REGIONAL RETIREMENT GROUP v ALEXANDRINA COUNCIL & ANOR [2008] SAERDC 79 (26 November 2008)

Last Updated: 28 November 2008

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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REGIONAL RETIREMENT GROUP v ALEXANDRINA COUNCIL & ANOR

[2008] SAERDC 79

Judgment of Her Honour Judge Cole and Commissioner Botting

26 November 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeal against refusal by Council of an application for development approval to establish a retirement village comprising 84 self contained units and an internal community centre - representor joined as party to proceedings - issues in relation to flooding resolved during course of hearing - court's assessment of proposed development confined to traffic issues - order made granting development plan consent subject to conditions.

Development Act 1993; River Murray Act 2003, referred to.

REGIONAL RETIREMENT GROUP v ALEXANDRINA COUNCIL & ANOR
[2008] SAERDC 79

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. Regional Retirement Group Pty Ltd (“Regional Retirement”) applied on 28 June 2007 to the Alexandrina Council (“the Council”) for development approval pursuant to the Development Act 1993 (“the Act”) to establish a retirement village on Lot 401 Abbots Lane Strathalbyn (“the land”). The Council processed the application as a Category 3 kind of development pursuant to the Act. Fifteen representations were received in relation to the application. The Minister responsible for administering the River Murray Act 2003 was consulted. The Council refused the application on 28 March 2008. Regional Retirement appealed to this Court against that refusal. Mr Semple was joined as a party to the appeal.
2. On the hearing of the appeal, Mr Botten appeared for Regional Retirement, Mr Broderick appeared for the Council and Mr Clarke appeared for Mr Semple. Mr Weaver and Ms Mellen, both of whom are traffic engineers, gave evidence in Regional Retirement’s case, and Mr Semple, Mr McKay and Mr Robson gave evidence in Mr Semple’s case. Evidence in the Council’s case was confined to the tendering of the copy documents.

The Land

3. The land the subject of the development application is Lot 401 Abbotts Lane, Strathalbyn. It is located at the end of Abbotts Lane. It is an irregularly shaped allotment of approximately 3.43 hectares. Dawsons Creek flows through the southern portion of the land, and the southern boundary of the land largely follows the path of the creek. The northern boundary abuts open, rural land. The south eastern corner of the land abuts the detached dwelling at 1 Abbotts Lane. The land has a relatively flat area in its northern portion, which is the site for the proposed development. The southern portion of the land comprises the banks of the creek falling to the creek bed.
4. Presently, there is a detached dwelling on the land, adjacent to the northern boundary of the land, roughly at the mid point.

The Proposal

5. The development proposed is a retirement village comprising 84 self contained units and the conversion of the existing dwelling on the land to a community centre for the use of the residents of the retirement village. The 84 units will be within 38 separate single storey buildings, 30 of which will be duplexes and 8 of which will be terrace buildings each containing 3 units. All of the units will be brick with pitched roofs. The duplex units will each have a garage, but the terrace buildings will not have dedicated carparking facilities. There are to be internal access roads, which will be sealed with bitumen or paving. 46 on-site carparks (including two spaces which could be used for a caravan or boat) will be provided for visitors and residents of the terrace buildings who may have a car. Delivery and service areas will be provided. The plans include landscaping and walking paths. Regional Retirement has undertaken, as part of the proposal, to upgrade Abbotts Lane, to improve access to the land and to manage stormwater disposal.

The Development Plan

6. The land is within the Residential (Strathalbyn) Zone. Objective 1 for the Zone provides for:

A zone primarily accommodating detached dwellings and other types of low-density residential development, with medium-density residential development and supportive community, educational and recreational facilities in appropriate locations.

7. Objective 6 for the Zone provides for:-

Medium-density residential development including accommodation for the aged, primarily located between the district centre and East Terrace, or in other locations within 500 metres of the District Centre Zone.

8. The land is within 500 metres of the District Centre Zone.

Consultation

9. The proposed development was processed as a Category 3 kind of development. Fifteen representations were received, fourteen of which expressed opposition to the proposal. Mr Peter Semple, the resident owner of 1 Abbotts Lane, made a representation in respect of the proposed development as part of this process.
10. The Council referred the development application to the Minister responsible for administering the River Murray Act 2003 in accordance with s 37 of the Act and Schedule 8 of the Development Regulations 1993 (the Regulations). In the Minister’s response, dated 21 December 2007, the Minister’s delegate said that the application may be approved, and directed that 6 conditions and 4 notes be attached to the approval, should it be granted.

