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Talramp Pty Ltd v Chief Executive Department of Transport and Main Roads

 

[2020] QPEC 53

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Talramp Pty Ltd v Chief Executive Department of Transport and Main Roads [2020] QPEC 53

PARTIES:

TALRAMP PTY LTD (ACN 077 872 327)

(appellant)

v

CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS

(respondent)

FILE NO:

335/2019

DIVISION:

Planning and Environment

PROCEEDING:

Hearing

ORIGINATING COURT:

Planning and Environment Court, at Brisbane

DELIVERED ON:

2 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

31 August and 1 and 3 September 2020

JUDGE:

R S Jones DCJ

ORDER:

  1. The appeal is dismissed.
  2. The original decision, as amended by the review decision is confirmed.
  3. I will hear further from the parties if necessary as to any consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST THE DECISION OF THE CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT – Where decision limited access to Talramp’s property – Where part of the subject land fronts onto the Warrego Highway – Where applicant alleged a number of errors in the decision making process – Where alternative routes for outgoing and incoming traffic from Talramp’s property were advanced on behalf of the respondent – ONUS – which party bore the onus of proof

LEGISLATION:

Transport Infrastructure Act 1994 (Qld)

Transport Planning and Co-Ordination Act 1994 (Qld)

CASES:

Allesch v Maunz (2000) 203 CLR 172

Lacey v Attorney-General of Queensland (2011) 242 CLR 573

Oakley v Chief Executive Administering the Coastal Protection and Management Act 1995 [2014] QPEC 58

Village Retirement Group Pty Ltd v Brisbane City Council [2019] QPELR 980

COUNSEL:

Mr A Skoien and M McDermott for the appellant

Ms N Hindman QC and Ms J Bryant for the respondent

SOLICITORS:

Andrew Davis Planning Lawyers for the appellant

Norton Rose Fullbright for the respondent

Introduction

  1. [1]
    This proceeding is concerned with an appeal brought by Talramp Pty Ltd (Talramp) against a decision of the Chief Executive, Department of Transport and Main Roads (The Chief Executive), to limit access into and out of Talramp’s property located at Dalby to left in, left out, only.  For the reasons I am about to give, the orders of the court are:
  1. The appeal is dismissed.
  2. The original decision, as amended by the review decision is confirmed.
  3. I will hear further from the parties if necessary as to any consequential orders.

Background

  1. [2]
    The subject land is described as Lot 364, which is of an irregular triangular shape, comprising of approximately 14.77 hectares in area and has frontage to the Warrego Highway of approximately 970 metres.  At the most north westerly point the Warrego Highway intersects with Winton Street East and Winton Street West.  Both of those streets are local government roads however, the Warrego Highway at this location is a road of state and national significance and is both a state controlled road and a limited access road.
  2. [3]
    It is agreed between the traffic engineers, Mr Williams for the Chief Executive and Mr Crank for Talramp, that at the Warrego Highway and the Winton Streets intersection, the area is subject to significant heavy vehicle traffic with approximately 7,000 vehicles per day passing along the Warrego Highway of which some 23 percent is described as heavy vehicular traffic.  It is accepted that on that basis, on average during a 24 hour period, approximately 291 vehicles per hour pass the subject land, 70 of those being heavy vehicles. That is more than one heavy vehicle per minute on average. 
  3. [4]
    Between June 2017 and November 2018, as a part of a major roadworks project,[1] significant works were carried out at the Warrego Highway, Winton Street intersections which have, in effect, made that intersection ready for signalisation when demand warrants. 
  4. [5]
    The road works included a new four lane section of the highway adjacent to the subject land, additional turning lanes, the creation of centre median strips and replacing or removing some of the existing road parking arrangements. In the near future it is intended to divide the highway in front of the subject land by a concrete median structure which would physically prevent right hand entry and exit turns.[2] It is as a consequence of these roadworks that the access arrangements to the subject land were changed. 
  5. [6]
    As I understand it, from at or about January 1996 up until the time of the change to the access arrangements, the land was being used by Talramp[3] for the following purposes:

“Dalby Machinery Centre buys and sells large agricultural and mining plant and equipment, locomotives and trucks.  Also it operates with the approval of the local council grain silos for the receipt, storage and despatch of grain, especially during the harvesting season.” 

