Capital 22 Pty Ltd v Chief Executive, Department of Transport and Main Roads; Capital 22 Pty Ltd v Sunshine Coast Regional Council & Anor [2024] QPEC 35

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Capital 22 Pty Ltd v Chief Executive, Department of Transport and Main Roads; Capital 22 Pty Ltd v Sunshine Coast Regional Council & Anor [2024] QPEC 35 PARTIES: CAPITAL 22 PTY LTD (ACN 625 294 528) (appellant) v CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS (respondent) And CAPITAL 22 PTY LTD (ACN 625 294 528) (appellant) v SUNSHINE COAST REGIONAL COUNCIL (respondent) And CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING (co-respondent) FILE NO/S: 1853 of 2023 and 2562 of 2023 DIVISION: Planning and Environment PROCEEDING: Appeals ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 15 August 2024 DELIVERED AT: Brisbane HEARING DATE: 29, 30 & 31 July, 1 & 2 August 2024 JUDGE: Williamson KC DCJ ORDERS: In Appeal No. 1853 of 2023: 1. The Appeal is dismissed. 2. The reviewed decision, communicated by written notice dated 5 June 2023, is confirmed. -- 1 of 16 -- 2 In Appeal No. 2562 of 2023: 1. The appeal is adjourned to 23 August 2024 for review. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – where a development application was made to Sunshine Coast Regional Council to redevelop land in the Principal centre zone at Maroochydore – where the proposed development obtains vehicle access via a State-controlled road and a local road – where the development application was treated as an application under s 62 of the Transport Infrastructure Act 1994 for access to a State-controlled road – where the application under the Transport Infrastructure Act 1994 was refused – where Council granted a development approval subject to conditions, including referral agency conditions – where development conditions limit vehicle access to a local road and preclude vehicle access to the State-controlled road network – where the appellant appealed against the decision under s 62 of the Transport Infrastructure Act 1994 – where the appellant appealed against the imposition of a number of development conditions imposed on the development approval granted by Sunshine Coast Regional Council, including conditions that preclude vehicle access to the State-controlled road network – whether vehicle access should be permitted to a State-controlled road in circumstances where access can be feasibly obtained via a local road. LEGISLATION: Planning Act 2016, s 45 Transport Planning & Coordination Act 1994, s 36B Transport Infrastructure Act 1994, ss 2, 23, 54, 62, 62A, 67, 70, 485B and Schedule 3 CASES: Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2022] QCA 94 Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153 COUNSEL: Mr M Batty and Mr N Batty for the appellant Mr R Anderson KC and Ms K Buckley for the Chief executive, Department of Transport and Main Roads & Chief executive, Department of State Development, Infrastructure, Local Government and Planning Mr C Hughes KC and Mr R Yuen for the Sunshine Coast Regional Council SOLICITORS: MacDonnells Law for the appellant McInnes Wilson for the Chief executive, Department of Transport and Main Roads and Chief executive, Department of State Development, Infrastructure, Local Government and Planning Sunshine Coast Regional Council legal services division for the Council -- 2 of 16 -- 3 Introduction [1] Appeal numbers 1853 of 2023 and 2562 of 2023 were heard together for convenience. They involve a challenge to two decisions that share a common element. The decisions, one made under the Transport Infrastructure Act 1994 and the other under the Planning Act 2016, preclude Capital 22 redeveloping a site in the Principal centre zone at Maroochydore with vehicle access to a State-controlled road, namely Aerodrome Road. The effect of both decisions is to limit vehicle access to the proposed redevelopment via a local road. Background [2] In May 2022, Capital 22 submitted a development application to the Sunshine Coast Regional Council (Council) seeking approval to redevelop land in the Principal centre zone at Maroochydore (the development application). The land is situated at 132, 134-136 Aerodrome Road (the site). It is uncontroversial Aerodrome Road is a State-controlled Road. The site’s frontage to Aerodrome Road caused the development application to trigger referral to the Chief executive (SARA) under the Planning Act 2016 (the PA). [3] At present, the site is improved with low rise commercial buildings. Vehicle access is obtained via two existing crossovers to Aerodrome Road. No vehicle access is obtained via Fairway Drive, which adjoins the southern boundary of the site and is a local road under Council’s control. The scheme of redevelopment seeks to alter these access arrangements such that: (1) one of the two existing crossovers to Aerodrome Road (eastern access) is permanently closed; (2) the remaining crossover to Aerodrome Road (western access) is reconfigured to accommodate left-in and left- out vehicle access; (3) a new crossover is proposed for access to Fairway Drive; and (4) land along the Aerodrome Road frontage of the site is dedicated for a future kerbside bus lane forming part of the ‘CoastConnect’ project. These changes were assessed as part of the development application under the PA by Council as assessment manager and SARA as a referral agency. [4] Proposed changes to the Aerodrome Road access arrangements require permission under the Transport Infrastructure Act 1994 (the TIA). A person with an interest in land can make an application to the Chief executive under s 62(1) of that Act for permission to, among other things, obtain access from land to a State-controlled road. By operation of s 62A of the TIA, the development application is taken to be such an application for a new or changed access to a State-controlled road (access application). Section 67 of the TIA requires a decision notice to be given about an access application. Such a notice was given here and dated 5 April 2023. The notice does not have immediate effect. [5] The notice dated 5 April 2023 includes two conditions: “1. Direct vehicle access is not permitted between Aerodrome Road and the subject site. 2. The existing road access works situated between Aerodrome Road and Lot 3RP53047, Lot 1RP186654 must be removed and all kerb and channel reinstated between the pavement edge and the property boundary in accordance with the Department of -- 3 of 16 -- 4 Transport and Main Roads’ Road Planning and Design Manual. 