Williamson v. Caloundra City Council & Ors

[2007] QPEC 35

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bruce Williamson v Caloundra City Council & Ors [2007] QPEC 035

PARTIES:

Bruce Williamson  Appellant
And
Caloundra City Council  Respondent
And  

Larissa Bowen  1^st Co-Respondent
  by Election

And      

Dorothy Margaret Houston  2^nd Co-Respondent
  by Election

And

Leonard Victor Ebers  5^th Co-Respondent
  by Election

And

Janice Kay Ebers  6^th Co-Respondent
  by Election

And

Glenda Joy Wright  7^th Co-Respondent
  by Election

And

Scott and Fiona Howieson  9^th Co-Respondent
  by Election

And

Rodney Wensley Houston  10^th Co-Respondent
  by Election

FILE NO/S:

3836/05

DIVISION:

Planning & Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court of Queensland, Maroochydore

DELIVERED ON:

20 April 2007

DELIVERED AT:

Maroochydore

HEARING DATE:

11,12 April 2007

JUDGE:

Judge J M Robertson

ORDER:

Appeal allowed and adjourned to enable parties to settle conditions consistent with these reasons.

CATCHWORDS

Appeal against refusal of impact assessable development resolved into a conditions appeal; traffic considerations, whether access to site should be governed by a roundabout or cross-intersection; whether condition is reasonable and/or relevant

Legislation:
Integrated Planning Act 1997

COUNSEL:

A.N.S. Skoien (for the Appellant)
C. L. Hughes SC (for the Respondent)
Co-Respondents by election self represented.

SOLICITORS:

Deacons (for the Appellant)
Corrs Chambers Westgarth (for the Respondent)

1. As a result of sensible pre-hearing negotiations between the parties, what was an appeal against Council’s refusal of a 12 block subdivision which was impact assessable under Council’s transitional planning scheme, has now become a relatively straight forward appeal directed at one condition only, namely the appropriate treatment of the access intersection to the proposed subdivision. All parties should be commended for the sensible way in which the matter has been largely resolved. Not only does this approach save money, it also gives all involved, and in particular the nearby residents most affected by the development, confidence that their concerns have been considered. This is another example of the best working of these aspects of planning law which permit the involvement of members of the community as submitters in relation to impact assessable development. As Mr Hughes SC observed, Mr Skoien’s client could have withdrawn his application under the transitional scheme and reapplied under the Council’s IPA scheme where the proposal would have been Code Assessable which would have precluded the residents at least as parties to the appeal.

1. The subject site is at 119 Sugarbag Road, Little Mountain. It is a 1.402 hectare site with road frontage from Sugarbag Road in its western and southern boundaries and the land slopes from west to east and features several drainage lines and three manmade ponds. There is a function centre, Ainlee House, on the land which is no longer in use.

1. After lodgement of the appeal and extensive negotiations, the proposal is now for an 11 block subdivision with a park, and Council no longer opposes the application subject to conditions which were set out in a letter from its solicitors to solicitors for the Appellants dated 13 December 2006.

1. The layout has changed again in particular in response to concerns by Mr and Mrs Ebers who are co-respondents, with the result that the proposed Lot 11, which hitherto would have abutted their residence at 4 Carisbrook Court, and because of a need to raise the block would adversely affect their amenity; will now be moved to the north, and a 454m2 drainage pond will now abut their boundary with minimal change in levels. The original cul-de-sac design within the development has also been changed to enable potential access through the development to any minor subdivision that may occur in the future at 95 Sugarbag Road, the property of the seventh Co-respondent Glenda Wright.

1. Town planners for the appellant and the Council agree that notwithstanding the rural zoning of the land under the transitional scheme at the time of the application, the combined effect of the provisions of both the superseded and current planning scheme is that there is a reasonable and clear expectation of residential development on this site.

1. The only outstanding issue concerns the treatment of the entrance to the subdivision at the confluence of Sugarbag Road and Grey Gum Drive. Because of the alignment of Sugarbag Road and poor visibility, the present access to the site at this point is the only possible location for direct access from the site onto that road.

