Comiskey Group (A Firm) v Moreton Bay Regional Council & Anor [2012] QPEC 74 (2013) QPELR 161

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Comiskey Group (A Firm) v Moreton Bay Regional Council & Anor [2012] QPEC 74 PARTIES: COMISKEY GROUP (A FIRM) (appellant) v MORETON BAY REGIONAL COUNCIL (respondent) and CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS (sixth co-respondent by election) FILE NOS: 210/10 and 2852/10 DIVISION: Planning & Environment Court PROCEEDING: Hearing of an Appeal ORIGINATING COURT: Planning & Environment Court of Queensland, Brisbane DELIVERED ON: 15 November 2012 DELIVERED AT: Brisbane HEARING DATE: 24 October 2012 JUDGE: R S Jones DCJ ORDER: Appeal is dismissed CATCHWORDS: PLANNING LAW – appeal against a refusal by the respondent of a development application for a full-line supermarket shopping centre – where previously decided that but for traffic issues the appeal would have been allowed – traffic impacts on a State controlled road Integrated Planning Act 1997 Comiskey v Moreton Bay Regional Council & Ors [2011] QPEC 132 COUNSEL: Mr J Haydon for the appellant Mrs N Kefford for the respondent Mr M Hinson SC with Ms J Brien for the sixth co-respondent -- 1 of 10 -- 2 by election SOLICITORS: HWS Lawyers for the appellant Moreton Bay Legal Services for the respondent McCullough & Robertson for the sixth co-respondent by election [1] This proceeding is concerned with an appeal by the Comiskey Group (Comiskey) against a decision by the respondent Council refusing an application for a development permit for the making of a material change of use of land and preliminary approval for building work and associated works to establish a shopping centre. For the reasons set out below the order of the Court is that the appeal be dismissed. Background [2] The proposal envisaged by Comiskey included a Woolworths Supermarket, speciality shops, a gymnasium and a significant number of car parking spaces. The site that would accommodate the shopping centre comprises an area of about 2.423 ha and is part of an overall area of land owned by the appellant comprising 5.896 ha. Immediately south of the proposed development is a significant tavern facility also developed by Comiskey. [3] The subject site is situated just north of the South Pine River on the eastern side of South Pine Road near its intersections with Eatons Crossing Road and Bunya Park Drive at Brendale. South Pine Road is a significant arterial road under the control of the sixth co-respondent by election (the Chief Executive) and carries in excess of 40,000 vehicles per day. It is common ground that South Pine Road is a significant piece of public infrastructure and one of, if not the most, important north south traffic routes for inter suburban travel west of the Bruce Highway between the Brisbane CBD area and residential development to the north. [4] Following an extensive hearing in 2011 involving a raft of issues, I determined that but for the traffic issues associated with the proposal I would have been inclined to allow the appeal.1 While the traffic issues were significant and, at the time of the hearing of the appeal in 2011, yet unresolved the evidence and approach of the traffic engineers called led me to conclude that following further discussion amongst those engineers a solution to the outstanding traffic issues was possible if not probable. Based on that impression I ordered that I would hear from the parties concerning the future conduct of the appeal.2 [5] Following that order of the Court on 24 October 2011, the traffic engineers were able to find a solution to two of the three outstanding substantive traffic issues being that of road and pedestrian safety and the South Pine Road/ Eatons Crossing Road 1 Comiskey Group v Moreton Bay Regional Council & Ors [2011] QPEC 132 at paras 90-91. 2 Ibid, paras 101-102. -- 2 of 10 -- 3 intersection.3 Unfortunately, the traffic engineers still involved in the appeal (Mr McClurg for the appellant, Mr Douglas for the respondent and Mr Pekol for the Chief Executive) were unable to reach agreement on an acceptable solution for the South Pine Road/Bunya Park Road intersection. That intersection must now be one of the most studied suburban intersections in South East Queensland. It is extremely unfortunate that this situation remained as I have no doubt that the parties, particularly Comiskey, have invested considerable time and money in trying to find a solution to this problem. The respective positions of the traffic engineers [6] As at 20114 the degree of saturation (DOS) of the South Pine