2nd Edition.” [6] Any failure to comply with these conditions is an offence under s 70 of the TIA. The conditions do not have effect unless and until an approval is granted for the development application made to Council, and that approval takes effect under the PA. [7] Capital 22 sought an internal review of the decision under s 62 of the TIA. The review was unsuccessful, which was communicated by written notice dated 5 June 2023. Proceeding number 1853 of 2023 is an appeal against the reviewed decision (the TIA appeal). The appeal is opposed by the Chief executive, Department of Transport and Main Roads (DTMR). DTMR’s opposition is based on traffic grounds and supported by the evidence of a traffic engineer, Mr Trevilyan. [8] After the access application was decided and reviewed, Council approved the development application, subject to conditions (the development approval). The conditions include those directed by SARA in its referral agency response. A review of this response, and Council’s decision notice, reveals the redevelopment of the site was approved subject to conditions that have the effect of limiting vehicle access to Fairway Drive. [9] Proceeding number 2562 of 2023 is an applicant appeal against, among other things, the access conditions imposed by SARA and Council on the development approval (the Planning Act appeal). The appeal is opposed by Council and SARA. The Council’s opposition is based on traffic and planning grounds. The traffic grounds are supported by a traffic engineer, Mr Douglas. SARA’s opposition is based on traffic grounds only and supported by a traffic engineer, Mr Trevilyan. [10] Given the obvious overlap between the two appeals, they were heard together. These reasons deal with the TIA appeal first because, as Mr Batty conceded, the Planning Act appeal cannot succeed unless the decision under s 62 of the TIA is set aside. This follows having regard to: (1) the conditions of the decision made under s 62 of the TIA; and (2) the offences created by s 70 of the TIA, which include non-compliance with the requirements of a decision made under s 62. The land and surrounding road network [11] The site: (a) comprises two contiguous lots with a combined area of 3,468m 2 ; (b) is regular in shape; (c) has three road frontages: Aerodrome Road to the north, First Avenue to the east and Fairway Drive to the south; (d) is improved with two low-rise buildings having a total floor area of 1,650m 2 and has provision for 40 carparking spaces; (e) has two crossovers to Aerodrome Road (located 10 and 50 metres west respectively from the intersection at First Avenue); and -- 4 of 16 -- 5 (f) has no crossover to First Avenue or Fairway Drive. [12] Council’s adopted planning controls, namely Sunshine Coast Planning Scheme 2014 (version 23) include the site in the Principal centre zone. This is the highest order centre zone in the planning scheme area. [13] Turning to the three road frontages, Aerodrome Road is a four-lane divided State- controlled road with a posted speed limit of 60 km/hr. It has arterial status and is recognised as a ‘district road’, serving an important movement function; the road delivers traffic to and from the Sunshine Motorway and the Maroochydore CBD. [14] Aerodrome Road commences at the beachfront of Alexandra Headlands and continues through to a major intersection at Sunshine Plaza (Plaza Parade and Horton Parade). An examination of the length of the road confirms it is not a pristine, highly efficient arterial road environment. This is the product, in large measure, of matters of history. The intended operation and efficiency of the road is impeded by existing vehicle crossovers and on-street parking. Mr Holland, who is a traffic engineer called by Capital 22, identified in the order of 50 access points along Aerodrome Road. As Mr Holland explained, and I accept, these features create ‘friction’ and ‘delay’. Friction and delay impact on the movement function of Aerodrome Road, being its predominant purpose as an arterial road. [15] The extent of delay and friction is not uniform along the length of Aerodrome Road. It is necessary to look at its parts. For this case, it is necessary to look upstream and downstream of the site. The site is located on the westbound side of Aerodrome Road close to Sunshine Plaza, about 10 metres downstream from First Avenue and about 65 metres upstream from Plaza Parade. The features of this particular section of Aerodrome Road can be identified as follows: (1) there is an absence of on-street parking; (2) there are three closely spaced signalised intersections; (3) there are narrow cycle lanes; and (4) four crossovers are present, providing access to the westbound carriageway. Further, it was pointed out that this part of Aerodrome Road is where heavy traffic movements overlap. Significant growth in pedestrian and cyclist movements are also