1. Simply put, the Council favours the construction of a roundabout based on the evidence and opinion of Mr Holland and the appellant and co-respondents favour a cross-junction intersection in accordance with the present alignment of the access point to the site and Grey Gum Drive based on the evidence and opinion of Mr Viney.

1. In accordance with s3.5.30 of the Integrated Planning Act 1997 (the IPA) a condition in a development approval must be relevant to but not an unreasonable imposition on the development or use of premises as a consequence of the development; or be reasonably required in respect of the development or use of premises as a consequence of the development. As to whether a condition is relevant or reasonable in this sense is a question of fact.

The Traffic Evidence:

1. Sugarbag Road is classified by Council as a trunk collector which carries between 9000 and 10000 vehicles per day. Both traffic engineers accept that unsignalised cross-intersections should generally be avoided because of safety issues. I accept that the minor legs in any proposed cross intersection in this case involve what Mr Viney described as closed catchments i.e. a relatively small number of drivers, and who will be aware of the presence of a cross intersection because of local knowledge. At present the Grey Gum Drive leg is controlled by a stop sign at the intersection with Sugarbag Road. It is common ground that the sight lines in both directions along Sugarbag Road are restricted for a driver wishing to turn right from the site. To some extent, this can be ameliorated by the removal of vegetation along Sugarbag Road. At the joint experts meeting, the traffic engineers noted that although the sight distances available at the Grey Gum intersection with Sugarbag Road (105 metres) complied with Austroads at the time of the application; more recent amendments require a safe sight distance for a 60km/hour design speed at 113 metres. Mr Holland’s concerns about the cross intersection proposal also focus on the offset nature of the intersection (about eight metres), such that the path of a right turning vehicle overlaps with that of a vehicle turning right from Grey Gum Drive; and the topography of the site which will mean that the driver turning right from the site will commence their turn on a steep upgrade. To some extent his concerns would be met by restricting access to the site to left turns only.

1. Mr Holland, although quite sympathetic to Mr Viney’s cross intersection proposal, nevertheless favoured the roundabout as the best solution to this quite difficult intersection because it is safer. Both engineers agreed that the roundabout would effectively reduce absolute speed of vehicles (particularly those on Sugarbag Road) and reduce relative speed by compelling all drivers to travel in the same direction in the roundabout. It would obviously remove overlapping right turns from the site and Grey Gum Drive and would accommodate better the sight distance difficulty, particularly for drivers turning right out of the site.

1. Mr Viney accepts that the roundabout is an acceptable solution in the circumstances here but believes it is unnecessary for this proposal for the reasons he sets out at paragraph 31 of his report:

“It is accepted that sight distances at the proposed intersection with Sugarbag Road are only just acceptable in both directions for the design speed of the road. However, an assessment of the appropriate intersection should take account of the following points which favour a cross intersection treatment over a roundabout:

(i)        The very low traffic flows using the new leg;

(ii)The benefits to through traffic in upgrading the standard of protection for traffic turning right from Sugarbag Road (using painted medians to protect right turn vehicles);

(iii)The considerable cost of the alternative roundabout treatment;

(iv)The delay cost enforced on the through traffic flow on Sugarbag Road which is a significantly high traffic flow compared to side street traffic flow from either Grey Gum Drive or the site access road. (Austroads Guide to Traffic Engineering Practice: Part 6 – Roundabouts notes that a roundabout causes delay and deflection to all traffic, whereas control by Stop or Give-Way signs or the ‘T’ junction rule would result in delay to only the minor road traffic);

(v)The adverse impact on access to properties on the corners of this intersection;

(vi)The less acceptable level of safety for pedestrian and bicycle traffic using Sugarbag Road.”

1. The reference to adverse impact on access to properties on the corners of the intersection is a reference to Mr and Mrs Houston’s house at 116 Sugarbag Road and to 121 Sugarbag Road. The access to both properties will be restricted by the roundabout because of the need for splitter islands as part of the design. Mr and Mrs Houston’s driveway will also be compromised in a safety sense by the removal of the stop sign presently at Grey Gum Drive which applies to drivers turning left into Sugarbag Road, and its replacement with a give way sign for the roundabout. I agree with Mr Hughes SC that in considering this issue, the subjective views of the local residents who have joined the appeal has to be carefully weighed against the issue of safety in particular to all users of this area of road in the future.

