Fenugreek Investments Pty Limited v Wingecarribee Shire Council [2012] NSWLEC 1214 (8 August 2012)

Last Updated: 9 August 2012

Land and Environment Court New South Wales

Case Title:	Fenugreek Investments Pty Limited v Wingecarribee Shire Council
Medium Neutral Citation:	[2012] NSWLEC 1214
Hearing Date(s):	2 July 2012
Decision Date:	08 August 2012
Jurisdiction:	Class 1
Before:	Hussey C
Decision:	(1) The appeal is disallowed. (2) Condition 16 of DA LUA10/0421 requiring the construction requiring 135m long deceleration lanes to the proposed "Cherry Tree Hill" cellar door at 12324 Hume Highway, Sutton Forest is retained. (3) The exhibits may be returned except for 1, 4, A, B and C.
Catchwords:	DEVELOPMENT CONSENT - appeal against condition requiring access upgrading from highway
Legislation Cited:	Environmental Planning and Assessment Act 1979 Wingecarribee Local Environmental Plan 1989 (WLEP 1989) State Environmental Planning Policy (Infrastructure) 2007
Cases Cited:
Texts Cited:
Category:	Principal judgment
Parties:	Fenugreek Investments Pty Limited (Applicant) Wingecarribee Shire Council (Respondent)
Representation
- Counsel:	Mr C Norton (Applicant)
- Solicitors:	Mr C Campbell (Respondent)
File number(s):	10058 of 2012
Publication Restriction:

JUDGMENT

Background

1. This appeal is against Condition 16 imposed on a development consent for a "cellar door use" at the rural property 'Cherry Tree Hill', which is located at 12324 Hume Highway, Sutton Forest.
   
2. Condition 16 requires the construction of both deceleration and extended right turn lanes along the Hume Highway frontage, as follows:

16. Roads and Traffic Authority

The following are the requirements of the Roads and Traffic Authority with regard to road safety and traffic management:

Prior to the issuing of a construction certificate

• Prior to the issuing of the construction certificate, the developer shall enter into a Works Authorisation Deed (WAD) with the RTA for any works on the Hume Highway.
  

Prior to the issuing of an occupation certificate (interim or final)

• The developer shall upgrade the junction of the sites access with the Hume Highway to provide left and right turn deceleration lanes of 135m in length including taper to the satisfaction of the RTA in accordance with Austroads Guide to Road Design - Part 4a: Unsignalised and Signalised Intersections. The left and right turns out of the property shall be line marked to provide BAL turnout radii and tapers in accordance with the above standard.
• "Left turn only vehicles over 6m signage" shall be installed at the exit to the site.
• The RTA will be exercising its powers under Section 64 of the Roads Act 1993 to become the roads authority for works on the Hume Highway. Given this, Section 138 consent under the Roads Act 1993 shall be obtained from the RTA prior to construction.
• All road works, traffic control facilities and other works associated with this development, including any modifications required to meet RTA standards, will be at no cost to the RTA. All works shall be completed prior to occupation.
• All road works and traffic control facilities must be undertaken by a pre-qualified contractor. Traffic signals must be constructed by a pre-qualified contractor. A copy of the pre-qualified contractors can be found on the RTA website at: http://www.rta.nsw.gov.au/doingbusinesswithus/tenderscontracts.prequalifiedcontractors.html
• The developer shall apply for a Road Occupancy Licence (ROL) from the RTA Traffic Operations Unit (TOU) prior to commencing work within the classified road reserve or within 100m of traffic signals. The application will require a Traffic Management Plan (TMP) to be prepared by a person who is certified to prepare Traffic Control Plans. Should the TMP require a reduction of the speed limit, a Speed Zone Authorisation will also be required from the TOU. The developer shall submit the ROL application 10 business days prior to commencing work. It should be noted that receiving an approval for the ROL within this 10 business day period is dependant upon the RTA receiving an accurate and compliant TMP. Note: An approved ROL does not constitute an approval to commence works until an authorisation letter for the works has been issued by the RTA Project Manager.
  