predicted. This is no doubt due to the proximity of the site to a major bus stop, located about 300 metres to the north. [16] The forward planning for Aerodrome Road includes the CoastConnect project. This is an initiative of the Queensland Government to improve public transport on the Sunshine Coast. The planning for the project is now dated (at least 2010/2011) and involves the provision of a mixture of public transport and cycle lane infrastructure improvements. A map forming part of exhibit 8 reveals the project, if constructed, would provide a dedicated kerbside lane for buses along Aerodrome Road. This includes the western side of Aerodrome Road, between First Avenue and Plaza Parade where the site is located. Table 5-24 of a Concept Design and Impact Management Plan tendered on behalf of Capital 22 indicates the existing road corridor width for Aerodrome Road is 30.2 metres, which exceeds the minimum width required for the CoastConnect project at 29.3 metres. [17] At the time the appeal was heard, the CoastConnect project had not, save for one element, been delivered. The project does not have funding. It does however have a ‘Category C’ status pursuant to the DTMR’s Approved Planning Policy. This means the project is treated as protected planning for a ‘future busway corridor’. The protection of this planning is mirrored in Council’s planning scheme. The planning -- 5 of 16 -- 6 scheme requires new development in the Maroochydore/Kuluin Local Plan Area to, among other things, not compromise the provision and operation of the CoastConnect project: Table 7.2.19.4.1, PO12(c). There is no controversy that this requirement of the planning scheme applies to the site. Indeed, this requirement explains, in large measure, why the proposed redevelopment includes a land dedication along the Aerodrome Road frontage. [18] Fairway Drive adjoins the southern boundary of the site and is a local road, providing local access. The road is currently constructed with a pavement width of 6 metres and has additional width coincident with indented parking on its southern side. Parking is prohibited on the northern side of the road. The eastern end of the road is restricted to left turns only (to First Avenue). The western end of the road links to Mungar Street, which, in turn, links to an all-turns signalised intersection at Plaza Parade. There is no dispute that access to and from the site if redeveloped as proposed can be reliably obtained via Fairway Drive. [19] Fairway Drive is included in the Maroochydore City Centre Priority Development Area (the PDA). The planning for the PDA is managed by ‘Economic Development Queensland’ (EDQ). EDQ is not a party to the appeal. It did, however, provide advice to Council during the development application process that suggests it has a preference; the preference is for access to be available to the site from Aerodrome Road and Fairway Drive. Unsurprisingly, Capital 22 relied upon this advice as a point favouring its position. The advice, in my view, does not take the matter very far. It is now dated. It was also given without the benefit of the body of evidence before this Court. [20] The PDA, in combination with the Principal centre zone in Council’s planning scheme, is intended to accommodate the highest order and most concentrated urban development on the Sunshine Coast. New development constructed within the PDA demonstrates the planning intent for the area is progressively emerging. [21] First Avenue provides a connection to the PDA via an intersection with Aerodrome Road. This is a busy signalised intersection. The site has no access to First Avenue. There is no proposal to obtain vehicle access to or from this road. The statutory decision making framework (TIA) [22] The right of appeal exercised by Capital 22 is conferred by s 485B(2) and Schedule 3 of the TIA. [23] Section 485B(3) of the TIA provides that Part 5, division 3 of the Transport Planning and Coordination Act 1994 (the TPCA) applies to the appeal. The TPCA provides for, among other things, the procedure for the appeal. Relevantly, in this regard, s 36B states: “36B Powers of appeal court on appeal (1) In deciding an appeal against a reviewed decision, the appeal court— (a) has the same powers as the person who made the original decision; and -- 6 of 16 -- 7 (b) is not bound by the rules of evidence; and (c) must comply with natural justice; and (d) may hear the appeal in court or in chambers. (2) An appeal is by way of rehearing. (3) The appeal court may— (a) confirm the reviewed decision; or (b) set aside the reviewed decision and substitute another decision that it considers appropriate; or (c) set aside the reviewed decision and return the issue to the person who made the original decision with the directions that it considers appropriate.” [24] It was common ground, and I accept, that this appeal is to proceed by way of rehearing, akin to a hearing anew. This can be accepted taking ss 36B(1)(a) and (3)(b) in combination. [25] As to who bears the onus in the TIA appeal, the TPCA is silent. The common law position is therefore not displaced. Capital 22, as the moving party, bears the onus: Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2022] QCA 94, [18]. [26] Section 36B(1) of the TPCA provides that this Court on appeal has the same powers as the person who made the original decision. The power to be exercised is that under s 62 of the TIA. It is a power to make a written decision stating any one or more of the matters set out in subsections (1)(a) to (k), which includes ‘that all access between the road and the land is prohibited’ or ‘the location or locations at which access between the land and road is permitted’. The decision-making