Shahin Enterprises Pty Ltd v Development Assessment Commission
[2019] SASCFC 44
•6 May 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SHAHIN ENTERPRISES PTY LTD v DEVELOPMENT ASSESSMENT COMMISSION
[2019] SASCFC 44
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Blue)
6 May 2019
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - CONSIDERATION OF PARTICULAR PLANNING MATTERS - AMENITY
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - CONSIDERATION OF PARTICULAR MATTERS - TRAFFIC AND PARKING
Appeal by Shahin Enterprises Pty Ltd against dismissal by Environment Resources and Development Court of its appeal against the refusal by the Development Assessment Commission of planning consent in respect of the proposed development of a service station complex on the corner of Kensington Road and May Terrace, Kensington Park.
The City of Burnside Development Plan contains Principle 1 for the Neighbourhood Centre Zone Policy Area 1 which provides that development should comprise small-scale development which amongst other things has minimal impact on the free flow of traffic on Kensington Road and minimal impact on the amenity of residential premises within the locality.
The Environment Court concluded that the proposed development would not have minimal impact on the amenity of residential premises in May Terrace and would not have minimal impact on the free flow of traffic on Kensington Road.
Shahin contends that the Court made various errors of law in reaching its conclusions on these two issues and seeks permission to appeal on two questions of fact. It also contends that the Court erred in law in failing to give adequate reasons for accepting the evidence of the expert witness Ms Mellen concerning tankers encountering difficulties when attempting to exit from the service station onto May Terrace which was contrary to the evidence of Mr Morris.
Held per Blue J (Vanstone and Kelly JJ agreeing) dismissing the appeal:
1. The Court did not make errors of law as alleged in reaching its conclusion that the proposed development would not have minimal impact on the amenity of residential premises in May Terrace:
(a) on its proper construction, the reference in Principle 1(d) to “the amenity of residential premises within the locality” is not confined to the perception of the development from within the boundaries of the residential premises in question but encompasses the perception of residents of such premises when travelling to and from such residential premises (at [32]);
(b) the Court did not erroneously conflate the concept of maintaining existing character contained in Council-wide Principles 56 and 57 with the concept of minimising impact on amenity of residential premises contained in Principle 1(d) (at [36]);
(c) the Court did not err in law by taking into account the significant setbacks of houses on May Terrace in contrast with the lack of any setback from May Terrace of the proposed development (at [37]);
(d) Shahin has failed to establish that the Court did not take into account the scale and setback of the existing building on the land (at [38]);
(e) Shahin has failed to establish that the Court did not take into account the lack of setback of buildings on Kensington Road and in any event this had virtually no relevance to the amenity of residential premises in May Terrace (at [40]);
2. The Court did not make errors of law as alleged in reaching its conclusion that the proposed development would not have minimal impact on the free flow of traffic on Kensington Road:
(a) the fact that adverse behaviour resulting from a development would be unlawful does not necessarily entail that it must be ignored when assessing whether a proposed development should be approved (Wong v Metcash Trading Australasia Ltd [2003] SASC 314 considered) (at [51]);
(b) obstruction of the footpath by drivers queuing for a bowser would be caused by the proposed development beckoning drivers to enter the premises as opposed to independent unlawful conduct by third parties (at [52]);
(c) the Court did not err in law in taking into account such conduct when assessing whether the free flow of traffic on Kensington Road would be impacted by the development (at [54]);
(d) the Court did not err in law by having regard to evidence by Ms Mellen about a DPTI specification which was not produced or tendered or referred to in the formal report of the Commissioner of Highways on mandatory referral of the proposal (at [57]);
(e) the Court did not err in law in concluding that there would be multiple occasions when two vehicles will be queued behind either or both fuel bowsers and that the proposal would result in significant adverse impacts on the free flow of traffic on Kensington Road because those conclusions were open on the expert evidence before the Court (at [59]-[61]);
(f) the Court did not err in law by failing to give adequate reasons for certain conclusions (at [64]-[65]);
(g) there is no reason to grant permission to appeal on questions of fact (at [54], [62]).
3. The Court did not err in law by failing to give adequate reasons for accepting the evidence of Ms Mellen concerning tankers encountering difficulties when attempting to exit from the service station onto May Terrace without making more specific reference to the evidence of Mr Morris (at [78]).
4. Permission to amend grounds of appeal granted.
5. Permission to appeal on questions of fact refused. Appeal dismissed (at [81]).
Development Act 1993 (SA) s 96; Environment, Resources and Development Court Act 1993 (SA) s 30, referred to.
Wong v Metcash Trading Australasia Ltd [2003] SASC 314, discussed.
Browne v Dunn (1893) 6 R 67, considered.
SHAHIN ENTERPRISES PTY LTD v DEVELOPMENT ASSESSMENT COMMISSION
[2019] SASCFC 44Full Court: Vanstone, Kelly and Blue JJ
VANSTONE J:
I would dismiss the appeal. I agree with the reasons prepared by Blue J.
KELLY J:
I agree with the orders proposed by Blue J for the reasons he has given.
BLUE J:
This is an appeal against the dismissal by the Environment Resources and Development Court of an appeal by the appellant Shahin Enterprises Pty Ltd (Shahin) against a refusal by the first respondent, the Development Assessment Commission (the Commission), of planning consent in respect of the proposed development of a service station complex on the corner of Kensington Road and May Terrace at Kensington Park.
The principal issue on the appeal to the Environment Court was whether the proposed development would be in breach of Principle 1 for the relevant area because it would not have minimal impact on the amenity of residential premises within the locality and/or minimal impact on the free flow of traffic on Kensington Road.
