Creek Road, is not opposed to the mining activities per se. His issues in the appeal are limited to road infrastructure issues. In particular, he is concerned about the safety and adequacy of Black Duck Creek Road and Mt Sylvia Road and the effect of their use by increased numbers of heavy vehicles associated with the proposal. His position, in short, is that the proposal should not proceed unless it can be so conditioned as to overcome deficiencies along the haul route and offset any impacts of additional traffic. The Court cannot order the Council or the DMR to undertake further works on their roads, but the Court could refuse the development application if the haul route would be inappropriate for use by further heavy vehicles or could perhaps impose conditions that the use not commence until or unless certain things are done.
The conditions of approval only contemplate the upgrading of Chalk Mine Road. The other parties contend that it is acceptable to allow further heavy vehicle use of the haul route, particularly in light of the works which have or are about to occur in any event.
The parties participated in a mediation meeting before this court’s Registrar of ADR. While the matter was not resolved, areas of concern to Mr Rauchle were better identified and articulated in a 14 point document, executed by the parties. That was helpful in providing focus. The appeal was conducted on the basis of the issues identified in that list.
The Witnesses
In considering Mr Rauchle’s concerns, the court had the benefit of evidence from three qualified and experienced engineers. Mr Currie, a project manager/senior civil engineer with the Harrison Group (Qld) Pty Ltd (and a former principal engineer in the employ of the DMR) was called by the second co-respondent by election to give evidence in relation to the State controlled road. Mr Lee, a Master of Engineering (Civil) and Manager of Roads and Infrastructure for the Council, was called by the respondent to give evidence about local road infrastructure. The first co-respondent called its consultant traffic engineer, Mr Stuart Holland, to give evidence concerning both the local government and the State controlled roads. Each was of the opinion that there was no road infrastructure issue which would make it inappropriate to permit the haul route to be used by vehicles associated with the proposal.
The first co-respondent also called its operations manager, Mr Johns, who has long experience as a truck driver and has travelled the roads in question in his position with the co-respondent over the last 7 years. His evidence was to the effect that the roads operate safely, in his experience, even without the recent Council signage works on Black Duck Creek Rd and the DMR’s pending works on Mt Sylvia Rd.
Mr Rauchle is not an expert in road transport infrastructure and did not call any traffic engineering evidence in support of his issues. Instead, he compiled a statement, which included matters of personal observation and measurement, reference to published guidelines and his own comments on the experts’ conclusions. He also cross-examined each of the experts at some length, with a view to demonstrating that their conclusions were not soundly based or substantiated. Each of the experts held firm to their conclusions, notwithstanding the matters put by Mr Rauchle. I accept their evidence, which impressed me as professional, credible and persuasive, and I am satisfied that the development application ought be approved.
The Issues
The width of Black Duck Creek Road (Item 10) and holes in its shoulders (Item 9) and its maintenance (Item 11)
Black Duck Creek Road is a relatively narrow road with three relatively narrow causeways. Other than at the causeways, Black Duck Creek Road has a cross-section comprising a centrally located sealed width of about 3.5 metres, with grassed gravel shoulders on each side.
According to the Austroads Guideline “Rural Road Design – and Guidelines to the Geometric Design of Rural Roads” (2003), such a cross-section can satisfactorily accommodate up to 150 vehicles per day (AADT). The existing average week day traffic volumes on the road are well within this and will remain so, even with the proposal. Mr Rauchle pointed out that the proposal may generate higher traffic volumes at particular times of the year. The relevant guideline however, relates to the average annual daily traffic flows. Black Duck Creek Road already carries heavy vehicles associated with the chalk mine and I accept that it is not inappropriate for use by additional vehicles associated with the proposal.
