Land and Environment Court of New South Wales CITATION : Mitchell v Newcastle City Council [2008] NSWLEC 1140 APPLICANT John David Mitchell PARTIES : RESPONDENT Newcastle City Council FILE NUMBER(S) : 10148 of 2008 CORAM: Hoffman C KEY ISSUES: Appeal :- reconfiguration of an existing vehicle dismantling, storage and sales yard, heavy truck access off main road, traffic safety, adequacy of carriageways and road design. Land and Environment Court Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Newcastle Local Environmental Plan 2003 DATES OF HEARING: 14/04/2008 DATE OF JUDGMENT: 24 April 2008 APPLICANT Mr G. Williams, solicitor of Thompson Norrie Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr T. Robertson, barrister instructed by Ms D. Grant of Sparke Helmore JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 24 April 2008 10148 of 2008 Mitchell, John David v Newcastle City Council JUDGMENT 1 This is a Class 1 Appeal No. 10148 of 2008 between Mitchell and Newcastle council in regard to the deemed refusal of the reconfiguration of an existing vehicle dismantling, storage and sales yard known as Beresfield Spares. The site is about 3.6 ha in area and is on 5 allotments on the corner of New England Highway and Weakley's Drive at Beresfield, a town midway between Newcastle and Maitland in the Hunter Valley. The use has been on-site for many years. 2 The appeal was agreed between the parties to be dealt with by way of a s34 conference under the Land and Environment Court Act 1979. On the day of the conference the parties agreed the Commissioner should determine the matter under s34(3)(b)(ii). 3 The conference was attended by for the Applicant Mr G Williams, solicitor; Mr & Mrs Mitchell; Mr D Humphris, town planner; Mr G Pindar, traffic engineer. 4 The conference was attended for the Respondent by Mr T Robertson, barrister; Ms D Grant, solicitor; Ms R Hazzard, town planner; Mr M Waugh, traffic engineer; Mr D Ryner, council engineer. Background to the proposal 5 The appeal was in regard to draft conditions of consent. The conditions involved are: 2.1 regarding the widening of a heavy truck access laneway that has been constructed by the RTA. 3.3 regarding s94A levy for the development application. 3.10 regarding vehicle barriers to landscaped areas. 3.24 regarding consolidation of the 5 lots of the site. 3.25 noise insulation of the new managers flat from highway noise. 5.1 regarding external storage of vehicles to be dismantled so as to prevent pollution. 5.19 regarding external storeage and the physical support of vehicles above ground. 6 The parties negotiated on the day of the conference and agreed amended wording to all conditions except Condition 2.1. 7 Weakley's Drive is the link road from the end of the F3 Freeway to the New England Highway. The application was brought about by major roadworks of the Roads and Traffic authority (RTA) at the intersection of the two main roads. The works have caused the closure of the original drive entries to the subject property and other properties fronting the New England Highway, and their relocation to the south end of the site off Weakley's Drive. 8 The RTA have already resumed a strip of land off the site along the entire west boundary to Weakley's Dr and the south boundary. The RTA have constructed a car and light truck entry across the Weakley's Dr resumption, into the site, near the new south boundary of the site. 9 The site also has about 200 heavy truck visits per year (19m plus vehicle length) and the Statement of Environmental Effects for the reconfiguration (that involves some new buildings too) envisages B-Double articulated trucks in the future. The applicant at the conference said B-Doubles are not envisaged. 10 Access for the heavy trucks onto the site is to be separate to the lighter vehicles. The route is via an RTA constructed laneway within the southern strip of land resumed from the subject property. The heavy trucks are to come and go via this lane, driving its full length to a cul-de-sac and from it into the site and around an internal perimeter road to the vehicle dismantling shed. The laneway is owned by the RTA. The evidence 11 It is this laneway that is the main disagreement between the parties. I was told that the RTA built it initially to provide access to houses that are east of the subject site on large lots fronting the New England Highway. Their accesses had been closed also. Letters from the RTA indicate the laneway was designed for vehicles up to garbage truck size to pick up waste from the houses. The cul-de-sac radius is sized for that. Subsequently the RTA gave consent, or I was told, invited the applicant to use it for heavy truck access, and slightly widened the mouth of the laneway at Weakley's Drive to accommodate the heavy trucks of the applicant. 