The Environment Court concluded that the proposed development would impact on both the amenity of residential premises in May Terrace and would not have minimal impact on the free flow of traffic on Kensington Road.
On appeal, Shahin contends that the Environment Court made various errors of law in reaching its conclusions on these two issues.
At the hearing of the appeal, Shahin applied for permission to amend its grounds of appeal to add:
1additional ground 2.5 in relation to the Environment Court’s conclusion that the proposed development would not have minimal impact on the amenity of residential premises;
2additional ground 3.6 in relation to the Environment Court’s conclusion that the proposed development would not have minimal impact on the free flow of traffic on Kensington Road; and
3additional ground 3.7 in relation to the Environment Court’s conclusion that drivers of tankers would encounter difficulties when attempting to exit from the service station onto May Terrace.
The respondents do not oppose the proposed amendments to ground 3 but oppose the proposed amendment to add additional ground 2.5. I would grant permission to amend in all three respects because the respondents will not suffer prejudice by reason of the late application to amend.
Background
In September 2016 Shahin applied for development plan consent for demolition of existing improvements and construction of a petrol filling station on land situated on the north-eastern corner of Kensington Road and May Terrace Kensington Park (the Land). The application was opposed by the second respondent the City of Burnside (the Council) and the third respondent Defence Housing Australia (DHA).
In June 2017 the Commission refused development plan consent for the proposed development.
In July 2017 Shahin appealed to the Environment Court against the refusal pursuant to section 86 of the Development Act 1993 (SA) (the Act). It is common ground that the appeal was to be heard de novo.
In May 2018 the Environment Court heard the appeal. The Court was constituted of a Judge and two Commissioners. Evidence was given by Philip Moir, a business development manager employed by Shahin. Expert evidence was given by:
·three consultant traffic engineers: Paul Morris called by Shahin, Benjamin Wilson called by the Commission and Melissa Mellen called by the Council/DHA (who were jointly represented by the same solicitors and counsel);
·two retail/economic experts: Geoffrey Hayter called by Shahin and James Atkinson called by the Council/DHA;
·two urban design experts: Jason Schulz called by Shahin and Douglas Alexander called by the Council/DHA; and
·two town planning experts: Michael Osborn called by Shahin and Christopher Vounasis called by the Council/DHA.
The proposed development, as finalised at the time of the hearing of the appeal to the Environment Court, can be summarised as follows. The Land is broadly rectangular, with a frontage to Kensington Road of 30.6 metres, frontage to May Terrace of 29.2 metres and total area of approximately 920 square metres. A rectangular control building comprising 211 square metres would be constructed with its back wall on the May Terrace boundary and windows at the front overlooking the bowsers. The back wall would run for approximately 70 per cent of the May Terrace boundary and would be between 4.6 and 6.6 metres high. It would have a shorter side wall on the Kensington Road boundary. It would have a serving counter; supermarket shelves; fast food and coffee preparation area; cool rooms, freezers and storage area; toilets and office. Vehicles would enter only from Kensington Road and exit only onto May Terrace.
The proposed service station would have five fuel dispensers. A single sided fuel bowser with a set of hoses on its right hand (eastern) side only (the western dispenser) would be constructed to the east of the control building, leaving a gap between the control building and bowser to allow cars to travel to the rear to park to enter the shop or to use the dog wash at the rear. Two double sided fuel bowsers one behind the other would be constructed to the east of the single sided fuel bowser. There would be one set of hoses on their left hand side (the middle dispensers). There would be one set of hoses on their right hand side (the eastern dispensers). There would be two coin-operated dog wash bays in the right hand rear (north-eastern) corner. There would be car parks for eight vehicles, mainly at the rear.
There is presently situated on the Land a building comprising workshop bays formerly used as a motor repair station. It is no longer used. It was previously used as a service station (“the Ozone service station”) but its fuel facilities have been removed.
In July 2018 the Environment Court dismissed the appeal.[1] The Court began by making findings about the evidence given by the expert witnesses. The Court preferred the evidence of Mr Hayter over that of Mr Atkinson on the question whether the development would put at risk the retail function of the main body of the Neighbourhood Centre Zone being the shopping centre anchored on the Woolworths supermarket on the corner of Kensington Road and Tusmore Avenue. It otherwise preferred the evidence of Mr Atkinson. The Court preferred the evidence of Mr Alexander over that of Mr Shulz with respect to the adverse impacts on the amenity of the locality in terms of siting and setbacks, length and size of walling and lack of landscaping. The Court preferred the evidence of Ms Mellen over that of Mr Morris with respect to various matters including potential for queuing vehicles to adversely impact traffic travelling on Kensington Road and the potential for tanker drivers to encounter difficulties exiting onto May Terrace. The Court generally preferred the evidence of Mr Vounasis over that of Mr Osborn concerning various town planning aspects of the proposed development.
[1] Shahin Enterprises P/L v Development Assessment Commission [2018] SAERDC 31.
The Land is situated within the Neighbourhood Centre Zone Policy Area 1 (Policy Area 1) defined by the City of Burnside Development Plan as consolidated on 28 April 2016 (the Development Plan). The Court considered whether the proposed development complied with Principle 1 of Development Control 1 (Principle 1) which provides that development should comprise small‑scale development which, amongst others, has minimal impact on the free flow of traffic on Kensington Road and has minimal impact on the amenity of residential premises within the locality. The Court considered that the question whether development is small-scale is to be determined not in the abstract but in the context of the specific matters mentioned. Although the Court considered that in the abstract the development could not be characterised as small-scale development, it is common ground on appeal that this question need not be further considered because the Court was correct in considering that the question was to be determined in context.[2]
[2] This was the subject of ground 1, which is now redundant.
