Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92 [2010] QPELR 148

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92 PARTIES: AUSTRALIAN RETIREMENT HOMES LIMITED (Appellant) v PINE RIVERS SHIRE COUNCIL (Respondent) and CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS (Co-respondent) FILE NO/S: 954 of 2006 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 8 October 2009 DELIVERED AT: Brisbane HEARING DATE: 10 June; 16, 17, 21 July; 15 August 2008 with further submissions received 16 September 2008. JUDGE: Rackemann DCJ ORDER: A condition will be imposed requiring works generally in accordance with the BMD 70 design subject to minor alterations to accommodate turning movements by large vehicles. CATCHWORDS: ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROLS – CONDITIONS – conversion of existence three-way unsignalised intersection to a four lane signalised intersection – competing designs – appropriate design speed – appropriate geometry – weight to be given to design manuals – proper application of design manuals – whether Council’s preferred design is an unreasonable imposition – exercise of discretion where Council’s design would involve substantially more work at about twice the cost without significant commensurate benefit -- 1 of 18 -- 2 Legislation considered: Integrated Planning Act 1997 (Qld) s 3.5.11, s 3.5.30 Cases considered: Bruigom v Council of the City of Rockhampton (1997) QPELR 418 Grant v Pine Rivers Shire Council [1991] QPLR 160 COUNSEL: B Job for the appellant A Skoien for the respondent SOLICITORS: Deacons Lawyers for the appellant Legal Services Department of Moreton Bay Regional Council for the respondent Introduction [1] The appellant proposes to develop a retirement village at Dohles Rocks Road, Petrie. Reasons have previously been published which indicated that the appeal would be allowed and the development application approved, subject to conditions. The parties have subsequently reached agreement on most of the conditions, but remain at odds over the scope of intersection works which the developer ought be required to carry out1 . [2] The proposal requires construction of an access to/from Dohles Rocks Road at a point immediately opposite its presently unsignalised intersection with School Road to the north. That will convert the intersection into a four way intersection. It is common ground that this will create a need to signalise that intersection. That upgrade will involve achieving an appropriate proper geometric design for the intersection. That will have consequent benefits beyond simply providing for the vehicles generated by the proposal 2 . The developer will bear the cost of that. The residual dispute is as to the standard to which the intersection, including its approaches, should be constructed. [3] In resolving that issue, the Court had the benefit of evidence from two qualified and experienced traffic engineers, Mr Beard (who was called by the appellant) and Mr Deller (who was called by the respondent). The areas of disagreement between them may be described broadly as relating to the choice of the appropriate design speed and the adequacy of the design of various elements of the intersection (including its approaches). 1 There has been a regrettable delay in delivering these reasons. That has, in part, been due to my extended absence on sick leave earlier this year and a period of reduced work capacity since my return. 2 Benefits are referred to in para 4 of the appellants written submissions of 28 July 2008. -- 2 of 18 -- 3 [4] Four alternative designs were ultimately placed before the Court. The appellant put forward, as its primary position, a design, supported by Mr Beard, which is based, in part on a 70 kph design speed but, in part, on something less (the BMD original design). The respondent put forward, as its primary position, a plan of layout based upon a design speed of 80 kph (the Council 80 design). Each of the parties ultimately also put before the Court competing designs for which they contended in the event that the Court determined that the appropriate design speed is 70 kph. [5] The differences between the competing designs (even the competing 70 kph designs) are not trifling in relation to the scope of works which would be required 3 . That is influenced by, amongst other things, the Council’s adoption of a substantially greater curve radius and the straightening of the eastbound through lane, to avoid lateral movement (matters discussed later). That has a consequential effect on relative cost. [6] Mr Beard’s evidence, which I accept, is that the BMD 70 design would be about 20 per cent more expensive than the BMD original design and that the Council 70 design would be about twice as expensive again 4 . That is put into some context by the evidence of Mr Deller, who estimated the cost differential between the Council 80 design and the Council 70 design at $80,000 to $100,000, even though those two designs are similar in terms of the extent of works required5 . [7] The appellant contends that its proposals represent a reasonable approach, having regard to (but not slavishly following) the relevant design manuals (discussed later). The Council contends that the developer ought be required to undertake a greater scope of works, consistently with its designs, in order to more strictly adhere to the relevant standards. The Conditions Power [8] Putting to one side concurrence agency conditions, the power to impose conditions on the approval of an application is expressed in general terms 6 . That must be read subject to the statutory tests for the lawfulness of conditions7 , but there remains a relatively broad residual discretion in relation to the (lawful) conditions which may properly be imposed upon an approval. [9] The exercise of that discretion should have regard to any relevant provisions of the planning documents. The subject application was made under the Transitional Planning Scheme. That Planning Scheme contained special requirements in relation to particular development including “accommodation units, multiple dwellings, 3 Exhibit 40 illustrates the additional pavement areas which would be required as a consequence of the different options. 