Al-Faisal College Limited v Campbelltown City Council
[2015] NSWLEC 1083
•7 April 2015
|
New South Wales |
Case Name: | Al-Faisal College Limited v Campbelltown City Council |
Medium Neutral Citation: | [2015] NSWLEC 1083 |
Hearing Date(s): | 12-13 March 2015 |
Decision Date: | 7 April 2015 |
Jurisdiction: | Class 1 |
Before: | Morris C |
Decision: | Appeal upheld |
Catchwords: | DEVELOPMENT APPLICATION: school; increase in number of enrolments; traffic, parking, safety and amenity impacts; zone objectives; objectives of development control plan; site suitability |
Legislation Cited: | Campbelltown (Urban Area) Local Environmental Plan 2002; State Environmental Planning Policy (Infrastructure) 2007 |
Texts Cited: | Campbelltown (Sustainable City) Development Control Plan 2014; The Educational Facilities Standards and Guidelines. |
Category: | Principal judgment |
Parties: | Al-Faisal College Limited (Applicant) |
Representation: | Counsel: Mr A Galasso SC (Applicant) |
File Number(s): | 10849 of 2014 |
JUDGMENT
Al-Faisal Limited currently own and operate a school at 10 Benham Road, Minto. The consent under which the school operates was originally approved by Campbelltown City Council in 2005 and authorised the conversion of existing squash courts to an educational establishment. A subsequent consent granted in 2009 authorised additions and alterations and increase the number of students from 150 to 250.
Al-Faisal lodged DA499/2014/DA-C with the council on 7 March 2014 seeking consent to increase the approved student numbers to 700. During the course of assessment, the applicant amended the application to revise the student population down to a maximum of 600 students.
An appeal against the council’s deemed refusal of the application was filed on 10 October 2014. The council subsequently refused consent despite its staff recommending approval, and its reasons for refusal form the contentions in the case.
The site and locality
The site is an L-shaped allotment with frontages to Benham Road and Kitson Place. The Benham Road frontage is approximately 11m wide and operates as a one way vehicle entrance with a pedestrian pathway and parallel parking along its western boundary and a retaining wall and landscaped buffer along its eastern boundary. The main school buildings and carpark are sited on the northern parcel of land that has a 44.34m frontage to Kitson Place where vehicular egress is directed and a secondary pedestrian entrance/exit provided.
Two main school buildings, a demountable classroom and playground areas are located across the northern end of the site. These buildings include the school offices, classrooms, amenities and a multi-purpose hall. Playground areas are located on different levels across the site and include an area under the hall. Parking for staff and visitors is available to the south of these buildings with a one-way drop-off facility provided adjacent to the office area.
The Grange Primary school adjoins the site’s western and northern property boundaries with its classrooms and buildings located to the west of the site and vast playgrounds and playing fields to the north. All access to that school is from Benham Road.
The site wraps around a multi-unit housing development that is also constructed on an L-shaped allotment to the south and east of the site which in turn wraps around a childcare centre located on the north-western corner of Benham Road and Kitson Place.
Development within the vicinity of the site comprises single and two storey detached dwelling houses including the Minto redevelopment area on the southern side of Benham Road with new housing stock being constructed.
A large passive park, Passfield Park, is located to the north-east of the site with access from Kitson Place and Ohlfsen Road, a newly developed park to the south west on the corner of Guernsey Avenue and Grampian Avenue and playing fields (Benham Oval and Sarah Redfern Oval) opposite that park and Sarah Redfern High School to the south of those ovals.
Background and the proposal
Since the grant of the original consent, the school has expanded its student numbers. The current owner acquired the site in 2013 and obtained a further development consent in 2014 that provides for the construction of new laboratories and storage room. The existing demountable building would be removed and the playground reconfigured once that work is complete and has the effect of increasing the area available for recreation space because the laboratory building would be an elevated structure with playground space below. The works include the provision of a central grassed area.
During the assessment of the 2014 development application, the applicant became aware of the restrictions on student enrolments. It is common ground that the school is currently exceeding the 250 limit imposed under development consent 2073/2008/DA-C. That consent includes a condition that limits the enrolments to a maximum of 250 students between years kindergarten and year 8 inclusive and requires council’s separate development consent to introduce year 9 and above or increase the student numbers. The applicant concedes that the current enrolment of the school is 486 students.
The development application before the Court seeks to obtain that consent. The proposal before the Court is to increase student numbers to a maximum of 600 and for the school to operate as a Kindergarten to Year 12 facility. Ultimately, the school would provide for 55 kindergarten, 330 primary and 215 high school students with 42 staff.
