Quakers Hill SPV Pty Limited v Blacktown City Council and Sertari Pty Ltd

Mr P Tomasetti SC (2nd Respondent) Storey & Gough (Applicant)

Stephen Wawn & Associates (2nd Respondent) File Number(s): 10293 of 2012

Judgment Introduction 1This appeal is brought under s 97(3) of the Environmental Planning and Assessment Act 1979 (the Act). It concerns a Pedestrian Management Plan (PMP) within a right of carriageway. 2There are three parties involved in the litigation. The applicant, Quakers Hill SPV Pty Ltd, is the registered proprietor of land known as Lot 1 DP 853847 at 9 Nirimba Drive, Quakers Hill (QSPV land). 3The first respondent is the Blacktown City Council (the Council). 4The second respondent, Sertari Pty Limited (Sertari) is the owner of the adjoining land Lot 1 DP 806691, known as 7 Nirimba Drive, Quakers Hill Erected upon that land is a licensed hotel called the "Quakers Inn". 5The applicant's land has the benefit of a right of carriageway, 7 metres wide, over Sertari's land, which passes through the car parking area of the Quakers Inn. 6In earlier proceedings the Court granted development consent for the construction of a residential flat building on the applicant's land. A condition was imposed to the effect that any works could not commence until consent was granted for the use of the right of carriageway. 7In 2008 the Court approved the use of that right of carriageway subject to conditions: Nirimba Developments Pty Limited v Blacktown City Council [2008] NSWLEC 1229 (Murrell C judgment). These proceedings arise out of a deferred commencement condition 3 of that consent. The condition provides: Condition 3 A Pedestrian Management Plan shall be prepared and submitted to Council for the approval of the Director Transport and Technical Services prior to the commencement of excavation or the issue of a Construction Certificate for the subject Residential Flat Building development on Lot 1, DP 853847, No 9 Nirimba Drive, Quakers Hill. The plan shall detail the provision of a safe pedestrian path of movement between Quakers Hill Railway Station and the land to the north west of Lot 1, DP 806691. It shall also make provision for safe pedestrian access from Railway Avenue to the Quakers Inn. A copy of this Plan is to be provided to the owner of Lot 1, DP 806691. The plan shall provide for the employment of at least three (3) RTA traffic control monitors during the construction phase of the development. 8The deferred commencement condition Part A also in terms, provided that all matters enumerated as the subject of deferred commencement conditions were to be completed to the Council's satisfaction within a period of five years from the date of the consent. That date is 30 July 2013. 9In summary this appeal concerns the deemed non-satisfaction by the person identified in the deferred commencement condition 3. It is not an appeal concerning an application for development consent. The only relevant matter in this appeal is whether this Court is satisfied with the PMP because it satisfies the elements of the deferred commencement condition set out above. 10According to the agreed facts (exhibit 1) the applicant prepared and submitted a PMP to the Council in purported satisfaction of condition 3 on or about 29 November 2011. It provided for the option of a Shared zone or the option of the provision of a pedestrian footpath. 11The Council, however, did not express its satisfaction with the PMP so the applicant commenced these proceedings on 23 March 2012. 12Three versions of a PMP in satisfaction of condition 3 have been tendered: (Exhibit D) - Drawing C1 - Give way to pedestrians option (Exhibit E) - Drawing C2- Shared zone option) (Exhibit F) - Drawing C2- Shared zone option (Exhibit E) marked on the plan by shading to indicate the entirety of the shared zone 13The Council's engineer, Mr Svarc, (Manager Transport and City Projects), approves of the shared zone option in (Exhibit F) because it satisfies the elements of detailing the provision of a safe pedestrian path of movement between Quakers Hill Railway Station and the land to the north west and also makes provision for safe pedestrian access from Railway Avenue to the Quakers Inn and via the share zone which is identified by a different pavement surface. Consequently, the Council invites the Court to accept his evidence and approve the shared zone option in (Exhibit F). 14The applicant also presses the shared zone option in (Exhibit F). 15Sertari, however, objects to each version of the PMP for the following reasons. Contention 1 - that the versions of the PMP before the Court are different to the PMP approved by the judgment of Commissioner Murrell and, therefore, the Court has no jurisdiction to approve either of the proposed PMP. Contention 2 - that the Court has not power to approve the shared zone PMP because the legislation requires an approval from Roads and Maritime Services (RMS). And as that has not been obtained the Court has no jurisdiction to approve a shared zone. Contention 3 - that the proposed share zone is unsafe for pedestrians and, therefore, the PMP does not satisfy the requirements of condition 3. Contention 1 16In order to be satisfied that the PMP is what the condition envisaged it is necessary to address the terms of the consent itself and condition 3 in particular. The development consent is to be determined according to its terms: House of Peace v Bankstown City Council (2000) 48 NSWLR 498 at [36]. 