power includes a power to impose conditions. While not relevant here, a decision under s 62 must also be consistent with any applicable policy promulgated under s 54 of the TIA. [27] Unlike the PA, the assessment and decision making framework for a decision under s 62 of the TIA lacks prescription. It does not prescribe how the assessment must be carried out: cf PA, s 45(5). For example, save for s 62(4), the TIA does not prescribe the benchmarks or codes against which an application may, or must, be examined. Even allowing for s 62(4) (which does not apply here), the TIA confers a broad and largely unfettered discretion on the decision maker. Where a statute confers an unconfined discretion, the factors that may be taken into account in the exercise of that discretion are similarly unconfined, subject to any implied limitation to be found in the subject-matter, scope and purpose of the Act. The ultimate exercise of the discretion should also be consistent with the subject-matter, scope and purpose of the Act. [28] In this regard, the written submissions prepared on behalf of the DTMR emphasised the objectives of the TIA. They are set out in s 2 of that Act, which states in part (relevant to roads): -- 7 of 16 -- 8 “2 Objectives of this Act (1) The overall objective of this Act is, consistent with the objectives of the Transport Planning and Coordination Act 1994, to provide a regime that allows for and encourages effective integrated planning and efficient management of a system of transport infrastructure. (2) In particular, the objectives of this Act are— (a) to allow the Government to have a strategic overview of the provision and operation of all transport infrastructure; and (b) for roads—to establish a regime under which— (i) a system of roads of national and State significance can be effectively planned and efficiently managed; and (ii) influence can be exercised over the total road network in a way that contributes to overall transport efficiency; and (iii) account is taken of the need to provide adequate levels of safety, and community access to the road network; and (iv) impacts on development from environmental emissions generated by State-controlled roads are addressed by the development; and…” [29] The objectives of the TIA, in so far as they apply to roads, are given further attention in Chapter 6 of the same Act. This chapter is specific to road transport. The ‘scope’ of that chapter, in which s 62 is found, is articulated in s 23 as follows: “23 Scope of chapter (1) To give effect to the objectives of this Act in relation to road transport infrastructure, the chief executive has, subject to the Minister and as required by this chapter— (a) the function of influencing the total road network; and (b) control over roads of State significance in the total road network, including roads of national significance that are managed in accordance with agreements or arrangements between the State and the Commonwealth about the funding of road transport infrastructure." (2) This chapter establishes a framework under which the construction, maintenance or operation of a State- controlled road can be done by the chief executive, or by a local government or someone else under agreements or arrangements with the chief executive.” -- 8 of 16 -- 9 [30] I accept the submission made on behalf of the DTMR that ss 2 and 23 of the TIA are consistent with the proposition that a decision maker for the purpose of s 62 may have regard to a broad range of factors. Capital 22 did not contend otherwise. Reasons for refusing the application under s 62 of the TIA [31] To assist with the assessment of the application under s 62 of the TIA, as I have already mentioned, I had the benefit of traffic engineering evidence; Mr Holland, Mr Trevilyan and Mr Douglas. A review of their evidence reveals there are six grounds, taken in combination, that strongly call for refusal of the application to change the access arrangements to Aerodrome Road under s 62 of the TIA. The grounds are as follows. [32] First, it was a matter of agreement between the traffic engineers that ‘the development could acceptably rely on access via Fairway Drive only’. [33] Second, removal of all vehicle access to the site via Aerodrome Road will improve the efficiency of the road (reduce friction) and improve safety for pedestrians. This is in circumstances where the number of pedestrians, cyclists and vehicles in this part of Aerodrome Road (discussed at paragraph [15]) are expected to increase. [34] Third, it was common ground that there is no traffic engineering imperative or requirement for the proposed development to take vehicle access from Aerodrome Road. [35] Fourth, the proposal to take vehicle access from Aerodrome Road is contrary to a well-established matter of traffic engineering principle and practice. In short, as a matter of traffic engineering principle and practice, vehicle access for a site is to be obtained from the lowest order transport corridor, rather than a major corridor, provided it is safe and feasible to do so. Here, Fairway Drive is a lower order road where safe and feasible access can be obtained for the proposed redevelopment of the site. [36] This matter of traffic engineering practice and principle goes to the effective planning and management of the road hierarchy. A helpful statement that encapsulates the position is to be found in Commentary 1 of Austroads, ‘Guide to Road Design Part 4: Intersections and Crossings – General’: “Traditionally, roads have had two basic functions. A typical road provides for both through traffic movement (movement function) and the movements necessary to support the adjoining land use (access function). This