  1. [7]
    According to Mr Machin, a director of Talramp whose evidence was not challenged, there are approximately 12 truck movements per day; that is six in and six out totalling about 3,120 truck movements per year.  On about 27 February 1996, a document titled “Consent Application for Access for Machinery Sales, Repairs and Services”, in respect of the subject land was issued by the Chief Executive.  Both parties for the purposes of this proceeding, have treated that approval as an access approval for the purposes of s 62 of the Transport Infrastructure Act 1994 (TIA).  The 1996 approval permitted both left and right turn ingress and egress traffic movements. 
  2. [8]
    While it was not entirely clear, it would appear that the access approval in 1996 replaced what appeared to be four historical entry points into and out of the subject land via different locations.  In this regard, Talramp not only owns Lot 364, but also additional lots fronting Winton Street East.
  3. [9]
    A section of the land situated at the north western end of Lot 364 had been leased by Hitachi Construction Machinery (Australia) Pty Ltd for the display and sale of plant and equipment. However, by the time this proceeding was before the court, that use had expired and was no longer of relevance, save for some historical aspects of the dealings between the parties which are discussed below.

The decisions under review

  1. [10]
    On or about 13 November 2018, a delegate of the Chief Executive made a decision on his own initiative pursuant to s 62(1) of the TIA concerning the management of the Warrego Highway.  That decision, referred to as “the original decision”, restricted access to left hand entry and exit movements only.  The location of the access however, did not change from that point identified in the approval granted in 1996.  Other conditions were also imposed dealing with matters such as stormwater and service run off and maintenance, none of which were in issue in this proceeding. 
  2. [11]
    I would note here at this stage that during the design phase an alternate access point further to the south east; that is away from Dalby was identified. However, for reasons that will be discussed below, that decision was reversed and the access point was returned to where it is now.
  3. [12]
    The decision made by the delegate on 13 November 2018, was subject to an internal review and, on 7 January 2019, Mr Massingham, another delegate of the Chief Executive, made a decision pursuant to s 34 of the Transport Planning and Co-Ordination Act 1994 (TPCA). The review decision relevantly provided:
  1. “(a)
    the location of access between Lot 364 and the Warrego Highway as described in the Chief Executive’s previous decision issued on 27 February 1996 continues to be permitted;
  1. (b)
    the use of the permitted road access location is subject to the following restrictions and conditions:
  1. (i)
    access and exit to Lot 364 is restricted to left turn movements only.  Right turn movements (entry and exit) are prohibited.”
  1. [13]
    None of the other conditions need be considered here. 
  2. [14]
    While more will be said about the evidence of the traffic engineers in a moment, in the written submissions on behalf of Talramp, it was said:[4]

“The traffic experts prepared a joint report dated 20 January 2020.  The evidence of the traffic experts establishes that the safety of the existing access has been compromised by the Warrego Highway upgrade works, such that a decision under s 62 of the Transport Infrastructure Act is warranted.

The experts agreed that a left in, left out access would be inherently safer than all of movement access at the current access point and agreed that the current configuration, whereby right-turn access is facilitated through a gap in the median barrier is an unsatisfactory outcome.  None of that is disputed.

What is disputed, however, is that the existing access, limited to the left in, left out configuration is an appropriate outcome.  Mr Crank’s evidence is that the left in, left out arrangement results in unacceptable outcomes, particularly for heavy vehicles, as they are required to undertake significant detours that result in compromised safety on the transport network more broadly and that this, and other safety factors mean that the original decision and review decision were inappropriate.” (emphasis added)

  1. [15]
    It was then submitted that I ought set aside the original decision and the review decision and, to either substitute a decision about appropriate access arrangements for all turn access into and from the subject land or, return the matter to the Chief Executive to make a decision in accordance with the TIA and any findings and directions of this court.
  2. [16]
    The consequences of the limiting access to left in left out manoeuvres only are significant. The detours would involve a heavy vehicle, either a road train or a B-Double, arriving from the south east having to travel an additional 5.5 kilometres through Dalby, then turn around and travel an additional 5.5 kilometres back from the north westerly direction before entering the subject land.  It is even worse for vehicles wishing to travel north westerly along the Warrego Highway. Any B-Double or road train wishing to do so would have to travel approximately 25 kilometres to the south east before turning around and travelling 25 kilometres back to where it started before commencing its real journey to the north west or west.  An alternate and much closer turnaround location was raised on behalf of the Chief Executive and it will be discussed in due course.
  3. [17]
    Clearly the 50 kilometre detour is not an insignificant one.  That said, it was recognised by the traffic engineers, that most of these heavy vehicles would be travelling long distances and the length of these detours have to be seen in that context.  That is, in some circumstances where the total travel distance might involve hundreds if not thousands of kilometres, the additional 50km was not so significant.  In this context, I understood Mr Crank, to say that it was not necessarily so much the distances per se that were of concern to him. Rather, it was his concerns about the left in turn into the subject land and the introduction of risks associated with heavy vehicles using inappropriate roads raising concerns not only about safety but also wear and tear. More will be said about this matter when dealing with the evidence of the traffic engineers.
  4. [18]
    The appellant’s “position” was stated in paragraph 13 of its written opening in the following terms:

“The appellant’s position is that an appropriate decision, in the absence of some conclusion by the respondent that safe and convenient all turns access could not be achieved at the existing access point, would have resulted in a change of location of the access point, which would retain all turns access for all vehicles, including heavy vehicles, to and from the subject site, consistent with the outcome that the respondent was pursuing with the appellant before negotiations failed.

Rather than make a decision to close the existing access and approve an alternative access, either at the location originally proposed by the respondent, or to another location further east (really south east), as proposed by the appellant (an outcome that would retain the safety benefits of closing the existing access and retain the efficiency of all turns access to the lot), the respondent made a decision that, on the appellant’s case, continues to compromise the safety and efficiency of access to lot 364 and the road network.”

Statutory framework

  1. [19]
    Turning them to the statutory framework governing the determination of this appeal. The relevant objectives of the TIA, insofar as the Warrego Highway is concerned, is to establish a regime under which: A system of roads of national and state significance can be effectively planned and efficiently managed and, to take account of the need to provide adequate levels of safety and community access to the road network.
  2. [20]
    It is uncontroversial that insofar as this proceeding is concerned, s 65 of the TIA is relevantly engaged.[5]  That is so because of factors leading to a reduction in road safety and/or the creation of a traffic hazard and/or have an adverse effect on traffic operation.[6] A person whose interests are affected by a decision made pursuant to s 62 of the Transport Infrastructure Act, which is the situation here, can appeal against the review decision to this Court.  Relevantly s 36B of the TPCA provides:

“In deciding an appeal against a reviewed decision, the Appeal Court –

  1. (a)
    has the same powers as the person who made the original decision; and
  1. (b)
    is not bound by the rules of evidence; and
  1. (c)
    must comply with natural justice and may hear the appeal in Court or in chambers;
  1. An appeal is by way of rehearing;
  1. The Appeal Court may –
  1. (a)
     confirm the review decision;
  1. (b)
    set aside the review decision and substitute another decision that it considers appropriate; or
  1. (c)
    may set aside the review decision and return the issue to the person who made the original decision with corrections that it considers appropriate.”
  1. [21]
    In Allesch v Maunz (2000) 203 CLR 172 it was said:

“For the present purposes, the critical difference between an appeal by way of rehearing and a hearing de nova is that, in the former case, the powers of the Appellate Court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the Appellate Court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas in the latter case, those powers may be exercised regardless of error and that, the critical distinction, for the present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on appeal by way of rehearing, an Appellate Court can substitute its own decision based on the facts and the law as they then stand.”

  1. [22]
    Similar observations have been made in a number of cases including Lacey v Attorney-General of Queensland (2011) 242 CLR 573 and more recently in this court in the Village Retirement Group Pty Ltd v Brisbane City Council [2019] QPELR 980 citing the judgment in Lacey.

