Reana Development P/L v Thuringowa City Council

[2001] QPEC 53

REVISED COPIES ISSUED

State Reporting Bureau

Date:   18 / 7 / 01

[2001] QPEC 053

PLANNING AND ENVIRONMENT COURT

JUDGE C F WALL QC

P & E Appeal No 21 of 2001

REANA DEVELOPMENT PTY LTD  Appellant

and

THURINGOWA CITY COUNCIL  Respondent

TOWNSVILLE

..DATE 18/07/2001

JUDGMENT

1

HIS HONOUR:  The issue in this appeal is whether there should be a standard "T" intersection form of access to land or what is described as a modified "T" intersection.

The development proposed by the appellant and approved by the respondent council is a shopping centre on land at Thuringowa.

A condition of the council's approval of the appellant's application for a development permit for a material change of use in respect of the land required access to the shopping centre from proposed Loftus Street to be by way of standard access.

The modified "T" intersection favoured by the appellant would prioritise movement to and from the shopping centre via Loftus Street.  The general concept of the proposed modified "T" intersection is shown on the plan Exhibit 7 as modified or amended by figure 1 in Exhibit 3.  Immediately to the north of the intersection is the proposed effective entrance to a large residential area.

The drawing at page 28 of Exhibit 1 shows the standard access required by the council.  The drawing at page 11 of Exhibit 1 also shows the appellant's modified "T" intersection.

I prefer the evidence supporting the appellant's proposal.  In my view, access of the type proposed by the appellant would be preferable to that currently required by the council.

Most traffic entering Loftus Street from Greenwood Drive is likely to be shopping centre traffic and it should be accorded a degree of priority which would accrue from a modified "T" intersection.  In addition, such an intersection would, I consider, better and more discreetly separate the northern residential development from the shopping centre.  I have no doubt that motorists driving to and from the residential area will have no difficulty adjusting to such an intersection.

The relevant council condition is condition number 3 on page 24 of Exhibit 1.  That is in the following terms:

"The proposed access layout from Loftus Street as shown on supporting drawing No 0021-03B received in Council on 6 November 2000 is not approved for design purposes.  Access to the shopping facility from the proposed Loftus Street is to be via the standard kerb and channel crossover treatment applicable to commercial accesses."

I accept that most of the Loftus Street traffic will be generated by the shopping centre rather than the residential area and I agree that it is, in those circumstances, sensible to give a degree of priority to that traffic.

The fact that traffic travelling south on Loftus Street from the residential area will have to give way to shopping centre traffic should not cause undue inconvenience and will, I think, better highlight the separateness of the major part of the residential area from the shopping centre area.  Mr Hinson SC described this latter factor as an "entry statement" and I agree and, in relation to it, I accept the evidence of Mr Read, a director of the appellant.

Generally, I preferred the evidence of the appellant's traffic witnesses to Mr Eppell.  I thought Mr Eppell a little rigid in his approach and not prepared to give sufficient credit to the fact that motorists and pedestrians are likely to quickly become familiar with the intersection and its configuration.  I am satisfied that any safety concerns the council has are not sufficient to warrant refusal of the application.  I think one should assume that motorists will, as a whole, comply with the road rules and obey give-way signs.  The intersection configuration proposed by the appellant is not difficult to follow.

A further factor supporting a modified "T" intersection is that it would better avoid the possibility of excess queuing which could occur with a conventional intersection.  Such an intersection could increase the potential for on-site queuing congestion by entering vehicles to extend off the site into Loftus Street.  In addition, a modified intersection would overcome any problems caused by the fact that the right-turn lane from Loftus Street to enter the shopping centre, which a conventional intersection would require, would of necessity have to be of a shorter than normal length because of the comparatively short distance in Loftus Street from Greenwood Drive available for such a turning lane.