4 Day 3 T 13 – note the transcript for Day 1 is from 10 June 2008. I have adopted numbering from that day, so that Day 5 is 15 August 2008, even though the numbering on the face of the transcript is different. 5 Day 4 T 48. 6 See s 3.5.11(11)(b) of IPA. 7 See s 3.5.30 of IPA. -- 3 of 18 -- 4 community dwellings and retirement villages”. The relevant provision included a requirement that the owner or applicant, as the case may be: “(a) construct concrete kerb and channelling, bitumen pavement construction and concrete footpaths for the full length of the road frontage or frontages and reinforced concrete industrial crossings to the Council’s specifications, plus alterations necessary for public amenity mains and services; (b) carry out such works as may be deemed by the Council to be necessary to ensure that the development is readily accessible, and to ensure public safety and convenience around the site, including the collection of stormwater drainage from the site and discharging thereof to the requirements of the Council”. [10] I was not referred to any provision of the Transitional Planning Scheme which further particularised the requirements of the Council, nor was I referred to any policy under the Transitional Planning Scheme which specified relevant standards. It appears that, under the Transitional Planning Scheme regime, the Council had regard to a design manual which was adopted as design standards for the purposes of a certain local law 8 . [11] With the introduction of the IPA Planning Scheme, the Council’s Design Manual now forms an appendix to a Planning Scheme Policy (PSP 28). That Design Manual, in turn, references the Queensland Department of Main Roads Road Planning and Design Manual (RPDM) as a standard for intersection design. [12] While the subject application was made under the Transitional Planning Scheme, the Court is entitled to give weight to the new Scheme. In the circumstances, I am inclined to give significant weight to the Planning Scheme Policy and the documents which it references, as being the current documents for the design of roadworks, including intersection design. Application of Design Manual [13] While it is appropriate to give weight to those documents, it would be inappropriate to strictly and slavishly apply each and every provision of them without due regard to the particular context and circumstances at hand. In that regard: (a) the IPA planning scheme and PSP 28 are matters of weight only in the context of the subject application; (b) the Council’s Design Manual (which references the RPDM) is part of a policy document. The existence of a policy does not dispense with the necessity of considering each application on its merits 9 ; (c) the policy is referenced in the Infrastructure Works Code (the Code) which is one of the “Miscellaneous Development Codes”, taken into 8 Local Law No 6 - Roads. 9 See Bruigom v Council of the City of Rockhampton (1997) QPELR 418 at 423. -- 4 of 18 -- 5 account in impact assessment10 . The Code relevantly references PSP 28 in the “probable solution” to Specific Outcome 9, which requires that “the existing road network is upgraded where necessary to cater for the traffic impact from the development for a period of not less than 10 years hence”. The Planning Scheme does not necessarily require the adoption of the probable solution in order to meet the specific outcome11 ; (d) a condition must pass the tests for lawfulness in s 3.5.30 “despite the laws that are administered by, and the policies that are reasonably identified as policies applied by, an assessment manager or concurrency agency”. [14] Further, intersection design cannot readily or appropriately be carried out in ignorance of the particular context. Not all intersections precisely conform to the illustrations in the design manuals 12 . As Mr Deller conceded 13 , an intersection is not necessarily unsafe simply because it fails to comply in all respects with the design manual. The process involves assessment and judgment, having regard to relevant objectives, including economic considerations. [15] The overall objectives of the Infrastructure Works Code, the stated objective of PSP 28 and the “design philosophy” section of the Council’s Design Manual all recognize that what is sought is a solution which combines considerations of safety, amenity, convenience, economy and the environment14 . The RPDM has its own “Design Philosophy” chapter which is expressly stated to relate to “all of the other chapters of this manual, which have to be read in conjunction with, and applied in light of, the philosophy espoused here”. That philosophy recognizes the importance of judgment and experience and promotes flexibility, to encourage independent designs tailored to the particular situation. [16] The introduction to the “Design Philosophy” chapter of the RPDM provides, in part, as follows: “All road design is a compromise between the ideal and what is a reasonable outcome (eg in terms of cost, safety, driver expectation, economic drivers, environmental impacts and social issues …)” 10 If a proposed development is self assessable or code assessable, the Zone Assessment Tables identify the applicable codes for the proposal. A retirement village is not identified as self assessable or code assessable in the prevailing Service Industry Zone. It is therefore impact assessable, such that the Code forms part of the provisions of the Planning Scheme which are taken into account when assessing such development. 