12 Some residents opposite the site in Weakley's Dr also attended the on-site part of the conference. They had lodged objections on the basis of traffic safety of turning movements into and out of the laneway. They had experience with their own properties in turning across the main road traffic using a central turning lane in Weakley's Dr. This main road is two lanes each way close to the New England Highway intersection, but narrows to one lane each way just at the disputed laneway entry. The residents said drivers on the main road are largely travellers unfamiliar with the area and have to concentrate on the 2-lane to 1-lane manoeuvre right at the point where heavy trucks will also be turning into and out of the disputed laneway. 13 With their own properties the turns in and out often have to utilise the shared central turning lane for either refuge from main road traffic that tends to be at the speed limit, or to wait until there is a gap in the traffic. Also, through traffic passing other vehicles in the double lane section do not realise the road narrows, and are often seen moving into the central turning lane as the vehicle in the kerbside lane starts to merge into the single lanes. 14 It was obvious to them, and the parties did not disagree, that heavy trucks turning in and out of the disputed laneway would have to use part of the central turning lane within their swept path in or out of the lane. For instance, on entering while travelling south, a truck must start on the kerbside lane of the main road and move out into the middle of the road and then curve back into the laneway mouth. The swept path layouts in Exhibit G for all movements in and out confirmed the use of the central turning lane. 15 The shared central turning lane of the main road is used by vehicles travelling in both directions. The residents have found this often confuses drivers and necessitates evasive action and is a safety hazard. They said at least the central shared turning lane needs to have physical barriers or medians related to each driveway so that it is obvious to through traffic it is a turning lane for those properties, and not a travelling through-lane. The existing "painted only" markers on the pavement simply do not work, they said. 16 I was shown on-site the lane mouth. It is between two telegraph poles that are closer together than usual, and limit the width of the entry. Apart from the curved pavement coming off the main road across the width of the footpath reservation, there is no extra width to allow an entering truck to pass a vehicle standing in the laneway waiting to exit. At the boundary frontage alignment, the laneway pavement is 6m wide between the centrelines of the roll-over kerb on both sides of the lane. There is 1.5m beyond the kerbs for a "footpath". 17 The evidence of both traffic experts is that the heavy trucks need to use the full width of the lane mouth as well as the shared centre turning lane of Weakley's Dr when entering or leaving. The laneway has high solid fences both sides so an exiting driver must come into the mouth of the lane to have sight safety distances to main road traffic. So a car or other vehicle from the houses at the end of the lane would block entry. 18 The swept path plans show that an exiting truck would have to be 30m back into the lane in order that an entering truck has the space to make the turn using the full width of the lane, and then to get over to the side to pass the other truck. 19 The council traffic experts say the minimum width of pavement for two heavy trucks to pass including wing mirrors is 6.5m within the body of the laneway, That is under AS2890.2-2002, which is the Australian Standard for internal private roads, and the lane does not have even that minimum. 20 But at the entry mouth, the lane should at least have the additional splays and widths for 19m Articulated Vehicles and Heavy Rigid Trucks required for private industrial driveways. That would enable the applicant's trucks (not B-Doubles as mentioned in the Statement of environmental Effects), to enter and exit from the left lane of the main road without having to cross into another lane. That needs 10m width for each of the entering and the exiting lane at the edge of the main road pavement, tapering over a 30m distance into the laneway down to the 6.5m minimum carriageway. The standard also seeks a 1.5m wide median at the entry mouth for comfortable clearances, and to separate entering and leaving vehicles. 21 The applicants expert says that the key factor in this is the very low frequency of use by big trucks. Two hundred visits per year is very low volume. The likelihood of two trucks meeting is extremely rare. 22 A further consideration is that the trucks said to be using the laneway can make a legal turn into and out of the laneway even though they have to use the central shared turning lane in the main road, and come across the left side through-lane of Weakley's Dr. The legal turns are: o Southbound, by signalling the turn and manoeuvring from the inside lane of Weakley's Dr to the middle lane and curving back to the laneway entry, a truck driver effectively blocks all lanes, and following drivers know not to overtake while the truck turns. o Northbound on Weakley's an entering