Modified "T" intersections are not common, but on the other hand they are not unusual and are starting to achieve traffic engineering and local authority acceptance, depending on the circumstances, as is apparent from the evidence of Mr Stuart Holland, one of the appellant's traffic engineers.  I accept his opinions and the desirability of giving preference to the major traffic movements which, in this case, is the shopping centre traffic.  A modified "T" intersection would, I accept, better facilitate "direct free-flowing movement of traffic".  I also accept Mr Holland's evidence in relation to queuing.  He recognised that queuing could be a problem with either intersection design, but thought a modified intersection would be more likely to minimise the problem.  Further, I do not think there will realistically be any higher safety risk in the shopping centre car park as a result of a modified intersection.  I accept that entry speeds of vehicles will not be increased to such an extent that an unacceptable safety risk will be created.  Likewise, exiting motorists who wanted to turn right into Loftus Street would have to give way to entering traffic at either intersection.

Senior Constable Robert Eggins, the Traffic Branch police officer who wrote the letter at page 20 of Exhibit 1, was at the end of the day relatively non-specific in the concerns he expressed about a modified "T" intersection.  He thought such a non-standard intersection could possibly (not would) lead to traffic confusion or conflict, possibly resulting in more accidents.  He conceded though that residents would "very quickly become familiar with the intersection".

Mr Colin Horman, another traffic engineer called by the appellant, thought that of the two types of intersection a modified "T" intersection would have the lowest average delay for all vehicles and I agree with that opinion.  For that reason, he considered it the "better intersection".  He also agreed that such an intersection would reduce the possibility of queuing back into the intersection from the shopping centre site and queuing of vehicles waiting to turn right from Loftus Street, which could occur with a conventional "T" intersection.  The latter queuing could possibly extend back to Greenwood Drive.  In risk terms, a modified "T" intersection "has less risk" than the standard "T" intersection.  Overall though, there would be "very little difference between the two in terms of traffic performance", but the modified intersection would be marginally better.  Mr Horman's views are consistent with the other evidence which I prefer.  The preponderance of the evidence which I accept outweighs the preference of the respondent (supported as it is by Mr Eppell) for a conventional intersection.

Mr Horman said:

"I am a qualified town planner as well and I take an interest in these sorts of things and I think that the developer's concept of having the Loftus Street North as an entry statement - and downgraded and made to look like it is very much the minor road, in traffic terms, is a good concept.

I think the case here depends on whether you accept the urban design objectives of the developer and I think his urban design objectives in terms of their impact - the way the road system will work and so on and the way that priority movements work are quite laudable."

I accept that to be the case.

I have already dealt to some extent with the evidence of Mr Eppell.  I do not accept his evidence about the possibility of an increased risk of collision with a modified intersection.  I think such a risk is quite speculative and more so in what will be a relatively low speed environment.  Mr Eppell conceded that the majority of people who used the intersection would have no difficulty adapting to it and using it without difficulty.  His preference for a conventional "T" intersection was really quite marginal and, as I have said, it is outweighed, I consider, by the other evidence which I prefer.

Overall, I thought the evidence of Mr Horman (and also Mr Holland) more consistent with the practicalities likely to apply at and be relevant to the intersection than the evidence of Mr Eppell.

I should also mention that, in my view, there is no substance in the point taken by Mr Gore QC for the council that approval should not be given for a form of intersection not preferred by the council in circumstances where the intersection will in time become the responsibility of the council.  I cannot foresee any problems at all for the council in that situation.

On balance, I consider the appellant has discharged the onus resting upon it of establishing that, in the present case, a modified "T" intersection is to be preferred to a conventional "T" intersection and, for that reason, I would be prepared to allow the appeal.

I agree with the council that a modified "T" intersection condition would be inconsistent with the existing residential development approval (condition D2) and the operational works approval and would therefore fall foul of section 3.5.32(1)(a) IPA.  The appellant indicated that, were this so, it would apply to the council for modification of the existing approvals.  Once the existing approvals are modified, the appeal will be allowed and the relevant condition amended to provide for a modified "T" intersection of the type referred to in the evidence.  Until then, the further hearing of the appeal is adjourned to a date to be fixed.

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