The Onus Question

  1. [23]
    When asked during the course of evidence what his client’s final position would be Mr Skoien, Senior Counsel for Talramp said that he would be contending for the alternative access arrangements identified by Mr Crank in his further report[7] or, in the alternative, the matter be remitted back to the Chief Executive for proper consideration.  The two alternate arrangements identified by Mr Crank were; first, what he described as being the Department of Transport and Main Roads alternative. Second, the access design referred to as the TTM design.
  2. [24]
    The position of the Chief Executive was quite straightforward and to the effect that the appeal should be rejected on the basis that the decision of the Chief Executive was the correct decision to make having regard to the safety, planning and efficiency of the Warrego Highway and the interrelated road network.  It was submitted on behalf of the Chief Executive that I should not be distracted by considering whether or not other more suitable access locations or arrangements might exist as that Talramp is at liberty at any time to make an application pursuant to s 62 of the TJA for alternate access arrangements.
  3. [25]
    Both parties advanced convincing arguments as to why the other bore the onus. On behalf of the Chief Executive it was submitted to the effect that there was no reason why the “orthodox legal convention” ought not apply. That is, it being the party seeking the intervention of the court and consequential orders in its favour, Talramp ought bear the onus.
  4. [26]
    On behalf of Talramp it was submitted that, in an appeal such as this, the court sits in the shoes of the decision maker and, as a consequence, would need to be satisfied that such a notice ought to have been issued in the first place and, the court ought not dismiss the appeal unless so satisfied. Accordingly, according to Talramp, it is the Chief Executive who bears the onus. In this regard significant reliance was placed on the decision of this court in Oakley v Chief Executive Administering the Coastal Protection and Management Act. 1995[8]
  5. [27]
    While I am inclined to the view that the position of the Chief Executive is the correct one, I will refrain from expressing a final view on the matter. That is because, for the reasons expressed below, even proceeding on the basis that it is the Chief Executive who bears the onus, in the circumstances of this proceeding I am more than satisfied that this appeal ought be dismissed.

Alleged Errors in the Decision Making Process and Prior Negotiations

  1. [28]
    In the final written submissions on behalf of Talramp a number of alleged errors in the decision making process were set out.[9] Somewhat ambiguously it was then asserted that these errors would “justify the setting aside of the decision…” However, (being) a rehearing of the merits of the issue…this analysis of the errors is provided to ensure that this court is not drawn into the same error.”
  2. [29]
    I do not intend to say any more about the alleged errors other than that, even assuming they exist, they are irrelevant.
  3. [30]
    Turning then to the negotiations between the parties, not surprisingly given the consequences for Talramp, they were quite extensive and were set out in some detail in the parties’ final written submissions. It is unnecessary to trawl through the full details of those negotiations. That said, it is quite clear that at one stage intended to provide all turns access to the subject land at a different location further to the south east. In this regard Talramp was advised on 6 March 2018, that “right turn in and out of the new entrance across the painted chevron will be permitted, as will left turn in and out.” As already mentioned, this access arragnement was referred to by Talramp as the “DTMR Alternate Access.[10]
  4. [31]
    On 15 March 2018, Mr Machin, wrote to the Department of Transport and Main Roads (DTMR) asking for a number of guarantees in respect of the proposed alternate access. Those guarantees were not given and, on 23 April 2019, a Mr Randall, acting on behalf of Talramp, raised concerns about the access arrangements being located on that part of the land then leased to Hitachi and therefore providing no secure access for Talramp. This correspondence made it abundantly clear that as far as Talramp was concerned no final agreement had been reached concerning access.[11]
  5. [32]
    Unfruitful negotiations continued up until later 2018 but on 13 November 2018, DTMR issued its Notice of Decision limiting access to left turns into and out of the subject land at the location identified in the 1996 approval.[12]
  6. [33]
    According to Talramp these negotiations are “prima facie” relevant; and that despite a so called “winding back” by the parties, “that the (8 March 2018) agreement was reached can be demonstrated by the respondent actually commencing construction of the DTMR alternative.”
  7. [34]
    That submission cannot be accepted. In the correspondence of Mr Randall to which I have already referred, the works carried out by DTMR were descried as being carried out before “a solution was reached”, appeared to be in contravention of assurances given by DTMR and were “pre-empting any agreement on an effective solution.”[13] Clearly no agreement was reached concerning the so called DTMR Alternative Access.
  8. [35]
    Overall I found it difficult to discern just how counsel for Talramp wanted me to use the evidence about the unfruitful negotiations. IT might well, as was submitted,[14]demonstrate where alternate access might have been located but that is as far as that evidence goes. In my view, this evidence is of no real assistance in determining the outcome of this proceeding.