The Authority’s decision

11. On 28 March 2008, the Council issued a decision notification form indicating that the development application had been refused.

The Appeal

12. Regional Retirement lodged an appeal with this Court on 3 April 2008. Mr Semple was joined as a party to the appeal.
13. As part of the appeal process, the parties attended a conference in the Court. Negotiations between them continued after that conference. By the time the hearing date for the appeal was reached, the only remaining issues between the parties related to the possibility that the proposed development would increase the risk of flooding, or aggravate the impact of flooding, on adjoining properties, including 1 Abbotts Lane, and the impact of the traffic which the proposed development would generate upon traffic safety and access for emergency vehicles in Abbotts Lane.
14. The hearing proceeded in August 2008. After a view was taken, and evidence was given, the parties sought an adjournment so that they could negotiate further in respect of the issues related to the risk of flooding.
15. The hearing continued on 30 October 2008. A deed entered into by the Council and Regional Retirement, a supplementary deed with the same parties, a stormwater concept plan and an amended site plan were tendered by Mr Botten. The parties, including Mr Semple, indicated that, because Regional Retirement had undertaken to perform the works outlined in the deeds, the issue of the risk of flooding was no longer an issue in the appeal. The parties requested that the Court assess the traffic issue.
16. The Act provides, in s 88(2)(a):-

The following provisions apply in connection with the exercise of the Court’s jurisdiction in any proceedings under this Act:
(a) subject to paragraph (b), the Court should only seek to deal with and resolve those issues in dispute between the parties and should not, unless the Court considers it to be necessary or appropriate to do so, consider any aspect of the decision, assessment, consent, approval, direction, act, order or determination that is not being challenged;

17. We will confine our assessment of the proposed development to the traffic issue raised by Mr Semple.

Traffic

18. Mr Clarke, counsel for Mr Semple, prepared a Statement of Issues. In respect of traffic, the Statement said:-

Traffic
That Abbotts Lane, the sole access road to the development:-

• Is inadequate and unsuitable to cope with the traffic flow to and from the development.
• Creates safety concern for vehicle and pedestrians using the lane.
• Has inadequate and unsuitable pedestrian access from West Terrace to the development taking into account the proposed residents of the development.
• Creates safety concerns for vehicles entering West Terrace.
• Restricts access of large emergency vehicles.

19. Mr Weaver, in his statement, provided information about Abbotts Lane, West Terrace and the works proposed in Abbott’s Lane as part of the proposed development:

p.2 Abbotts Lane is an approximately 10m wide (boundary to boundary) lane located on the south-western side of West Terrace, Strathalbyn. This lane provides access to approximately six existing dwellings plus the subject land. The subject land is located at the western end of the lane and length of the constructed section of lane is approximately 150m. The pavement along Abbotts Lane is a minimum of 5.5m wide.
The junction of Abbotts Lane with West Terrace is controlled by the Give Way rule. West Terrace, in the vicinity of the subject site, has a kerb to kerb width of approximately 12m and is line marked to provide a single traffic lane in each direction.
p.7 I note that the plan prepared by Tonkin Consulting showing proposed changes to the existing carriageway of Abbotts Lane will result in:-

• A width of 7m between kerbs along this roadway, with the exception of a short section of carriageway, adjacent to the existing trees, at the eastern end of this roadway. This section of roadway would remain approximately 5.5m wide, but will widen at the junction with West Terrace, and
• A footpath of 1.2m along the northern edge of the subject roadway.

