Land and Environment Court of New South Wales CITATION : Fabcot v Maitland City Council [2007] NSWLEC 296 APPLICANT Fabcot Pty Limited PARTIES : RESPONDENT Maitland City Council FILE NUMBER(S) : 11266 of 2006 CORAM: Brown C KEY ISSUES: Appeal :- modification of development consent for shopping centre - whether applicant should fully fund traffic signals - whether applicant should be given credit for road works LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: McCarthy v Mulwaree Shire Council 78 LGERA 158 DATES OF HEARING: 19, 20/04/07 DATE OF JUDGMENT: 29 May 2007 APPLICANT Mr R Lancaster, barrister SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT Mr S Simmington, solicitor SOLICITORS Lindsay Taylor Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 29 May 2007 11266 of 2006 Fabcot Pty Limited v Maitland City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the determination by Maitland City Council (the council) of an application to modify Development Application 06 – 780 under s 96 of the Environmental Planning and Assessment Act 1979. This application received development consent for the demolition on an existing bowling alley and a number of specialty shops and their replacement with a Woolworths supermarket of 4200 square metres, seven new specialty shops with area of 1775 square metres, renovation of some existing specialty shops and 288 car parking spaces. 2 The proposed development is located at Lot 431 and Lot 432 DP 626005, Lot 120 DP 809483, Alexandra Avenue, Hillview Street and West Mall, Rutherford (the site). Construction has commenced on the proposed development. The site and immediate area 3 The site forms part of a major shopping complex at Rutherford. Other developments within the shopping precinct include a Coles supermarket, an Aldi supermarket and a number of specialty shops. The road network in the vicinity of the site includes the New England Highway, Arthur Street, Dunkley Street, Alexandra Avenue, West Mall, Hillview Street and Bunning Avenue. 4 The New England Highway is a four-lane divided road with additional turn lanes at some intersections. The intersections with Arthur Street and Dunkley Street are traffic signal controlled. A signalised pedestrian crossing across the New England Highway is provided between Arthur Street and Alexandra Avenue. The closest intersection to access the proposed development is Alexandra Avenue and the New England Highway. This intersection provides turn lanes but no traffic signals. The issues 5 The Statement of Issues filed by the council identified 9 conditions in dispute however with the submission of further information or amendments to the proposal, condition 6 – S94A condition and Point of Law (Issues 1 and 2), condition 11(c) – Median closure (Issue 5), condition 11(d) – Roundabout surface (Issue 6), condition 11(h) – Bus stops (Issue 7), condition 12 – Transport Route Management Plan (Issue 9) and condition 17(a) – West Mall stormwater drainage works (Issue 10) were not pressed. The conditions in dispute 6 The remaining conditions in dispute are: Condition 11(a) – Signalised intersection Provide "synchronised" traffic signals at the junction of the New England Highway and Alexandra Ave, and associated traffic facilities by addition, modification or removal of such facilities, for purposes of operation of the signals. Such facilities shall include (but not be limited to): i) provision for on-road cyclists ii) pedestrian signals on all legs of the intersection iii) the extension of the right-turn storage lane to an overall length of 100m iv) formalisation of a left-turn auxiliary lane to an overall length of 80m v) removal of the existing pedestrian signals and associated facilities in the vicinity to t he south-east of the intersection. Condition 11(b) – Pedestrian path connections Provide concrete path connections between the intersection of the New England Highway and Alexandra St and existing surrounding path network. Condition 11(f) – Shared pedestrian/vehicle low-speed mall Provide a shared pedestrian/vehicle low-speed mall environment between kerbs including the footway frontage of the site (and being approximately 50m long) within West Mall between the proposed site pedestrian entry points, utilising contrasting pavers/pavements and a narrowed vehicle travel-way, in accordance with Council's "Rutherford Village - design concept" plan. Conditions 11(a) and 11(b) 7 The conditions are related and in the event that the Court finds that the condition 11(a) should be replaced with an alternate condition (as submitted by the applicant), condition 11(b) should also be deleted. Conversely, in the event that the Court finds that the condition 11(a) should be retained (as submitted by the council), condition 11(b) should also be retained. The evidence 8 Mr Tim Rogers, a traffic engineer