Waite v Blacktown City Council

[2008] NSWLEC 55

Land and Environment Court

of New South Wales

CITATION:

Waite v Blacktown City Council [2008] NSWLEC 55

PARTIES:

APPLICANT
David Peter Waite

RESPONDENT
Blacktown City Council

FILE NUMBER(S):

11010 of 2007

CORAM:

Tuor C

KEY ISSUES:

Development Application :- information centre, safety of traffic access and egress

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Roads Act

CASES CITED:

Bowyer v Manly Council [1996] NSWLEC 141

DATES OF HEARING:

08/02/2008

EX TEMPORE JUDGMENT DATE:

8 February 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr D. Williams, solicitor
of Whitehead Cooper Williams

RESPONDENT
Mr T. O'Connor, solicitor
of Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

8 February 2008

11010 of 2007 Waite v Blacktown City Council

JUDGMENT

1 This is an appeal against the deemed refusal by Blacktown City Council (the council) of a development application under the Environmental Planning and Assessment Act 1979 (DA 07/1590) for an information centre at 879 Richmond Road, Marsden Park (the site).

2 The site, its context, the history of the application are in the Statement of Facts and Contentions. The main issue in dispute is stated as:

1. Access and Egress to the subject land
Whether the proposed development is satisfactory with regard to safe entry to and egress from the subject land.
Particulars:
Richmond Road is an arterial road in the control of the Roads and Traffic Authority. The Roads and Traffic Authority have advised that they do not support the provision of a seagull treatment at the access to the subject land and that the traffic movements to and from the site should be controlled by a left in/left out arrangement.
The Roads and Traffic Authority have not provided details or conditions of any particular device or controls for traffic management for the subject land.
The approval of the development in the absence of adequate traffic controls is not considered to be in the public interest.

3 Mr C Hallam, traffic consultant, was appointed as a single expert to address the issue in dispute.

4 Mr Hallam assessed the application and considered that the increase in traffic would not exacerbate the impact of the current traffic levels. He examined the road network, traffic figures and traffic accident history for the site. He noted that there are no accidents recorded that appear associated with the current use of the site.

5 Mr Hallam stated that:

The RTA have indicated that they will not approve seagull-channelisation for the site access. I accept this position. I would expect that they would not approve a type CHR channelisation either, because it could impede their intended reconstruction with a four lane divided carriageway and a central median across the site access. The RTA’s recommendation of providing 3.0 m wide shoulder seals from the site’s northern boundary to the entry driveway, plus a 3.0 m wide sealed shoulder on the opposite side of Richmond Road “to allow a through vehicle to pass a vehicle waiting to turn into the site” is a pragmatic response to the issues.

6 Mr Hallam and Mr O’Connor, the solicitor for council, noted that in Bowyer v Manly Council [1996] NSWLEC 141, Bignold J held that the council has no jurisdiction under s 39 of the Land and Environment Court Act to exercise the functions of the RTA under s 116 of the Roads Act. This means that the Court could not approve the seagull channelisation as it is opposed by the RTA.

7 Mr Hallam has accepted that the seagull channelisation is not required and that safe egress and access can be achieved through the works recommended by the RTA. These works have been included as conditions of consent which the applicant has agreed to. Council did not challenge the evidence of Mr Hallam and I accept his opinion.

8 A further condition recommended by Mr Hallam and agreed to by the parties has been included that advertising signage not be placed on the road reserve to maintain sight distances.

Orders

1. The appeal is upheld.

2. The development application (DA 017/1590) for an information centre at 879 Richmond Road, Marsden Park is approved subject to the conditions in Annexure A.

3. The exhibits, except Exhibit 2 and A are returned.

___________________

Annelise Tuor
Commissioner of the Court
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