Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 1075 | Case summary

Land and Environment Court (NSW)|2013-04-30

Judgment 1COMMISSIONER: This appeal relates to the deemed refusal of Development Application No. 114.1/2012 by Fairfield City Council (the council) for the construction of two buildings to be used for take-away food premises (Red Rooster and Souvlaki Hut) and associated parking and drive through facilities at 161-167 Hume Highway Lansvale (the site). 2The council maintained that the proposed development must be refused, as the proposed development must not have access from the Hume Highway. If the Court finds that the proposed development can have vehicular access from the Hume Highway then the proposed development ought be refused because:

a deceleration lane should be provided on the Hume Highway,
the internal traffic movements are unsafe,
vehicular movements turning right from the site into Chadderton Street have insufficient sight distance, and
insufficient details on operating hours. 3Matters originally raised by the council in relation to acoustic impacts, garbage storage and the management of the facilities were not pressed by the council following the provision of further information. Insufficient details on building design were accepted by the council as a matter that could be addressed by conditions of consent.

The site 4The site is Lot 21 in DP 1163356, which was registered on 20 December 2012. It is L-shaped with a 20 m frontage to the Hume Highway, a 96.715 m frontage to Chadderton Street and an area of 3323 sq m. The site surrounds Lot 204 (the service station site) on the corner of the Hume Highway and Chadderton Street. The service station site was granted development consent on 27 July 2012 for "the conversion and refurbishment of the existing service station building and signage...". 5Directly to the west is the Lansvale Hotel, which formed part of the subdivision in DP 1163356 (Lot 20). To the north and south are light industrial uses. 6DP 1163356 also provides for a Right-of-Carriageway, 9m wide that benefits the site over the service station site to the Hume Highway and a second Right-of-Carriageway, 6.5 m wide that benefits the service station site over the site to Chadderton Street.

Relevant planning controls 7The site is currently zoned 4(c) under Fairfield Local Environmental Plan 1994 (LEP 1994) and is zoned B5 Business Development under draft Fairfield Local Environmental Plan 2011 (the draft LEP). The council raised no contentions in relation to LEP 1994 or the draft LEP. 8The relevant controls are found in State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) as the Hume Highway is a classified road. The proposed development is subject to cl 101 that states: 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. 9Clause 104 applies to the proposed development, being identified as a "Drive-in take away food outlet" in Column 1 to the Table in Schedule 3 to SEPP Infrastructure. Clause 104(3) provides: (3) Before determining a development application for development to which this clause applies, the consent authority must: (a) give written notice of the application to the RTA within 7 days after the application is made, and (b) take into consideration: (i) any submission that the RTA provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, the RTA advises that it will not be making a submission), and (ii) the accessibility of the site concerned, including: (A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and (B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and (iii) any potential traffic safety, road congestion or parking implications of the development. 10The Roads and Maritime Services (formerly the RTA) objected to the vehicular access to the Hume Highway and provided expert evidence at the hearing together with expert traffic evidence for the applicant and council. 11Fairfield City Wide Development Control Plan. Chapter 12, Car Parking, Vehicle and Access Management (the DCP) is relevant. Clause 12.3.3 of the DCP provides that vehicle access and driveways from arterial roads will only be permitted "where there is no alternate access opportunity".