Mr Rauchle expressed a concern that the increased number and proportion of heavy vehicles on the road, by reason of the proposal, may accelerate edge wear of the pavement and cause degradation of the shoulders. He also claimed that there are existing defects in the shoulders, including ruts and pot-holes. These are maintenance issues. Mr Lee explained that the Council undertakes management as required. It has a regular maintenance program and also effects maintenance in response to reports from road users or rate payers, or a result of ad hoc observations of its officers. Mr Lee’s evidence was that, in general, the shoulders of Black Duck Creek Rd are typical for a rural road, but any defects which are significant enough to trigger the need for work, can be addressed by maintenance in the usual way. The Council has a policy of requiring a road maintenance contribution of 50 cents per tonne of material excavated from the site. The mining operation has been contributing in accordance with that policy. Mr Holland’s evidence is that the contribution is significantly greater than what is likely to be required to satisfy maintenance needs on Black Duck Creek Road.
Black Duck Creek Causeways (Items 9, 12)
There are three relatively narrow causeways in Black Duck Creek Road, which do not provide for passing. All three are due for either replacement or upgrading in 2018. The northern causeway is the longest and is located just to the south of the Mt Sylvia Road intersection. Mr Rauchle’s driveway is located near the southern end of the middle causeway. There are curves on the approaches to the middle and southern causeways.
Mr Rauchle carried out measurements to demonstrate that the desirable minimum stopping sight distances are not available. Stopping sight distance relates to the distance from which the driver of a vehicle ought be able to see a stationary hazard in the road, in order to bring the vehicle to a stop without running over it. In the current context that might refer to a low object washed on to the middle of a causeway. Mr Holland and Mr Lee acknowledged that the desirable minimum stopping sight distance was not available, but pointed out two things. Firstly, the critical matter in relation to the acceptability of the subject proposal, which would add further heavy vehicle movements, is the avoidance of a collision between those additional trucks and other vehicles. That is not the matter to which the stopping sight distance relates. Secondly, the Council has almost finished placing additional signage which will give drivers adequate prior warning of the narrow causeways and the potential need to slow or stop, so as to avoid encountering another vehicle on a causeway[1].
[1]See Ex 5.
With the new signage, traffic approaching the middle and southern causeways from the north now first encounters a sign, some 150 metres prior to the causeway, advising that there is a narrow one lane crossing ahead. That is followed by a sign, 90 metres from the beginning of the causeways, warning of a dip and a further sign, 30 metres from the causeway, prohibiting overtaking or passing. Vehicles approaching those causeways from the south, now meet a narrow one lane causeway sign followed by a sign warning that there is a give-way sign ahead, followed by a dip sign and a give-way sign and holding lines on the carriageway. I also note Mr Lee’s evidence that visibility issues around bends are also addressed through vegetation management during routine maintenance, if not attended to earlier.
In the case of the northern causeway, vehicles approaching from the south similarly now encounter a one-lane narrow crossing sign, then a 'give-way ahead' sign, before the give-way sign itself. Vehicles approaching from the north are warned, whilst still on Mt Sylvia Road, that there is narrow crossing on the side road and, upon entering Black Duck Creek Road, are met with a “no overtaking or passing” sign 20 metres from the causeway.
I accept the evidence of Mr Holland and Mr Lee to the effect that, with the new signage, the causeways will operate satisfactorily[2].
[2]Signage effected by the Council departs from Mr Stuart Holland’s recommendation with respect to the northern causeway. There are things to be said for both Mr Holland’s preference and for Mr Lee’s preference. Ultimately, it is a matter for the local government and Mr Holland was of the view that the system was adequate with the local government’s system.