can lead to a reduction in the service provided for both functions, particularly delays for arterial road traffic and crashes involving vehicles entering and leaving the road. When traffic volumes are low, the dual function can be accepted. However, as traffic volumes increase, the problems associated with this duality of operation become very important. Effective traffic management requires an appropriate balance to be achieved between the movement and access functions for the particular road or route. It is not always necessary for a road to provide both a movement function and an access function. Current practice is to allocated functions to roads, based on a road hierarchy, as listed in Table C1 1.” -- 9 of 16 -- 10 Table C1 1 Components of the road hierarchy and their functions Type Movement function Access function … Arterial (n/fwy) Major Minimal … Local Minimal Major [37] It was uncontroversial between the traffic engineers that, as a matter of principle, access should be taken from a local road where it can be feasibly obtained. This was unsurprising given the principle is reflected in two documents informing the assessment of the access application. The documents are: (1) a policy promulgated by the DTMR in 2023, titled ‘Vehicular access to state-controlled roads policy’; and (2) Council’s planning scheme. Item (1) is not a code. It has no statutory recognition or force. It is a policy statement and should be viewed in this context (i.e., not applied slavishly or rigidly). Item (2) is an adopted planning control that has the force of law. [38] Fifth, while the proposed development involves rationalising access to a major road, maintaining access of any kind serves to entrench, for a lengthy period, the access function of this part of Aerodrome Road. Entrenchment of the access function represents poor traffic planning. This follows, in my view, once it is appreciated that: (1) a prohibition on access at this location on Aerodrome Road would deliver meaningful improvement to the function and efficiency of the road; and (2) maintenance of access to the road is not without difficulty having regard to the context set out in paragraph [15]. The context paints the picture of a busy arterial road affected by friction and delay. The particular part of Aerodrome Road of interest was also described by the traffic engineers as a ‘knot’ or ‘bottleneck’. [39] Finally, and contrary to Mr Holland’s evidence, the proposed access if approved would be unlikely to operate safely and efficiently taking into account: (1) background traffic and pedestrian volumes, which will increase in this part of Aerodrome Road over time; (2) that the site is located between three closely spaced, busy intersections; and (3) that vehicle access will impact on future transport corridor works. [40] Items (1) and (2) are contextual. They paint the picture of a busy stretch of road, described as a bottleneck, where growth in the number of vehicle and pedestrian movements is anticipated between three closely spaced intersections. It is in this context that the proposed access, if approved, would, prior to the carrying out of future transport corridor planning works, share a common zone with pedestrians and cyclists. This shared zone, I am satisfied, could be navigated safely given the presence of the left turn deceleration lane. The same, however, cannot be said for efficiency. The presence of the access, even with a deceleration lane, will adversely impact on the movement function of Aerodrome Road, causing delay and friction. [41] The position in safety and efficiency terms only deteriorates if it is assumed the CoastConnect project is implemented. [42] The CoastConnect project is recognised in Council’s adopted planning controls. The planning controls embody a forward planning strategy that, among other things: (1) -- 10 of 16 -- 11 acknowledges the project and planning associated with it; and (2) requires new development to avoid adversely impacting (or compromising) the implementation and maintenance of the project. I have proceeded on the footing that this forward planning strategy is to be respected by this Court exercising an appellate function, save where it is demonstrated the strategy has been overtaken by events or was, and remains, invalid (unsoundly based): cf Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153, per White J at [44] to [46]. A case of this kind was not advanced here. Indeed, it was not suggested CoastConnect was unsoundly based or overtaken by events. In my view, the evidence suggests such a case would have been very difficult to advance given: (1) the status of the CoastConnect project, as ‘Category C’; and (2) the content of the DTMR’s ‘Public Passenger Transport Guideline (No.1) 2024’, published in March of this year, which confirms the project remains part of the formal planning for ‘Future State Transport Corridors’. [43] If it is assumed the CoastConnect project is implemented, a kerbside bus priority lane would be provided along Aerodrome Road, including the frontage of the site. To construct the bus lane, the land dedication provided by the development along the frontage of Aerodrome Road would be taken up. In addition, the left hand deceleration lane into the site would be removed. This represents a materially different access arrangement to the site. Vehicles coming to and from the site via Aerodrome Road would have to enter and cross a priority bus lane. While this manoeuvre would be lawful, the very presence of a vehicle in the priority bus lane creates friction and delay. The extent of friction and delay is a direct product of the time the vehicle spends in the bus lane. The time can vary. This can be demonstrated by