truck just waits in the central turning lane until traffic allows a safe crossing. o Exiting northbound a truck stops in the mouth of the laneway until traffic allows a safe crossing to the central turning lane and then into the double through-lanes just before the highway. o Exiting southbound, a truck stays in the laneway mouth until traffic allows a safe crossing into the central turning lane and then back into the single through-lane along Weakley's Drive south of the site. 23 Another consideration the applicant says is that apart from the houses at the end of the cul-de-sac, there are no other users of the laneway. If the houses or the large Koppers Logs property on the south side of the laneway eventually redevelop for industrial, the council will be able to condition them to widen the laneway to the appropriate standards. 24 The applicant says that the DCP shows industrial roads laid out to service the industrial land already developed at the south end of the zone, but at the north end where the site is located there are no changes to the existing subdivision shown. Land in the industrial zone west of Weakley's Dr also has no new subdivision or road layout shown. The applicant says this means the DCP and Subdivision Code should not apply to the laneway: o Because the RTA built the laneway access, and presumably would have designed it to be safe for the intended users, and o the applicant is not applying for a subdivision, only for on-site changes, and o the low frequency of use of the laneway, and the physical ability to use it, o because the proposal is just a reconfiguration of a long-standing use, it does not justify the requirement for laneway widening that must involve more of the applicant's land or the Koppers Logs land to widen the laneway, and the cul-de-sac. 25 In regard to the cul-de-sac, the applicant says its trucks will never need to turn around in it. They only pass through the western end of it between the laneway and their entry gates. 26 The respondent says o if a truck arrives out of hours or cannot enter the site until the gates are opened, the driver will either turn around to exit, or park there until the gates open. o Parking directly outside the gates leaves insufficient distance between the gates and the laneway such that a semi-trailer would block the end of the laneway. The other users of the cul-de-sac need clear access, as well as any second truck that might arrive. o So a truck driver is likely to move into the cul-de-sac and park there having then to turn to enter the site when the gates open o Whilst the existing road-base may be adequate for heavy trucks, the bitumen surface is sub-standard and a heavy truck would destroy it when the bogey wheels scrub during turning manoeuvres. o The diameter of the cul-de-sac is below standard for heavy trucks so instead of turning in a single movement there would be manoeuvres that would make the damage worse. 27 The applicant says the arrival of trucks can be controlled by CB radio. The existing entry has a signboard advising truck drivers of the channel to call, and the gates are opened electronically if the truck is admitted. The applicant would accept a condition to that effect. Conclusions 28 The applicable development control plan for this industrial area is Newcastle DCP 2005 section 7.3 South Beresfield Industrial Precinct. It has objectives of facilitating industrial development of the zone into the future by having roads of certain standards as in the council's Subdivision Code. 29 Documents in evidence infer the lane will become a public road in future, and the council says the RTA can do that without Council having the power to refuse ownership. 30 As a public road the carriageway should be 13m wide in the industrial estate and have 2.75m wide footpath reserves either side for light poles and other utility services. The laneway has no capacity for them. Also the laneway would have to be signposted "No Stopping" and "No Parking" to keep it clear for trucks. Until it is a public road neither the applicant nor the council has power to restrict it. 31 The respondent's evidence shows that the laneway does not have the ability to properly service the subject site and the reconfiguration of its existing operations brought about by the closure of the subject site's previous accesses. 32 In addition, the laneway does serve other properties and although there is another unbuilt road reserve connecting to the new cul-de-sac, I was told that second road reserve is also closed by the RTA at the New England Highway. The new laneway is the only access to these other proeprties that due to their large allotment sizes are effectively existing rural homesteads that either have their own trucks or occasionally have trucks visiting, plus car and light service vehicles and garbage trucks. The expert evidence shows that any vehicle at the mouth of the laneway to Weakley's Dr prevents a heavy truck entering or leaving. The applicant's position of "only a low volume of 200 heavy trucks per year", does not consider the smaller trucks that will visit the site and the cars and trucks visiting or originating from the other properties on the laneway. 