provided evidence for the applicant and Mr Craig McLaren, also a traffic engineer provided evidence for the council. The traffic and intersection analysis 9 The differences between Mr Rogers and Mr McLaren involve the interpretation of the traffic data rather than the actual data. Mr McLaren's evidence is essentially a critique of Mr Rogers conclusions. He questions the traffic generation calculations of Mr Rogers where a 25% reduction (as acknowledged in the Road and Traffic Authority Guide to Traffic Generating Developments) is applied to the traffic generation figures assessed for the land use and floor area of the proposed development rather than passing traffic. According to Mr McLaren this has the effect of increasing the traffic generation figures for the development calculated by Mr Rogers from 550 - 600 vehicles per hour (two way) in the Thursday afternoon and Saturday mid-day peak periods respectively to 726 - 800 vehicles per hour for the same periods. 10 Mr McLaren is also critical of the discounting of existing trips associated with the existing land use activity when no concurrent surveys of actual usage of the existing premises was undertaken. He is also critical of the seasonal adjustment of traffic counts to take into account variations in traffic flow on the highway over a four-year to reflect average conditions. In his opinion this adjustment can be undertaken by obtaining details of daily variations at the nearest RTA permanent traffic count location. 11 Notwithstanding these concerns, Mr McLaren disagrees with the conculsions of Mr Rogers on the results of the SIDRA Model assessment for the intersection operation of the New England Highway and Alexandra Avenue. Both rely on the same inputs to the SIDRA Model for their conclusions. 12 The SIDRA Model is used to analyse isolated signal controlled intersections, roundabouts and priority intersections. Based on an average delay per vehicle, SIDRA estimates the levels of service (LOS). For Give Way and Stop Signs, the average delay per vehicle is selected from the movement with the highest average delay per vehicle. These are ranked with an equivalent LOS. These are: 'A' - Good 'B' – Acceptable delays and spare capacity. 'C' - Satisfactory but accident study required. 'D' -Near capacity and accident study required. 'E' - At capacity and requires other Control Mode. 'F' – Unsatisfactory and requires other Control Mode. 13 The SIDRA Model estimates the LOS for a right turn movement from Alexandra Avenue into the New England Highway as: 'E' – Existing – Thursday afternoon peak. 'B' – Existing – Saturday mid-day peak. 'F' - Existing and proposal – Thursday afternoon peak. 'C' - Existing and proposal – Saturday mid-day peak. 14 Based on these results, Mr McLaren concludes that the right turn movements from the Alexandra Avenue to the New England Highway will deteriorate as a direct consequence of the proposed development within the immediate short-term horizon with the LOS moving from 'E' to 'F'. Importantly, a 'F' LOS is deemed to be "Unsatisfactory and requires other Control Mode". Mr McLaren describes this as an inappropriate outcome on traffic flow efficiency and road safety grounds. Mr Rogers describes these movements as operating "near capacity" with vehicles undertaking a staged crossing (using the break in the median) and the gaps in the traffic flow along the highway provided by traffic signals to the east and west. 15 Mr Rogers proposes an amended condition 11(a) that states: Modify the intersection of the New England Highway and Alexandra Avenue, to prevent traffic turning right out of Alexandra Avenue and extend the right turn storage bay by 20 metres. 16 The amended condition can be supported because: o the right turn movement out of Alexandra Avenue into the New England Highway is currently at capacity in peak periods and the low number of vehicles that currently turn right in peak times utilise gaps in the traffic created by nearby traffic lights, o the intersection is capable of handling traffic volumes once the development commences operation, o it is not reasonable to require the applicant to fully fund the traffic lights as the development will not cause the intersection to reach capacity, o the use of Bunning Avenue for alternate access to the New England Highway at the traffic signals at Dunkley Street is acceptable as the additional traffic is within the environmental capacity of the street and o the condition may require the acquisition of land not in the ownership of the applicant. 17 Mr Rogers states that traffic signals at the intersection of the New England Highway and Alexandra Avenue are required irrespective of whether the proposed development is constructed due to the existing poor level of service to the right turn out of Alexandra Avenue. On this basis the development should make a 50% contribution to any new signals as this is likely increase in traffic that would turn to or from the highway at this intersection. 