a few examples, such as: (1) a vehicle entering the site may prop in the bus lane to wait for a pedestrian to cross the site access; (2) a vehicle exiting the site may prop in the bus lane waiting for a gap to enter the flow of traffic on Aerodrome Road; and (3) a vehicle entering the site may slow down to safely enter the site, causing a bus or following vehicle to also have to slow down, causing delay. [44] The delay associated with vehicles crossing the bus lane was helpfully explained by Mr Douglas in his evidence in chief: “…So any vehicle turning left into the site would …turn into the bus lane to enter the site. They would have to give way to pedestrians and cyclists on the pathway, as well as any cyclists that may be in the bus lane ahead of them, but essentially pedestrians and cyclists on the path, which means that whilst they’re doing that there’s more likelihood that the back of the vehicle is blocking the bus lane. … So whenever a vehicle is propped turning into the driveway or stopped waiting for pedestrians and cyclists to clear, any vehicle following in the bus lane, likely a bus or another vehicle potentially turning left into the site, would also be held up until such time as the vehicle is able to turn through…the shared pathway clear of the pedestrians and cyclists, and then the bus would be able to accelerate and resume its journey.” [45] The consequences of delay were explained by Mr Douglas again in his evidence in chief: “…The challenge with that is, and the primary reason you provide a bus lane, is to effectively avoid having to yield and give way and get caught -- 11 of 16 -- 12 in other traffic activities to the maximum extent possible, and because we’ve got Maud Street, First Avenue and then Plaza Parade, three very closely spaced intersections here, what almost certainly will be the objective is to try and give the bus, effectively, a single green wave to traverse those three intersections, so rather than getting stopped in traffic and shuffling its way forward, it should be able to get from, if you like, the back of the queue all of the way past to the head of the queue and into the bus station. If…the bus is held up by a vehicle that’s waiting long enough or frequently enough,…the challenge you will have is the bus may not make it to the green that is running in that single …phase, all of the way through to Plaza Parade. They may actually miss the green and get caught on the amber and red and then have to wait a whole cycle until they get the next green, which could add two minutes or so to the travel time. Now, that doesn’t sound a lot, but if we did that five times along a corridor, that’s 10 minutes extra travel time. The challenge too is if that’s a regular enough occurrence, the schedulers then have to allow for that in their scheduling, which means that connecting services…then all have to be delayed by at least that two minutes to account for the fact that maybe one in four times, the buses do get caught… So it adds that inefficiency…you’re trying to avoid to the maximum extent possible by providing a bus lane.” [46] The evidence set out above explains how the proposed access would impact road efficiency. This is not the only impact. Mr Douglas identified an ‘extra safety consideration’. He pointed out that the existence of the bus lane creates a speed differential between buses and the general traffic. With this circumstance in mind, Mr Douglas explained that a bus would be travelling in the order of 60km/hr in the outside lane, while general traffic is travelling in the adjoining lanes in a stop/start fashion. He said a safety concern arises because a vehicle entering or leaving the site may do so too quickly to avoid the pressure of a bus bearing down upon it. This may put the safety of pedestrians and/or cyclists at risk. It is a risk that arises due to the presence of the proposed access. The risk can be eliminated if access is limited to Fairway Drive only. [47] Against the background of paragraphs [40] to [46], it can be observed that Mr Holland readily conceded the proposed access would impact on Aerodrome Road. He characterised the impact as ‘very minimal’. Mr Douglas and Mr Trevilyan did not agree. I prefer the evidence of Mr Douglas, particularly those parts of his evidence set out above. In my view, the weight to be attributed to adverse safety and efficiency impacts is significant once it is appreciated that those impacts do not arise if access to the proposed redevelopment is limited to Fairway Drive. [48] Success for Capital 22 is reliant upon the Court accepting the evidence of Mr Holland. He supported the proposed access to Aerodrome Road having regard to a number of traffic engineering considerations. Each of the traffic considerations involve matters of engineering judgment, fact and degree. The critical issues in this appeal are, firstly, whether the traffic engineering considerations identified by Mr Holland have been established and, secondly, whether those considerations provide (individually or collectively) a sound basis to approve the Aerodrome Road access despite the matters traversed in paragraphs [32] to [47]. -- 12 of 16 -- 13 Evidence of Mr Holland [49] Paragraph 194 of the traffic joint expert report dated 15 May 2024 records, in summary terms, why Mr Holland supported approval of the Aerodrome Road access. His evidence is in the following terms: “…SH says that the Aerodrome Road access should be approved for the following reasons: (a) The proposed Aerodrome Road access would operate satisfactorily in a safe and efficient manner. (b) The proposed Aerodrome Road access is in the location of the existing western access driveway to the site, and the proposed access