The Court concluded that the development would not have minimal impact on the free flow of traffic on Kensington Road. The Court concluded that the development would not have minimal impact on the amenity of residential premises in the locality. The Court concluded that the development was not small-scale and the proposed development did not comply with Principle 1.
The Court considered that there were also other matters relating to the design assessment of the proposal that gave rise to concerns. They included difficulties in a tanker passing between vehicles parked on both sides of May Terrace. The Court considered that these deficiencies indicated that the subject land is too small for the proposed development.
Nature of appeal
Section 30 of the Environment, Resources and Development Court Act 1993 (SA) confers a right of appeal on a question of law to the Full Court of the Supreme Court against a decision or order of a Judge or a Judge and Commissioners of the Environment Court.
Section 30 confers an appeal on a question of fact only with the permission of the Supreme Court. This reflects the well-established principle that this Court on appeal recognises the specialist nature of the jurisdiction exercised by the Environment Court and will accord appropriate respect to its decisions insofar as they involve the exercise of planning judgment.
Shahin appeals primarily on questions of law. However, it seeks permission to appeal on two questions of fact. Even if such permission were to be granted, this appeal would still not be a merits review but confined to a consideration of specific alleged errors of law or fact.
Amenity of residential premises
Ground 2 relates to the Court’s conclusion that the proposed development would significantly detract from the amenity in visual terms of the residences on May Terrace.
The Objective of Policy Area 1 was identified by the Development Plan in the following terms:
OBJECTIVE
Objective 1: An area accommodating small-scale development which:
(a) does not compete with the retail function of the main body of the zone; and
(b) has minimal impact on adjoining development and on traffic movements in the locality.
Principle 1 for Policy Area 1 was in the following terms:
PRINCIPLE OF DEVELOPMENT CONTROL
1Development within Policy Area 1 should comprise small-scale development such as offices, consulting rooms, restaurants, retail showrooms, community facilities and service industries which:
(a) do not compete with the retail function of the main body of the zone;
(b) have minimal impact on the free flow of traffic on Kensington Road;
(c) do not generate significant levels of traffic in nearby residential streets; and
(d) have minimal impact on the amenity of residential premises within the locality.
It can be seen that Principle 1(a) corresponds with, and is in the same terms as, Objective 1(a). Similarly Principle 1(d), referring to impact on amenity of residential premises, corresponds with the first part of Objective 1(b), referring to impact on adjoining development. Likewise, Principle 1(b) and (c), referring to impact on Kensington Road traffic flow and traffic levels in nearby residential streets, corresponds with the second part of Objective 1(b), referring to impact on traffic movements in the locality.
The Court gave the following reasons for reaching its conclusion that the proposal significantly detracted from the amenity of the residences on May Terrace:
There are a number of potential, adverse impacts on the amenity of residential premises in the locality emanating from the proposal.
The relevant Plan provisions in both the NCZ and PA 1 provide little in the way of specific guidance with respect to the amenity of residents in the locality.
However, Council Wide provisions 56 and 57 do address the issue of visual amenity. PDC 56 seeks that the design of a building be of a high standard and relate to adjacent buildings and other features which contribute to streetscape quality. PDC 57 is couched in terms of buildings being setback appropriately.
In our view, the design of the control building, with its extensive length of walling sited on the May Terrace boundary, is such that it would significantly detract from the streetscape quality of May Terrace. Furthermore, the effective absence of any setback from this boundary is at odds with the garden setting of the allotment opposite, on the western side of May Terrace, as well as the generous (up to 7 metre setbacks) for the residences on the eastern and western sides of May Terrace.
On this issue, we also have regard to the provisions of Council Wide PDC 24 which seek to have buildings designed and sited to ‘avoid extensive or uninterrupted walling facing areas exposed to public view’. The mass of wall comprised by the control building is clearly also at odds with this provision.
Although we said earlier that the NCZ provides little in the way of specific guidance on this issue, we do not overlook PDC 5 which speaks of the need for landscaping to be incorporated as a design feature in development.
The design and siting of this proposal, on a comparatively small allotment, has meant that the landscaping incorporated as part of the proposal is significantly limited and, due to the size constraints of the subject land, of largely token value. In this respect, the landscaping proposed stands in stark contrast to the landscaping provided for the residences to the north on both sides of May Terrace.
It may also be unfavourably contrasted with the landscaping, established on the commercial properties to the east on Kensington Road, which, in our view, is indicative of what can be achieved, not just on larger allotments, but also on allotments of comparative size.
In short, in our view, the proposal, in terms of visual amenity, significantly detracts from the amenity of the residences on both sides of May Terrace.
The meaning of “amenity of residential premises”
Shahin’s principal contention is that, on its proper construction, the reference in Principle 1(d) to “the amenity of residential premises within the locality” is confined to the visual or other perception of the development from within the boundaries of the residential premises in question. Shahin submits that the only residential premises in May Street with direct line of sight to the proposed development would be a house on the opposite side of May Terrace and hence the Environment Court erred in finding detraction to visual amenity of residences on both sides of May Terrace.
This construction of Principle 1(d) cannot be accepted. The word “amenity” is commonly used in planning parlance and in that context has the same meaning as in ordinary parlance.