11 Mr Skoien, for the Council, drew attention to the reference to PSP 28 in SO 10, which relates to the construction of Council controlled frontage roads. When that specific objective is read in the context of SO 9, PS 9 and PS 10, it can be seen to relate to the construction of a frontage road itself (its width etc) rather than to intersection upgradings required to cater for traffic impact to the design horizon (the matter which is dealt with by SO 9). 12 Mr Beard drew attention to proximate intersections in Dohles Rocks Road and ANZAC Avenue which do not fully comply with the standards sought by the Council for the subject/intersection. 13 Day 4 T 82. 14 See Infrastructure Works Code para 6.1(2)(e), PSP 28 Objective 1, Council’s Design Manual s 4.2.2. -- 5 of 18 -- 6 … “What is clear is that design is a complex task. Design can never be merely the application of numbers from a set of tables developed from the various theoretical constructs used for that purpose. There is a need to apply judgment and experience in arriving at the appropriate design …” “This manual recognises the importance of judgment and experience …” [17] The “design philosophy” chapter of the RPDM also encourages “context sensitive design” which is defined as: “a design approach that aims to achieve an appropriate balance between safety, mobility, community and environmental needs when developing solutions …” [18] That is explained more fully in s 2.3 of the RPDM which provides, in part, as follows: “… The design cannot be carried out in isolation, but must be sensitive to the context in which the road will operate. Context sensitive design is an approach that provides the flexibility to encourage independent designs tailored to particular situations. … Within the discipline of road planning and design the term “fit for purpose” has also been widely used as a synonym for context sensitive design. Similarly, the notion that not all roads have to be designed to the same standard (as encompassed by Main Roads motto from an earlier era of ‘adequate roads at minimum cost’) is an example of context sensitive design. … Planners and designers should always aim to produce context sensitive designs. … -- 6 of 18 -- 7 The design challenge is to develop a solution to the problem at hand taking account of the competing alternatives and the trade offs that might be needed to accommodate the budget available and the circumstances of the project. … It is a question of balancing cost against risk rather than simply attempting to decide which solution is “correct” versus “incorrect”. Since it is not possible to create a completely safe road (ie a road that has no crashes on it), each design will be “more safe” or “less safe” than some other alternative. What the appropriate balance is depends on the circumstances and the combination of design elements. Finding the appropriate balance relies on experience and judgment assisted by objective measurement and research. This inevitably produces a significant element of variation in the possible solutions derived from a particular problem ….” [19] In relation to the application of design criteria and the resulting standard of the road, the RPDM cautions that context sensitive design is not an excuse for violating the principles of design and not applying appropriate design criteria but cites, with apparent approval, the following passage from another source: “Design dimensions that do not meet standards do not necessarily result in unacceptable design – dimensions that meet standards do not necessarily guarantee an acceptable design. In assessing the quality of a design, it is not appropriate simply to consider a checklist of standards. The design has to be reviewed with judgment; standards merely assist the reviewer in making those judgments”. [20] While the standards contained in the design manuals annexed to, or referenced in, the Planning Scheme Policy are deserving of significant weight: • they ought not be applied slavishly to the exclusion of an assessment of the merits of the matter at hand; and • the specific standards set out in various chapters of the RPDM should be read in conjunction with, and applied in the light of, the design philosophy in Chapter 2 of the Manual. -- 7 of 18 -- 8 Design Speed [21] One of the differences between the traffic engineers was as to their choice of design speed. The design speed is that which is adopted for the calculation of the various geometric design parameters. [22] Dohles Rocks Road is a significant Council controlled road connecting to the Bruce Highway. It serves an arterial function and is identified within Council’s road hierarchy as an arterial road although, as Mr Deller acknowledged, it is currently performing at a sub-arterial level, having regard to traffic volumes in the relevant section adjacent to the proposed development 15 . [23] Council’s Design Manual provides that16 the minimum design speed for an arterial road is in the range of 8017 and 100 kph 18 . The range for a sub-arterial road is 60 kph19 to 80 kph. Mr Deller contended for a design speed of 80 kph, being the “absolute minimum” for an arterial road. The current posted speed limit on Dohles Rocks Road is only 60 kph. [24] While Dohles Rocks Road may be classified as an arterial road, it is not constructed to its ultimate. The Council has long term plans to upgrade Dohles Rocks Road to a four lane divided configuration with at least a 90 kph design speed and an 80 kph posted speed limit20 . The upgrading is progressing from east to west. The long term planning is consistent with work done by the Council on Dohles Rocks Road east of Ogg Road. However: (a) the existing speed limit on the whole of Dohles Rocks Road is 60 kph and there is no current proposal to increase the speed limit in this part of Dohles Rocks Road 21 ; (b) the section of Dohles Rocks Road within which the subject site falls (west of Ogg Road, in the vicinity of School Road) consists of a two way lane two lane road with lesser standard intersections22 , generally designed to between 60–70 kph23 , as well as commercial and industrial driveways which do not have right-turn provision24 ; (c) the upgrading of this part of Dohles Rocks Road is not imminent 25 ; (d) it is common ground that the development should accommodate the future upgrading, but that the developer should not be required to construct this part of Dohles Rocks Road to its ultimate configuration. 