20. Mr Weaver also referred to the suggestion by Mr Siow, a traffic engineer retained by the Council, that the kerb radius on the south western corner of the junction of Abbotts Lane with West Terrace be increased from 3.5 metres to 5 metres. That suggestion has now been incorporated into the proposal. Mr Weaver also noted that Regional Retirement would underground the power lines along Abbotts Lane, resulting in the removal of a stobie pole on the northern side of the lane.
21. Mr Semple, Ms McKay and Ms Robson gave evidence of their concerns in relation to Abbotts Lane, West Terrace and the proposed development. They noted that Mr Weaver had undertaken a traffic count on 16 May 2008, and had drawn certain conclusions from that data. They said that traffic on West Terrace was much heavier in the summer months than in winter, because of hay cutting, which generally begins in December, and grain harvesting, which also takes place in summer. They said that vintage, from February to April, was also a busy time of year for traffic on West Terrace. Mr Weaver estimated the average weekday traffic volume of West Terrace to be between 3,000 and 3,500 vehicles per day. Ms Mellen estimated the volume to be about 3,100 per day. Both traffic engineers acknowledged that there would be peaks and troughs in the traffic volumes throughout the year, but said that the variations were likely to be in the order of a couple of hundred vehicles per day, which is not a significant variation in terms of the capacity of the road.
22. Mr Weaver’s traffic counts indicated that the volume of traffic on Abbotts Lane is in the order of 50 to 70 vehicles per day, which is very low. Ms Mellen and Mr Weaver agreed that the proposed development would be likely to generate about 170 vehicles per day in Abbotts Lane. The land is within a Residential Zone. Ms Mellen, in her statement, cited the Australian Model Code for Residential Development, which indicates that an access place of 3.5 metre pavement width can cater for up to 300 vehicles per day. Abbotts Lane, at its narrowest point, will have a pavement width of approximately 5.5 metres.
23. Mr Semple, Ms McKay and Ms Robson were all very concerned about the ability of a vehicle travelling north along West Terrace to turn left into Abbotts Lane. All believed that this manoeuvre could not be performed without the vehicle crossing the centre line of Abbotts Lane. All had experienced incidents in which a vehicle sitting at the eastern end of Abbotts Lane had been obliged to back back into the lane to allow a vehicle to turn left into the lane from West Terrace. Ms McKay said that she found herself in this situation a couple of times per month. Ms Robson said that she had the problem even with a small car. Mr Semple said that if the vehicle in West Terrace were to wait for the other vehicle to exit Abbotts Lane, then other vehicles on West Terrace were likely to pass the waiting vehicle on its left hand side, creating a hazard. The difficulties for a car wanting to turn right into West Terrace from Abbotts Lane are compounded if there are cars parked on the western side of West Terrace, south of Abbotts Lane, because the view of traffic travelling north along West Terrace towards Abbotts Lane is limited. Mr Semple, Ms McKay and Ms Robson all pointed out that the sun is in the eyes of the driver leaving Abbotts Lane at certain times of the day in winter.
24. Ms Mellon prepared a plan of Abbotts Lane with the improvements proposed by Regional Retirement. She tested the manoeuvres which caused the residents’ concern with a template of the 85th percentile car, which she said would equate with a Holden Commodore. The resultant diagram shows that a car leaving Abbotts Lane and a car entering Abbotts Lane by means of a left turn from West Terrace can perform their manoeuvres without crossing the centre point of Abbotts Lane. Ms Mellon performed the manoeuvre several times in a four wheel drive beginning at the centre of the left hand lane of West Terrace, and said that she had no difficulty staying on the correct side of the road. Mr Weaver, likewise, had no difficulty. Ms Mellen said that the 99th percentile car would be able to perform the manoeuvre without crossing the centre point of Abbotts Lane. She said that a large truck would not be able to do it, but that this was typical of about 50% of residential streets.
25. The difficulties reported by Mr Semple, Ms McKay and Ms Robson are likely to be ameliorated by the improved road design. Neither Mr Weaver nor Ms Mellen thought that the increase in the radius of the southern footpath of Abbotts Lane where it meets West Terrace was necessary, but it has been incorporated into the proposal, and will go some way towards improving the view from Abbotts Lane of traffic travelling north down West Terrace. The road design complies with all relevant standards. Drivers may have to accommodate each other when, for example, the rubbish truck which is to service the proposal, turns into Abbotts Lane, but such incidents are already occurring, and the low volume of traffic to be generated by the proposed development will not make a significant difference, especially as the peak traffic generating times for the proposed development will be at different times from the existing peaks.
26. In the opinion of Mr Weaver and Ms Mellen, the proposed development, with respect to the intersection of Abbotts Lane and West Terrace, complies with the relevant provisions of the Development Plan with respect to traffic, and in particular with Strathalbyn District Objective 12 and Residential (Strathalbyn) Zone Principle 11. We accept their opinion. In our assessment, the proposed development does not warrant refusal on account of any traffic issue. The proposed development will therefore be approved.