The intersection of Black Duck Creek Road, Mt Sylvia Road and East Haldon Road (Item 1)
The form of the intersection as it is existed prior to Council’s signage works, was somewhat confusing. East Haldon Road gives the initial impression of being the continuation of Mt Sylvia Road, with Black Duck Creek Rd being a side road, which drops down from the intersection. On Mr Rauchle’s evidence, the greatest volume of traffic entering the intersection is from Mt Sylvia Road. The intersection was not however, prioritised as one might expect. At the time the application was approved, traffic heading along East Haldon Road, towards Mt Sylvia Road, was faced with a give-way sign which, on Mr Rauchle’s evidence, was sometimes ignored. The give-way sign on East Haldon Road has now been removed and there is one on the Black Duck Creek Road entry to the intersection, so that traffic entering the intersection from Black Duck Creek Road must now give-way. This is reinforced with a give-way holding line at the intersection. That, together with the other signage undertaken, will adequately address the issues at this intersection, at least insofar as they might be relevant to further heavy vehicle movements associated with the proposal.
Mr Rauchle pointed out that, with additional heavy vehicles on Black Duck Creek Road, the relative proportions of traffic entering the intersection from Black Duck Creek Road and East Haldon Road might change such that the previous priority ought to be reinstated. I accept the traffic engineering evidence that the new priority is more appropriate, even with an increase in trucks using Black Duck Creek Rd.
Mr Rauchle raised a concern that trucks approaching the intersection from Black Duck Creek Road might be tempted to maintain their momentum into the intersection, rather than give-way in accordance with the new signage. As Mr Holland pointed out however, many truck drivers will be familiar with the intersection and its priority and the new signage now also coincides with what unfamiliar drivers would likely assume anyway. (i.e. that vehicles entering Black Duck Creek Rd should give way). Further, the rise towards this intersection is not severe and one would expect the give-way sign to be respected.
Mr Rauchle expressed a concern about vehicles encountering the narrow causeway just after passing through the intersection. As already noted however, there is now warning signage on Mt Sylvia Rd prior to the intersection and, for the reasons stated in Mr Holland’s response report, the intersection will be of no surprise to familiar drivers, while unfamiliar drivers would be expected to be travelling at lower speed when turning from Mt Sylvia Rd and Black Duck Creek Rd.
Mr Rauchle also mentioned a concern about the tightness of the turn from Black Duck Creek Road into East Haldon Road. While that is relevant to the operation of the intersection overall, the tightness of that turn is an existing situation which this proposal would not exacerbate. Indeed, trucks associated with the proposal will not be undertaking that turn, since East Haldon Road does not form part of the designated haul route.
Mr Rauchle questioned the adequacy of the traffic count at the intersection. Traffic volumes were taken at a time which was expected to be busier than usual. While the count might not reliably represent an 85th percentile, the evidence is that the intersection is nowhere near capacity. I accept that the intersection is adequate for use by further heavy vehicles associated with the proposal.
Width of causeways on Mt Sylvia Road (Items 2-6)
The part of Mt Sylvia Road which is about to be widened is the one lane section. It will be widened to a two lane 8.0 metre wide seal. That section also includes causeways, of 7.3m width, which will not be widened. That width is narrower than any relevant guideline[3], but, as Mr Currie and Mr Holland pointed out, there is still sufficient room for vehicles to pass and signage will be reviewed as part of the upgrade. In the circumstances the addition of further heavy vehicles, associated with the proposal, would not be unacceptable, nor would it create the need for any widening of those causeways.
[3]The traffic engineers took issue with Mr Rauchle’s reference to the guidelines for bridge carriageway widths, but did not suggest that 7.3m met a relevant guideline. Mr Currie – T196; Mr Holland – T56.
There was some (relatively brief) reference by Mr Rauchle to a publication which shows part of the “national trail” along Mt Sylvia Road. The nature and extent of its use was not demonstrated. I do not consider that it bears, in any significant way, on the acceptability of the proposed use of the haul route (including the causeways) by additional heavy vehicles associated with the proposal.
Sight distance at causeways on Mt Sylvia Road (Items 3, 5 and 12)
Mr Rauchle also carried out measurements of sight distance, to a stationary object, for a driver approaching the causeways. Observations about stopping sight distance made earlier in the context of the Black Duck Creek Rd causeways also apply. I accept the evidence of Mr Currie and Mr Holland that, in the context of the upgrading to Mt Sylvia Road, the causeways will operate satisfactorily, even with use by additional heavy vehicles associated with the proposal.