33 Whilst the lane is straight so drivers of heavy trucks in the lane can see each other, they would have to pass at slow speed, and using more than the 6m wide road surface. The same would apply conceivably to careful drivers of smaller vehicles meeting a heavy truck in the body of the laneway. 34 Should the large lots with houses at the end of the laneway redevelop as industrial and council require widening of the laneway they would be faced with acquisition from the subject site or the Koppers Log site. The laneway as it is, and the closure of those houses' New England Highway accesses has effectively land-locked them from industrial development that is the objective of the South Beresfield Industrial Precinct. 35 The construction of the laneway has de facto amended the precinct's DCP with the introduction of a new road. It should comply with the Subdivision Code adopted by the DCP in order to provide for the Objects of the Environmental Planning and Assessment Act 1979, namely: S 5(a)(ii) the promotion and co-ordination of the orderly and economic use and development of land; S 5(a)(iii) the protection, provision and co-ordination of communication and utility services. 36 The provisions of Newcastle Local Environmental Plan 2003 also apply especially cl23 to the effect that any development on land that adjoins an arterial road must provide access from a road that is not an arterial road, or by a road that is identified in a development control plan or, from the arterial road if in the opinion of the consent authority, alternative access is not practical. The laneway is not an arterial road but it is an inadequate access. The laneway is not identified on the applicable DCP, and alternative access other than by the laneway is not practical. I was told the existing light vehicle entry direct to the site off Weakley's Drive constructed by the RTA is only for light vehicles and they must be separated from heavy trucks. 37 The relevant provisions of the adopted Newcastle DCP 2005 in Element 7.1 Industrial Development and 7.3 South Beresfield Industrial Precinct also apply especially cl 7.3.3 Objectives and (d) Design that adopt the Subdivision Code standards. 38 I have formed the opinion that Condition 2.1 of Exhibit C dated 9 April 2008 should apply to this consent. With the imposition of Condition 2.1, the Condition 1.4 put by the applicant is not necessary. The other disputed conditions should be amended as agreed and forwarded by the parties. The only other matter not finalised at the time of the hearing was the appropriate monetary amount to be inserted into Condition 3.3. 39 The parties were directed to file the agreed amount by 18th April 2008, together with the final wording of the other agreed Conditions. The amount for Condition 3.3 was received on 18 April 2008. It is for $17,783.73. The conditions were received on 22 April 2008 from the respondent. It appears from the e-mail that Conditions 3.24 and 5.1 are still disputed. The wording of the other conditions had been agreed. An e-mail from the applicant arrived on 23 April 2008 putting amended wording to those conditions. 40 In regard to Condition 3.24 the applicant tendered Exhibit C hand annotated to say "The premises remaining in a single occupation and no portion of the premises being let or used independently without prior approval of the Council". In my opinion the current use requires the whole of the site and the applicants condition does not stop sale of any lot. The only other alternative in my opinion is reciprocal rights of way for access over the various lots to the core facilities of the use. But this is too complex a solution. The council's DCP allows re-subdivision in future if any part of the site is to be sold off. Consolidation now is a reasonable requirement. The Council's draft condition should be imposed. 41 In regard to Condition 5.1, I agree drip trays would only be needed under engines where they existed in cars so I insert the words "(where an engine is in the vehicle)" as requested by the applicant. I am concerned that the applicant wants 28 days to drain all fluids from a new arrival. The respondents 5 days is better requirement to minimise the potential for pollution. Many of the vehicles onsite appear to come from road accidents and are damaged. 42 Therefore the Orders of the Court are: 1. The appeal is upheld in part. 2. That development consent is granted to the reconfiguration of the existing vehicle dismantling and storage business (Beresfield Spares) at Nos. 185,191, 197 & 201 New England Highway and No.33 Weakley's Drive, Beresfield, as shown on the plans and documents listed in Annexure A hereto, all as amended by and built in accordance with the conditions in Annexure A. 3. The exhibits are returned to the parties except Exhibits A, B, G & 3. ___________________ K G Hoffman Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.