The site

3. The subject property is situated within a rural area that generally allows 40ha (100 acre) subdivision and it comprises Lot 109 Deposited Plan 751251 Lot 119 Deposited Plan 751251, Lot 36 in Deposited Plan 751251, Lot 1 In Deposited Plan 213223, Lot 174 in Deposited Plan 751251, Lot 122 in Deposited Plan 751251, Lot 2 in Deposited Plan 213223 Lot 10 in Deposited Plan 262736 Lot 11 in Deposited Plan 262736, Lot 1 in Deposited Plan 124496 and Lot 23 in Deposited Plan 267737.
   
4. The surrounding area contains similar sized properties and about 1.5km south along the highway is Eling Forest, which has a cellar door facility, a restaurant a winery and function facilities and also accommodation,
   

The development

5. The site contains a vineyard and the approved development is for use of part of an existing building and its internal facilities, which consist of a large storage area with included amenities, as a 'cellar door', for the purpose of wine tasting, sale of wine to the general public, sale of wine to various wine club members and from time to time for other associated wine sale activities. The existing building has toilet facilities, which would be part of the cellar door use. The proposal included the provision of tables and chairs for people to sit outside in a picnic area, from time to time.
   
6. During the appeal the applicant confirmed that the development use was to be restricted as follows:
   • The cellar door will be open only five days (Thursday-Monday) rather than the 7 days currently approved.
   • On Sunday, the cellar door will be open by appointment only. Patrons making appointments will be advised to access the cellar door from the south.
   • There will be no signage installed indicating right turn access into the winery that is visible from the southbound carriageway.
   • Promotional material issued by or on behalf of the applicant must indicate that access to the cellar door should be from the south.
     

Planning controls

7. The Site is zoned E3 Environmental Management under the WLEP 2010. "Cellar door premises" are permitted with consent in the E3 zone. However, when the application for a cellar door was lodged in May 2010, the WLEP 2010 was not yet in force.
   
8. The application was determined according to the Wingecarribee Local Environment Plan 1989 (WLEP 1989), under which the site was zoned Environmental Protection zone 7(b). Land use for the purpose of 'local rural industries' was permitted with development consent and this included the use of land as a winery and the sale of wine at the winery.
   
9. Clause 16CA of the WLEP 1989 contained further requirements for development for local rural industries. Clause 16CA(2)(g) provided that 'access to the classified road network is to be constructed in accordance with the Roads and Traffic Authority's requirements as detailed in the Guide to Traffic Generating Developments, Issue 2.1, dated July 1995.
   
10. The subject land has a frontage to a classified road for the purposes of State Environmental Planning Policy (Infrastructure) 2007 ("the Infrastructure SEPP"). Clause 101 of the Infrastructure SEPP relevantly provides:

101 Development with frontage to classified road

(1) The objectives of this clause are:

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a) where practicable, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

The evidence

11. Detailed evidence was presented by:
    • Mr C Millet;Traffic and safety expert for council
    • Mr C Hallam;Applicant's traffic consultant
    • Ms B Wooll; Senior town planner at council.
      
12. The primary issue in this matter concerns the reasonableness of Condition 16. The traffic experts clarified that the applicant was prepared to undertake the required left turn (north bound) deceleration lane, which mainly involves line marking, as required by the consent. The outstanding issue concerns the stipulated 135m length of the right turn deceleration lane.
    
13. Apparently the existing highway (M5) was constructed adjacent to the property in the mid 1980's. It provided a 72m (approx) right turn deceleration lane to allow access across the highway into the subject property. The speed limit is posted at 110km/hr in the vicinity of the subject property.
    
14. In response to condition 16, Mr Hallam set out the following provisions and application of Austroads, which provide:

Section 5 of AUSTROADS Guide to Road Design - Part 4A: Unsignalised and Signalised Intersections sets out the AUSTROADS recommendations for Auxiliary Lanes. Table 5.2 sets out Deceleration distances required for cars on a level grade. To decelerate from 110 km/hr to 0 km/hr, the minimum distance given is 135m, assuming a rate of deceleration of 3.5 m/s2. Within this length, the diverge length into a 3.0m wide lane is 62 m. This Table is what is used when designing typical public road intersections.