has an improved configuration and will carry lower traffic volumes than the existing access, also noting that the existing eastern access will be removed. That is, the impacts on the safety and efficiency of Aerodrome Road as a result of the proposed access will be reduced compared to the impacts associated with the existing driveways. (c) Aerodrome Road is by no means a pristine friction free arterial road environment, with many existing access driveways onto the road and on-street parking (which is proposed for retention in the Coast Connect project). (d) While access reliant on only Fairway Drive could be acceptably accommodated from a traffic engineering perspective, use of the Fairway Drive access options is tight, is circuitous for some travel options, and forces service vehicles and refuse collection vehicles to also use Fairway Drive for access, which is discouraged by the Maroochydore PDA; (e) There are recent examples of the Respondent approving development access onto Aerodrome Road – Horton Parade – Maroochydore Road route when access to other streets is also provided. SH also notes the Coles Beerwah appeal in which all of SH, AD, and BT are involved, and that proposal included a left turns access to Steve Irwin Way (a State-controlled road) as well as signalised access to Roys Road (a Council-controlled road), and none of the experts objected to the principle of access to the State-controlled road when access to the Council road was also available. (f) Aerodrome Road is only a State-controlled road due to historical circumstances and the importance of Aerodrome Road in the hierarchy of roads of state and national significance is low. (g) If the Coast Connect bus scheme is implemented, the proposed access would operate in a similar manner to many other accesses across bus lanes envisaged along the Coast Connect Route. -- 13 of 16 -- 14 (h) If the BRT option is implemented as envisaged in the SCMT, then the bus route will travel along First Avenue (which is also supported by the Maroochydore PDA planning) and will not travel past the subject site frontage to Aerodrome Road, such that the proposed left turn lane in Aerodrome Road into the access driveway would remain when the BRT scheme is implemented. (i) If there is some other as yet unknown transport planning upgrade that arises along Aerodrome Road in the future, with that future planning rendering the Aerodrome Road access unacceptable, then the Aerodrome Road access could be closed by the State at that time.” [50] In fairness to Mr Holland, the summary set out above is supported by a considerable body of work on his behalf. His opinion is supported by, among other things, traffic modelling, swept path analyses and a careful examination of existing circumstances that provide context. It is unnecessary to traverse that full body of work in these reasons. I will however observe that, overall, I was satisfied Mr Holland’s evidence was founded on a detailed and careful examination of the available evidence. I was grateful for his assistance. [51] After examining all of the available traffic engineering evidence, I was not persuaded Mr Holland’s opinion should be accepted in its totality. It is convenient to set out my findings in this regard by reference to Mr Holland’s summary in paragraph 194 of the traffic joint expert report. The findings can be divided into the following categories: (1) matters I accept; (2) matters I do not accept; and (3) matters that, even if accepted, do not advance the assessment of the TIA application one way or another. [52] There are four aspects of Mr Holland’s summary I accept. [53] As paragraph 194(b) of the traffic joint expert report explains, and the evidence establishes, the proposal to close the eastern access and reconfigure the western access is a favourable traffic engineering outcome; the closure and reconfigured access yield traffic safety and efficiency benefits when compared to the existing access arrangements. The benefits are material. This is so once it is appreciated that: (1) the reconfigured access is located in the same position as the western access; (2) the reconfigured access will reduce the number of conflict points from two to one in circumstances where the reconfigured access will carry no more vehicle movements than the two existing access points combined; (3) the reconfigured access includes a left turn deceleration lane that will allow a vehicle travelling along Aerodrome Road to pull out of the line of traffic and enter the site (and give way to pedestrians); and (4) the reconfigured access includes a median that provides a refuge for pedestrians waiting to cross the access. It must however be observed that the traffic benefits flowing from a prohibition on access to Aerodrome Road are far superior to the proposed access. In simple terms, the removal of the existing crossovers means conflict points with pedestrians, cyclists or vehicles on Aerodrome Road are reduced to nil. Vehicle delay and friction is also reduced to nil. [54] Subparagraph 194(c) is relevant context to the assessment. I accept it is correct. As a matter of context, it paints a picture that is consistent with the background traversed in paragraphs [14] and [15]. This context goes to the existing function of Aerodrome Road, that is, the existing balance between a movement and access function. The -- 14 of 16 -- 15 movement function of Aerodrome Road at present, while dominant, is impacted by access to existing driveways and on-street parking. The precise extent of that impact was not quantified (in any empirical way) in the evidence. [55] Subparagraph 194(g) advances the proposition that the proposed access to Aerodrome Road would operate