15 See Ex 30, pg 2, para 3.7. 16 Section 4.9.3. 17 That is expressed as an absolute minimum. 18 Which is the minimum design speed which would generally be provided for. 19 60 kph is the absolute minimum. 20 Ex 35 – preamble. 21 Ex 35 – preamble. 22 Deller Day 3 T 82. 23 Deller Day 4 T 46-47. 24 Dellder Day 4 T 61. 25 Deller Day 3 T 79, 97; Day 4 T 47. -- 8 of 18 -- 9 [25] Surveys of the existing speed environment in this part of Dohles Rocks Road establish that: (a) the existing average speed is just in excess of the posted speed limit of 60 kph 26 ; and (b) the 85th percentile speed is 68 kph. [26] The RPDM provides that the design speed must be equal to or greater than the operating speed which, in turn, is taken to be the 85 th percentile speed. This would require a design speed of at least 68 kph. [27] As the RPDM provides 27 and Mr Deller confirmed28 , it is common for the operating speed (and the design speed) to be equal to the posted speed plus 10 kph. That suggests that a design speed of 70 kph is appropriate in this part of Dohles Rocks Road at this time. [28] It is not necessarily a case of the higher the design speed the better. Artificially low posted speed limits relative to design and operating speed can be problematic. The traffic engineers agreed 29 that it is desirable that there be an appropriate co-relation between posted speed limits, 85th percentile speeds and design speed. Mr Beard was opposed to adopting a design which could unduly encourage higher operating speeds 30 . [29] Mr Deller’s support for an 80 kph design speed was based, in part, on his view that it would be appropriate for the posted speed limit to be increased to 70 kph, but that is not something which would be required as a result of the subject development31 and it is common ground that there is no current proposal for that to occur. [30] Mr Beard continued to hold a professional view that the design speed ought not be required to be at or above the operating speed at all. However, he acknowledged that the RPDM and industry standard design practice takes a different approach32 . [31] In the circumstances, I am satisfied that the appropriate design speed for the intersection upgrading works required by this development in this part of Dohles Rocks Road, at this time, is 70 kph. [32] I was referred to the decision in Grant v Pine Rivers Shire Council [1991] QPLR 160 where it was said that “the nature and function of Dohles Rocks Road is indicative that it should, for the purposes hereof, be regarded as having a design speed of 80 kph”. It was submitted that nothing had occurred since that decision 26 The mean is 62.9 kph and the median is 62.3 kph – see Annexure to Ex 35; Deller Day 3 T 99. 27 Page 6-14 28 Deller Day 4 T 60. 29 Ex 35 pg 1. 30 Day 3 T 9, 10-11, 18. 31 Beard Day 3 T 10. 32 Ex 35 pg 2-3. -- 9 of 18 -- 10 which would persuade the Court to a different conclusion. That case, however, was concerned with a different part of Dohles Rock Road and was determined on the basis of different evidence. It does not change the conclusion in this case. Elements of the Design [33] The difference between the traffic engineers in relation to the extent of works which should be required is explained more by their interpretation and application of the RPDM than their choice of design speed. There is little difference between the extent of works required in the Council 80 design and Council 70 design, but the Council 70 design involves considerably more works, at greater cost, than the BMD 70 design. [34] Mr Deller advocated the strict application of the detailed provisions of the RPDM, given that there was no insurmountable constraint which would prevent their adoption. Mr Beard, on the other hand, placed a greater emphasis upon the RPDM’s promotion of context sensitive design. He had regard to efficiency. He was not in favour of spending twice as much money, by adopting higher standards, to achieve the same outcome 33 . He remained of the view that the BMD original design represented quite a high standard of design for the situation 34 and the best design overall, having regard to the combination of relevant considerations, but saw some benefit in the longer right turn lane for vehicles turning north into School Road, which is provided in the BMD 70 design35 . In my view the BMD 70 design is the more appropriate of the two. [35] Mr Deller contended that the BMD designs are deficient in a number of respects. That is considered below36 . It should be noted however, that each of the elements are part of an overall design. As Mr Deller explained, every design element is sensitive to the others 37 . Consequently, it is necessary to look at the merits of the competing proposals. It is impractical (and probably undesirable) for the court to endeavour to embark upon its own re-design of those options in this case. Given my conclusion in relation to the appropriate design speed, the relevant competing plans are the BMD 70 and the Council 70 designs. (i) Intersection Performance [36] The evidence establishes that, with each of the competing designs, the intersection will operate within capacity and without undue delay or queuing (east bound or west bound) at the design horizon. The performance of the intersection at the design horizon was modelled by Mr Beard using SIDRA38 . His modelling did not show any difference in performance for the options modelled. 