18 Mr McLaren states that the condition as contained in the development consent should be maintained and Mr Rogers alternate condition should be rejected for the following reasons: o the assessment carried out by Mr Rogers is flawed in that the traffic generation is incorrectly calculated, o the level of service of the Alexandra Avenue and New England Highway intersection will unacceptably deteriorate as a direct result of the proposed development and o the additional traffic impact on Bunning Avenue is unacceptable. 19 Mr McLaren states that traffic signals at the intersection of the New England Highway and Alexandra Avenue are required as part of this development. He states that a 90% contribution towards the traffic signals is reasonable in this case. The use of Bunning Avenue 20 In the event that right turn movements are prohibited from Alexandra Avenue to the New England Highway, Mr Rogers and Mr McLaren accept that vehicles are likely to use Bunning Avenue to gain access to the traffic controlled intersection of the Dunkley Street and the New England Highway for vehicles wishing to travel in a westerly direction. 21 Mr Rogers states that the use of Bunning Avenue for alternate access to the New England Highway is acceptable as the additional traffic is within the environmental capacity limit of the street. In his assessment 120 additional vehicles (two way) will use Bunning Avenue after the development commences. This has the effect of increasing the traffic generation from 160 - 180 vehicles per hour in the Thursday afternoon peak to 280 - 300 vehicles per hour. The Saturday mid-day peak will increase from 155 - 170 vehicles per hour to 275 - 290 vehicles per hour. Mr Rogers states that traffic calming devices may be used to reduce the use of the street for through access and that the applicant would accept a condition to that effect. 22 Mr McLaren finds that the additional traffic impact on Bunning Avenue would be unacceptable based on Mr Rogers additional traffic generated by the proposed development and considering the residential character of the street. Bunning Avenue is narrow road with a carriageway width of 9 metres to 10 metres and services only a limited number of residential properties and a church. The projected increased traffic represents an extra 75% traffic load for that street. In Mr McLaren's opinion this would be noticeable and would change its function from a local road to a collector type road in that it would be collecting non - Bunning Avenue related traffic and distributing it to the "regional" New England Highway via Dunkley Street. Findings The historical context 23 The Court was taken to the traffic and access issues of this section of the New England Highway and the actions of the council and the Roads and Traffic Authority (RTA) over a period of some 15 years. Briefly, the council advocated traffic signals at the intersection of the New England Highway and Alexandra Avenue in the early 1990's. A study commissioned by the council in 1995 by TTM Consulting Pty Limited considered traffic signals at the intersection as an option but did not ultimately recommend that signals be installed. The RTA considered the installation of traffic signals in 2000 however they chose to install only pedestrian activated traffic signals between Arthur Street and Alexandra Avenue. The funding arrangements that included a developer contribution for the roundabout at the corner of the New England Highway and Anambah Road was also raised. 24 In accepting that there has been a level of interest in recent years over the intersection of the New England Highway and Alexandra Avenue (and the immediate area) I am not convinced that this historical background has any significant bearing on the issue of whether the proposed development should be responsible for the installation of traffic signals. Clearly, the issue in these proceedings was not considered (or even contemplated) in the earlier actions of the council and the RTA and must be determined on the evidence of Mr Rogers and Mr McLaren. Existing commercial development 25 Mr Lancaster submitted that the condition is unreasonable considering the absence of a similar requirement on the approvals for the Coles supermarket and the Aldi supermarket. In response, Mr McLaren stated that the Coles supermarket gained its principle access from Arthur Street and the New England Highway. At the time of construction of the supermarket this intersection was already controlled by traffic signals. As I understand, the development consent required the extension of the turning bay into Arthur Street to accommodate additional vehicles generated by the development. Mr McLaren saw the Aldi supermarket