The Macquarie Dictionary includes the following relevant definition of “amenity”:
1.The quality of being pleasant or agreeable in situation, prospect, disposition, etc; pleasantness: the amenity of the climate …[3]
[3] Macquarie Dictionary 7 ed (2017) vol 1 page 45.
The Oxford English Dictionary includes the following relevant definition of “amenity”:
1.The quality of being pleasant or agreeable:
a.of places, the situation, aspect, climate, etc. …
c. In Mod use (freq. in pl.) applied to the more ‘human’ and pleasurable environmental aspects of the house, factory, town, etc distinguished from the features of the house, etc., considered in or by itself.[4]
Persons living in the residences on May Terrace may be expected to leave and return to their residences on a daily basis by walking, cycling or travelling by car along May Terrace and Kensington Road. In doing so they would see the development on the Land. This affects the visual amenity of those premises. Visual amenity is not confined to direct line of sight from within the boundaries of the premises. It extends to the appearance of development in the same street when travelling to and from the premises. Similarly, acoustic amenity is not confined to noises heard within the boundaries of the premises but extends to noises heard in the street.
Shahin also contends that the Environment Court erred in law by conflating the concept of maintaining existing character contained in Council-wide Principles 56 and 57 with the concept of minimising impact on amenity of residential premises contained in Policy Area 1 Principle 1(d).[5]
[4] Oxford English Dictionary 2 ed (1989) vol 1 page 396.
[5] Grounds 2.1 and 2.2.
Council Wide Principles 56 and 57 provided:
Visual Amenity
56.The design of buildings should be of a high standard and related to adjacent buildings and other features which contribute to streetscape quality.
57.Except in the Urban Corridor Zone, to maintain the harmony of build-form character within a streetscape, buildings should:
(a) seek to maintain the continuity of vistas and existing building set-backs;
(b) not be set-back a lesser distance than the nearby buildings with frontage to the same road unless such distance is consistent with the minimum set-back prescribed in the relevant zone and policy area; and
(c)be set-back a greater distance if the proposed building is of greater bulk or height than other buildings fronting the same road, unless the taller or bulkier portion of a building is positioned towards the rear of its site, or the building is effectively screened, so that it will not dominate views from the road.
Shahin refers to an observation made by the Environment Court when qualifying its general acceptance of the evidence of Mr Alexander in which the Court said that the relevant provisions of Policy Area 1 Principle 1 “do not seek the maintenance of the existing character in this locality”.
In the passage from its reasons extracted at [27] above, the Court referred to Council Wide Principles 56 and 57. It was legitimate for the Court to do so as a matter of context because the use of the same term “amenity” in different provisions of the Development Plan can provide assistance in construing its use in Policy Area 1 Principle 1. In so doing, the Court did not conflate the concepts of character preservation with not detracting from amenity of residential premises.
Shahin also contends that the Court erred in law by taking into account the significant setbacks of the houses on May Terrace in contrast with the lack of any setback from May Terrace of the proposed development in the fourth paragraph of its reasons extracted at [27] above.[6] In assessing impact on amenity, the Court was entitled to take into account as a matter of context the appearance of other premises in the Street.
[6] Ground 2.3.
Existing buildings on the Land
Shahin contends that, to the extent that the Court took into account Council Wide Principle 57, it erred in law by failing to take into account the scale and setback of the existing building on the Land.[7] On the one hand, the impact of the proposed development on the visual amenity of residences in May Terrace was not to be assessed by a mechanical comparison between the present visual amenity by reference to the existing building and the future visual amenity by reference to the proposed development. On the other hand, the present amenity is part of the overall assessment to be made of the impact of the proposed development on the amenity of residences. In this respect the present appearance is largely open; whereas the proposed appearance would be closed with a long high wall along most of the boundary of the Land on the May Terrace. The appearance of the Land from the vicinity of the May Terrace residences under the proposed development bears no comparison with the appearance of the Land at present. Shahin in its submissions to the Environment Court did not raise this issue. In the circumstances, there was no need for the Court to address it in its reasons and no reason to consider that the Court did not take into account the present appearance of the Land from the vicinity of the May Terrace residences.
[7] Ground 2.4.
Setbacks of buildings on Kensington Road
Shahin contends that, to the extent that the Court took into account Council Wide Principle 57, it erred in law by failing to take into account the setback, or lack of setback, of buildings in the locality on Kensington Road, and in particular a lack of setback of buildings on the northern side of Kensington Road to the west of the Land.[8] Shahin contends that the Court failed to give reasons for not accepting the expert evidence of its planner, Mr Osborn, as to the mixed character of the building setbacks along Kensington Road.
[8] Grounds 2.4 and 2.5.
The Court was concerned with the amenity of residences in May Terrace which is a residential suburban street. The existence and extent of setbacks on Kensington Road, a major semi-commercial road and thoroughfare, has virtually no impact on that assessment of amenity. The mixed character of the building setbacks along Kensington Road was obvious. The Court did not deny that mixed character nor reject evidence by Mr Osborne that there was such a mixed character.
Conclusion on amenity
Ground 2 is not established.
Impact on Kensington Road traffic
Grounds 3.1 to 3.6 relate to the Court’s conclusion that the proposed development would have an adverse impact on the free flow of traffic on Kensington Road.
Ms Mellen gave evidence that Kensington Road is an arterial road with an annual average daily traffic volume of approximately 15,600 vehicles. She described a protocol adopted by traffic engineers of identifying the dimensions of vehicles by reference to vehicles falling within different percentiles of the vehicle population. A B35 vehicle is a vehicle falling at the 35th percentile and is regarded as being 4.5 metres long. A B85 vehicle is a vehicle falling at the 85th percentile and is regarded as being 4.9 metres long. A B99 vehicle is a vehicle falling at the 99th percentile and is regarded as being 5.2 metres long. Traffic engineers typically design for a B85 vehicle.