Road/Bunya Park Road Intersection was 0.83 to 0.84 (i.e. 83 per cent or 84 per cent).5 Those levels were below the Chief Executive‟s acceptable upper limit of saturation for a signalised intersection of 0.9 or 90 per cent DOS. [7] As at 2021 (the relevant traffic planning horizon), the DOS of the intersection, without the proposed development and associated works and without any other intervening remedial or ameliorative works being carried out, would have been 1.04.6 This 2021 scenario was referred to by the traffic engineers as the “do nothing” scenario. [8] As at 2021 with the proposal and its relevant associated roadworks7 in place, the DOS of the intersection was calculated by Mr McClurg, to be 0.98 to 0.968 and by Mr Pekol, to be as high as 1.05 depending on modelling inputs.9 [9] According to Mr McClurg, the appropriate comparison to assess the traffic impact of the proposed development on the intersection was that between the 2021 with development scenario (DOS 0.96 to 0.98) and the 2021 “do nothing” scenario (DOS 1.04). And, as the proposed development resulted in a “non-worsening” result there was no justification to refuse the proposal. It is not in dispute amongst the parties that in the event that I were to find that this were the appropriate comparison the appeal ought not be refused on traffic grounds.10 [10] According to Mr Pekol and Mr Douglas, the comparison adopted by Mr McClurg was not appropriate. According to them, the appropriate comparison should not be of the 2021 post development scenario and the 2021 “do nothing” scenario but of 3 See Exhibit 54. 4 The adopted base case scenario. 5 Exhibit 60, p. 7, per Mr Pekol. 6 Exhibit 61 and Exhibit 60, Appendix C, Table 1. 7 Exhibit 52. 8 Exhibit 56, p.15 (the 0.96 result was achieved by reducing the size of the gymnasium from 2000m2to 250m2). 9 Exhibit 61, Scenario D. 10 Chief Executive‟s written submissions at para 26: Council‟s written submissions at para 5(a). -- 3 of 10 -- 4 the 2021 post development scenario and the so called 2021 “do minimum” scenario.11 [11] The “do minimum” scenario arises in the following way. It was common ground among all of the traffic engineers that well before the 2021 horizon, congestion at this intersection would exceed the Chief Executive‟s acceptable level of saturation to about 90% or 0.9. According to Mr Pekol, that situation would arise by about 2016.12 According to Mr McClurg it could arise as early as 2014.13 According to Mr Pekol and Mr Douglas that level of congestion could be alleviated by changing the way the intersection operates by having pedestrians crossing South Pine Road on the northern side of the intersection crossing at the same time as vehicles turned right (north) exiting Bunya Park Drive from the east. According to Messrs Pekol and Douglas (and not really disputed by Mr McClurg) this “do minimum” scenario would reduce the congestion level at the intersection to at or about DOS 0.9 to 0.92.14 It was also common ground that the carrying out of the works associated with the adoption of this scenario would be relatively inexpensive and straightforward. [12] According to Messrs Pekol and Douglas the appropriate comparison then for determining the proposal‟s impact on traffic congestion at the intersection was the post development scenario (DOS 1.04) and the “do minimum” scenario (DOS 0.9 or 0.92). And, as the proposed development would result in a material increase in congestion above the Chief Executive‟s acceptable level, the appeal ought be refused. The correct comparison [13] As mentioned above the “do minimum” scenario involves the interaction of pedestrian and vehicle traffic on the northern side of the intersection. In describing the current situation and that scenario Mr Pekol reported:15 “As a guide, pedestrian protection is usually not necessary when all of the following conditions are met: 1. The crossing is clearly visible 2. The flow of turning traffic is light 3. The turn occurs from only one lane 4. The speed of turning traffic is low Under the existing phasing arrangement, the pedestrian crossing movement on South Pine Road runs concurrently with the left turn out of Bunya Park Drive … . This equates to the „no protection‟ option listed above. This arrangement is considered to be appropriate because all four conditions specified in the … „no protection‟ are met. 11 Mr Pekol, Exhibit 60, Scenario C: Mr Douglas, Exhibit 59, p 9, paras 30(l) to 30(o). 12 Exhibit 60, p. 8. 13 Transcript T1-38, ll 20-30. 14 Exhibit 60, pp 8-11 and Exhibit 61: Mr Douglas, Exhibit 59, p 9, para 30(n) at 0.92. 