as being significantly smaller than the proposed development or the Coles supermarket and for this reason no requirements were placed on the development consent relating to access. As these circumstances need to be compared to the proposed development where the principal access is obtained from Alexandra Avenue, I accept Mr McLaren's evidence is sound and reasonable and consequently the terms of the Coles and Aldi approvals have no bearing on the issue in these proceedings. Bunning Avenue 26 The use of Bunning Avenue by additional vehicles is a direct consequence of the condition of Mr Rogers to prohibit right turn movements from Alexandra Avenue to the New England Highway. While access can be obtained for vehicles wishing to travel in a westerly direction along the New England Highway from Arthur Street and Dunkley Street, Mr Rogers assessment provides for an increase in Bunning Avenue traffic of some 75%. 27 Considering the different positions taken by Mr McLaren and Mr Rogers on the same data, I can comfortably conclude that the evidence of Mr McLaren should be preferred. I agree that the additional traffic generated by the proposed development and using Bunning Avenue is unacceptable. In my view, the additional traffic would impose an unacceptable impact on the amenity of the residents within the street. I am not satisfied that the use of Bunning Avenue as a local bus route supports the position of Mr Rogers. The infrequent use of the street by local bus cannot reasonably be compared with an increase of some 75% in general traffic. Similarly, I am not satisfied that the use of traffic calming devices would satisfactorily address the large increase in general traffic along Bunning Avenue. A contribution? 28 As the use of Bunning Avenue is not appropriate, the issue of a contribution towards the installation of traffic signals needs to be considered. Mr Rogers and Mr McLaren suggest a 50% and 90% contribution respectively. In closing submissions, Mr Lancaster provided two additional options. These being: 1) the applicant to construct a signalised intersection within 6 months of the council and the RTA agreement to do so provided council "back funds" 50% of cost within five years, or 2) the applicant to make a contribution of 50% of the cost to construct a signalised intersection, up to $325,000, to be paid at the time of construction of the signalised intersection on condition it is constructed within 5 years. A bank guarantee would be provided. 29 Mr Lancaster submitted that either of the options could be formalised by a planning agreement in accordance with s 93F of the Environmental Planning and Assessment Act 1979. 30 As the above two options were only provided in closing submissions, the council was given leave to seek instructions and provide a response to the Court. This ultimately resulted in further written submissions from both parties. 31 The council responded by stating that the Court cannot impose a condition to give effect to two additional options by the applicant to enter into a planning agreement as s 93G(1) has the effect of prohibiting the parties from entering into such an agreement as the development application has already been subject of the grant of a consent by the council. On this basis any draft planning agreement cannot be exhibited as part of and contemporaneously, where and in the same manner as, any notice of the development as required by cl 25D(1) of the Environmental Planning and Assessment Regulation 2000. 32 If the Court does not accept this argument, the council states there are no funds allocated to "backfund" the signalisation and the effective imposition of the applicants condition places and unreasonable and inappropriate obligation on the council. The council has no s 94 Contribution Plan which provides contributions to be made by other developments towards this purpose. The RTA had also advised that they have no funds to contribute to the signalisation of intersection. The second option proposed by the applicant also provides no guarantee that signals would be provided as the council and the RTA may never agree. 33 The applicant responded by stating that a planning agreement can be used in these circumstances as a s 96 application is within the broad meaning of the words used in the definition of "development application" and there is nothing in s 93I which requires any meaning to be attributed to those words. The unavailability of any funds to contribute to the signalisation of the intersection is consistent with the way the council has dealt with this application, in that there was the expectation that the applicant should pay the whole of the cost of intersection. The failure of the council to plan for the cost of the intersection to be distributed equitably (in an appropriate s 94 plan, for example) has caused the current situation to arise. The applicant's offer is a suitable recognition of the applicant's responsibility to make its contribution to future demands on the road infrastructure in the locality. 