Mr Morris referred in his report to a survey undertaken over a 24 hour period at the OTR service station at Thorngate, which has eight fuel dispensers arranged as two pairs of double sided fuel bowsers with two rear bowsers behind each of the two front bowsers. The survey showed that there was one occasion when one vehicle was queued waiting for a rear bowser to become free and six occasions when two vehicles were queued (one behind the other) waiting for a rear bowser to become free. Mr Morris estimated that the proposed Kensington service station would generate about 15 to 20 more vehicles per hour than the Thorngate service station during the afternoon peak.
Ms Mellen prepared diagrams showing that one vehicle could queue behind a vehicle refilling at the western dispenser but if a second vehicle attempted to queue behind that first queuing vehicle, it would obstruct the passing lane leading to the rear of the service station. The diagram showed that if there was one vehicle queued behind two vehicles refilling at the middle dispensers and another vehicle attempted to queue behind that first queuing vehicle, it would obstruct the crossover (the footpath). Similarly, if there was one vehicle queued behind two vehicles refilling at the eastern dispensers and another vehicle attempted to queue behind that first queuing vehicle, it would obstruct the footpath. Ms Mellen gave evidence that it is a breach of the Australian Road Rules to obstruct the footpath.
Ms Mellen gave evidence that, if there were eight vehicles refilling or queuing at the service station, a ninth vehicle attempting to enter the service station would obstruct the footpath. Each of the dispensers would not have hoses with all different fuels types (evidence was given that the service station would offer unleaded petrol, premium 95 petrol, premium 98 petrol, diesel and LPG). Some vehicles have their filling points on the left and others on the right and drivers generally prefer to have the dispenser on the same side as their filling point. Accordingly, there could be a second queued vehicle obstructing the footpath even if there was a vacancy at a dispenser if it had hoses on the wrong side or not offering the required fuel type.
Ms Mellen gave evidence that there were two circumstances in which the free flow of traffic travelling east on Kensington Road would be adversely affected. First, if there were a second queuing vehicle at the western dispenser a vehicle entering the site with a view to parking at the rear and using the shop or dog wash bay might reverse back out onto Kensington Road to avoid waiting. Secondly, if there were a second queuing vehicle at the middle and/or eastern dispensers, a vehicle wishing to enter the site might wait on Kensington Road to do so. Ms Mellen gave evidence that this would not breach the Australian Road Rules.
The Environment Court’s conclusion that the proposed development was likely to impact on the free flow of traffic on Kensington Road was based on its acceptance of Ms Mellen’s evidence. The Court’s reasons include the following passages:
There does however remain the issue of vehicles queuing at the fuel dispensers and the ramifications of such queuing for traffic on Kensington Road.
In his evidence on this issue, Mr Morris referred to vehicles queuing at fuel dispensers at another of the appellant’s sites, in Thorngate. Mr Morris made observations, as to the number of times during a 24 hour period when there were ‘peak queues’. He observed there to be ‘peak queues’, namely where two vehicles were queued behind a vehicle using the fuel dispenser, on some six occasions during the course of that 24 hour period.
In her evidence Ms Mellen referred to a drawing which she had prepared (Exhibit 2R7) which demonstrated what, in her opinion, was likely to occur if the ‘peak queue’ scenario referred to by Mr Morris was to be replicated on the subject land.
Ms Mellen was asked as to whether she had any concerns should such a situation arise. She said:
Q So if we look at all three of those drawings there appears to be a vehicle over the crossover area. Is that what you're referring to as a second queued vehicle.
A Correct, but you'll note that that's only queued in one of the aisles. So if hypothetically – or theoretically we were to meet the criteria of two vehicles behind each bowser that should be replicated and I've only shown two behind the central line.
Q With that queuing over the footpath area, does that cause any concerns for you.
A It's contrary to the Australian Road Rules and it would obstruct a pedestrian.
Q If we were to have two queuing at the western bowser would that cause any problems with the passing lane.
A If indeed the vehicle could get onto the land then yes, the passing lane would be obstructed.
Q Again, does that cause any concerns for you.
A Yes, because it means that people coming on who are not wanting to refuel or indeed decide that the queues and waiting times are too long have no mechanism other than to reverse out to Kensington Road to leave the site.
She referred to the OTR Thorngate observations of Mr Morris and said that those observations suggested to her that the same type of queuing will occur on the subject land.
She went on to add that if another vehicle was wanting to enter the subject land at one of ‘peak queue’ times, such a vehicle would have to stop on Kensington Road, thereby obstructing traffic heading east on Kensington Road.
She did, however, acknowledge that it would be possible for a motorist wishing to refuel, on seeing vehicles queuing, to simply carry on to the east.
We accept that a motorist could so choose but equally a motorist needing to refuel could attempt to enter the subject land and, being the second queuing vehicle, overhang the footpath and potentially, as Ms Mellen opined, obstruct traffic on Kensington Road. Having attempted to enter the subject land but then not wishing to wait, such a motorist might choose to reverse out onto Kensington Road.
