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[2003] VCAT 532
respondent. Conditions Nos. 22 and 23 in Permit No. 2001/397 issued on 22 May 2002 remain unaltered.
VCAT upheld Conditions 22 and 23 of a permit for a 144-lot subdivision requiring the owner to enter a s173 agreement with VicRoads to construct a staggered-T intersection and complete the works within 12 months. Applying s62 of the Planning and Environment Act and the High Court's Cardwell test, the Tribunal found the subdivision would materially increase traffic and occasion an unacceptable safety risk at the Western Highway intersection. The works were reasonably required by the subdivision; the Tribunal rejected arguments that the condition was for an ulterior motive or that costs should be shared. The Tribunal also declined to adopt the applicant's alternative traffic measures or to direct VicRoads on speed limits.
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This is a VCAT Planning and Environment List review (Application No P1895/2002) in which the permit applicants (Mr I. Closter and Oupan Resources Pty Ltd) sought review of permit conditions imposed by Moorabool Shire Council, at VicRoads' request, on a permit authorising a 144-lot staged subdivision (Permit No. 2001/397, granted 22 May 2002). All challenged conditions were resolved except Conditions 22 and 23. Those conditions require, prior to commencement of Stage 5, that the owner enter a s173 agreement with VicRoads and the Responsible Authority to construct a staggered-T intersection at the Hopetoun Park Road/Western Highway intersection (per specified drawings and VicRoads standards), provide specified payments and securities, evidence of $20m public liability insurance for contractors, quality assurance, and to complete the package of works within 12 months of signing the s173 agreement [Conditions quoted in opening section of the decision].
1 cited instrument linked from this judgment.
The applicants argued the conditions were invalid because they did not fairly and reasonably relate to the permitted development, alleging an ulterior motive: the sight-distance problem at the intersection resulted from VicRoads’ decision to set the posted speed to 90 kph (an increase from 80 kph), not from the subdivision. The applicants further argued that, even if works were required, the cost should be shared because the intersection also serves an adjoining older subdivision and land likely to be subdivided in future.
VicRoads relied on engineering evidence that the subdivision would generate approximately 1,015 vehicle movements per day in addition to existing traffic, that 85th percentile speeds in the area were around 94 kph, and that the increased traffic would raise an unacceptable safety risk at the intersection unless the works were undertaken. The Council accepted the desirability of rectifying a road safety issue but initially advanced arguments about fairness of cost allocation.
The Tribunal (Senior Members R Walker and W.R. Gould) applied s62 of the Planning and Environment Act 1987 and the High Court's Cardwell nexus test. It concluded the increased traffic occasioned by the subdivision made the intersection upgrade necessary for safety and that the condition fairly and reasonably related to the subdivision. The Tribunal rejected the applicants' argument that VicRoads’ speed decisions created an ulterior motive invalidating the condition. It also held the Tribunal had no authority to set speed limits or direct VicRoads’ technical determinations. The Tribunal ordered that Conditions 22 and 23 remain unaltered [13], [15], [21], [24], [26].
Two legal threads determine the Tribunal’s reasoning: statutory power under s62 of the Planning and Environment Act, and the Cardwell 'nexus' principle requiring that conditions attached to subdivision permits be reasonably required by the subdivision.
Statutory framework (s62): The Tribunal quoted s62 and identified that the power to impose the conditions could properly be exercised under s62(2) and s62(5) because the works sought were not required by an approved contributions plan nor were they 'on or to' the subject land; thus the responsible authority could include conditions requiring specified works or agreements with referral authorities [13], [14].
Cardwell nexus test: The Tribunal applied the Cardwell principle that the question is whether the condition is reasonably required by the subdivision, which permits consideration of the changes the subdivision is likely to produce (for example, increased road use) [15]. The Cardwell passage (Gibbs CJ) was treated as the governing test for whether a condition is validly imposed.
Factual application to safety risk: The Tribunal accepted VicRoads' evidence that the subdivision would significantly increase traffic and thereby increase the potential for conflict and danger at the intersection to an unacceptable level, even though another traffic expert (Grogan Richards) considered the intersection could operate within capacity. The Tribunal distinguished capacity from safety: an intersection can 'function' yet still present an unacceptable safety risk once traffic increases [25]. The Tribunal therefore concluded the subdivision occasioned the need for the works [21], [26].