17The development consent, in terms, is with respect to "use of right of carriageway". There is no constraint to that use within the terms of the development consent, either in words, or by reference to any particular plan. Both the applicant and the Council submit that the Court approved the use of the right of carriageway in a general sense. 18For the purpose of the appeal pursuant to s 97(3), Sertari contends that the Court's jurisdiction is confined to forming a state of satisfaction as to whether the PMP presently before the Court was in accordance with what was envisaged in the judgment of by Commissioner Murrell. I do not accept that submission. It is not necessary in this case to consider the judgment of Commissioner Murrell when the provisions of the development consent granted by the Commissioner are expressed in clear terms. The Order made by the Commissioner is the operative consent and not the reasons for the decision to grant consent. 19The Murrell judgment approves pedestrian and vehicle use of the right of way subject to a deferred commencement condition for the preparation and submission of a PMP, meeting the requirements of condition 3 and which the nominated officer of the Council approves. 20While the earlier judgment considered two desired routes of pedestrian access available at that time, it does not approve a particular route. It deals with pedestrian and vehicular access but does not delimit it or set a ratio of pedestrian passage. The reference to sketches at paragraph [16], being the sketches prepared by Mr Logan, identified a desire route not approved route. This is clear at [17] where the Commissioner summarised the different opinions of the 3 experts in the earlier proceedings with respect to access. Mr Logan suggested a pathway on the railway land while Mr Hazell and Mr McLaren proposed the Tavern side. It is clear from the Murrell judgment that the Court was aware of the fact that the lease of the Railcorp land was time limited and, if access was via that path, an extension of that leased land would be necessary. 21The judgment also records that the Commissioner was aware of advice from Railcorp that the train line was going to be expanded (at [23]). If that happened then Mr Logan's preferred option would not be available permanently. Therefore, I accept it was well within the Commissioner's consideration that the Railcorp land might not be available for access and the submitted PMP may not rely on it. All that the Commissioner did at [15] to [27] was to identify a variety of options discussed by the various experts in their evidence. No single path was finally approved. That was left for another day under the deferred commencement condition 3. 22The preferred PMP in exhibit F - prepared and submitted in satisfaction of condition 3 in these proceedings, - some 4 years after the Murrell judgment, of necessity excludes the railway land because it is no longer available having been separated from the road reserve by a fence. The future unavailability of the railway land as a pedestrian access path was canvassed at the hearing before Commissioner Murrell and use of that railway land was not mandated by the condition. Relevantly, the plan "A" attached to the Murrell judgment which refers to the railway land was not incorporated into the terms of the condition 3 expressly or by necessary implication: Allendale Blue Metal Pty Ltd V Roads and Maritime Services [2013] NSWCA 103 at [43]; Ryde Municipal Council v The Royal Ryde Homes (1970) 91 WN (NSW) 440 at 443. Therefore, the PMP does not need to reflect that plan. Nor was the reference in condition 14 to a zebra crossing mandated. Accordingly, the PMP does not need to provide a zebra crossing. 23I accept the submission made by the applicant and by the council that there is no jurisdictional difficulty in this Court approving of the pedestrian management plan, having regard to the present exigencies. 24The consent simply approved the use subject to a deferred commencement condition requiring the preparation and submission of a PMP covering the enumerated matters in condition 3 to the satisfaction of the nominated person. There is no jurisdictional impediment to the Court dealing with this appeal on the basis of contention 1. Contention 2/RMS approval 25The second jurisdictional issue raised by Sertari concerns the fact that the shared zone will need to be submitted once approved by the Court, for final approval to the RMS (Guidelines for Shared zones Exhibit 4). 26I agree with the Council and the applicant that this is not a matter that the Court needs to be concerned with in these proceedings because the Court only needs to form a state of satisfaction in relation to the PMP. The fact that the proposal may need approval from another government authority before it can be implemented does not remove the jurisdiction of the Court to be satisfied with the applicant's PMP for the purposes of condition 3 of the consent. 