Bruce Kerr Pty Ltd v Central Coast Council [2021] NSWLEC 1149

Land and Environment Court New South Wales

Medium Neutral Citation: Bruce Kerr Pty Ltd v Central Coast Council [2021] NSWLEC 1149 Hearing dates: 7 and 8 December 2020 and 9 February 2021 Date of orders: 24 March 2021 Decision date: 24 March 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: See orders at [18] Catchwords: DEVELOPMENT APPEAL – modification application – classified road – subdivision – new access crossing - BAR Treatment – consent orders – orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 8.9, 4.56 Environmental Planning and Assessment Regulation 2000 cl 119 Texts Cited: Austroad, Guide to Road Design Part 4: Intersections and Crossings – General (2017) Practice Note – Class 1 Development Appeals, Land and Environment Court of New South Wales (2018) Category: Principal judgment Parties: Bruce Kerr Pty Ltd (Applicant) Central Coast Council (First Respondent) Transport for NSW (Second Respondent) Representation: Counsel: A Galasso SC (Applicant) J Farrell (First Respondent) A Hemmings (Second Respondent)

Solicitors: PJ Donellan (Applicant) Central Coast Council (First Respondent) Lindsay Taylor Lawyers (Second Respondent) File Number(s): 2020/144104 Publication restriction: No

Judgment 1. COMMISSIONER: This is Class 1 - Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the actual refusal of an application to modify condition 2.3 of development consent DA51983/2017 under s 4.56(1) of the EPA Act, being a consent granted by the Court for an eight lot residential subdivision (the Proposed Modification) at 18-20 Allawa Close Bensville, legally described as Lot y DP 415041(the Site). 2. The original consent was granted by the Court including condition 2.3 which requires Basic Right Turn treatment works in accordance with the Austroads Guide to Road Design Part 4: Intersections and Crossings – General (Sydney 2017) (BAR Treatment) on Empire Bay Drive Bensville. Empire Bay Drive is a classified road and five of the eight lots within the subdivision are proposed to be accessed via Empire Bay Drive, specifically lots 1, 2, 3, 4 and 6. 3. The hearing of the Development Appeal commenced on site and continued via MS Teams. On the second day of the hearing the parties advised the Court that an agreement had been reached following the tender and consideration of the Traffic Joint Expert Report prepared by Craig McLaren, Traffic Engineer/Road Safety Auditor for the Applicant, Michael Bissett, Surveyor for the Applicant and Damien Chee, Traffic Engineer/Road Safety Auditor for the Second Respondent filed 3 December 2020 (Traffic JER) (Exhibit R2(2)). The proceedings were adjourned to allow the parties to prepare and file Consent Orders and to comply with statutory requirements to notify the amended Proposed Modification. 4. It is agreed that Empire Bay Drive is a classified road. 5. Mr McLaren succinctly summarised the issue in this case in the Traffic JER at [3.2.1] as follows: "Summarily the case relates to a consent condition imposed on the proposed residential subdivision to provide BAR road treatments at each of the three driveways to Empire Bay Drive." 1. The Applicant's case is that the condition 2.3 is an overcomplication because of the cost involved and the actual risk outweighed the burden imposed on the Applicant. Road safety is the primary contention raised by the First Respondent in the Statement of Facts and Contentions filed 17 July 2020 (Exhibit R1(2)). 2. Mr Chee expressed the view in the Traffic JER at [3.3.98] that the applicant should only be obliged to address the risks imposed by their development application. He formed this opinion after undertaking an analysis of crash data (with all crash events occurring under existing case with no fully-functioning driveways in place), a review of the warrants for BAR treatments, an analysis of gap availability for right-turn movements through opposing traffic, an analysis of follow-up headway to determine the risk of rear-end crashes should there be a vehicle in front that stops to turn right, and a review of the other passing facilities already in place in the nearby vicinity. (Traffic JER at [3.3.97]) 3. Mr Chee provided a number of options including the option which the parties have ultimately adopted in the Consent Orders filed 10 February 2021, being that the right-turn movement from Empire Bay Drive to the property should be banned and supported by NO RIGHT TURN signs as well as physical island/inhibitors to prevent the right turn movements. (Traffic JER at [3.3.102]). The agreed solution is based on Figure A-23 of the Austroads Guide to Road Design Part 4: Intersections and Crossings – General (Sydney 2017) appearing at folio 389 of First Respondent's Bundle (Exhibit R1(1)) namely the solution labelled "Double right turn ban (reinforce with signs).