34 Putting aside the question of whether a planning agreement can be used in these circumstances, the fundamental question is whether it is appropriate for the Court to impose a condition requiring to the applicant to fully fund the cost of the signalised intersection where the applicant does not gain the total benefit of the works and where no funds are currently available or have been allocated in any future works program by the council or the RTA. 35 A similar question was posed in McCarthy v Mulwaree Shire Council 78 LGERA 158 although the circumstances were different. In McCarthy, Bignold J dealt with an appeal against the decision of an assessor of the Court on a point of law under s 56A of the Land and Environment Court Act 1979. He also addressed the appropriateness of a condition requiring access to a proposed dwelling. In this case, the main access to the land involved the crossing of a railway line and a causeway across the Wollondilly River. The inadequacy of the causeway due to the regular flooding of the river was the reason for the refusal of the development application. The council's evidence was that over time there would be more applications for dwelling houses in the area. The assessor found that the causeway across the Wollondilly River needed to be upgraded. The council proposed a condition of consent requiring the upgrading of the road and upgrading of the causeway. The assessor adjourned the proceeding for the parties to establish an appropriate cost sharing arrangement for the upgrading of the causeway. The basis for the adjournment was the subject of the s 56A appeal however His Honour also addressed the cost sharing arrangement anticipated by the assessor. 36 His Honour states (at 170 and 171): Before leaving this case I feel constrained to make an observation which is not intended to influence the future course of the proceedings other than to the extent that the parties and the assessor made positively respond to it, and thereby avoid the need for any further hearing. The observation is simply this, it is doubtful that the assessors "findings" on the principle issue in dispute will be readily implemented, or give effect to, by the grant of development consent subject to a s94 type condition, anticipated by the assessor in his findings. This is because of a combination of the following facts all recited in the assessors findings: (i) the cost of the required upgrading of the causeway though as yet unqualified are likely to be considerable; (ii) the appellant will only be required to contribute a fair share towards these costs; (iii) the respondent does not have current funds, or a works program to undertake the required works; and (iv) the Court does not have power to direct the respondent to extend public funds on the required causeway construction. In the circumstances an obviously more appropriate condition to impose on the grant of development consent than condition contemplated by the assessor, is the type of condition approved in Grampion Regional Council v City of Aberdeen (1984) 47 P & CR 633 which could be along the following lines: The approved dwelling houses shall not be erected unless and until there is constructed, as part of Murray Flat Road, a reinforced concrete causeway 4.88 metres wide over Wollondilly River providing sufficient drainage to accommodate a 1 in 3 months storm event, to a design and standard satisfactory to the Council. Upon closer analysis this is the type of condition supported by the case presented by the respondent at the hearing before the assessor. It does not depend upon s 94. Indeed on the assessors findings a s 94 type condition is not likely to adequately fit the case nearly as well as a Grampion type condition, if this is considered appropriate. 37 In this case, the traffic signals are required at the intersection of the New England Highway and Alexandra Avenue (particularly considering the findings on the impact on Bunning Avenue and the SIDRA Model estimates). Importantly, there was agreement between Mr Rogers and Mr McLaren on that fact. I also accept Mr McLarens evidence that the right turn movements from the Alexandra Avenue to the New England Highway will deteriorate as a direct consequence of the proposed development within the immediate short-term horizon. While they disagreed on the level of contribution that the applicant should make towards these traffic signals the inability of the council or the RTA to contribute to the traffic signals makes this a moot point considering the comments in McCarthy. The inability of the Court to require the council or the RTA to extend public funds towards the signalisation of the intersection is also an important consideration. 