Rejection of 'ulterior motive' and alternatives: The applicants argued the real cause of the sight distance problem was VicRoads' speed setting, not the subdivision. The Tribunal concluded that even if the speed limit change contributed to the sight distance issue, it was the subdivision that made the upgrade necessary now. The Tribunal also rejected Grogan Richards’ alternative measures (speed reduction, warning devices) as matters falling within VicRoads’ technical domain and beyond the Tribunal’s power to dictate [24].
Cost allocation: Although benefit would extend beyond the new lots, the Tribunal accepted VicRoads' point that the subdivision itself created the present need for the works and that, in the absence of the subdivision, the works would not be required now. Accordingly the Tribunal held the applicant should bear the whole cost [23].
In sum, the decision rests on applying the statutory condition-making power and the Cardwell nexus test to the facts that additional traffic from this particular subdivision materially increased safety risk at the intersection in the present circumstances.
Before this decision:
After this decision (within the scope of the judgment itself):
This decision therefore reaffirms Cardwell's nexus test in the Victorian tribunal context and clarifies that deference is to be given to the technical assessments and priorities of road authorities (VicRoads) when they identify safety works occasioned by a permitted subdivision. It also reinforces that timing matters: if the subdivider's development makes the works necessary now and the referral authority has no current plan to undertake them, the cost can properly fall on the subdivider.
Paragraph 15 (Cardwell quote)
Paragraph 13 (statute s62 quoted)
Paragraph 21
Paragraph 23
Paragraph 24
Paragraph 26
These passages capture the legal and factual basis for upholding the conditions: statutory power, nexus to the subdivision, deference to the road authority's technical judgment, and the safety rationale.
This decision is engaged where:
In such fact patterns, the Tribunal will examine whether the works are reasonably required by the development (nexus), whether the condition is within statutory power (s62), whether an ulterior motive invalidates the condition, and whether alternative measures or cost-sharing are reasonable.
This decision itself cites Cardwell (High Court) and Christian Brothers (VCAT) and applies those authorities. The judgment does not analyse later cases or report subsequent appellate treatment of this VCAT decision. From the text alone we cannot assert how later courts or tribunals have treated Closter v Moorabool SC; the decision should be treated as a VCAT authority applying Cardwell within Victoria. Users should check later Victorian and higher court decisions and VCAT decisions for subsequent treatment and any evolving approaches to nexus, cost-sharing and deference to referral authorities.
Grounded in the judgment, several issues remain open or context-dependent:
Allocation of benefit and apportionment of cost: The Tribunal required the applicant to bear the entire cost because the works were occasioned by the subdivision now. But the judgment leaves open how costs should be apportioned where a referral authority has partial plans to upgrade or where multiple existing or future developments more clearly share the causation. The judgment says an earlier subdivision lacking a condition cannot be revisited [22], but does not lay down a formula for apportionment.
Degree of deference to referral authority evidence: The Tribunal deferred to VicRoads on speed and safety technical matters, declining to adopt the applicant's alternative measures. The judgment does not provide a detailed standard for when a Tribunal should substitute its view for a referral authority's technical recommendations; that remains fact-sensitive.
The role of timing and external infrastructure projects: The judgment notes that the planned Western Highway diversion could make the upgrade unnecessary if implemented earlier [21], but does not set out how planning authorities should treat speculative or long-term projects when imposing conditions. The balance between present necessity and anticipated future public works remains a point of practical importance.
When a condition might be invalid as an 'ulterior motive' disguised as safety: The applicants argued VicRoads’ speed decisions, not the subdivision, produced the sight distance problem. The Tribunal found the subdivision created the present necessity. There may be close cases where the causal link is more attenuated; the judgment does not provide a granular test for separating legitimate planning motivations from prohibited ulterior motives.
Interaction with contributions plans and s173 mechanisms: The judgment upholds use of s173 to secure off-site works here. Questions about the appropriate use of approved development contributions plans (s62(5)(a)) versus one-off s173 obligations remain context-dependent and not definitively answered in this decision.
Practising professionals should treat Closter as a clear affirmation that VCAT will uphold off-site safety-driven conditions tied to subdivisions where the nexus is shown by evidence that the subdivision makes works necessary now, and where the referral authority provides technical justification. However, factual nuance on apportionment, alternative remedies, and the limits of deference to technical agencies will require careful case-by-case analysis.
Disclaimer: This is a summary and analysis of the VCAT decision Closter & Anor v Moorabool SC [2003] VCAT 532, based only on the judgment text you provided. It is general legal information, not legal advice. I can make mistakes. Before you act on, rely on, or use any part of this analysis, get a qualified Australian lawyer to check it.