33 Day 3 T 13. 34 Beard Day 1 T 43. 35 Beard Day 3 T 22-23. 36 Mr Deller’s report also raised an issue about pedestrian paths. That was not a focus of attention in the appeal. It was dealt with in Mr Beard’s evidence (Day 1 T 46). The BMD designs are acceptable in this respect. 37 Day 4 T 20. 38 Ex 39. -- 10 of 18 -- 11 [37] Mr Deller subsequently carried out comparative modelling with different inputs for the Council’s design. Those differences included different assumptions about parking restrictions in School Road. That showed a somewhat improved performance for the Council’s design. The difference could have narrowed, had the same assumptions about School Road (which assumptions could readily be incorporated in the BMD Design) been used for modelling the BMD Design. In any event, Mr Deller accepted 39 that even the original BMD Design would have satisfactory intersection performance, based on SIDRA analysis, including in terms of capacity, queue lengths and delays. That is, the adoption of the Council’s preferred design is not required in order to secure satisfactory intersection performance. (ii) Turning Movements for Large Trucks [38] The width of the intersection in the BMD design appears inadequate to allow for the turning movements of large trucks. As Mr Beard pointed out 40 and Mr Deller conceded 41 , that is an issue which could be overcome with a minor adjustment to the design. (iii) Inadequate Horizontal Curve Radius [39] Another criticism of the BMD design was the adoption of what was said to be an inadequate horizontal curve radius. Dohles Rocks Road currently features a curve at this intersection with a radius of 180 metres. The BMD 70 design would increase that to 300 metres. That would, as Mr Deller acknowledges, be consistent with the requirements of the RPDM for a design speed of 70 kph. Mr Deller’s initial criticism was based upon his adoption of an 80 kph design speed, which would have required a radius of some 500 metres. Given my conclusion about the appropriate design speed, the radius of the BMD 70 design is appropriate. [40] It may be noted that the Council’s 70 design retains a radius of 500 metres. That has an effect upon the extent of works required. Mr Deller did not pretend that a radius of 500 metres would ordinarily be required by the adoption of a 70 kph design speed. His evidence was that the 500 metre radius was what happened to be required in order to appropriately provide for other requirements. I accept Mr Beard’s evidence 42 that adopting a radius which is appropriate for a design speed of 80 kph, carries some risk of encouraging greater speed, relative to the posted speed limit of 60 kph, but I would not regard the Council 70 design as unacceptable for that reason alone. (iv) The Eastern Approach [41] Mr Deller’s most serious concerns in relation to the BMD 70 design related to the western side of the intersection. He confirmed that the requirement for works on 39 Day 4 T 70. 40 Day 1 T 45, T 65-67. 41 Deller Day 4 T 45. 42 Beard Day 3 T 20. -- 11 of 18 -- 12 the eastern side was related to achieving an appropriate transition from the works required on the western side of the intersection 43 . [42] The existing right turn movement into School Road does not come close to compliance with the standards 44 . The development does not generate additional right turn movements into School Road, but the works will signalise the intersection where the turn is made. The BMD original design lengthened the existing right turn lane (from Dohles Rocks Road to School Road) from 50 to 92 metres, but was still less than that calculated by reference to the RPDM. The provisions of the manual dealing with the length of right turn lanes are discussed later, in the context of the western approach. [43] The BMD 70 design provides an overall length of 120 m, which provides for deceleration to the end of the queue of vehicles stored in the right turn lane45 . Mr Beard saw that as the primary advantage of the BMD 70 design over the BMD original design. It does not exceed the 95 percentile queue in the through lane. Consequently, there will be times when the queue in the through lane blocks entrance to the right turn lane, but the SIDRA analysis demonstrates that there will be satisfactory intersection performance and I am satisfied that no significant safety risk is involved. [44] Mr Deller did not have the same level of concern about the potential for vehicles to stray into the right turn lane to School Road as he held for the right turn to the subject site (discussed later). A vehicle trying to cut the inside of the corner would not stray into the lane46 . There is no difficulty concerning sight distance for vehicles approaching the intersection in this direction47 . [45] I am satisfied that the BMD 70 design is adequate and appropriate in relation to the eastern approach. (v) The Western Approach [46] Mr Deller remained critical of aspects of the design, on the approach from the west which, he said, posed unnecessary safety risks. He was particularly critical of: A. the length of the right turn lane into the site; B. the lateral shift in the through lane and the lack of a full width protection for stationary vehicles waiting to turn right. A. Length of the right turn lane [47] The RPDM provides that: 43 Day 4 T 21. 44 Deller Day 4 T 43. 45 95% queue was 45m (Ex 35 pg 12) to which is added up to 75m for diverge/deceleration. 46 Day 4 T 85 – Mr Beard said he would have no difficulty in providing a raised median as far back as Clyde Street, if the Council so required; Day 4 T 55. 