Causeway and sharp corner before the school at Mt Sylvia Road – super elevation, visibility and alignment (Items 6 and 7)
This causeway adjoins the section of Mt Sylvia Road to be upgraded by the DMR. It will not, itself, be the subject of any widening, but advisory speed signage and chevron alignment markers at the floodway crossing just south of the My Sylvia school and the curve north of Mt Sylvia have been assessed and will be treated as part of the upgrade[4].
[4]See Ex 7, page 7.
In relation to Item 7, Mr Rauchle expresses a concern about the possibility of people being caught unaware by the sharpness of that curve. Any required warning signage however, would be expected to be provided as part of the upgrading.
In relation to Item 6 Mr Rauchle refers to a discrepancy between the “super elevation” measured by him and that referred to in a DMR document obtained on disclosure. Any such discrepancy would not affect determination of the appropriate signage. As Mr Holland pointed out, advisory speed signs are not implemented based on theoretical calculations but on a procedure, outlined in the Manual of Uniform Traffic Control Devices, which involves driving a vehicle around the bend at various speeds with specific instruments in order to take appropriate measurements to enable appropriate advisory speed signage to be installed, if required.
The issues raised by Mr Rauchle do not persuade me that the haul route is unsuitable for use by additional heavy vehicles.
Corner (Item 8)
This refers to a corner, described by Mr Rauchle as two sharp corners connected by a short section of straight, further to the north. It is not as sharp as the other corners referred to and neither Mr Currie nor Mr Holland had any significant concern about it. Mr Rauchle took a number of photographs of vehicles which placed their wheels either on or over the centre line while negotiating this part of the road. While that involves a breach of traffic regulations, it is not entirely unexpected on a lightly trafficked road, if there are no vehicles coming in the opposite direction. It does not establish that the corner is unsuitable for truck traffic or, more particularly, for an increase in truck traffic associated with the proposal.
Width and maintenance of the two lane section of Mt Sylvia Road (Issues 11 and 14)
The two lane section of Mt Sylvia Road, which is not to be widened, has a sealed width which is generally six metres or more. That is, I accept, an appropriate width. There is a relatively short section which narrows to 5.5 metres. I accept the evidence of Mr Holland and Mr Currie that this section will also operate acceptably, notwithstanding its reduced width.
One of the concerns raised by Mr Rauchle was the potential for greater edge wear, but Mr Currie’s evidence is that this section shows no more edge wear or edge drop-off than the other two lane sections of the road.
Mr Rauchle also contended that greater consideration should be given to the effect which the proposal might have in terms of increased maintenance on Mt Sylvia road. This ultimately goes to whether there should be a condition requiring a contribution to that maintenance.
No financial contribution has been or should be required with respect to the road works about to be performed by the DMR. The warrant for those works and the decision to proceed with them did not arise because of the subject proposal. While the extra heavy vehicle movements associated with the proposal might, at least in theory, add something to the need for ongoing maintenance, Mr Currie’s evidence was to the effect that the existing traffic volumes, including heavy vehicles, had generated only a low maintenance requirement to date and that, in the circumstances, the impact of the proposal was unlikely to be sufficiently significant to warrant a contribution. I accept his evidence.
Total number of vehicles and operating times (Item 13)
The likely average daily traffic movements generated by the proposal, based on the 100,000 tonne capacity, was estimated by each of the traffic engineers. Their estimates were comparable. As Mr Rauchle pointed out, variation from the average at different times of the year could be expected, but that does not, in my view, undermine their assessment.