PLANNING AND ENVIRONMENT LIST Application No: P1895/2002
APPLICANTS FOR REVIEW: Mr I. Closter and Oupan Resources Pty Ltd
Responsible Authority: Ms T. Heber of Maddocks, Lawyers.
MEDIUM NEUTRAL CITATION: [2003] VCAT 532
It is ordered that Conditions Nos. 22 and 23 in Permit No. 2001/397 issued by the Responsible Authority on 22 May 2002 remain unaltered.
____________________ ________________________
PLANNING AND ENVIRONMENT LIST PLANNING AND ENVIRONMENT LIST
Application under s. 80 of the Planning and Environment Act 1987 for review of conditions in a permit.
22. Prior to the commencement of development relating to Stage 5 of the subdivision, as shown on the Approved Development Plan, the owner of the land must enter into an agreement under section 173 of the Planning and Environment Act with VicRoads and the Responsible Authority to undertake a package of mitigating works at the Western Highway/Hopetoun Park Road intersection. This agreement must include clauses providing for: the construction of a "Staggered T" type intersection generally as detailed in accordance with the Drawing No. 10932E/00/R/-, prepared by Millar & Merrigan in accordance with the Approved Development Plan. The design and construction of the intersection improvements must be to VicRoads' standard design and construction specifications, and the construction must be undertaken by VicRoads approved road construction contractors.
Prior to commencing work within the declared road reserve the developer must :
1. Provide a minimum payment to VicRoads of 1% of the estimated cost of road works, to cover the cost of VicRoads surveillance.
2. Provide a security deposit of 10% of the estimated cost of road works to VicRoads.
3. Provide evidence to VicRoads that the developer's contractor has public liability insurance for at least $20 million for the duration of any proposed works on the Western Highway.
4. Demonstrate that all works are quality assured.
23. The package of mitigating works must be completed within a 12-month period from the date of signing the Section 173 agreement referred to in Condition 22.
1. By application dated 17 October 2001, permission was sought to subdivide the subject land into 144 allotments. Planning Permit No. 2001/397 was granted on 22 May 2002 for the land to be subdivided in stages and for the use of each lot for a dwelling and ancillary outbuildings.
2. On 19 July 2002 the applicant sought a review of conditions 13, 19, 22, 23, 28.5 and 28.6. These conditions were placed on the permit pursuant to directions by three referral authorities.
3. The matter proceeded to mediation and all conditions were settled except conditions 22 and 23 (VicRoads) which are set out above.
4. The land was described by Ms Heber in the following terms:-
The subject land is located off Hopetoun Park Road between Bacchus Marsh and Melton. The land is relatively flat and has been used for agricultural purposes in the past.
The subject land is abutted to the south by the Melton Reservoir, to the south-west by the Werribee River and to the east by the Djerriwarrah Creek. The land to the west of the subject land is developed and used for low density residential purposes. This subdivision was approved by the former Bacchus Marsh Shire under Permit No. 75/93. The land north of Hopetoun Park Road is zoned rural through to the Western Highway and is still used for broad scale farming. That is, grazing and cropping.
Access to the subject land is via Riverview Drive from Hopetoun Park Road with a connection two kilometres north of the subject land to the Western Highway. Access from this direction is by sealed road.
5. The subject land is affected by Development Plan 2 which was placed in the Scheme following Amendment C7. The relevant panel report states at page 1:-
The submission on behalf of the owners of the subject land indicates that the amendment was instigated by the owners and developers of the Hopetoun Park Estate to clarify the development criteria for the future subdivision and development of the land.
For the reasons set out in its report, the Panel appointed by the Minister for Planning to consider Amendment C7 to the Moorabool Planning Scheme recommends that Council adopt the amendment subject to the following changes:
3. A Traffic Management Plan to address amongst other things, the intersection of Hopetoun Park Road and the Western Highway, to be included as a requirement for a Development Plan.