Annexure B reproduces Figure 7.7 from AUSTROADS Guide to Road Design Part 4: Intersections and Crossings - General. It gives an Example of a general median opening for access on divided roads. This specifically relates to property access. It shows a right turn bay with a taper plus straight section, with the latter 20m long (minimum). If an additional 20m was added for the taper, the total length would be 40m. Figure 7.6 in the same Annexure gives a similar Example of an emergency median openings on rural freeways. This has similar dimensions. These examples suggest that the application of the standard auxiliary lane length in Table 5.2 of the Part 4A Guide might not be applied for property access (and emergency median openings

Appendix A to AUSTROADS Part 4A sets out Extended Design Domain (EDD) for Intersections. This specifically applies to intersections rather than property accesses. It nevertheless provides an insight into areas where less than full standards might be applied. It states:

"EDD may be considered when:

Reviewing the geometry of existing intersections

New intersections are being retrofitted on existing roads in constrained locations

Improving the standard of existing intersections in constrained locations

Building temporary intersections "

Annexure C sets out Figure A 4 and Table A 16. Figure A 4 shows a minimum EDD channelized right-turn treatment for roadways with medians. From Figure A 4, the right turn lane comprises the diverge/deceleration length D plus the vehicle storage S. From Table A 16, for a design speed of 110 km/hr, D is 65m. Allowing for one car, S is 6m. Thus, the total length of this right turn lane, including the taper (20m) is 71 m. This is very close to the existing length of the right turn lane into the site. The EDD guidelines do not have a sliding scale for increases in right turn volumes.

15. Accordingly, Mr Hallam does not consider the requirement for the 135m deceleration lane necessary or reasonable in the circumstances, instead he considers the existing 71m deceleration lane is adequate because:
    • The EDD provisions should apply to the existing access, which was originally constructed by the DMR/RTA for access into the rural property containing 3 dwellings plus farm.
    • The EDD guidelines effectively provide for a minimum design scenario, which is appropriate for a low traffic generating private driveway, compared with an unconstrained public road intersection.
    • The current average daily traffic generation is 37 vpd, which translates to 9 right turn movements/day.
    • The traffic generation for this type of use is variable depending on a range of factors including the facilities offered.
    • After comparison with other vineyards/cellar doors, the estimated vehicle movements is 48vpd, which translates to 12 right turn movements/day.
    • In absolute terms, this is a minor increase, which if averaged over the period of 10am to 4pm, would average one additional right turn into the site every 4 hours.
      
16. Against this, Mr Milllet says that the road standards have been upgraded since the existing access to the property was provided in the 1980's and due to the following circumstances, the upgraded deceleration lane should be required:
    • The Hume Highway at this location best fits under Category 2A as it is a high speed major arterial road with a posted speed limit of 110km/h. It provides for the interstate and interregional movement of people and freight. Specifically, it is the primary route linking Sydney to Melbourne and Canberra. It carries in excess of 20,000 vehicles per day, which is almost double the 1982 AADT of 11,610 at the same location.
    • Category 2A roads are described as Roads with restricted access, in which driveways are constructed as junctions. The specific access controls for Category 2A roads include limiting the number of accesses, preventing right turns except at selected locations and indented deceleration/turn lanes in median where turns are allowed.
    • Based on the above, ideally for safety reasons, it would be appropriate to restrict access to this, and other similar development to left in/left out, supported by u-turn opportunities to the north and south. Otherwise, the accesses to properties on the Hume Highway should be constructed as junctions. Therefore, the layouts contained in Section 7 of Austroads Guide to Road Design - Part 4: Intersections and Crossings - General are inappropriate and that deceleration lanes are required for access to the proposed development
    • It should be noted that Austroads Guide to Road Design - Part 4A: Unsignalised and Signalised Intersection, Attachment D states under the heading "High-speed rural and urban roads" that:

"On high-speed rural and urban roads (> 90 km/h) with moderate to high traffic volumes it is important for road safety that turning vehicles do not impede through traffic. It is therefore most desirable that turning vehicles (i.e. cars) do not decelerate in the through lane, and that the deceleration lane is long enough to cater for deceleration and storage."