15 Exhibit 60, p. 9. -- 4 of 10 -- 5 … Under the revised phasing arrangement, the right turn movement out of the site would be reduced from two lanes to one lane, and would run concurrently with the pedestrian crossing movement on South Pine Road and the left turn out of Bunya Park Drive … . This change would allow more green time to be allocated to the critical through movements on South Pine Road, at the expense of less critical movements from Bunya Park Drive and the site. The net result being an overall improvement in intersection operations.” [14] As I understand it, the changed operation of the intersection proposed by Mr Pekol and supported by Mr Douglas meant that traffic from the west turning south at the intersection would do so by turning into gaps in the north south traffic on South Pine Road. Traffic from the east turning north would be required to merge into the traffic on South Pine Road and also pass through gaps between the pedestrians crossing South Pine Road on the northern side of the intersection. This interaction and tension between traffic and pedestrians was referred to by the engineers as the process of filtering. Mr McClurg expressed concerns about both motor vehicle safety and pedestrian safety but it was tolerably clear that his major concern was pedestrian safety. [15] It is not in dispute that the “do minimum” scenario would increase the level of risk of injury to pedestrians. It is also not in dispute that decisions about such matters involve questions of degree and the exercise of professional judgment. Another relevant consideration in this appeal is that the Chief Executives Guidelines for the Assessment of Road Impacts on Development (GARID) require that any future roadworks are to be taken into account when assessing the likely impacts on traffic resulting from development. [16] According to Messrs Pekol and Douglas, not only was the “do minimum” scenario consistent with GARID but it also only introduced an acceptable increase in risk and, therefore those remedial works would occur prior to 2021 as budgetary and priority constraints permitted. There was no suggestion that the “do minimum” works proposed by Mr Pekol were not consistent with the philosophy prescribed in GARID nor was there any serious suggestion that budgetary and/or priority constraints would cause such works not to be proceeded with at or about when required. [17] In addressing each of the four pedestrian safety conditions set out above Mr Pekol reported:16 “I am of the opinion that pedestrian protection is not required under the revised phasing arrangement … because all four of the criteria specified … are met. In particular: The crossing is clearly visible: 16 Exhibit 60, p. 10. -- 5 of 10 -- 6 The geometry of the intersection affords drivers on all approaches an unobstructed view of the crossing. The flow of turning traffic is light: The (guidelines) do not provide any quantitative guidance as to what constitutes a „light‟ flow of turning traffic. Accordingly, I am informed by the corresponding Main Roads Western Australia (MRWA) … which nominates a figure of 300 vph (vehicles per hour) above which full protection is required. The combined without development flow crossing the pedestrian movement … is 149 vph, which is about 50 per cent of the MRWA figure. The turn occurs from only one lane: There would only be one left turn lane from Bunya Park Drive and one right turn lane from the site. Traffic turning right from the site would have to give way to vehicles turning left out of Bunya Park Drive. The net effect would be a single lane of traffic turning through the pedestrian movement. The speed of turning traffic is low: The radii of the left turn from Bunya Park Drive and the right turn from the site are small and would physically limit the maximum speed of turning vehicles to 20-25 km/h. As above the (guidelines) do not provide any quantitative guidance as to what constitutes a “low” speed for turning traffic. So once again I am informed by the MRWA document which nominates a figure of 50 km/h above which full protection is required.” [18] Mr Douglas gave evidence, albeit in a much more abbreviated way, to similar effect in his evidence in chief.17 [19] In cross-examination by Mr Hinson SC, Mr McClurg expressed his safety concerns as follows:18 17 T1-77, ll 12-35. -- 6 of 10 -- 7 “To change something adversely or to change something to the effect that you increase the risk to pedestrians after its been implemented is a pretty significant consideration to be given and that‟s where in my mind the safety implications of what‟s being