The Traffic Management Plan in the Approved Development Plan consists of:
s a statement including external traffic management measures for the development; and
s the Grogan Richards Traffic Engineering Assessment dated 14 September 2001 together with a preliminary drawing of the proposed functional layout of the Longforest Road intersection.
s The results of the traffic count show an 85th percentile speed that is faster than the sign-posted speed. This higher speed situation requires the Hopetoun Park Road intersection to be relocated some 50 metres further to the east to satisfy AusRoads Guidelines. This will result in a staggered-T intersection with Longforest Road.
s The improvement to the existing intersection may be of short term benefit only as the traffic flow patterns in the area will change considerably with the implementation of the Western Highway deviation to the south of the current Western Highway. If Federal funding becomes available prior to the intersection improvement as proposed being implemented this matter could be reviewed.
The Grogan Richards Traffic Engineering Assessment concludes that:
s The proposed 144 lot subdivision is likely to generate a daily flow of approximately 1,015 vehicle movements, which can be accommodated by the external road network without significant effect on traffic conditions.
s The Hopetoun Park Road and Western Freeway intersection has sufficient capacity to cater for the anticipated development traffic.
8. Ms Heber then examined the validity of the conditions which are considered later in this determination and said:-
In order to find that the conditions do not fairly and reasonably relate to the permitted development it is necessary to determine what is fair and reasonable in the circumstances.
In this case, the permitted development is use and development of the subject land for the purpose of a 144 lot staged subdivision and for the purpose of single dwellings and ancillary outbuildings on each lot. Access to the proposed development is gained from a local road that connects with the Western Highway approximately 2 kilometres north of the subject land.
In turn, the condition requires the developer to carry out works to alter the operation of the intersection of the local road and the highway in order to ensure the operation of the intersection is safe. VicRoads grounds are that safety at the existing intersection will be compromised by the impact of the traffic generated by the development.
It is submitted that VicRoads requires imposition of the conditions in furtherance of an ulterior motive. The main complaint about the intersection is that it does not comply with the AustRoads sight distance requirements on the eastern bound lanes, in particular the southern lane. The sight distance required at an intersection is a function of the speed of the vehicles travelling on the carriageway and not a function of the volume of traffic. The previous signposted speed in the area of the intersection was 80km/h. Due to the upgrade of parts of the highway to declared freeway status the posted speed on the declared freeway sections of the road was changed from 100km/h to 110km/h. As a result of this change the speed in the area of the intersection was lifted from 80 to 90km/h. At the higher speed of 90km/h the existing intersection no longer meets the sight distance requirements. The requirements were met when the posted speed limit was 80km/h.
The Council does not deny that the rectification of a road safety issue is desirable and in the public interest. But, the road safety issue requires rectification because of a change in speed limit initiated by VicRoads which in turn caused non-compliance with safety standards. This is an ulterior motive for the imposition of the conditions. The imposition of the condition for this motive does not fairly and reasonably relate to the development.
The thing that may change as a result of the development is the amount of traffic movements generated by the development. The Grogan Richards' Traffic Engineering Assessment which forms part of the Approved Development Plan concludes that the intersection will operate well within capacity and the traffic generated by the development can be accommodated by the external road network without significant affect on traffic conditions. This conclusion adds weight to the argument that the VicRoads conditions are imposed for an ulterior motive.
The Grogan Richards' Traffic Engineering Assessment concludes also that the intersection would operate within AustRoads sight distance requirements if the speed limit was reduced from 90km/h to 80km/h in the area of the intersection. The posted speed limit on this section of the Highway is 90km/h and approximately 220 metres west of the intersection the advisory speed limit is 80km/h because of the steep conditions created by Anthony's Cutting.
9. Ms Heber said that it is unfair for the permit holder to meet all the costs of the works when the road already serves an existing 80-lot subdivision and has potential for the subdivision of another 54 lots.
10. For VicRoads, Ms Foley called evidence from Mr C R Dunlop, Traffic Engineer who said that the 85 percent-ile speed for this section of the highway was 94kph although the road is signed for 90kph. He said the subject proposal would generate over 1000 vpd in addition to the 400 - 500 vpd existing traffic.
11. In response to a question from Mr Jones, Mr Dunlop said that reducing the speed limit to 80kph would not change the behaviour of vehicle drivers. He said that the intersection was not dangerous at present and the current volume is within the capacity of the intersection. He said that the sight distance at present was within the Australian standard for such intersections. He said that if the speed limit were to be reduced cars would still travel at greater speeds than the signed speed limit unless there was heavy police enforcement.
12. In response, Mr Jones relied on the evidence of Mr D T Grogan, Traffic Engineer, who suggested an alternate treatment for the intersection. Mr Grogan said:-
Alternate intersection treatments are available to improve safety at the Hopetoun Park Road/Long Forest Road/Western Highway intersection without realigning the intersection.