The Traffic Engineering Evidence

  1. [36]
    In the written submissions on behalf of Talramp various matters of agreement and disagreement concerning traffic were identified:[15]
  1. “(a)
    Agreement
  1. (i)
    the existing access had all directions access from the Warrego Highway;
  1. (ii)
    the current operation of the premises has all directions access from the Warrego Highway;
  1. (iii)
    left in/left out access at Warrego Highway access will improve safety in the immediate vicinity of the access;
  1. (iv)
    left in/left out is fundamentally safer, from a traffic engineering perspective, than all turns access;
  1. (v)
    the Warrego Highway upgrade works have created a road environment that no longer caters for safe movements at the permitted access location;
  1. (vi)
    in the absence of all turn access and access off Winton Street East, there would be a need for alternative routes for access for vehicles from the south/east and leading to the north/west.
  1. (b)
    Disagreement
  1. (i)
    whether the design of the current access (1996 approval) precludes access by large heavy vehicles (B-Doubles and road trains);
  1. (ii)
    left in/left out arrangement will have safety implications on other parts of the network;
  1. (iii)
    the existing access would cause safety issues for BDoubles manoeuvring onto and from the site (including internal conflicts);
  1. (iv)
    left in/left out access by B-Doubles would need to use both traffic lanes and would create a safety issue.”[16] (footnotes and emphasis deleted)
  1. [37]
    Reference is also made to a report prepared by Mr Crank who expressed further concerns about:
    1. (a)
      the nature of the existing access;
    2. (b)
      the effect that limiting access to left in/left out movements would have on safety elsewhere in the network, given the need for significant detours by large vehicles to access the land;
    3. (c)
      the increase in travel distance and time as a result of left in/left out only access is unacceptable.
  2. [38]
    Following the access arrangements approved in 1996, the subject land has enjoyed all turn access to and from the site up until the subject roadworks were carried out.  There appeared to be some earlier dispute about whether the 1996 approval permitted all turn manoeuvres for all traffic, including by B-Doubles and road trains. However, for the purposes of disposing of this proceeding, I intend to proceed on the basis that it did.
  3. [39]
    Before going on to deal in more detail with the evidence of the traffic engineers, it is convenient at this stage to dispose of a number of matters.  The first is that Ms Hindman, during the course of submissions, advised the court that she held instructions that a site currently owned by the Department only a few kilometres to the south would be made available and put in a condition that would permit heavy vehicles, including BDoubles and road trains, to turn around and then to turn left back onto the Warrego Highway before proceeding north.[17]  That would of course greatly reduce the need for such vehicles to travel the further 25 kilometres before being able to return in a northerly direction.  The difficulty is though, there is no guarantee that that turnaround facility would remain available for the enjoyment of Talramp for any specified timeframe.  In such circumstances, I am unable to place much weight on that offer in determining the outcome of this proceeding.
  4. [40]
    The second matter is that it is uncontroversial that the roadworks, as presently designed for and constructed, will prohibit right-hand turns from the site heading north west and right-hand turns from the south east turning into the site.  Indeed, such turns will be physically prevented from damage by the introduction of an intended median strip.
  5. [41]
    The next matter that can be readily disposed of in my view was the issue raised by Mr Skoien both in oral submissions and in the cross-examination of Mr Williams, concerning the right-hand manoeuvre at the intersection of the Highway and the Bowenville Moola Connection Road. During the cross-examination, Mr Skoien suggested that for those heavy vehicles intending to travel north, after travelling some 25 kilometres to the south east, they would then have to turn left off the highway to turn around and then wait for an opportunity to re-enter the Warrego Highway from the left-hand side by performing a right-hand turn across the south bound lane.  Mr Williams agreed that that would involve a similar traffic manoeuvre as that for a heavy vehicle leaving the subject land intending to travel in a northerly direction.[18]  It seems tolerably clear though that Mr Williams was speaking in terms of the physical manoeuvre being similar and, was not expressing a view about it raising or involving the same degree of traffic safety issues. 
  6. [42]
    The physical location of those turning manoeuvres have to be seen in context.  One is situated some 25 kilometres south east of Dalby in what could only be described as a relatively remote rural setting.  On the other hand, trucks intending to head north from the subject land would be performing that right-hand turn on the outskirts of Dalby and, in close proximity to an intersection where it is expected that traffic volumes will require signalisation sometime in the foreseeable future. Further, to suggest that the two right-hand turning manoeuvres would involve similar levels of impact on traffic safety ignores the evidence of Mr Crank.  In the joint expert report of the traffic engineers it is reported:[19]

“In relation to the items raised by Mr Williams above Mr Crank agrees that the DEUA project works have created a road environment that no longer caters for safe movements at the Permitted Access Location.  This is not limited to an All Movements Access.  The provision of the south bound merge, from two lane to a single lane, across the site boundary adjacent to the Permitted Access Location, also creates safety issues for left turn movements.  This may occur where traffic attempting to merge by matching the speed of the adjacent lane, encourages unexpected deceleration of vehicles accessing the site.

Furthermore, Mr Williams notes that there has been no analysis provided by the appellant utilising current traffic data, to support the provision of an all movement access and demonstrate that this could be provided in a safe and efficient manner.