The planning controls
The site is zoned 10(c) Local Comprehensive Centre under Campbelltown (Urban Area) Local Environmental Plan 2002 (LEP). An educational establishment is permissible with consent in that zone. Clause 30(2) lists the objectives of the zone and includes a provision that, except as otherwise provided, consent must not be granted for development on land within zone 10(c) unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone. The objectives of the 10(c) zone are:
(a) to provide conveniently located land for a range of shops, commercial premises and professional services that are of a domestic scale and compatible with residential development in order to serve the needs of local neighbourhoods, and
(b) to provide opportunities for local employment, and
(c) to accommodate a range of activities required in the locality, but which are not appropriate on land in Zone 2 (b), and
(d) to encourage a variety of forms of higher density housing, including accommodation for older people and people with disabilities, in locations which are accessible to public transport, employment, retail, commercial and service facilities.
A further objective of the zone is to encourage a high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development.
The provisions of Campbelltown (Sustainable City) Development Control Plan 2014 (DCP) apply to the site. Relevant provisions are contained in Part 1 Preliminary, Part 2 Requirements Applying to all Types of Development and Part 9 Public Consultation. There are no specific provisions in the DCP that apply to schools.
Division 17 and in particular, clause 104 of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) applies to the application because it is an educational establishment with 50 or more students and therefore traffic generating development. In accordance with clause 104(3)(b), a consent authority must 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.
In a letter dated 12 June 2014, Roads & Maritime Services (RMS) advised the council that it had reviewed the development application and raises no objection.
Clause 32 of SEPP Infrastructure is another relevant consideration and requires a consent authority to take into consideration three state government standards. These standards are considered below.
The issues
The contentions in the case are:
·The proposed development will have an unacceptable impact on traffic, parking and vehicular and pedestrian safety on the subject site and in the local area and for these reasons, the site is not suitable for the proposed development;
·The site is not capable of supporting the proposed increase in student numbers;
·The proposal is not consistent with the Objectives of the 10(c) zone or the aims of the DCP.
The evidence
The hearing commenced on site where submissions were heard from a number of residents who objected to the proposal. The following is a summary of issues raised:
·The development will exacerbate the existing traffic and parking problems and increase the safety risk to students and pedestrians around the site;
·Site is too small for a school to increase to 600 students, children deserve the best education they can be given;
·Inadequate area is available for active play areas, sports etc;
·Parents disregard signage, obstruct driveways and park illegally as does the school bus. The additional number of students will increase the problems that are currently being experienced;
·School has disregarded limitations on numbers and not complied with consent conditions in the past so no guarantee that it would comply with any new conditions;
·Staggered start times to The Grange Public School are not enough to address traffic and parking concerns;
·Concerned the school does not meet relevant regulatory requirements in relation to fire safety and student numbers;
·The Grange school has a capacity of 340 students on a significantly larger site but current enrolments are 236 so with the new housing developments enrolments at that school are likely to grow and therefore add to the traffic and parking problems.
The objectors provided photographs that demonstrated their concerns in relation to traffic, obstruction of driveways and illegal parking.
Expert traffic evidence was heard from Mr P Trethewey for the applicant and Mr D Thompson for the council. The experts agree that the proposal should not be refused as it would not have an unacceptable impact on traffic, parking and vehicular and pedestrian safety on the subject site and in the local area. That conclusion was based on an assessment of the environmental capacity performance standards on residential streets using survey data collected on behalf of both experts. They agree that the increase in traffic volumes on Kitson Place would be acceptable and would not have an impact on amenity due to the forecast traffic volumes being within the RMS environmental goal of 200 vehicles per hour.
With regard to Benham Road, Mr Trethewey says the increase in traffic would be acceptable and would not have a negative impact on amenity because the forecast flows exceed the RMS maximum threshold by only 1 vehicle, with schools, the traffic demands are very short term and not sustained and communities generally accept peak impacts where developments provide public benefits such as schools.
Mr Thompson says that because the forecasts anticipate a traffic volume near and/or marginally in excess of the 300 vehicle per hour threshold, some form of traffic management/calming measure could be considered. He suggests the current 40km/hr school speed zone, which terminates to the west (on Benham Road) and north (on Kitson Place) of the intersection of Benham Road and Kitson Place could be expanded to a location on Benham Road to the southeast of the intersection, thereby increasing the speed restricted area to include the intersection and improve safety for students of all schools in the area. Mr Trethewey agrees this extension would be appropriate and would improve safety and says it is a matter that would require RMS assessment.