Mr Rauchle challenged those estimates, but the experts held to their views. I accept that their estimates are reasonable. Further, while risk is, to some extent, increased as volumes increase, the conclusion of the traffic engineers in relation to the acceptability of the proposed haul route, for use by further heavy vehicles associated with the proposal, is not highly sensitive to the accuracy of the estimate. Mr Currie, in particular, said that the estimate could double without his views being affected.
Mr Rauchle also pointed to some different statements made by the co-respondent, in the course of application, about vehicle numbers. The proceeding in this court proceeds by way of a re-hearing de novo and I am prepared to act upon the opinions of the traffic engineers called at the hearing. As Mr Rauchle pointed out, it is possible (and sometimes appropriate) to impose conditions limiting the number of vehicle movements, but I do not consider that is called for here.
Mr Rauchle also suggested that the hours of operation be limited so that trucks did not use the haul route during school hours. He again referred to statements made in the course of the application. As Mr Currie pointed out, restricting operating hours to between 4pm and 7am would be a poor traffic engineering outcome. Mr Rauchle did not seek to have heavy vehicles operating at dusk and dawn. Hours could be restricted to avoid school pick up and drop off time, but the traffic engineers had no difficulty with the haul route being used without such limitation.
The school near the intersection of Black Duck Creek Road, Mt Sylvia Road and East Haldon Road is accessed from East Haldon Road, while activity associated with the school further to the north along Mt Sylvia Road is largely removed from the Mt Sylvia Road carriageway. Queensland Transport, an advice agency, raised no concern with respect to the effects of additional trucks on the bus service to those schools. Mr Rauchle questioned whether some restriction might also be justified on the grounds of noise. He did not however, call any expert evidence to support that bare assertion. The haul route is already used by heavy trucks.
I am not prepared to impose additional conditions restricting the number of traffic movements or the hours of operation in the way suggested by Mr Rauchle.
Operation pending upgrade
The first co-respondent, if otherwise successful, wishes to be able to commence operations prior to its upgrade of Chalk Mine Road and the DMR’s upgrade of part of Mt Sylvia Road.
The conditions of approval do not require the subject proposal to await the DMR upgrading on Mt Sylvia Road. The upgrade ought be finished by Christmas. The use of that part of the road by traffic during the upgrade can be expected to be managed by the DMR. I do not consider that the use of that part of the road for the short time period pending completion of the road works would be unacceptable.
The existing conditions prevent commencement of the use pending the upgrade of Chalk Mine Road. The Chalk Mine Road improvements have been delayed pending the outcome of this appeal. Once commenced, they will take a few months to complete. Subject to the approval of the subject proposal by this court, it is expected that the works will be undertaken in the first half of next year. Mr Holland and Mr Lee gave evidence of the potential for arrangements to be put in place (including the provision of additional passing bays) to permit the proposal to proceed in advance of completion of the road works. This would appear to be possible to accommodate by way of conditions. The first co-respondent formulated a draft condition in the course of the hearing and undertook some discussions with the respondent. Those discussions are not complete and Mr Rauchle has not had the opportunity to consider the draft. That is a matter which can be further considered in the formulation of conditions.
Risk Assessment
Mr Rauchle took some issue with the risk assessment in relation to various alternatives for the road infrastructure. It is not for this court to dictate to the road authorities in relation to their upgrading alternatives and priorities. What is important, for present purposes, is whether the haul route is such that it would be appropriate to approve a proposal which would result in greater use of it. I am satisfied that it is, particularly in light of the upgrading works.
Conclusion
Mr Rauchle’s issues in the appeal are limited to road infrastructure issues and, in particular, the haul route. He did not call any expert evidence in support of the concerns expressed by him in the 14 point list of outstanding issues. The evidence called by the other parties, particularly that of the traffic engineers, satisfies me that the route is suitable for use by additional heavy vehicles associated with the proposal, particularly in view of the completed and planned works and that there is no need for the further conditions suggested by Mr Rauchle.
The appeal will be dismissed. I will adjourn the further hearing to enable the parties to formulate amended conditions of approval.
0
0
0