Her concerns on this issue were, in part, dictated by what she referred to as Department of Planning, Transport and Infrastructure (‘DPTI’) specification which seeks a two vehicle queue to be adequately accommodated onsite. Regardless of the legal force or otherwise of such a specification, bearing in mind the evidence of both Ms Mellen and Mr Morris, we consider it to be a reasonable probability that (particularly at peak hour traffic times) there will be multiple occasions where two vehicles will be queued behind either or both fuel dispensers.
It was put to us by Mr Henry that in overhanging the footpath a driver would be committing an offence and that, as a matter of principle, a Court should not proceed to assess a proposal upon the basis that customers of a proposed facility are likely to break the law.
Insofar as he relied upon the Supreme Court’s decision, in Wong v Metcash Trading Australasia Ltd, for such a proposition, we would regard that decision as distinguishable upon its facts.
In Wong the Court was confronted by a situation where drivers were parking illegally in the early hours of the morning and then waiting until the gates to the land in question were opened before entering. In that scenario, those drivers were clearly making a considered and conscious decision to break the law and it is understandable that the Court in that case would have been loathe to adopt an approach which countenanced or condoned such activity. However, drivers on Kensington Road intending to refuel at the proposed development may, at a relatively late stage in their journey, be confronted by a queue of vehicles within or attempting to enter the site. In this scenario such a driver would not in reality be making any conscious decision to break the law. Any breach of the law thereby arising from a decision to enter the site would arguably arise from deficiencies in the queuing distance onsite for cars waiting to refuel. Moreover, there could still be motorists making a decision to enter the site to access the shop with no desire to purchase fuel, and on being obstructed, find that they either have to wait or attempt to reverse out onto Kensington Road.
This is a situation which Bleby J in Wong arguably had in mind when he said:
…There may be situations where compliance becomes almost impossible or is plainly incompatible with the proposed development. In that case the planning authority might well have to consider whether the development will induce non-compliance with the law such that consent should be refused, or whether it should not be granted while the law remains as it is.
In the result, we are satisfied that the operation of this proposal is likely to create queuing of vehicles on the site on multiple occasions in the course of a normal day (probably during peak hours), to a degree which would materially impact on the free flow of traffic on Kensington Road. To that extent, in terms of the relevant provisions in the Plan, the proposal will, in our view, have a significant, adverse impact on the free flow of traffic on Kensington Road. We are therefore satisfied that the proposal is unlikely to contain or reduce adverse impacts on the free flow of traffic on Kensington Road to an acceptable level.
Breach of Australian Road Rules
Shahin contends that the Environment Court erred in law by approaching the issue on the assumption that persons using the facility would contravene the road laws and in not proceeding on the basis that motorists would obey the law.[9] This contention relates to Ms Mellen’s evidence that a queuing vehicle obstructing the footpath would be breaching the Australian Road Rules. This would not itself affect the free flow of traffic on Kensington Road but might lead to a vehicle queuing on Kensington Road, which on Ms Mellen’s evidence would not be unlawful, which would affect the free flow of traffic.
[9] Grounds 3.1 and 3.2.
In Wong v Metcash Trading Australasia Ltd[10] Metcash operated a warehouse on the western side of Findon Road. Mr Wong lived opposite on the eastern side of Findon Road. Metcash applied for development plan consent to construct an additional warehouse on the western side of its property. Mr Wong complained amongst other things that semi-trailers and B-doubles parked in “no parking” zones on the eastern side of Findon Road waiting for the gates to open in the morning and contended that this would only be increased by increasing the warehouse capacity. One of the grounds of appeal against the decision by the Environment Court was that the Commissioner failed to have regard to the previous behaviour of heavy vehicle drivers. Bleby J dismissed the appeal. In relation to illegal parking by drivers, Bleby J said:
[10] [2003] SASC 314.
The drivers of vehicles which park on Findon Road, being those who cause the problems, are committing an offence by parking there. Their conduct off the premises of the respondent cannot be controlled by the respondent. They are not employees of or contractors to the respondent. In a real and direct sense the problem is not caused by the development but by others acting in breach of the law.
Planning authorities making planning decisions are entitled to assume compliance by members of the public with the law. There may be situations where compliance becomes almost impossible or is plainly incompatible with the proposed development. In that case the planning authority might well have to consider whether the development will induce non-compliance with the law such that consent should be refused, or whether it should not be granted while the law remains as it is.
However, that is not this case...
There is no incompatibility between the law, in the form of parking restrictions, and the development. Indeed, they complement each other. Accordingly, the fact that there may be frequent breaches of the parking laws should not be an influencing factor in determining the fate of the current application. In my opinion, ground 2 has not been made out.[11]
[11] At [44]-[47].
The fact that adverse behaviour resulting from a development would be unlawful does not necessarily entail that it must be ignored when assessing whether the development should be approved. This is recognised by the second paragraph of the reasons for judgment of Bleby J extracted above. Each case must be considered on its own circumstances. When issues of causation arise, it is necessary to consider whether a substantial or operative cause of adverse impacts is the proposed development or independent unlawful behaviour by parties for which the proposed development cannot be regarded as being responsible.
In the Wong case, the truck drivers were acting in flagrant, deliberate, sustained and independent breach of the law by parking in areas designated by no parking signs. In the present case, Ms Mellen contemplated that drivers would temporarily stand partially on the footpath while queuing for a fuel dispenser in ignorance of any breach of the Australian Road Rules. As a matter of causation, obstruction of the footpath would be caused by the proposed development beckoning drivers to enter the premises as opposed to independent unlawful conduct by third parties.
In addition, any unlawful conduct by drivers obstructing the footpath would not itself affect the free flow of traffic on Kensington Road. This would either be affected by drivers stopping on Kensington Road waiting to enter the service station or reversing back out onto Kensington Road because the passing lane was blocked, neither of which were suggested by Shahin before the Environment Court to be illegal.