in a similar manner to many other accesses across bus lanes envisaged along the CoastConnect route. While this can be accepted as a statement of fact, it is not, in my view, supportive of approval for the reasons given in paragraphs [39] to [47]. [56] Subparagraph 194(h) assumes the CoastConnect project is abandoned and replaced with, among other things, a rapid transit option that does not travel past the frontage of the site. If this assumption is made, it can be accepted that adverse impacts on the planned road corridor cease to represent a point in favour of refusal. I have taken this into account given the contents of a public document released by the DTMR in November 2023. The document suggests the lustre of the CoastConnect project as a future transport project may be wearing off. That said, too much weight cannot be ascribed to this matter given it requires an assumption to be made that is at odds with the formally adopted road corridor planning. This includes planning embedded in Council’s adopted planning controls. [57] The aspects of Mr Holland’s summary I do not accept are as follows. [58] For the reasons given in paragraphs [38] to [47] I do not accept subparagraph 194(a) and (i) have been established. [59] Subparagraph 194(f) advances the proposition that the importance of Aerodrome Road, while an arterial road, is low. I accept this proposition to the extent it is consistent with subparagraph 194(c). When considered in this way, the proposition provides context going to the existing function of Aerodrome Road. As I have already observed, it provides a balance of movement and access functions. That this balance is evident and impacted by existing circumstances does not, in my view, render it an arterial road of low importance. The importance is evident in the fact that the road provides access to and from the Sunshine Motorway and the Maroochydore CBD. [60] There are two aspects of Mr Holland’s summary, even if accepted, that do not advance the assessment and are of little weight in the exercise of the discretion. [61] Subparagraph 194(d) advances the proposition that access from Fairway Drive is tight and circuitous. This point, even if accepted, does not, in my view, advance the matter very far, if at all, given the traffic engineers agreed ‘the development could acceptably rely on access via Fairway Drive only’. [62] In subparagraph 194(e), reference is made to decisions of the DTMR under s 62 of the TIA where access to Aerodrome Road was permitted despite access also being available via a lower order road. A specific example was given, referred to as the ‘Parker Street’ development. A review of the Parker Street development material indicates that access was permitted by the DTMR to Aerodrome Road in such circumstances. The same material also makes clear that the decision is explained by amenity, rather than traffic engineering considerations. In simple terms, access to the State-controlled road was approved in that case to mitigate amenity impacts on a lower order residential street. This is very different to the development application here. The redevelopment will take access from Fairway Drive, which serves a local -- 15 of 16 -- 16 access function for a commercial area where amenity concerns are not as pressing as they are for a residential area. This difference renders the Parker Street development example, in my view, a distraction. It does not support approval. Exercise of the discretion (TIA) [63] The matters set out in paragraphs [31] to [47] are compelling reasons to refuse the application under s 62 of the TIA. With this in mind, the issue to be determined is whether, in the exercise of the discretion, the parts of Mr Holland’s evidence I accept provide a sufficient basis to adopt a different course. [64] Taking Mr Holland’s evidence at its highest, I accept it can be said that it establishes there are traffic engineering benefits associated with reconfiguring the existing site access arrangements. The benefits are not immaterial. I also accept the evidence establishes there are contextual reasons that suggest it is necessary to keep one’s feet on the ground when examining: (1) Aerodrome Road and its arterial function – the road is not a pristine arterial road; and (2) the likely implementation and timing of the CoastConnect project. [65] These matters, taken in combination with the other traffic engineering matters I do accept (see above), are insufficient to displace the compelling reasons to refuse the TIA application. This is because the evidence establishes that an approval would give rise to adverse safety and efficiency impacts. These impacts do not arise if vehicle access to the proposed redevelopment of the site is limited to Fairway Drive. The adverse impacts attract considerable weight in the exercise of the discretion once it is appreciated that: (1) the redevelopment of the site could acceptably rely on access from Fairway Drive only; and (2) there is no traffic engineering imperative that requires access to be provided to the redevelopment via Aerodrome Road. In these circumstances, approving vehicle access to Aerodrome Road would represent a poor traffic planning and engineering outcome. Disposition of the TIA appeal [66] Capital 22 has not discharged the onus in the TIA appeal. [67] The TIA appeal will be dismissed and the reviewed decision confirmed. The Planning Act appeal [68] Given paragraphs [10] and [67], it is unnecessary to deal with the issues raised in the Planning Act appeal. [69] The Planning Act appeal will be listed for review on 23 August 2024 for the purpose of setting a timetable for the preparation of amended plans and a suite of development conditions. -- 16 of 16 --