47 Beard Day 4 T 56. -- 12 of 18 -- 13 “a correctly designed right turn lane will provide a deceleration length and a storage length long enough to accommodate the maximum expected queue of right turn vehicles. If the deceleration length cannot be achieved (as is often the case in urban areas) the lane should be at least long enough to accommodate the stored right turn vehicles so that they do not overflow and block the adjacent through lane”. There is no suggestion that there would be any “overflow” on the BMD 70 design. [48] The length of the right turn lane, calculated in accordance with the RPDM, is the sum of the diverge/deceleration length (D) and of the storage length (S). The diverge/deceleration length is the greater of the diverge length and the deceleration length. At a design approach speed of 70 kph, that is, at most, 75 metres48 . The length of the lane in the BMD design is 85m. Mr Deller accepted that the BMD 70 design would provide storage for a couple of vehicles in addition to the appropriate diverge/deceleration length 49 . [49] Mr Deller’s criticism was based, in part, on his understanding that the required storage length for vehicles wanting to turn was much greater (30 or 60 metres). That would appear unlikely, given that the estimated peak hour demand for right hand movements is only 20 vehicles (ie, on average, one every three minutes) set against a model cycle time for the lights of one cycle every 70 seconds (ie on average one vehicle every 2.5 cycles). There is likely to be very little queuing. That is confirmed by Mr Beard’s SIDRA analysis which calculated the 95 th percentile queue length, at the designed horizon, for the right turn from west to south at six metres (one vehicle)50 . The confusion seems to have arisen from reference to lengths which were inputs into the SIDRA program, 51 rather than to the length calculated by the SIDRA analysis52 . [50] I am satisfied that the right turn lane appropriately provides for both diverge/deceleration and storage for vehicles waiting to turn right. [51] It was pointed out however, that the RPDM also seeks turning lanes which are “long enough to allow the right turn vehicles to enter the right turn lane without becoming blocked by the queue of vehicles in the adjacent through lane”. [52] Mr Beard’s modelling shows that the 95 percentile queue in the westbound through lane is 175 metres in the AM peak 53 . That would extend back sufficiently to block 48 Table 13.11 of the RPDM specifies 75 metres as the comfortable deceleration distance. The distance for maximum deceleration is 55 metres while the diverse length is between 60 and 70 metres, depending upon the width of the lane 49 Deller Day 4 T 40-41. 50 Ex 35 pg 12 – Note on the same page the “upper limit of RPDM design domain” for the right turn lane from west to south was specified as 85 metres which was said, in note 2 to be based on “deceleration from 70 kph to the tail of the 2018 peak hour 95 th percentile queue”. 51 See Exhibit 34 and Exhibit 50 52 See Beard Day 1 T 103 l 20, T 104 l 50; Deller Day 4 T 38. 53 It is 146 metres for the eastbound through lane in the PM peak (see Ex 35 pg 6). -- 13 of 18 -- 14 the entrance to the right turn lane54 . Providing for that produces a required length which Mr Beard regarded as “mindboggling”55 , given there will not even be one car wanting to undertake that manoeuvre in most cycles of the lights, even in peak hour at the design horizon 56 . Mr Deller suggested that failing to provide a turning lane extending back beyond the 95 th percentile queue in the through lane could create inefficiency, but, as Mr Beard pointed out, the SIDRA modelling shows satisfactory performance. [53] I accept Mr Beard’s evidence, to the effect that the potential for vehicles in the through lane to queue beyond the entrance to the turning lane is unlikely to cause any significant efficiency or safety issue in this case 57 . [54] Significant safety issues can arise if an auxiliary turning lane overflows into the path of through traffic, however that is not the case here. Instead, a driver in the through lane might be delayed in reaching the point where they can divert into the auxiliary lane. Mr Deller suggested that this might cause an element of frustration or angst on the part of the delayed driver but, as he agreed, it would be reasonable for a user to expect that there might be some delay at the intersection in peak times and that they might not be able to immediately move into the right turn lane on each and every occasion during those peak periods 58 . [55] There was some suggestion that people approaching the back of the queue might delay decelerating, by reason of wrongly assuming that they would be able to move immediately into the right hand auxiliary lane. That potential scenario would relate to a peak period in which vehicles would be approaching from the west in a “platoon” 59 , which would be likely to be progressively decelerating as it approached the tail of the queue at the subject intersection. It would be happening in a congested period, where vehicles are likely to be travelling slower than at uncongested times 60 and in circumstances where there is adequate sight distance. For the reasons explained by Mr Beard61 , the risk is not significant in the subject circumstances. B. The lateral shift and lack of full width protection [56] Mr Deller’s primary concerns, as he confirmed in his oral evidence62 , are the lateral shift in the through lane and lack of full width protection to guard against vehicles in the through lane drifting into the right turn lane to the site. Chapter 18 of the RPDM deals with signalised intersections. It refers back to Chapter 13 and provides that any changes in geometry, consequent upon signalisation, should be in accordance with Chapter 1363 . Chapter 13 deals with a number of different turn 54 And vehicles waiting to turn left as well; Beard Day 3 T 70-71. 