Shahin contends that the Environment Court erred in fact and law in concluding that arguably this was a situation of the kind referred to by Bleby J in Wong.[12] For the reasons given above, the conclusion of the Environment Court that it would be the development that would be the operative cause of the behaviour in question was not only not affected by legal error but was also correct. Permission to appeal on a question of fact should be refused.
[12] Ground 3.6(c).
Evidence of DPTI specification
Shahin contends that the Environment Court erred in law by having regard to evidence by Ms Mellen about a DPTI specification which was not produced or tendered or referred to in the formal report of the Commissioner of Highways on mandatory referral of the proposal.[13]
[13] Ground 3.3.
Ms Mellen gave evidence that the Department of Planning, Transport and Infrastructure has “specified” that it seeks to accommodate a two vehicle queue behind a vehicle refuelling at a bowser being adequately provided on site. Ms Mellen was cross-examined in relation to this and clarified that it is a guide or policy and not a standard.
No objection was made by Shahin to Ms Mellen’s evidence on the ground that documentary evidence of the policy was not produced or tendered or on any other ground. Although the report by the Commissioner of Highways did not refer to the policy, that did not evidence that it did not exist. In these circumstances, the Environment Court would have committed no error of law if it had relied on Ms Mellen’s evidence about the Department’s policy. However, and any event, it is plain from the passage of the Court’s reasons extracted above that the Court did not rely on the DPTI policy but rather on the evidence of Mr Morris and Ms Mellen about the need to accommodate a two vehicle queue behind a vehicle refuelling at a bowser.
Errors in fact and law in reaching conclusions
Shahin contends that the Environment Court erred in fact and law in concluding:
(a)that a single second queuing vehicle which in part might overhang the footpath would obstruct traffic on Kensington Road,
(b)that there would be multiple occasions when two vehicles will be queued behind either or both fuel bowsers,
(c)that the proposal would result in significant adverse impacts on the free flow of traffic on Kensington Road,
when such a conclusion was not reasonably open on the expert evidence.[14]
[14] Grounds 3.6(a) and (b) and 3.5.
The first contention is misconceived: the Court did not find that the second queuing vehicle would itself obstruct the free flow of traffic on Kensington Road: this was merely a step towards the obstruction caused by another vehicle stopping on Kensington Road to enter the service station. Shahin also contends that a second queuing vehicle might not overhang the footpath depending on its length and the position of vehicles and refers to the fact that by definition a B85 vehicle is longer than the average (median) vehicle. However, the clear evidence of Ms Mellen (and indeed Mr Morris) was that traffic engineers typically design for B85 vehicles. Ms Mellen gave evidence that a second queuing vehicle might be longer than a B85 vehicle and the spaces between vehicles could be greater than she assumed. There was no error of law made by the Environment Court in finding that a second queuing vehicle might overhang the footpath.
As to the second contention, Shahin contends that the evidence of queuing at the Thorngate service station did not establish that there was queuing behind more than one bowser at any one time. However, Ms Mellen gave evidence that multiple queuing behind either of the middle or western bowsers when the other was free may occur because of the preference of drivers to refuel on one side of the vehicle and/or requirement for a particular type of fuel. Further, given the greater volume of vehicles and fewer bowsers at Kensington compared to Thorngate, it was reasonable to conclude that there would be occasions when there would be queuing behind both bowsers.
As to the third contention, it was open to the Court on the basis of the expert evidence summarised above to conclude that the proposal would result in an adverse impact on the free flow of traffic on Kensington Road. Shahin contends that there was no evidence about the frequency or likelihood of the free flow of traffic on Kensington Road being impacted. Ms Mellen was giving evidence about a hypothetical situation (the development not having occurred). Ms Mellen as an expert traffic engineer said that she was concerned about the potential impact on the free flow of traffic on Kensington Road. In the circumstances, the Environment Court was entitled to act on that evidence.
The Environment Court made no errors of law in reaching its conclusions. There is no basis or reason to grant permission to appeal on factual grounds.
Inadequacy of reasons for reaching conclusions
Shahin contends that the Environment Court erred in law by failing to give adequate reasons for its conclusions at the ninth and last paragraphs of its reasons extracted at [48] above.[15]
[15] Ground 3.4.
The Court’s conclusion in the ninth paragraph was that there was “a reasonable probability that (particularly at peak hour traffic times) there will be multiple occasions where two vehicles will be queued behind either or both fuel dispensers”. In light of Mr Morris’s evidence about queuing at the Thorngate service station, which has three more dispensers and less traffic than the proposed Kensington service station, and the evidence of Ms Mellen, the Court’s reasons for reaching that conclusion were adequate.
The Court’s conclusion in the final paragraph was its ultimate conclusion that “the proposal is unlikely to contain or reduce adverse impacts on the free flow of traffic on Kensington Road to an acceptable level”. The Court’s reasons make it plain how it reached that conclusion.
Cross-examination of Mr Morris
Shahin complains that it was not put to Mr Morris that queuing of a vehicle partially overhanging the footpath would affect the free flow of traffic on Kensington Road.
There is no ground of appeal complaining of a breach of the rule in Browne v Dunn.[16] No objection was made by Shahin to the evidence given by Ms Mellen on the ground that it had not been put to Mr Morris. Nor was any application made to recall Mr Morris to give evidence in rebuttal. There is no merit in this complaint.
[16] (1893) 6 R 67.