Must consent be refused? 12Clause 101(2) states: (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 submissions 13Mr Seton, for the council, submits that cl 101(2)(a) provides that the Court must not grant consent as the Court cannot be satisfied that the development does not have practicable vehicular access to the site by a road other than the Hume Highway. In this case, vehicular access is available from Chadderton Street. Mr Seton submits that there are no options other than to dismiss the appeal as the non-satisfaction of the threshold question in cl 101(2)(a) does not allow the merits to be considered. 14Dr Berveling, for the applicant, submits that sub clause (a) is not the only relevant consideration as sub clauses (b) and (c) contemplate vehicular access from a classified road. The sub clauses also do not mean that some vehicular access from a classified road cannot be provided where some vehicular access is provided from a road other than a classified road. He rejects the submission of Mr Seton that consent must not be granted because if cl 101(2)(a) was meant to refer to all vehicular access from a classified road, the clause would have specifically referred to this by the inclusion of a word like "only" in cl 101(2)(a), to read as "The consent authority must not grant consent to development on land that "only" has a frontage to a classified road unless...". 15Dr Berveling further submits that the recent development consent for the adjoining service station reaffirms his submissions that it is appropriate for developments to have vehicular access from a classified road. Findings 16Clause 101(2) of SEPP infrastructure imposes two preconditions to the Court in exercising the power to grant consent to the proposed development. The first precondition requires that the Court be satisfied that, where practical, access can be provided by a road other than the classified road (cl 101(2)(a)). The second precondition requires that the Court be satisfied that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of the matters in sub sec (i) to (iii). The relevant sub secs are (i) and (iii) and relate to the design of the vehicular access to the site and the nature, volume or frequency of vehicles using the classified road to gain access to the site, respectively (cl 101(2)(b)). The precondition in cl 101(2)(c) was not relevant. 17A negative finding for either precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment. Clause 101(2)(a) 18The proposed development provides the following vehicular arrangements to the site:

one entry driveway from the Hume Highway via the service station on Lot 204
one exit driveway to the Hume Highway via the service station on Lot 204,
two-way driveway via Right-of-Carriageway that benefits Lot 204 over Lot 21 to Chadderton Street, and
new two-way driveway at the northern end of the site to Chadderton Street. 19The proposed exit to Chadderton Street south of the new driveway to Chadderton Street has been deleted by agreement. 20Put simply, cl 101(2)(a) means that consent must not be granted if the Court is satisfied that practicable vehicular access is available to the site from a road other than the Hume Highway. I agree with Mr Seton that the Court cannot have this satisfaction for a number of reasons. 21First, the site has a frontage of 96.715 to Chadderton Street. Chadderton Street is a sealed, kerbed and guttered dedicated road with sufficient width to provide access to the site as well as the other industrial properties in this street. 22Second, the question of whether Chadderton Street is practicable, in terms of access, does not arise given the alignment and construction of the street and also that the proposed development seeks access to this street. Other developments in Chadderton Street appear to have vehicular access consistent with what would be expected in a light industrial area. 23Third, the Right-of-Carriageway 9m wide that benefits the site over the service station site to the Hume Highway does not override the requirements of cl 101(2)(a). 24Fourth, and while cl 101(2) contemplates vehicular access from a classified road, all matters in the sub clause need to be satisfied. The matters in sub clauses (b) and (c) do not come into play unless there is no practicable access to a site except from a classified road (sub clause (a)). 25Fifth, in the absence of any indication in cl 101(2)(a) that it contemplates shared vehicular access between a classified road and another road, it must mean that the clause applies to all access from a classified road. 26Sixth, any reliance on the adjoining service station to support vehicular access to the site from the Hume Highway is misplaced given that the service station is an existing use and the recent approval provides for "the conversion and refurbishment of the existing service station building and signage..." rather than a new development. 27As the development cannot function in the form before the Court, if access is denied from the Hume Highway, then the development application must be refused and the appeal dismissed. 28Even though much of the hearing focussed on the merits of whether a deceleration lane was required, internal conflict points and sight distances; these matters are largely irrelevant given that the development must not have vehicular access from the Hume Highway. 29It is also unnecessary to deal with cl 101(2)(b) as all the relevant preconditions in cl 101(2) need to be satisfied before considering the merits of the application.

Orders 30The orders of the Court are:

The appeal is dismissed.
Development Application No. 114.1/2012 for the construction of two buildings to be used for take-away food premises (Red Rooster and Souvlaki Hut) and associated parking and drive through facilities at 161-167 Hume Highway Lansvale is refused.
The exhibits are returned with the exception of exhibit 1.

G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2013

Modern Motels Pty Limited v Fairfield City Council

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