27This is not to say that the Council and the applicant have not recognised the role of the RMS and its recommendations in the preparation of the final design of the preferred PMP in (Exhibit F). The issues raised by the RMS in its letter to the Council dated 2 April 2013 (Exhibit 5) and subsequent communications have been considered and where possible incorporated into the proposed PMP. The final approval of the PMP by the RMS at a later stage does not preclude the Court's satisfaction with the PMP. Contention 3 - pedestrian safety 28The deferred commencement condition 3 requires the preparation and submission of a pedestrian management plan for approval by the nominated officer (now the Court) detailing "...the provision of a safe pedestrian path of movement between Quakers Hill Railway Station and the land to the north west of Lot 1, DP 806691. It shall also make provision for safe pedestrian access from Railway Avenue to the Quakers Inn. A copy of this Plan is to be provided to the owner of Lot 1, DP 806691. The plan shall provide for the employment of at least three (3) RTA traffic control monitors during the construction phase of the development. 29I have considered the evidence taken at the view and the experts' joint report (Exhibit B) and oral evidence. Mr Savic and Mr Coady agree that the PMP in (Exhibit F) satisfies condition 3. I accept their evidence over that of Mr Morse for the following reasons. 30The Council informed the Court that in time the PMP will be supplemented by a collector road (18 m road reserve within 11m wide road) in the location of the right of carriageway. (Exhibit B p4 Mr Svarc; Exhibit 1A p 90). Although the timing of that road is unknown Mr Svarc is of the opinion that the PMP in (Exhibit F) provides a temporary or interim means of facilitating safe pedestrian movements generated by the population introduced by the applicant's development within the right of carriageway. And because the residential flat buildings have not been commenced, the predicted traffic and pedestrian volumes on the right of carriageway will not occur until the buildings are constructed and fully occupied. 31Mr Morse's criticisms of the shared zone are based on the matters contained in the NSW transport Safer Speeds Policy &Guidelines published July 2012 version 1.0 (Exhibit 4). However, the guidelines are not mandatory but provide guidance only. Furthermore, Mr Morse's traffic speed survey did not take into account the particular design features of the preferred PMP option (Exhibit F) with its shared zone, differential pavement treatment and 2 more traffic calming devices (speed humps) and speed limit signage. While he recorded the 85th percentile speed at19-20km /h (with the existing speed hump in place) he does not take into account the additional speed humps proposed in the PMP and the traffic calming effect of the differential pavement treatment and speed limit signs. 32Mr Morse's opinion that the residents of the development will treat the right of carriageway as an access route and be unlikely to observe any advisory speed signs is not based on any concrete data before me. In fact it is at odds with Mr Svarc's observations recorded in the joint report at p3 that "...the site is currently used for parking, with patrons of the hotel and bottle shop walking to and from parked cars which results from my observations in a low speed environment." 33In Mr Svarc's assessment the close proximity of local facilities to the apartment development is likely to generate higher than average walking trips. Therefore, the level of proposed pedestrian activity when combined with existing movements generated by the hotel and school may create a suitable pedestrian presence and a low speed environment (Exhibit B p3). This environment together with the traffic calming measures in (Exhbit F) will in Mr Svarc's expert opinion "further enhance driver awareness of the slow speed environment" and provide a safe pedestrian access path. 34With respect to vehicle trips Mr Svarc assesses, based on his experience, that Mr Coady's figure of 70 vehicle trips during the peak hourly period is an overestimate of about 20% (transcript 15/4/13 p48 lines 11-14). If that 20% discount is applied to Mr Coady's estimates then the cumulative traffic volumes during evening peak are reduced from those estimated by Mr Morse and more in keeping with the accepted guidelines. I accept Mr Svarc's evidence on this issue. 35For these reasons I am satisfied that the Pedestrian Management Plan in (Exhibit F) meets the requirements of deferred commencement condition 3 of the development consent granted by the Court on 30 July 2008. Accordingly, the Court orders: (1)The appeal is upheld. (2)That the application seeking the Respondent's satisfaction of deferred commencement condition Part A condition 3 of development consent 062533 be approved. (3)The Exhibits are to be returned to the parties except Exhibits 1,C, and F. Susan Dixon 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: 23 July 2013