Intersection safety could be enhanced through the installation of a speed warning device on the Western Highway approach from the west. A radar would detect any speeding vehicles and a flashing speed sign would activate to advise drivers to travel at an appropriate speed. A similar device is installed at the Western Highway intersection with Leakes Road in Rockbank. Static signs could be used to alert drivers that there is an intersection ahead.
Reducing the speed of eastbound traffic approaching the intersection to 80 kilometres per hour would result in sight distances satisfying guidelines. This measure would require other actins, such as the above mentioned speed warning device, to encourage driver compliance with speed limits.
Construction of the staggered T intersection as outlined in the Millar Merrigan plan would achieve the SISD (Safe Intersection Sight Distance) for Hopetoun Park Road but would not achieve the same standard for Long Forest Road.
Section 62 of the Planning and Environment Act 1987 says (where relevant) as follows:-
(1) In deciding to grant a permit, the responsible authority must--
(a) include any condition which the planning scheme or a relevant referral authority requires to be included; and
........................................................................
(b) not include additional conditions which conflict with any condition included under paragraph (a) or (aa).
(2) The responsible authority may include any other condition that it thinks fit including--
(a) a condition that specified things are to be done to the satisfaction of the responsible authority a Minister, public authority, municipal council or referral authority; and
........................................................................
(f) a condition that the owner of the land or applicant for the permit in anticipation of the applicant becoming owner of the land is to enter into an agreement with the responsible authority under section 173 within a specified period or before the use or development or a specified part of it starts; and
..............................................................................
(5) In deciding to grant a permit, the responsible authority may--
(a) include a condition required to implement an approved development contributions plan; or
(b) include a condition that specified works which the responsible authority considers necessary as a result of the grant of the permit--
(ii) be paid for wholly by the applicant or partly by the applicant where the remaining cost is to be met by any Minister, referral authority, public authority or council providing the works.
..............................................................................
(6) The responsible authority must not include in a permit a condition requiring a person to pay an amount for or provide services or facilities other than--
(a) a condition required to implement an approved development contributions plan; or
(b) a condition requiring services or facilities to be provided in accordance with an agreement under section 173."
14. The conditions in question were included at the request of Vicroads. Since Vicroads is not a referral authority, the conditions are not included pursuant to s62(1)(a). There is no approved contributions plan and the required works are not to be provided "on or to" the subject land. The power to impose the condition therefore falls within the general words of subsection (2).
15. There was agreement between the parties as to the relevant authorities to be considered in this regard. The principal case in Australia is the High Court decision in Cardwell Shire Council -v- King Ranch Australia [1984] HCA 39; (1984) 53 ALR 632. In that case Gibbs CJ, in a judgment with which the other members of the court concurred, said at (p.635)
"The statutory test that has to be applied by a local authority in deciding whether to attach conditions to its approval in a case such as the present is whether the conditions are reasonably required by the subdivision. This means that the local authority, in deciding whether a condition is reasonably required by the subdivision, is entitled to take into account the fact of the subdivision and the changes that the subdivision is likely to produce - for example, in a case such as the present, the increased use of the road and of the bridge - and to impose such conditions as appear to be reasonably required in those circumstances."
In the present case, the learned District Court Judge found, amongst other things, that traffic on the road and wear and tear on the bridge would be increased by the subdivision of the land. It is difficult to reconcile with that finding the statement that there is no requisite nexus, identification or relationship between the development and the purpose to which the contribution is to be put or the moneys expended on sealing Davidson Road."
16. The condition upheld in that case required the subdivider to make a contribution towards future costs involved in the replacement of a bridge and the upgrade of certain roads.