55 Beard Day 2 T 26. 56 The Council’s plan incorporates an additional through lane at the intersection; Deller Day 4 T 15. 57 Beard Day 3 T 71. 58 Day 4 T 58-59. 59 Having come from the previous signalised intersection. 60 Deller Day 4 T 63. 61 Day 3 T 74-76. 62 Day 4 T 20. 63 Ex 33B pg 18-3. -- 14 of 18 -- 15 treatments for urban conditions. Of those, channelised intersections (CH) are the most expensive form of an at-grade intersection. The manual provides for channelised right turn treatments (CHR) and channelised right turn treatments with short turn lengths (CHR(S)). It states that CHR(S) treatments were developed because “…Rear-End-Major vehicle accident rates at CHR turn treatments with short lengths of turn lane were not significantly higher than for full turn lengths”64 . [57] The RPDM states that the “most desirable treatment” for right turns is a CHR turn treatment as shown in Figure 13.50. That figure does not show a lateral shift. It has a full width protection for queued vehicles in the right lane. Mr Deller relied upon the appropriateness of the use of a CHR treatment, rather than a CHR(S) treatment (which is depicted with a lateral shift and a partial median in Figure 13.49). [58] The RPDM states that a CHR(S) treatment is suitable where there are low to moderate through and turning volumes. Dohles Rock Road, at this location does not have low through volumes, although the turning volume into the site would be very low65 . The RPDM also states that, for higher volume sites, a full length CHR turn treatment is preferred. [59] Reference was made to Figure 13.23 of the RPDM, which is for use in determining the warrants for unsignalised intersection turn treatments for roads with a design speed of less than 100 kph. Notwithstanding the references to Chapter 13 in Chapter 18 of the RPDM, Mr Beard did not consider the figure to be relevant to signalised intersections, since he said it was based on “gap acceptance”66 . The figure, if applied, suggests that the right turn into the site is at or about the boundary between a CHR and a CHR(S) treatment 67 . [60] Mr Beard’s support for the BMD Design was not based on an asserted applicability of a CHR(S) design, but on his opinion that strict conformity Figure 13.50 was not necessarily required 68 and that the BMD design was appropriate in context, in advance of the Council’s ultimate upgrading 69 . He pointed out 70 that this part of Dohles Rocks Road, while an urban road, currently has a more rural configuration (in that it is a 2 way, 2 lane undivided road), such that the geometry shown in Figure 13.5071 does not provide the best guidance in his opinion. [61] The incorporation of a lateral shift does not, of itself, make an intersection inappropriate. Both the RPDM and Council’s Manual otherwise depict lateral shifts on CHR intersections on major roads 72 . Mr Deller acknowledged that lateral shifts 64 Ex 33 pg 13-27. 65 Deller Day 3 T 104. 66 Beard Day 1 T 36; Day 3 T 66. 67 It places the right turn into School Road within the warrant for a CHR treatment. 68 In his view the through traffic lane does not have to be straight in all CHR treatments – Day 1 T 88; Day 3 T 63, 66. 69 Day 3 T 64. 70 Day 3 T 64, 66-67. 71 CHR treatment for a 2 land rural road. 72 Day 4 T 80 -- 15 of 18 -- 16 occur in the road network and that they can be included in road design 73 , although he said that the Council does not now put a lateral shift in an arterial or higher order road if that can be avoided 74 . Mr Deller’s point was that there is not, in his view, an appropriate transition in the BMD designs75 . [62] It might be noted that there is a lateral shift for east bound traffic at the existing intersection, which does not have a poor traffic accident history 76 . There was some suggestion that the lateral shift might affect the efficiency of the intersection, but I am satisfied, on Mr Beard’s evidence77 , that it would not do so. [63] Attention was drawn to s 11.5 of the RPDM which provides that at small angles greater than 1 degree, the appearance of a kink must be avoided. This is achieved by use of long curves as shown in Table 11.17. The lateral shift or “kink” in this case is at an angle of about 4 degrees78 which, applying Table 11.7, would require a long curve with a radius of 2,600 metres. Those lengths are said to be “more applicable to important and high speed roads than to minor roads”. Mr Beard did not consider that applied to Dohles Rocks Road 79 . Mr Deller pointed out that Dohles Rocks Road is an important road in the context of the Shire. I prefer Mr Beard’s evidence that it is not high speed 80 . [64] Mr Beard’s evidence81 is that this is an appearance issue, rather than a safety issue. That is supported by the notes to Table 11.6 in the RPDM which expressly state that “desirable minimum curve length is for appearance”. Mr Deller acknowledged that the note supported Mr Beard’s proposition 82 . [65] Mr Beard pointed out that where an intersection design includes a lateral shift, it is beneficial for that to be legible 83 . As he acknolwedged, the existence of the lateral shift makes it important that there is appropriate line marking and median construction, to guide the vehicles through the lateral shift. As he pointed out however, the turns in the subject design are very gentle and, with the treatment proposed, will present “absolutely no problem” 84 . I accept that evidence. [66] Mr Deller’s primary concern relates to the fact that the right turn lane is proposed to be protected by a partial (rather than full width) median, around which the through traffic lane would deviate. His concern was for the potential, particularly at night time, for vehicles in the through lane to drift into the right turn lane (with the potential for a rear end collision) if they drove directly towards the eastern side of 73 Day 4 T 81. 