1. This is not a case in which the experts are diametrically opposed. Mr Holland supports the Council proposal for a roundabout and Mr Viney on behalf of the appellant supports the cross intersection solution, which is also favoured by the Co-respondent. Despite a number of attempts, by the time of the hearing of the appeal a design of the roundabout acceptable to Mr Holland (and indeed Mr Viney) had not been produced despite a number of drawings prepared by Cardno (Qld) Pty Ltd.

1. Mr Holland said in his report dated 3 April 2007:

   “If a satisfactory roundabout layout is not capable of being developed within the constraints of the site (and it must be said, there is considerable doubt as to the practicability of a roundabout) then there are alternative solutions available: I would recommend restriction of access to the subject property to left turns only, to be achieved by means of the shaping of the connections of the proposed access road to Sugarbag Road.”

1. One of the major difficulties recognised by both engineers is the unsatisfactory response in designing a roundabout that would adequately cater for pedestrians and, more particularly cyclists. There is presently a defined marked cycle path along the southern side of Sugarbag Road and none of the designs of a roundabout available at the time of the hearing provided satisfactorily for the safe continuation of this cycle path through the roundabout. It was accepted that there are a number of schools in the area and this cycle path is used by school children including primary school children. Mr Holland frankly told me that traffic engineers have not yet been able to satisfactorily design cycle paths as part of roundabout design. As a keen cyclist himself, he recommends that cyclists do what he does as he enters a roundabout with no designed obvious path for cyclists, and that is to position himself in the centre of the lane as he proceeds through the roundabout. He was alarmed that primary school children should be ever allowed to ride to and from school along such a poorly designed road as Sugarbag Road. Mr Viney’s preferred cross-intersection offset in accordance with the present position would of course make no difference to the southern side of Sugarbag Road. It is a much safer option for cyclists in my opinion than would be the present roundabout designs, and Mr Holland does not give me much hope that the design problem he identified will be solved soon, at least insofar as it applies to this difficult site and associated roadway.

1. Mr Skoien highlighted in his closing address that past planning decisions, particularly associated with development in Carisbrook Court to the north and west of the site, had not allowed for potential access to the site via such development despite the expectation (even when that development took place some eight years ago) that this site would be developed for residential purposes. If a decision had been made then similar to the change in plan for this site to remove the cul-de-sac in the internal road to enable access through the site to a future small reconfiguration of Mrs Wright’s property, then the difficulties associated with access to this site could have been overcome in a relatively inexpensive way. Mr Hughes SC fairly acknowledged that in this sense there had been a failure to plan ahead at the time of these earlier developments but stressed that the appellant now bears the burden of satisfying me that his proposal based on Mr Viney’s opinion is an appropriate condition (in terms of s3.5.30) to a permit to develop his land as an 11 block subdivision. There is no doubt as well that the Council’s requirement for a roundabout will involve considerable more capital cost than the cross intersection proposal.

1. Having regard to all the evidence I am satisfied that the cross intersectional proposal based on the present alignments is an appropriate condition in terms of s3.5.30, provided that the access to the site be restricted to left turns in and out with appropriate treatments to the intersection as recommended by Mr Holland. I am conscious of the fact that this will encourage some drivers wishing to access or leave the site, for example to travel east, to resort to u-turn, at, for example the Carisbrook Court intersection but the very small numbers that would be involved leads me to favour this approach which will deal with the dangers mentioned by Mr Holland.

1. It is a matter for Council, but it may consider it prudent to control the approaches to the intersection along Sugarbag Road by 40km/hour advisory speed signs which may further enhance safety at the intersection itself. The ‘S’ bend to the west of the intersection is already controlled by 40km/hour signs.

1. The layout design in relation to Lot 11 (depicted in general in Exhibit 7A) involves another change to the plans submitted with the application and all other parties to the appeal agree with Mr Skoien’s submission that the change is minor in terms of s4.1.52(2)(b) and I so declare.

1. The appeal is allowed and adjourned to enable parties to settle conditions in accordance with these reasons and the agreements reached during the hearing (see Exhibit 10).