In relation to parking, Mr Trethewey recommended that the site should provide a minimum of 45 on-site parking spaces consisting of 42 staff spaces, 2 student spaces and 1 accessible space. He provided a Modified Parking Layout Plan that provides for a total of 52 parking spaces comprising spaces for 42 staff, 2 student and 1 accessible space and a further 7 visitor parking spaces with No Parking restrictions between 8am-9.30am and 2.30pm-4pm. The plan also includes a minibus parking zone located adjacent to the Kitson Place egress and deletes some existing parking spaces which are difficult to access/vacate. Mr Thompson agrees the plan and proposed signage is acceptable and notes there is a need to install a bollard to ensure vehicles do not travel on a section of the carpark that has a non-compliant gradient.
The experts agree that the proposed drop-off/pick-up zone permits the implementation of an effective “Taxi-rank” style facility adjacent to the school in the location of the 7 visitor spaces that will have the No Parking restrictions and that the layout can accommodate a single file line of parent traffic whilst maintaining sufficient manoeuvring space for a minibus to pass and access the proposed minibus zone.
During the preparation of their joint report, they identified the need for a Traffic and Pedestrian Management Plan (TPMP) to be developed to address traffic and parking issues associated with the development. They also agreed that the current management arrangements at the school were unsatisfactory and required greater ownership and enforcement together with the physical changes proposed to the layout.
A TPMP was prepared and is annexed to the supplementary joint traffic report, Exhibit 7. The experts agree that the document satisfies the requirements of the TPMP referred to in the joint report and that the development would provide adequate on-site parking, together with set down and pick up facilities.
In terms of pedestrian and vehicular safety on the site and in the local area, having regard to the cumulative impacts associated with The Grange Primary School, the experts note that there are staggered starting times. In addition, the applicant’s school also has different finishing times for the primary and high school component. The first morning bell for the whole school is at 8.25am, 35 minutes prior to the 9am bell for The Grange and the afternoon bells are at 3.25pm for primary and 3.35pm for the secondary students whereas The Grange finishes at 3pm. Accordingly, the peak drop-off/pick-up periods do no coincide, thereby reducing the peak cumulative impacts in the area.
The experts agree that the staggered starting times, extension of the 40km/ph school zone and the implementation of the TPMP appropriately address potential adverse impacts on pedestrian and vehicular safety.
It is common ground that the extension of the school zone requires approval through the council’s Traffic Committee and that it is outside the control of the school to ensure this is implemented. The draft consent conditions proffered by the council include a requirement that the approval must be obtained. In addition, the condition (condition 12) requires the installation of a bus zone within the western footway of Kitson Place operational between the hours of 8am – 9.30am and 2.30pm and 4pm on school days. The applicant, whilst accepting the need for the work, opposes that part of the condition that requires the council’s approval to be obtained because it is beyond the school’s ability to ensure the approval is granted. The applicant proposes an alternate condition that requires the school to lodge the necessary applications. It would then be a matter for the council’s committee and the RMS to determine whether the zones should be extended/implemented.
The experts discussed the warrants required to upgrade the existing children’s crossing in Benham Road to a pedestrian crossing and/or to obtain an RMS funded crossing supervisor. They agreed that the RMS website provided the following criteria:
● The site must have an existing children's crossing, pedestrian crossing (zebra) or combined crossing (children's and zebra).
● The crossing must be used by infant and/or primary school children.
● The site must be located within a 40km/h school zone.
● The crossing must be used by a minimum of 50 unaccompanied infant and/or primary school children per hour across a road carrying 300 passenger car units per hour within the morning and afternoon school zone times. Heavy vehicles over three tonnes unladen are counted as two passenger car units.
● The site must be considered a safe working environment for a school crossing supervisor.
There is no dispute that the first three and last requirement are met. Neither expert had conducted a survey of the usage of the crossing by unaccompanied children and therefore could not indicate whether that aspect could be met. Neither expert considered it would be necessary for the crossing to be upgraded from its current status however agreed that it would be a matter for the principals of both schools to pursue should they consider it necessary.
The council also seeks to limit the staff numbers at the school to 42 which is consistent to the information lodged in the Statement of Environmental Effects (condition 3). Mr Trethewey says that the current staff demand is 0.85 spaces per staff member and, at that rate, could accommodate 49 staff and provide flexibility in providing relief teachers. The applicant opposes any cap on staff numbers.