He is of the view that the allowance for right-turn movement, in particular egress movements, from the subject land at the Permitted Access Location would be unsafe.  This is particularly relevant for large commercial vehicles including B-Doubles and Road Trains due to their poor acceleration capabilities.

Noting that he understands that the primary issue of concern raised by the appellant relates to the limitation of the access arrangement for BDoubles and Road Trains, Mr Williams does not believe it would be reasonably possible to facilitate safe and efficient right-turn movements for vehicles of this size at the Permitted Access Location.

Mr Crank is of the view that the items raised by Mr Williams are reasonable considerations and demonstrate the impact of the DEAU works on accessibility to the site for the majority of movements and vehicle types.  As such Mr Crank concludes that the Permitted Access Location can only be retained as left in/left out with alternative arrangements provided to cater for right turns to and from the site.  Alternatively, that the legal site access arrangements are fully relocated to a safe location that permits all turns.”

  1. [43]
    During cross-examination Mr Crank was taken to the last of those paragraphs and was asked the following question “And at paragraph 4.2.32 in the joint expert report, you there do conclude that the permitted access location can be retained as left in and left out?  Mr Crank responded by saying “it can only be retained as left in left out if retained.  And I know that that statement is not made in there, but it could only be retained as left in left out.  No right turn should be available at that location.” (emphasis added)
  2. [44]
    No such concerns were expressed by Mr Crank about safety in respect of the turning manoeuvre at the Warrego Highway Bowenville Moola intersection.
  3. [45]
    On the evidence before me, I am more than satisfied that no sensible comparison can be made in respect of any traffic safety issues that might arise when comparing these two right-hand turn manoeuvres.  The only similarity is what the driver of the truck is physically required to do.
  4. [46]
    A concern raised by Mr Crank was that, at the existing access location, the left-hand entry turn itself raises traffic safety issues.  As I understood Mr Crank’s evidence on this topic, his concerns were associated with what would likely occur when a heavy vehicle was intending to turn left into the site.  According to him, and this was not disputed, a heavy vehicle would tend to straddle both lanes so as to ensure that nobody attempted to overtake on the left or the right.[20]  Notwithstanding those concerns however, Mr Crank did accept that the current left-hand turn arrangement was an acceptable solution.[21] 
  5. [47]
    In the joint expert report it was also said by Mr Crank:[22]

“Mr Crank is of the opinion that Review Decision does not consider the specific impacts of the traffic restrictions of the works on the wider road network, on the following basis:

  1. (a)
    Mr Crank agrees that the DEAU works have generally improved safety along the Warrego Hwy, including through the removal of all turns access. However, Mr Crank notes that to the north of Winton Street, the local road network is formed as a grid of streets. This provides opportunities for site access via right turns to alternatively occur as U-turns or via the utilisation of the parallel local street network;
  2. (b)
    Mr Crank also notes, that the majority of land uses with legal point of access solely to Drayton Street (Warrego Hwy north on Winton Street) are residential lots and small scale commercial uses. The alternative routes for the right turn access to these sires will therefore have limited traffic impact on the local access road network;
  3. (c)
    In relation to the access to/from the Subject Land at the Permitted Access Location Mr Crank is of the view that the left-in/left-out will result in safety improvements in the immediate vicinity of the access;
  4. (d)
    However, he notes that south of Winton Street there are limited routes to provide alternatives to right turn access to the site. The limitations of these access have safety and operation impact on the road network, b4eyone the immediate site frontage. These are discussed in more detail ion Paragraphs 4.2.33 to 4.2.47 under the heading “implications of Left-in/left-out Access; and
  5. (e)
    It is Mr Crank’s opinion that these wider impacts present safety and operational issues that have not been appropriately addressed by the DWAU works. Further, that the wider traffic impacts resulting from left-in/left-out restrictions for industrial traffic at this location, with no established alternative routes is not in accordance with the Objectives of the TIA, specifically “… provides adequate levels of safety, and community access to the word network.”
  1. [48]
    Mr Crank’s concerns are legitimate. Quite apart from the extra travel distances involved, albeit for only up to six movements per day, it cannot be doubted that the detour for heavy vehicles wanting to enter the site from the south-east raises a number of unsatisfactory outcomes. These cumbersome and noisy vehicles will be required to travel past the site travel through Dalby on the Warrego Highway before completing a turning manoeuvrer on the north western outskirts to drive back through Dalby.[23]
  2. [49]
    The traffic figures reveal that already a number of those heavy vehicles travel though Dalby in both directions along the Warrego Highway. That said, adding to the existing numbers could only be a seen as a negative in a purely traffic volumes sense. In this regard I also accept Mr Crank’s evidence that the north-western detour places heavy vehicles onto inappropriate road networks.[24]During oral submissions Mr Skoien emphasised a number of problems associated with the current arrangements. In particular the inefficient use of the road network, the safety issues identified by Mr Crank and the potential cost ramifications to Talpramp and its clients.[25]
  3. [50]
    While all of the problems identified by Mr Crank and emphasised by Mr Skoien limiting ingress and egress to left hand turns can be accepted, the inescapable conclusion however, is that access at the current location must be restricted to those maneuverers for reasons of safety. Accepting that state of affairs, Mr Crank considered the two design solutions referred to as the TTM access and the DTMR alternate access.
  4. [51]
    The TTM alternative which envisages left in, left out and right in, right out access can be disposed of quite readily.  During cross-examination Mr Crank made a number of telling concessions.  First, the design was clearly conceptual only.  To use Mr Crank’s own words “It’s not a detailed – it’s not intended as a detailed design and there may be additional civil works associated with the detail design, either to the culvert or to the road in order to facilitate it.”  Mr Crank described this design as being one prepared for “comment and to explore opportunities.”[26] He also accepted that this proposal would, again to use his words, amount to a significant overdesign for the existing site access. 
  1. [52]
    On the evidence before me, I consider the TTM alternative to be an entirely unrealistic solution in the event that a solution was required. Given this finding it is unnecessary for me to deal with the other obvious difficulty, namely, that this proposal would require the carrying out of significant works within the road reserve over which Talramp has no control.
  1. [53]
    Turning then to the solution really pressed on behalf of Talramp, namely the DTMR alternate access,[27] Mr Williams gave evidence, which I accept, that it would likely result in a number of traffic risk issues of significance.[28] However, Mr Williams fairly conceded all turn access might be able to be achieved by incorporating, by way of examples, merging lanes and/or appropriate widths of painted chevrons or channelized turning lanes.  As Mr Williams pointed out though, this would involve, one could reasonably infer, not insignificant costs.[29]
  2. [54]
    It was submitted on behalf of Talramp that the cost to the DTMR of carrying out any necessary roadworks was an irrelevant consideration.[30]  I am unable to accept that submission but, in any event, even if the cost ramifications were put to one side that would not affect the outcome.
  3. [55]
    The highway upgrade works commenced in June 2017 and were largely completed by November 2018.  Once negotiations about alternate access arrangements failed to reach a final agreement, to use the colloquialism, “the horse had bolted”.  By that I mean Talramp was left in the situation where the highway is as constructed. The so called DTMR access solution, even if an appropriate design was achievable, it would clearly require not insignificant works to be carried out within the road reserve.  As Mr Skoien acknowledged, this court has no power to order the Chief Executive to carry out those works.  That is no doubt why it was noted on behalf of Talramp, that an alternate access arrangement “may never eventuate”.[31]

Summary and conclusions

  1. [56]
    It is uncontroversial that, as matters presently stand, for traffic safety reasons at its present location, ingress and egress manoeuvres need to be limited to left-hand turns only.  In this regard it was accepted by Talramp that this arrangement would have to remain in place until any alternate access was put in place.[32]
  2. [57]
    It is also quite clear that not insignificant roadworks would have to be undertaken within the road reserve to accommodate alternate access into and out of the subject land.  Further, it is clear that the Chief Executive has no intention of carrying out those works and the Court does not have the power to order that it be done.  Accordingly, Talramp’s observation that alternate access arrangements may never eventuate is a realistic one.
  3. [58]
    In the written submissions on behalf of Talramp it was said “any decision of this Court would simply identify the approved point of access and the approval mode of accessThat is, whether there are any other restrictions to be imposed at the approved access point.”  This was expanded upon where it was also submitted:[33]

“… If this Court determines that the decision is deficient and/or, on the merits, the location of the permitted access should be changed from the Existing Access Point (which seems to be a matter about which there is no dispute between the traffic engineers) and/or that there ought be no prohibition on all-turns access for Lot 364, then the Court should set aside the Decision and:

  1. (a)
    Substitute a decision that:
  1. (i)
    identifies the location of the permitted access for Lot 364 at the location of the DTMRA alternative or at a location generally in accordance with the Talramp alternative;
  1. (ii)
    allows all-turns access at the permitted access location;
  1. (iii)
    allows continued left in/left out access at the Existing Access Point, but requires closure of that access after the alternative access has been the subject of detailed design and construction and is operational or
  1. (b)
    returns the issue to the Respondent for determination according to law in accordance with the findings of this Court.” (footnotes deleted)
  1. [59]
    When asked what the practical ramifications might be for her client if I were to make orders of the type contemplated on behalf of Talramp, Ms Hindman responded:[34]

“Yes, it is, because otherwise the extraordinary position that the appellant advances at paragraph 153 of its submission could come to pass.  The Court orders an alternate access point not yet constructed, no-one offering to build it, no timeframes, no detailed design, and then your choice would either to be, order the current access closed, which is what the appellant is contending for or, you could leave it, and you really couldn’t leave it open, because all the experts say that’s unsafe.  That’s why we’re here.  And then that’s just potentially a theoretical decision, because the new access point might never be built.  Well, that, in my submission, would be an outcome outstandingly against the objects of the Act.

  1. [60]
    I can but only agree with the general thrust of that response.  The relief sought is, in my respectful view, so hypothetical and uncertain that it is unlikely to achieve any meaningful outcome.  It would do little if nothing more than identify a potential access point.
  2. [61]
    For the reasons given the appeal ought be dismissed.
  3. [62]
    Before making final orders, while nothing following has played any part in my decision making, I would make the following observations.  First, this decision would not preclude Talramp from making an application to the Chief Executive for an alternate access location.  Second, it would not prevent, as was pointed out on behalf of the Chief Executive, Talramp making a claim for compensation under the TIA.[35]  Finally, it was submitted on behalf of Talramp that I should make no less than 24 specific findings of fact to dispose of this matter.[36]  I respectfully disagree and do not intend to make any further findings other than those already set out herein.

Orders

  1. The appeal is dismissed.
  2. The original decision, as amended by the review decision is confirmed.
  3. I will hear further from the parties if necessary as to any consequential orders.

Footnotes

[1]The Dalby Eastern Access Upgrade.

[2]Ex 4, p 627, para 3.7.1.

[3]Or its predecessor.

[4]At paras 26-31.

[5]Talramp’s written opening at paras 13 and 14.

[6]Original decision Ex 5 at pp 802-807.

[7]Ex 6.

[8][2014] QPEC 58.

[9]At paras 132-140.

[10]Shown in various paras and drawings. Eg Ex 3C, p 477 and Ex 6.AO-2, p 19; Ex 5, p 796-798.

[11]Ex 3C, p 363

[12]Ex 3C, 373

[13]Ex 3C, p 373.

[14]Written submissions at para 173.

[15]At paras 182-183.

[16]And emphasis deleted.

[17]See ex 8 and 10, p 10.

[18]T1-93, ll 8-16.

[19]Exhibit 4 at p 635, paras 4.2.28 to 4.2.32.

[20]T1-29, ll 17-20.  T1-30, ll 13-20.

[21]T1-30, l 37.

[22]Ex 4, pp 629-630, para 4.1.3.

[23]Ex 10, p 9.

[24]Ex 4, p 768, paras 19-20: T1-32 ll10-14; T1-50 ll 8-14.

[25]T2-25. T2-26 ll 1-7.

[26]T1-42 ll 42-46.

[27]Exhibit 6, Exhibit AD-2, pp 18-19.

[28]Eg T1-58, ll 32-46.  T1-59, ll 30-47.  T1-60, ll 1-23.  T1-86, ll 15-47.

[29]T1-81, ll 13-42.

[30]Written submissions at para 154(a): but see generally paras 141-154.

[31]Written submissions at para 153.

[32]Written submissions at para 153.

[33]Written submissions at para 211.

[34]T2-43, ll 43-47.  T2-44, ll 1-4.

[35]See ss 72-74.

[36]Written submissions at para 208.

Close

Editorial Notes

  • Published Case Name:

    Talramp Pty Ltd v Chief Executive Department of Transport and Main Roads

  • Shortened Case Name:

    Talramp Pty Ltd v Chief Executive Department of Transport and Main Roads

  • MNC:

    [2020] QPEC 53

  • Court:

    QPEC

  • Judge(s):

    R S Jones DCJ

  • Date:

    02 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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