Conclusion on Kensington Road traffic
Grounds 3.1 to 3.6 are not established.
Inadequacy of provision for egress of tanker
Proposed additional ground 3.7 relates to the Court’s conclusion that the proposal did not make adequate provision for the egress of a fuel tanker onto May Terrace.
It is apparent that, once the Environment Court concluded that the proposed development would be in breach of Principle 1 by reference to its impact on the amenity of residential premises and on the free flow of traffic on Kensington Road, the Court had determined to dismiss the appeal. The Court’s consideration on other matters, including egress of the fuel tanker, was not essential to its decision.
Ms Mellen in her report included a diagram showing the turning path for a 10.2 metre tanker (proposed by Shahin) to exit from the service station and turn left into May Terrace. She included one set of lines in green showing the turning path of the two sides of the vehicle and another set of lines in grey showing a path 300 millimetres outside the green lines. Ms Mellen said:
It can be seen from the above figure [figure 9] that the tanker would require use of the proposed mountable section of footpath in order to execute the turn. Should vehicles be parked in May Terrace, this turn would be constricted, as illustrated in figure 10.
The above figure [figure 10] illustrates that an egressing tanker would conflict with parked vehicles in May Terrace.
Ms Mellen in her oral evidence said that, if cars were parked on both sides of May Terrace, the green line did not touch the parked cars but it was required to be at least 300 millimetres from the parked cars as required by the standard and it would only be approximately 150 millimetres each side. Ms Mellen gave the following evidence:
The grey lines reflect the actual movement of the truck which sometimes is the wheel path, but more often is the nose of the vehicle, so the extremity of the truck. The green line is a - I beg your pardon the green line reflects the truck, the grey line is the 300 mm clearance line outside of that, which the design clearance requirement for all turn paths requires a 300 mm clearance line, but in a practical sense simply means that it's far enough away from any obstruction to not hit it.
…
They come within the 300 mm clearance lines on both sides, approximately 150 mm on both sides, which means that you would have to do that turn from exactly the right location and have all of those vehicles parked hard up against the kerb line for the vehicle to actually be able to execute the manoeuvre. I would suggest that that is unlikely to have all of those parameters in place.
Mr Morris in his evidence had been asked about Ms Mellen’s figures 9 and 10. In evidence in chief, it was put to him by Shahin’s counsel that the green line showed that the tanker was not touching the cars but was getting close to or impinging on the 300 mm clearance, to which Mr Morris replied that it appeared that way from what he could see on the diagram. He went on to characterise it as tight but within tolerance. When Ms Mellen gave evidence quantifying the distance between the green line and the parked cars at only 150 millimetres on each side and saying that this was half the clearance required by the standard on each side, Mr Morris was not recalled to give any further evidence.
The Court early in its reasons said that, in relation to six issues, including “the potential for the drivers of tankers to encounter difficulties when attempting to exit onto May Terrace”, it preferred the evidence of Ms Mellen over that of Mr Morris.
At the end of its reasons, after concluding that the proposed development was in breach of Principle 1 by reference to its impact on the amenity of residential premises and the free flow of traffic on Kensington Road, the Court said:
In addition to the functional impacts of the proposal on traffic on Kensington Road and upon the amenity of residences in the locality, there are other matters relating to the design assessment of the proposal which give rise to concerns.
After addressing three other matters, in respect of which no complaint is made on appeal, the Court said:
Finally, the subject land is to be serviced by a 10.2 metre long tanker. In the event that vehicles were to be parked on both sides of May Terrace, it was Ms Mellen’s evidence that, while it might be physically possible for a tanker to pass between them, this could not be done in a manner which complied with the turning path requirements of the Standard. The Standard, she said, prescribes a clearance of 300 mm between the tanker and any object such as another vehicle. In her opinion, if parking remains permitted on both sides of May Terrace, then in order for the tanker to complete the turn it would require use of the proposed mountable section of the footpath. Moreover, if vehicles were parked on both sides of May Terrace, for a tanker to pass between them, the tanker would have to commence its turn from exactly the right location and the cars on each side of May Terrace would have to be parked hard up against the kerb. It could not be assumed that this set of circumstances would generally exist and, for practical purposes, it was Ms Mellen’s expert opinion that a tanker would not be able to use May Terrace to exit onto Kensington Road in the event that parking on May Terrace remains unrestricted. There is currently no proposal, of which we are aware, by the Council to impose parking restrictions.
Shahin accepts that the Court’s findings in this paragraph adequately reflect the evidence of Ms Mellen. However, Shahin complains that the paragraph does not grapple with or refer to the expert evidence to the opposite effect given by Mr Morris.
Mr Morris never expressed the opinion that an impingement of 150 millimetres of the grey line on both sides of the truck was acceptable, nor did he express an opinion disagreeing with Ms Mellen’s assessment based on an impingement of 150 millimetres. Mr Morris’s opinion had been based on the incorrect premise that the tanker was merely “getting close to” or perhaps marginally impinging on the 300 millimetre clearance. Given that Shahin chose not to recall Mr Morris, there was no reason for the Environment Court not to accept Ms Mellen’s evidence on this topic and it was inevitable that it would do so. In these circumstances, the Court’s reasons were not inadequate.
In addition, as observed above, the Court’s finding on this issue was not critical to the disposition of the appeal.
Ground 3.7 is not established.
Conclusion
I would grant permission to amend the notice of appeal to introduce additional grounds 2.5, 3.6 and 3.7. I would refuse permission to appeal on questions of fact. I would dismiss the appeal.
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