Expert planning evidence was heard from Mr J Mead for the applicant and Mr G Turrisi for the council. In accordance with the provisions of clause 32 of SEPP Infrastructure they considered the current government standards that have, according to the evidence, superseded those documents referred to in the clause. The relevant document, The Educational Facilities Standards and Guidelines (EFSG,) is a suite of information about the planning and design of Department of Education school facilities.
The experts agree that the proposal is acceptable in terms of passive play areas for a student population of 600, based on Mr Mead’s program that staggers the recess and lunchtime periods of the primary and high school students. This means that there would be a maximum of 385 children (primary) in the playground at any one time. Mr Turrisi says that this is subject to ensuring that the use of the playground would not disturb those children who are in classrooms.
They disagree whether the school provides adequate area for active play. The Landscape Design Requirements of the EFSG are cited and in terms of area suggest that the Free Play Area will accommodate competition sized fields in Primary sport for hockey, rugby league and rugby union. For high schools, a range of courts, fields and play areas are recommended. The experts agree that the standard does not include numeric for minimum sizes of outdoor space and that the school does not require a football field or the equivalent on site to provide for an adequate area of open space providing access to such facilities are available as part of the school’s PE curriculum.
Mr Turrisi notes the school has a current arrangement with the council to use nearby open space as part of the PE curriculum and says there is a need to ensure that the use, based on increased numbers will continue. Mr Mead says that given the size of the public open spaces being used for sports and the fact that the use of this will not involve the entire school population as students are spread between multiple facilities it is unlikely that the increase in student numbers would create any issue that would preclude permissions continuing.
Both experts agree that emphasis must be placed on the opportunity for the increased number of students to have access to “active” play to meet the planning purpose identified by EFSG. Mr Mead provided a plan of the layout and notes on active play arrangement (Annexure C to the Joint Report, Exhibit 5). The plan shows:
·The existing playground area has a total area of 1,515sqm including 610sqm covered and 906sqm covered;
·There is a perimeter of unutilised area that is not currently used as playground however does not serve any other purpose. This area is 692sqm;
·The playground layout approved under the 2014 consent a total area of 1,921sqm including 1,441.5sqm of covered area and 480sqm of uncovered area would be provided with the perimeter area reduced to 525sqm;
·These figures do not include internal areas that can also be used for active play such as the school hall which is 374sqm.
Mr Turrisi says that there is currently insufficient area available for active sports and the changes that will arise under the 2014 consent should not be considered as the application is to increase numbers now and the available areas should be considered.
Mr Mead says that the areas can be appropriately managed with portable basketball hoops, volley ball nets and soccer goals set up during lunch breaks. He provided an indicative roster for the use of the areas and details of activities that are conducted off site such as swimming and fitness where use of local facilities is made (Exhibit D).
According to the council’s assessment report, it is not unusual for schools in the Campbelltown LGA to use public open space for additional recreation needs.
Mr Turrisi says that Mr Mead’s roster and plan of use of the playground assisted in understanding how use of the areas would be made and that these details should be incorporated into a Plan of Management (POM). He also considers that specific areas would be line marked to designate usage with conditions of consent imposed to ensure the plans are implemented.
Mr Mead said that this was unnecessary, would be too prescriptive and not provide flexibility in the use of the spaces as needs changed. It is in the best interest of the school to provide a high quality play area, in fact this is required by the Board of Studies which regulate the school and will be overseen by it.
The planning experts agree that objectives a and d of the 10(c) zone are not applicable to the proposal and that objective b is met in that the proposal will provide additional employment opportunities for school staff. Objective c is met in that the proposal represents the continuation of an established and permissible use on the site, which is more suitable for the 10(c) zone than the 2(b) zone, albeit that the use is permissible in either zone.
They disagree as to whether the further objective is met. Whilst they agree that the proposal provides for no built form changes and therefore is neutral with regard to being “aesthetically pleasing”, they do not agree whether the development is “functional”. This is in terms of active play space as the traffic experts have dealt with the issue of traffic and parking.
Mr Seton, for the council, put to Mr Mead that the maximum area available per student within the playground would be 4sqm. Mr Mead agreed and says that this is adequate if appropriately managed as part of the school’s physical education curriculum and his observation of the use of the area does not suggest there is any problem with active play.
The experts agree that the determination of any subsequent applications, whether they are for the site or other similar developments, would be a matter of merit consideration and therefore potential precedent form the determination of this application does not warrant refusal of the application.