17. From the joint conferencing the engineers agreed on the following turning movements:

TABLE 1: Predicted right turn movements: Current condition

	Existing	Additional (due to development)	Total
Weekdays	6/day	2/day	8/day
Weekends	4/day	10/day	14/day

18. Making allowance then for the applicant's following restrictions, the predicted right turn movements are contained in Table 2:
    • The cellar door will be closed on two weekdays
    • The absence of signage on the southbound carriageway means right turns by casual visitors who decide to visit after seeing a sign will not occur.
    • Visitors who are attracted by publicity will be advised to approach from the south.
    • On Sundays access will be by appointment only which will ensure that customers are advised to access from the south.
      

TABLE 2: Predicted right turn movements: Applicant's revised condition

	HALLAM		MILLET
	Additional (due to development)	Total (existing plus new)	Additional (due to development)	Total (existing plus new)
Tues, Weds	0	6/day	0	6/day
Mon, Thurs, Fri	0-1/day	7/day	1-2 day	7-8 day
Saturday	4	8	10	15
Sunday (appt only)	2	6	4	8

Conclusion

19. Having considered the evidence, the submissions and undertaken a view, I do not consider this application for deletion or modification of Condition 16 merits approval.
    
20. The determination of this matter depends on the application of the most appropriate design standard in the circumstances. The relevant intersection controls are contained in Austroads - Guide to Road Design. The controls allow for a degree of discretion in their application, whereby Mr Hallam supports the application on the basis of the extended design domain (EDD) values for intersection design criteria, but Mr Millet says that the normal design domain (NDD) standards should apply, as required by Condition 16.
    
21. Austroads says that EDD may be considered when:
    • reviewing the geometry of existing intersections'
    • new intersections are being retrofitted on existing roads in constrained locations
    • improving the standard of existing intersections in constrained locations
    • building temporary intersections.
      
22. Furthermore, Austroads states that:

"application of EDD involves identification and documentation of driver capability. Ultimately, the capabilities that are accepted may have to pass the test of what is reasonable capability (the capability that a court decides a driver can reasonably be expected to have when they are taking reasonable care for their own safety). The decision to use EDD should not be taken lightly...

In applying this guide:

• NDD values given in the body of this guide should be used wherever practical.
• Design values outside of NDD are only to be used if approved in writing by the delegated representative from the relevant road authority. The relevant road authority may be a state road authority, municipal council or private road owner.
• If using EDD values, the reduction in standard associated with their use should be appropriate for the prevailing local conditions. Generally, EDD should be used for only one parameter in any application and not be used in combination with any other minimum or EDD value for any related or associated parameters.
  

23. As noted, NDD application requires a deceleration lane of 135m. The alternate EDD for the 110kph design speed allows for a minimum divergence length of 65m + 6m storage making a total of 71m, according to Mr Hallam. In this regard, I note that the existing intersection complies with this and has apparently operated safely for some years.
    
24. Accordingly, I have considered the evidence on the traffic forecasting, which indicates a relatively small increase in right turning traffic anticipated to use the intersection. However my understanding of this evidence is that it is quite subjective because there are no accepted traffic generation rates for this type of use and it is based on limited surveys of other 'cellar door' properties.
    
25. As one of the intentions of the 'wine cellar' is to contribute to the tourism of the area, presumably its viability is dependent on sufficient patronage. But it seems to me that the applicant's restrictions on access due to the right turn highway entry conditions is likely to impose somewhat unrealistic constraints on the operations. Consequently, I am concerned that the restricted entry arrangements will be difficult to enforce because the cellar will presumably be advertised and when open, it will be difficult to regulate patron entry, which may occur after they have completed their right hand turn into the premises.
    
26. I therefore think it is important that any right turn can be made safely. In this regard, I accept that traffic volumes along this section of the Hume Highway have significantly increased since the existing right turn was allowed. Also, taking into account that it is a high speed road with a posted speed of 110kph that includes a high proportion of heavy vehicles, I think considerable weight should be given to the Austroads controls that:

"On high-speed rural and urban roads (> 90 km/h) with moderate to high traffic volumes it is important for road safety that turning vehicles do not impede through traffic. It is therefore most desirable that turning vehicles (i.e. cars) do not decelerate in the through lane, and that the deceleration lane is long enough to cater for deceleration and storage."