17. We were referred to a number of other cases including the Tribunal's decision in Christian Brothers Pty Ltd -v- Banyule City Council [2001] VCAT 2120 (9 November 2001). In that case a condition was imposed requiring the applicant to make a substantial payment towards the construction costs of a roundabout at an intersection some distance from the area of land being sub-divided. Senior Member Byard in that case referred to the following quotation from the Judgment of Lord Denning in the case of Pyx Granite Co -v- Minister of Housing and Local Government [1958] 1 QB 554, where his Lordship said:-
"Although the planning authorities are given very wide powers to impose such conditions as they think fit, nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. Planning authorities are not at liberty to use their powers for an ulterior motive, however desirable that object may seem to them in a public interest. "
18. After referring to this passage, Senior Member Byard said:-
"The power and discretion to grant permits and impose conditions must be exercised for the purposes for which the power is granted. Even the pursuit of some legitimate planning policies, extraneous to the purpose of the particular discretion being exercised, is regarded as ulterior. Subject to this the condition must be related to planning purposes and reasonably capable of being related to the implementation of planning policies, or at any rate to have that effect. What is relevant to planning for this purpose is not to be determined by some preconceived notion of what town planning is about. It is to be discerned from the applicable planning legislation which includes the relevant planning Act and planning scheme. "
19. Mr Jones for the permit applicant submitted that the intersection could be made to comply with the AustRoads safe intersection sight distance by reducing the speed limit to 80 kilometres per hour. He argued that the need for the upgrade arose not from the subdivision but from Vicroads determination to fix a speed limit at 90 kilometres per hour.
20. Similarly, Ms Heber for the Responsible Authority argued that condition 22 did not fairly and reasonably relate to the permitted development or further any planning policy applicable to the subject land or the permission given. She said that the imposition of the condition was in furtherance of an ulterior motive namely, to make the intersection compliant with the sight distance requirements for a speed limit of 90 kph.
21. Both Mr Jones and Ms Heber referred to an existing subdivision, the fact that there is other land that, it appears, will be subdivided, and that all of these allotments will be serviced by Hopetoun Park Drive. It is clear that the benefit of this work would be enjoyed by occupiers of the present subdivision, the earlier subdivision, any later subdivision and no doubt other persons. However this was the situation in each of the cases cited. The position is that, because of the present state of this intersection, this subdivision should not proceed unless this work is done. It is the subdivision and the additional traffic resulting from it that renders the upgrade necessary. Vicroads has no immediate plans to upgrade the intersection in the manner described. Further, the proposed diversion work of the Western Highway, if implemented, would make an upgrade unnecessary. Since the subdivision can only proceed if this work is done we think that the imposition of the condition was appropriate. The relevant upgrade was expected to be some 15 years away.
22. Both the permit applicant and the Council argued that the contribution should be only part of the cost, given that the benefit of the work will be shared by occupiers of lots on the existing and any future subdivisions. In response to this suggestion, Ms Foley for Vicroads pointed out that the earlier subdivision was by the permit applicants in the present case. We think this is not relevant. No condition of the type we are considering was imposed in the permit allowing the earlier subdivision and that cannot be revisited now.
23. However, we agree with Ms Foley that if the subdivision were not to occur there would be no need for the works for the current traffic volume and the intersection would continue to function as it is. We also consider that, were the subdivision to occur after the diversion of the Western Highway it would similarly be unnecessary. It is the application for a permit at this time and in these circumstances that make the upgrade necessary and therefore we think the permit applicant should bear the whole cost.
24. We do not believe that it is within the power of the Tribunal, nor its expertise, to dictate to VicRoads what the safe speed limit for this section of the highway should be. Thus we reject Mr Grogan's suggested alternative treatment for the intersection (above).
25. In short we believe the words of Ms Foley to be apposite to this review when she said:-
The purpose of the works is to regulate traffic through the intersection at this point of potential conflict. At present the works are not necessary. With the commencement of Stage Two, of the subdivision the situation will change. If the subdivision were not to occur, the works would not be required.
The subdvision will result in increased traffic volumes using the inersection. Directly connected to the increased traffic volumes will be an increased potential for conflict and danger at the intersection which will increase risk to roadusers to an unacceptable level. ....
The need is put primarily in terms of safety. However there will also be greater convenience to users of the intersection should the upgrade occur.
The evidence of Des Grogan from Grogan Richards indicates that the intersection has the capacity to accommodate the additional traffic that will be generated by the subdivision. The intersection will continue to function in the sense of providing access to and from the Western Highway. In that sense, the upgrade of the intersection is not absolutely necessary. However, when the risk to the safety of road users is factored into the assessment, there is a clear necessity for the works.
26. In short we believe the need for the works proposed by Conditions 22 and 23 to be occasioned by the proposed subdivision for the safety of both the future residents of the subdivision and the travelling public.
____________________ ________________________
PLANNING AND ENVIRONMENT LIST PLANNING AND ENVIRONMENT LIST
Closter & Anor
Moorabool SC [2003] VCAT 532
(1984) 53 ALR 632
Conditions Nos. 22 and 23 in Permit No. 2001/397 issued on 22 May 2002 remain unaltered.