The conditions
The council prepared draft conditions of consent (Exhibit 8). All conditions are agreed except for conditions 3, 12 and 14. Conditions 3 and 12 are discussed at [34] and [31] above. Condition 14 states:
Prior to the end of the fourth school term and on an annual basis, written evidence must be provided to and approved by council which identifies that adequate arrangements have been made for the use of public open space in the vicinity of the approved educational establishment for the purposes of physical education and outdoor activities to accommodate the approved 600 students of the school. Such evidence is to include (but is not limited to) written permission from the owner, or entity in control of the open space proposed to be used, confirmation of the number of students involved and any terms imposed on the use.
The applicant opposes this condition on the basis of the need to obtain annual approval from the council. It accepts that there is a need for off-site facilities to be used to ensure its PE curriculum is appropriate and that where necessary appropriate approvals should be obtained. It does not want to be locked into using facilities that are in the vicinity of the school, rather be able to choose the most appropriate facility to service its needs.
Conclusion and findings
Having regard to the evidence, it is apparent that the existing operation and management of the school’s traffic and parking is highly unsatisfactory. Photographs provided by the residents show ineffective controls and disregard of road rules.
The traffic experts agree that there is a need to implement a more efficient and effective TPMP and have developed a plan that they say will ensure that there are no adverse amenity impacts on the adjoining road system.
The use of a traffic management plan is an appropriate tool to ensure a traffic generating development is conducted in a manner which minimises its impacts on adjoining roads and ensures public safety. The agreed plan would be incorporated as a condition of consent (condition 1).
When implemented, the site provides for an extensive on-site queuing and drop-off area that reduces the demand for use of on-street parking by those parents who drive their children to school. Whilst the evidence is that the capacity of Benham Road is reached, the evidence is that there will be no unacceptable impacts with the management regime proposed.
Having regard to that evidence, I am satisfied that the traffic and parking impacts can be appropriately managed through the proposed TPMP and consent conditions. It is of course, important that the school and its parent population recognise the importance of complying with the plan.
The site is currently functioning as a school for 486 students and has received the necessary annual certification from the Board of Studies as required under Part 7 of the Education Act 1990. One of the requirements for registration is that the Board must be satisfied that school premises and buildings are satisfactory (section 47(f)).
Having regard to the evidence of the planners and the fact that the proposal, whilst increasing student numbers, will also benefit from additional playground area when the science block is completed and the demountable removed, I am satisfied that the area available for playground space is adequate.
It is not unusual for a school that caters for both primary and secondary students to stagger the recess periods and manage the activities within the playground. I accept that management is required however I do not consider that it would be necessary to prescribe how that is to occur.
For these reasons, I find the site is suitable for the additional 600 students however, due to the threshold of traffic volumes in Benham Road and the area available for playground space, parking and vehicle management, it is apparent that 600 students would be the maximum capacity for the school. Similarly, it would not be appropriate that any further buildings are erected on the site.
It is necessary for me to form the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone for consent to be granted (clause 30 of the LEP). The evidence of the planners is that objectives b and c are met. In relation to the further objective, I am satisfied that the school, with a student population of 600 operated in accordance with the proposed consent conditions would be functional. Accordingly, I am satisfied that the development is consistent with more than one zone objective.
In terms of the disputed conditions, the evidence of Mr Trethewey is that the parking provided on site would be suitable for up to 49 staff. I consider, given the constraints of the site, that it is appropriate to limit staff numbers to that number and not the 42 proposed by the council.
I accept the importance of extending the school zone but do not accept that the application should fail if the council’s traffic committee or the RMS do not approve that extension. Accordingly, condition 12 should require the school to lodge all necessary applications and fund those works if approved and be amended to reflect those changes. These applications should be lodged within 2 months of any consent being granted.
In relation to proposed condition 14, I do not consider that this is necessary. The school has an onus to ensure that it provides its students with satisfactory physical education and can choose to do this in a variety of manners. It is not the council’s role to approve the facilities it uses. It is a matter to which the Board of Studies has regard in registering the school each year. For these reasons, condition 14 should be deleted.
On the basis of the evidence before me, I am satisfied that consent should be granted subject to the conditions outlined above.
The Orders of the Court are:
(1)The appeal is upheld.
(2)DA499/2014/DA-C for the increase in student numbers to a maximum of 600 and for the school to operate from kindergarten to Year 12 is approved subject to the conditions in Annexure A.
(3)The exhibits, other than exhibits A and 2, are returned.
______________
Sue Morris
Commissioner of the Court
10849 of 2014 Morris (C) (23.3 KB, pdf) align="center">**********
1
0
1