proposed by Mr Pekol far outweigh any capacity benefits. They – its not a like for like comparison to compare the left turn and the right turn situation. They both have different aspects to it. But in the – in my considerations as a safety expert, balancing both operations and safety, my greatest concern is that pedestrians crossing the northern side of South Pine Road at present are unopposed by traffic turning right out of the site access. The proposal by Mr Pekol suddenly introduces a conflict. That, to me, is a safety risk. In addition to that, the right turning traffic out of both the site access and out of Bunya Park Drive also currently have an arrangement where they‟re unopposed and the proposition that we would introduce opposed movements for though subsequent to what they exist – what exists now in an unopposed sense is a safety risk.” [20] When taken to the four pedestrian safety issues identified by Mr Pekol, Mr McClurg accepted that the flow of turning traffic would probably be considered light19 and it was not disputed that the right turn would occur from only one lane and that the speed of turning traffic would be low.20 As to the issue of the visibility of the pedestrian crossing Mr McClurg stated that his “initial thoughts” were that it may not be clearly visible because of the road geometry of the intersection. In respect of the right turn out of the site Mr McClurg said: “That approach coming out of the site access is a grade approaching uphill to the intersection. For that reason the visibility from that approach to the crossing may not – may not be acceptable and that‟s my concern in respect of site distance or unobstructed view.”21 [21] This concern however has to be considered in the light that it did not arise after thoughtful investigation or consideration but was based on “initial thoughts” arrived at in circumstances where Mr McClurg had not “assessed” or “looked at” the matter.22 According to Mr McClurg the reason why he didn‟t consider it necessary to carry out any real assessment of the visibility issue was because there were a number of (other) reasons why they “do minimum” scenario should not be adopted.23 [22] It was difficult to discern exactly what these other reasons referred to by Mr McClurg were. However, two particular and inter-related matters did arise out of his evidence. First, that the Chief Executive‟s guidelines provide to the effect that, as a general rule, protected (i.e. non filtering) pedestrian movement should be considered when about 24 to 25 vehicles per hour will be turning right. Second, the 18 T1-46, ll 40-60. 19 T1-48, l 42 (about 67 “right turners” per hour: Mr Pekol T1-71 L 51). 20 T1-49, ll 35 (about 20-25 KPH at T1-70 L 28). 21 T1-48, ll 30-37. 22 T1-48, ll 10-22. 23 T1-57, l 50. -- 7 of 10 -- 8 existing intersection arrangements approved by the Chief Executive when the tavern was built provided for protected pedestrian movements. [23] As to the first of those matters, the Chief Executive‟s, Traffic and Road Use Management Manual (TRUMM) relevantly provides:24 “There is no formal warrant or guideline available to determine whether or not a protected right-turn phase (arrow phase) is required. It will depend upon site conditions, traffic volumes and signal timings. As a general rule, an arrow phase should be considered when two or more vehicles turn right per cycle. The protected phase is required if motorists attempting to make a right-hand turn have insufficient opportunities to filter during the main, through movement phase and the inter-green period. This results in the right-turn movement being delayed (not clearing every cycle), or motorists taking unnecessary risks (accepting unsuitable gaps), which in turn results in crashes or near misses. Traffic waiting to turn right should take up a position forward of the stop line ready to turn when the opportunity arises. The road traffic regulations require such a vehicle to clear the intersection at the end of the green period. It is normally assumed that at least one vehicle can make the right-turn movement in the inter-green period at the end of the through movement phase.” [24] It is of significance, as Mr McClurg acknowledged, that the above statement expresses that as a “general rule” protected pedestrian movement should be “considered”. TRUMM does not contain a general rule that at those traffic levels protected movements must or even should be provided for. [25] In dealing with this passage from TRUMM, Mr Pekol said in evidence:25 “… But that – that second paragraph, I think, continues on from the last sentence