27. Even though there is to be no identification signage, I think there is a real likelihood that some motorists may decelerate in the through lane (in the 110kph zone) near the property in anticipation of turning right, which is an undesirable and probably unsafe manoeuvre in the subject environment.
    
28. In this regard, I have considered the evidence concerning the nearby Eling Forest Winery, located to the south of the subject land. Access to this property for northbound vehicles is via a 90 m deceleration lane. Insofar as this has apparently provided satisfactory access to the larger 'winery operations', nevertheless it was constructed under the older, less stringent road standards and I do not consider it should be used as a precedent to reduce the current standard, particularly in light of the significant increase in high speed traffic flows.
    
29. Accordingly, I do not consider it appropriate to approve the applicant's revised option for a 90 m deceleration lane.
    
30. Importantly however, section 1.4 of Austroads says that the NDD values that should be used for the design of all unsignalised and signalised intersections, including new intersections on new or existing roads, and modifications to existing intersections. As Austroads clearly nominates this approach, it seems appropriate to apply it to the Category 2A road in order to achieve a safe outcome, as opposed to applying the EDD values that are only be used in "constrained situations".
    
31. I do not consider there was any substantive evidence demonstrating constrained situations at the site. Instead the turning point is at a relatively open section of the highway without any particular horizontal or vertical alignment constraints. With due care and traffic control the additional length of deceleration could be practically constructed.
    
32. In terms of the controls reference in sA5.3 to criteria for EDD treatments, I have considered Mr Norton's submissions that the reference to using NDD where "practical" derives greater meaning from section A5.3. NDD is not required "wherever physically possible" - the reference to practicality incorporates a degree of reasonableness having regard to the demand for the intersection. The less the demand, the less practical it will be (in terms of cost-benefit) to provide an NDD standard intersection. This was confirmed in Mr Hallam's evidence who said that the term "practical" meant that "the treatment must meet the demand."
    
33. However, I give this submission diminished weight because there will be an increase in demand for this manoeuvre, which I do not consider has been fully quantified. In the circumstance, I consider it reasonable to adopt a cautious approach for the road safety of future patrons of the winery.
    
34. In terms of the applicant's submissions is that Condition 16 is unreasonable, it seems to me that a relevant factor is the associated cost. But the applicant has provided no details in this regard. Instead, Mr Millet estimated that the cost of the NDD deceleration lane would be in the order of $65000. In the circumstances that the 'cellar door' would probably intend to operate as a business/tourist attraction for a reasonable period, I am not convinced this cost is unreasonable when balanced against traffic safety considerations.
    
35. Apart from this, the associated guidelines (Appendix A) for application of the controls say that design values outside of the NDD are only to be used if approved by a delegate of the relevant road authority. Accordingly, the RMS has confirmed the NDD should apply. Therefore, I think additional weight should be given to Mr Millet's opinion in supporting the NDD controls because he is Manager, Land Use Development Impacts with the RMS, which is the relevant road authority.
    
36. In the ultimate, a balance is required between the competing private interests of providing a suitable access for the proposed business relative to the safety risks for patrons accessing the site. The access point is on a heavily trafficked, high speed highway and I consider it is appropriate in these circumstances to adhere to the Austroad standards, which in this is the NDD controls because it is not a 'constrained situation' where the EDD is appropriate, as stated by Mr Millet.
    
37. My conclusion is that the provisions of s101 (2) of SEPP 1 are not adequately satisfied. Also, I do not consider that compelling reasons were submitted to set aside the provisions of cl 16CA 2(g) of the WLEP 1989.
    

Court orders

38. The Court orders that:
    
    • (1) The appeal is disallowed.
      
    • (2) Condition 16 of DA LUA10/0421 requiring the construction of 135m long deceleration lanes, in accordance with Austroads guidelines, to the proposed "Cherry Tree Hill" cellar door at 12324 Hume Highway, Sutton Forest is retained.
      
    • (3) The exhibits may be returned except for 1, 4, A, B and C.
      

R Hussey

Commissioner of the Court