74 Deller T 85. 75 Day 4 T 18. 76 Deller Day 4 T 75. 77 Beard Day 3 T 60. 78 Beard Day 3 T 44, 49, 60. 79 Beard Day 3 T 59. 80 Beard Day 3 T 60. 81 Beard Day 3 T 44, 52. 82 Day 4 T 79. 83 Beard Day 3 T 52. 84 Day 2 T 35. -- 16 of 18 -- 17 the intersection, rather than continue on the designated curve for through traffic85 . He acknowledged that the incidence of queued vehicles in the right turn lane at night would be very low86 , but saw the potential for collision as an unnecessary risk which was obviated in the Council’s design. [67] As the RPDM notes 87 , hazardous situations can occur where through and right turn vehicles share a lane. Exclusive right turn lanes are therefore desirable on all intersection approaches where traffic volumes are sufficiently high. Both the BMD design and the Council design provide protection for right turning vehicles by removing potentially stationary vehicles from the through traffic lane and into a dedicated right turning lane. Both designs also provide protection to the auxiliary lane, by a median and signage. The Council design provides an added element of protection, by straightening the through lane and utilising a full width median. [68] The approach taken in the BMD design is itself a common treatment 88 . It is shown as an element in other designs in the RPDM, but is not shown in the Figure 13.5089 . Mr Beard considered it to be an appropriate treatment for upgrading this part of Dohles Rock Road in advance of Council’s ultimate upgrading. He did not consider that it involved a significant additional safety risk. [69] With the BMD design, eastbound vehicles would already be on a 300m radius curve with the result that a driver who did nothing to alter course through the intersection would end up on the left hand side of the road rather than in the right turn lane. 90 Mr Beard’s evidence was that there is no reasonable risk of through traffic becoming confused about the alignment and ending up in the right turn lane, given the treatments proposed (a painted median, lighting to the nose of the median, a “keep left” sign, reflectorised pavement markers and lighting to the intersection), the gentle curve radius through which the through traffic would be moving and the adequate sight distance. He described the risk of through traffic colliding with a clearly visible stationary vehicle in the right turn lane, by driving directly towards a point on the eastern side of the intersection (instead of following the curve in the through lane) as so low as to be negligible 91 . [70] I accept that the Council’s design affords a level of greater protection, but I also accept that the additional risk inherent in the BMD 70 design is minimal in the circumstances. 85 Deller Day 3 T 84. 86 Day 4 T 63. 87 18-7. 88 Beard Day 4 T 54. 89 See Ex 42; It was pointed out that the Council accepted a CHR(S) treatment at the Dohles Rocks Road/McClintock Drive intersection, as an interim layout albeit that the Council’s upgrading was following almost immediately. 90 Day 4 T 53. 91 Day 4 T 50, 51, 53-55. -- 17 of 18 -- 18 Conclusion [71] The difference between the traffic engineers reflects their different approaches to the interpretation and application of the design manuals. Mr Deller takes a relatively strict approach to the application of the detailed provisions of the documents, in the absence of insurmountable constraints to doing so. Mr Beard takes a more flexible approach. [72] For the reasons previously stated, the design manuals are deserving of significant weight, but should not be applied slavishly, to the exclusion of an assessment of the merits of the competing proposals considered in context. [73] The Council’s design may achieve a higher degree of compliance with the design manuals, but it requires significantly more works at something like twice the cost, without achieving a corresponding significant increase in operational efficiency or safety. [74] Counsel for the respondent urged me to place greater weight on safety than economic considerations. He pointed out that, in speaking about economy, the RPDM was concerned with public expenditure, not that of a private developer. He submitted that the Court could not find that the Council’s design would be an “unreasonable imposition” on the development, within the meaning of s 3.5.30 of IPA, in the absence of evidence about the total costs involved and their relationship to the cost/profitability of what is a substantial development. [75] I am not sure that a finding of an “unreasonable imposition” is necessarily unavailable in the absence of that evidence. The evidence satisfies me that the condition favoured by Council would involve substantially more work at about twice the cost 92 , without significant commensurate benefit. It also satisfies me that the BMD 70 design would operate with appropriate levels of efficiency and safety. [76] Even if the Council’s preferred condition could be said to be within the bounds of lawfulness, as passing the tests in s 3.5.30, it does not follow that the Court must impost it. There is a residual discretion. Mr Skoien did not cavil with the proposition that a significant differential in costs relative to improved safety would be relevant to the exercise of discretion93 . [77] I am satisfied that the BMD 70 design is, in context, an adequate, reasonable and appropriate response to the traffic impacts of the proposed development. I will impose a condition requiring works generally in accordance with that design, subject to minor alterations to accommodate turning movements by large vehicles. 92 Which would not be a trifling amount, given the evidence of Mr Deller about the cost differential between the similar Council designs. 93 Day 5 T 29-30. -- 18 of 18 --