in the previous paragraph and actually ramps up or sheds a bit more light on the requirement for that right turn phase. And what it‟s basically saying is if the volume of vehicles turning right is so large and the through traffic, which by law they have to give way to, is so large that there aren‟t gaps sufficient – there aren‟t sufficient gaps for them to perform the right turn, that‟s really when it says “is required”, a protected phase is required. That‟s very different from “should be considered” in the previous paragraph. And obviously when reading this, you read it in conjunction with something like the SIDRA results on page 30 of Exhibit 60A and I‟m drawn to the conclusion that there are ample opportunities for the right-turning traffic to select a gap in the oncoming traffic in which to filter. And the main being, using Mr McClurg‟s numbers, he‟s forecast that coming from Bunya Drive west, a movement of about nine vehicles travelling through. 24 Exhibit 62, s 7.1. 25 T1-69, ll 12-30. -- 8 of 10 -- 9 [26] In respect of pedestrian safety, it was also quite clear that not only had Mr Pekol had regard to the relevant guidelines or manuals but also to the actual inputs (i.e numbers of vehicles and pedestrians and the nature of traffic movements etc) involved in the filtering processes produced by his “do minimum” scenario.26 [27] Turning to the second matter, it was clear that it was Mr McClurg‟s strong opinion that the Chief Executive ought not move from the present protected regime to one that introduced additional risk.27 [28] However, as Mr McClurg himself accepted, traffic engineering decisions often required compromise and the balance of safety and traffic movement efficiency.28 In this appeal I consider that Mr McClurg has failed to have sufficient regard to the operational aspects of the intersection by 2014-2016 if left unremedied and the relatively low risks associated with the proposed remedial works. In this context it is of some relevance that Mr McClurg was prepared to accept traffic/pedestrian filtering as being sufficiently safe in one situation but not in the case of Mr Pekol‟s “do minimum” scenario.29 The only explanation really offered by Mr McClurg for this apparent tension in safety philosophy was that the subject scenario involved a change from the present operation by the Chief Executive from a protected regime to a filtering regime.30 I do not find that explanation or distinction to be particularly convincing. [29] It was Mr Pekol‟s and Mr Douglas‟ opinion that protected pedestrian crossing was not required and their evidence, and opinions were not seriously contradicted by any evidence of Mr McClurg and nor was it seriously challenged in cross examination. [30] Finally on this topic I should deal with Mr McClurg‟s accreditation as a senior road safety auditor. Just what was entailed in becoming a safety auditor and the work carried out by an auditor was not fully explained but great weight was placed on it by Mr Haydon, counsel for the appellant. In fact, the cross examination of Messrs Pekol and Douglas was not so much concerned with their reports and opinions but with their failure to have that accreditation.31 It is clear from his CV that Mr Pekol is a very experienced traffic engineer who, apparently despite not being accredited, had carried out two road safety audits.32 Mr Douglas is also a very experienced traffic engineer and was once a road safety auditor but let his accreditation lapse. It was also apparent that Mr Douglas had carried out a number of significant road safety audits in the past.33 [31] I do not consider that the opinions of Messrs Pekol and Douglas are subordinated in any significant way to those of Mr McClurg because of the accreditation issue and, 26 Exhibit 60 pp 8-11 and at T1-68-T1- 71. 27 e.g. T1-46 ll 25-60: 1-50 ll 18-25: l-62 ll 40-55. 28 T1-45, l 50. 29 Exhibit 48, p. 4, T1-45. 30 T1-46, ll 25-60. 31 Cross-examination of Pekol T1-75; Douglas T1-78, l 50 – 1-79. 32 Exhibit 62, pp 20-22. 33 Exhibit 20, pp 22-23. -- 9 of 10 -- 10 on balance, I consider their evidence to be more reasoned and objective to that of Mr McClurg. [32] For the reasons given I find that the correct before and after comparison is the 2021 with development scenario and Mr Pekol‟s “do minimum” scenario, this comparison reveals a material worsening in the operation of the intersection in the after case.34 And, as a consequence the appeal must be dismissed. Order [33] Appeal dismissed. 34 Of the order of 0.9 (do minimum) to 1.01 (after case) per Mr Pekol at T1-72, l 45 to T1-73, l 1-18. -- 10 of 10 --