38 Condition 11(a) imposed by the council is consistent with the approach suggested in McCarthy and as such the condition should be retained. It follows that condition 11(b) should also be retained. Because of this finding it is not necessary to deal with the question of whether a planning agreement can be used in these circumstances. Condition 11(f) The evidence 39 Mr Ian Grant, a town planner, provided evidence for the applicant and Mr Stephen Punch, also a town planner, provided evidence for the council. The concern of Mr Grant was the overlap in works required by condition 11(f) and works allocated in the council's s 94A plan. Item 127 of the s 94A plan provides for an expenditure of $66,000 for works identified as "West Mall Rutherford – A – Hillview to Alexandra". The works required by condition 11(f) (based on the plan prepared by Baker Kavanagh architects (Drawing 107) on behalf of the council) has a cost of approximately $120,000. At worst, the applicant should be credited for the cost of the work anticipated by Item 127. 40 Mr Punch stated there was no relationship between condition 11(f) and the works identified in Item 127 of the council's s 94A plan. Based on his inquiries with the council, the intended purpose of Item 127 is to mill and replace 30 square metres of the road pavement of West Mall. In any event, the flexibility available through the council's s 94A plan allows the council to reallocate funds identified in the plan if considered appropriate by the council. He notes that there is no commitment to the works identified in Item 127 in the next financial year. Findings 41 In balancing the evidence of Mr Grant and Mr Punch, and in the absence of any evidence to the contrary I am satisfied that the work anticipated by Item 127of the council's s 94A plan is that as stated by Mr Punch. 42 I accept that the work anticipated by Item 127of the council's s 94A plan may be made redundant with the works required by the Baker Kavanagh plan however I am mindful of the flexibility available under s 94A and the ability of the council to amend the plan to reallocate funding in the plan based on changing priorities. I am also mindful that the shared pedestrian/vehicle low-speed mall is a fundamental component of the safe movement of vehicles and pedestrians from the proposed development to other parts of the Rutherford centre. The need to provide this safe link is a direct result of the proposed development. 43 The Court was also advised of a Deed between the council and Buildev Properties Pty Limited that, in part, identified works to be undertaken by Buildev Properties Pty Limited based on items identified in Schedule A of the Deed. One item in Schedule A is identified as "Pedestrian Crossing (West Mall)". A plan attached to the Deed identifies the size and location of a raised pedestrian crossing. As I understand, the location and size of the raised pedestrian crossing was made without any knowledge of the specific details of the proposed development and it is no surprise that there is little if any similarity between design proposed in the Baker Kavanagh plan and the plan attached to the Deed. I agree that the design proposed in the Baker Kavanagh plan is far superior and appropriately addresses the link between the proposed development and the rest of the centre. On this basis I satisfied that no credit should be given for any funding provided under the Deed. 44 Mr Lancaster submitted that there was no reason why the development should not proceed without the shared pedestrian/vehicle low-speed mall. This was not a conclusion supported by Mr McLaren or Mr Rogers as it was seen as an appropriate measure to manage traffic and pedestrian activity in West Mall. For this reason the submission should be rejected. 45 For the reasons mentioned in the preceding paragraphs, condition 11(f) should be retained. Directions 46 The agreement by the parties to a number of conditions originally in dispute will require the inclusion of these new conditions in the modified development consent. Accordingly, the following Directions are made: A) The parties are to confer and file an agreed set of conditions that address the findings in the judgement and the conditions originally in dispute but consequently agreed to by close of business on 1 June 2007. B) On filing of the conditions in Direction 1, the following orders will be made in Chambers: 1) The appeal is dismissed. 2) The application to modify Development Application 06 – 780 for alterations and additions to shopping centre at the New England Highway and Alexandra Avenue Rutherford is modified in the manner set out in Annexure A. 3) The exhibits are returned. ____________ G T Brown Commissioner of the Court 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.