The case of Capital 22 Pty Ltd v Chief Executive, Department of Transport and Main Roads; Capital 22 Pty Ltd v Sunshine Coast Regional Council & Anor [2024] QPEC 35 concerned two appeals to the Planning and Environment Court of Queensland (Court) by Capital 22 Pty Ltd (Applicant) against decisions of the Department of Transport and Main Roads (DTMR) and Sunshine Coast Regional Council (Council) in respect of development conditions imposed in a development approval which relevantly includes that direct vehicle access to the site (Subject Site) via a State-controlled road, being Aerodrome Road, is not permitted and requires certain works to be undertaken in respect of existing road access (Relevant Conditions).

The decisions made by DTMR and the Council under the Transport Infrastructure Act 1994 (Qld) (TI Act) and Planning Act 2016 (Qld) (Planning Act) respectively, shared a common element in that they both restricted vehicle access to a local road and therefore the Court heard the two appeals together for convenience (at [1]).

The Court considered the following matters:

• The Subject Site and surrounding road network.

• The statutory decision making framework.

• The reasons for refusal.

• The evidence within a traffic engineering report.

• The planning discretion to approve the proposed development.

The Court was not satisfied that the Applicant had discharged its onus and as a result dismissed the appeal against the DTMR's decision (see [66] and [67]). The appeal against the Council's decision was adjourned to allow the parties to prepare amended plans and a suite of development conditions (see [68] and [69]). The Court allowed the appeal against the Council's decision in part and amended conditions, which did not relate to the Relevant Conditions, were imposed.

The Subject Site's frontage to Aerodrome Road resulted in the development application being referred to the Chief Executive under the Planning Act (at [2]). The proposed development relevantly sought to permanently close one of the two existing crossovers from the Subject Site to Aerodrome Road, reconfigure the remaining crossover to accommodate a left-in and left-out vehicle access, establish a new crossover for access to a local road, and dedicate land along the Subject Site's frontage for a future bus lane (Proposed Development) (at [3]).

Significantly and importantly, any proposed change to the Subject Site's access to Aerodrome Road requires permission by way of an application to the Chief Executive under section 62(1) of the TI Act (Access Application) (at [4]).

The Relevant Conditions in the decision notice for the Access Application included among other things that "[d]irect vehicle access is not permitted between Aerodrome Road and the [S]ubject [S]ite" (at [5]). The Applicant sought an internal review of this decision under section 485 of the TI Act which was unsuccessful and subsequently appealed the reviewed decision to the Court (at [6]).

Once the Access Application had been decided and reviewed, the Council approved the Proposed Development subject to conditions which included those specified in respect of the Access Application (at [8]). The Applicant's appeal against the Council's decision was, in essence, an appeal against the access conditions imposed in respect of the Access Application and the Council on the development approval. Hence the overlap between the two appeals (see [9] and [10]).

The Court considered the traffic engineering evidence and found the following grounds in favour of refusing the Access Application under section 62 of the TI Act (see [32] to [39]):

• The Proposed Development could adequately rely on access via the local road only.

• Limiting access to the Subject Site via the local road only will improve the efficiency of Aerodrome Road and safety for pedestrians, cyclists, and vehicles given the expected increase in pedestrians, cyclists, and vehicles along the road.

• The absence of any traffic engineering imperative or requirement for vehicle access to the Subject Site from Aerodrome Road.

• The Proposed Development is contrary to a well-established matter of traffic engineering principle and practice that vehicle access to a site is to be from the lowest order transport corridor.

• The Proposed Development represents poor traffic planning with respect to the access function.

• Finally, that the Proposed Development would be unlikely to operate safely and efficiently if approved.

The Court also considered the impact that the Proposed Development would have on the implementation of and timing for the CoastConnect project if approved as "[t]he forward planning for Aerodrome Road includes the CoastConnect project" (at [16]). The CoastConnect project is aimed at improving public transport on the Sunshine Coast and "[i]f it is assumed the CoastConnect project is implemented, a kerbside bus priority lane would be provided along Aerodrome Road, including the frontage of the [Subject] [S]ite" (at [43]). Vehicles accessing the Subject Site via Aerodrome Road would be required to cross the priority bus lane. While this manoeuvre is lawful, the Court was of the view that it would create delay and friction to Aerodrome Road (at [43]).

Finally, the Court accepted evidence "…that the existence of a bus lane creates a speed differential between buses and the general traffic" travelling along Aerodrome Road (at [46]). The safety concern raised in the traffic engineering evidence is that a vehicle accessing the Subject Site via Aerodrome Road "…may do so too quickly to avoid the pressure of a bus bearing down upon it…[which] may put the safety of pedestrians and/or cyclists at risk" (at [46]).

The Court held, having regard to the evidence, that if vehicle access is limited to the local road only there would be no adverse safety or traffic impacts from the Proposed Development. Consequently, the Court found that "[t]he adverse impacts attract considerable weight in the exercise of the discretion once it is appreciated that: (1) the redevelopment of the site could acceptably rely on access from [the local road] only; and (2) there is no traffic engineering imperative that requires access to be provided to the redevelopment via Aerodrome Road" (at [65]).

The Court concluded that the Applicant had not discharged its onus and dismissed the appeal against the DTMR's decision and confirmed the review decision (see [66] and [67]).

As a result, it was unnecessary for the Court to consider the issues raised in the appeal against the Council's decision. The Court adjourned that appeal to a later date for the purpose of setting a timetable for the preparation of amended plans and a suite of development conditions (see [68]) and [69]). The Court also allowed the appeal against the Council's decision in part and amended conditions were imposed.