Conclusion

27. The parties have agreed the conditions pursuant to which the proposed development should be approved.
28. There will be an order granting development plan consent to DA455/742/07, subject to the following conditions:

1. Building work will be undertaken in accordance with the following plans:

(a) site plan drawn by Peter McLoughlin Architects designated no. 27ST WDO1 C.

(b) Type “A” Units floor plan and elevations designed by Peter McLoughlin Architects, dated 1 April 2007, drawing number 27ST - SK04.

(c) Type “B” Units floor plan and elevations designed by Peter McLoughlin Architects, dated 1 April 2007, drawing number 27ST - SK05.

(d) Type “C” Units floor plan and elevations designed by Peter McLoughlin Architects, dated 1 April 2007, drawing number 27ST - SK06.

(e) Community Centre floor plan and elevations, designed by Peter McLoughlin Architects, dated 15 August 2007, drawing number 27ST - SK07A.

(f) Abbotts Lane road reconstruction concept design, drawn by Tonkin Consulting, dated 21 August 2008, job number 2007.0640 Revision 3.

(g) The storm water concept plan prepared by the First Respondent (being exhibit A9) in these proceedings)

N.B. This is the plan referred (and annexed) to the Original Deed and called the stormwater concept plan therein.

2. The external finishes to the buildings herein approved shall be in accordance with the colours and materials specified in schedules to the plans referred to in condition 1(b), 1(c), 1(d) and 1(e) herein and approved by the First Respondent.
   
3. (a) Landscaping along the banks and ridge lines of Dawson Creek passing through the land shall be carried out in accordance with the recommendations of the report prepared by Environmental and Biodiversity Services, dated December 2007 (the report).
   

(b) The developer shall provide a landscaping plan for the land, incorporating the recommendations of the report for the approval of the First Respondent, within three months of the operative date of consent.

4. Effective measures shall be implemented during the construction of the development and the use of the land pursuant to this consent to:
   

(a) prevent silt run-off from the land to adjacent land, roads, drains and Dawson Creek.

(b) control dust arising during construction and associated activities, not to cause a nuisance to occupiers of adjacent land;

(c) ensure that soil or mud is not transferred onto roadways by vehicles leaving the site;

(d) ensure that all litter and building waste is contained on the land in a closed receptacle or enclosure;

(e) ensure that no sound emitted from any device, plant or equipment or vehicle or from any activity causes a nuisance to the occupies of adjacent land.

5. Excavation of the land shall be kept to a minimum to preserve the natural form of the land and be managed in such a way as to prevent erosion.
   
6. All stormwater drainage shall discharge so that it does not flow nor discharge onto adjacent land.
   
7. External lighting and security lighting shall be directed not to create unreasonable spill onto adjacent land or roadways which may create a nuisance.
   
8. The drainage works referred to in paragraphs 2.1, 2.3, 2.6, 2.7, 2.8. 2.9. 2.10. 2.12.1 and 2.13 of the Deed entered into between the Council and the applicant Regional Retirement Group Pty Ltd (“RRG”) dated 16 October 2008 (being exhibit A7 in these proceedings) as amended by the Supplementary Deed entered into by those parties dated 13 November 2008 (being exhibit A8 in these proceedings) shall be undertaken and completed by RRG not later than 7 months from the commencement of the approved development on the development site (ie, CT 5932/584 and CT 5932/585).
   

Minister responsible for administering the River Murray Act 2003 / DWLBC Conditions

9. Stormwater discharge points must be designed and located in areas where they will not impact upon bed and bank stability of Dawson Creek.
   
10. A Soil Erosion and Drainage Management Plan must be produced in accordance with the Code of Practice for the Building and Construction Industry (Environment Protection Agency).
    
11. The proposed works must not result in any changes to the contours or topography of the creek bed or banks. In particular any filling required to achieve surface levels for units, roadways or car parks must not extend beyond the top of the banks of the creek.
    
12. Appropriately designed, sited and maintained pollutant traps must be installed to trap any chemical and physical pollutants contained in runoff from roadways and car parks in the development.
    
13. There must be a minimum distance of 20 metres between a watercourse and the fuelling site for machinery used to undertake the construction works.
    
14. The proposed development must be planned and implemented in order to minimise damage to native vegetation present on the site. In particular the bed and banks of Dawson Creek contain a number of specimens and patches of indigenous flora including grasses, sedges, trees and shrubs. Construction and landscaping works undertaken on the banks of the creek must identify and protect native vegetation present.