Arden Anglican School vs Hornsby Shire Council 1st Respondent, and Unilever Australia Pty Limited 2nd Respondent - [2007] NSWLEC 285

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Arden Anglican School vs Hornsby Shire Council 1st Respondent, and Unilever Australia Pty Limited 2nd Respondent [2007] NSWLEC 285

PARTIES:
APPLICANT
Arden Anglican School
1ST RESPONDENT
Hornsby Shire Council
2ND RESPONDENT
Unilever Australia Pty Limited

FILE NUMBER(S): 10636 of 2006

CORAM: Hoffman C

KEY ISSUES: Development Consent :- refusal of consent for the use of an office park building and grounds for year 11 and 12 school facilities, amenity of other tenants, need for future school plan, inadequate student facilities, pedestrian safety, owners consent, acoustic impact, security considerations.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Hornsby Shire Local Environmental Plan 1994
Hornsby Shire Development Control Plan

DATES OF HEARING: 9-10/11/2006, 24/01/2007, 13/03/2007, 2-4/04/2007.

DATE OF JUDGMENT:
25 May 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr I. Hemmings, barrister
instructed by Ms M Peatman of Hunt & Hunt solicitors
1st RESPONDENT
Mr P. Jackson, solicitor
instructed by Ms F Milner of Pike Pike & Fenwick solicitors.
2nd RESPONDENT
Ms S. Duggan, barrister
instructed by Ms S. Brand of Baker Mackenzie solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

25 May 2007
10636 of 2006 Arden Anglican School Vs Hornsby Shire Council 1st Respondent, and

Unilever Australia Pty Limited 2nd Respondent.

JUDGMENT

1 This is a class 1 appeal No.10636 of 2006 between Arden Anglican School applicant, and Hornsby Shire Council first respondent, and Unilever Australia Pty Ltd second respondent, in regard to the refusal of consent of the use of part of an office park building and gardens for Year 11 & 12 senior student classes and facilities. The proposal is in association with the existing campus opposite the subject site.

2 The existing campus is referred to during the hearing as the Oxford Campus due to its address at No.50 Oxford St, Epping. The proposal is referred to during the hearing as the Cambridge Campus due to its location on part of the ground and first floors of Building C of the Cambridge Business Park that has frontages to Oxford, Cambridge and Chester Streets, Epping.

The Site

3 The site, has an area of 13,280 sq m, is located on the western side of Oxford Street, southern side of Chester Street and eastern side of Cambridge Street. The site experiences an average fall of 7% to the Cambridge Street frontage of the site.

4 The Cambridge Office Park comprises three office buildings of 3 to 4 storeys with basement car parks set in landscaped grounds.

5 Unilever’s address is 20 Cambridge St, Epping, and that is the main entrance to the corporate headquarters in Building B of the complex. There is also another quite imposing entrance at 37-41 Oxford Street, opposite the existing school. The ground floor of Building C has the personnel section of Unilever where staff and recruits enter off Oxford. The 3 buildings of the office park are set in spacious landscaped grounds that currently contain a swimming pool, BBQ and change rooms and a tennis court. Unilever has 450 staff on site.

6 The wide entry stairs off Oxford lead onto a terrace, beside which are glass windows to interview rooms of Unilever, and then into an entry lobby and elevators. The school does not seek to use the main lobby. The wide terrace turns north and then west past the entry lobby leading to another wide set of stairs down into the landscaped gardens. The school proposes its own entry lobby near the top of the stairs into the gardens. In the gardens there are paths to the recreation facilities, and through the complex to Buildings A and B, thence to the other main entry off Cambridge St.

The Locality

7 The locality is comprised of a variety of land uses. Aged persons housing is located immediately to the north of the site, commercial offices immediately to the south, medium density housing to the north-east on the eastern side of Oxford Street and also on the eastern side of Oxford Street the Arden Anglican School (“Oxford Campus”).

8 Within the Cambridge Office Park are numerous administrative, commercial, corporate and specialist uses.

The proposal

9 The school proposes to have a separate entry for its senior study centre at the end of the terrace of Building C, just past the stairs down into the gardens. There is a carpark under Building C with its drive entry beside the stairs off Oxford St. The school does not propose to use the carpark, except for the elevator lobby therein for the drop-off and pick-up of students with a disability, should any attend the school from time to time. Able students will come to school by public transport or existing pick-up, drop-off points for the Oxford Campus. I was told Arden School has rules that require students to not drive and not park a car in nearby streets for transport to/from school.

10 The applicant's `Management Plan' states as follows:

The Senior Secondary Study Centre will generally comprise standard type classrooms, large open tutorial rooms with smaller break-out rooms, a resource centre, computer rooms, quiet study areas, staff offices, reception area, travel areas, locker areas, staff common room, Year 12 common room, photocopying room etc.

11 The ground floor use involves an area of 271.5 sq m and the first floor use an area of 614.3 sq m. The initial proposal before the Court said the existing landscaped grounds including tennis court and swimming pool are available by agreement for the school use.

12 The senior students centre is said to be an expansion of school facilities for updated teaching methods; it is not an expansion of school numbers.

Statutory Controls

13 The following statutory controls are applicable to the development.

14 Hornsby Shire Local Environmental Plan 1994. The site is zoned Business B (Special) Zone under Hornsby Shire Local Environmental Plan 1994. Under the LEP the proposed development is defined as an `educational establishment' and is permitted with development consent.

15 Clause 7 (2) of the LEP requires the objectives of the zone to be taken into account before development consent is given to the carrying out of development within the zone.

16 The proposed development is subject to the requirements of the following of Hornsby Shire Council's Development Control Plans:

17 The original Development Application was advertised for a period of 21 days from the 10 November 2005. A total of four (4) submissions were received in response to the application.

18 On 15 March 2006, Council considered Executive Manager's Report No PLN 6112006 and resolved to refuse the application.

19 On 19 July 2006 a Section 82A review was lodged with Council and advertised for a period of 21 days from 27 July 2006. The Section 82A review included provision of additional information including school operational details, outdoor recreation plan, and an acoustic and traffic study. The section 82A review was determined by way of refusal by Council at the meeting on 18 October 2006.

20 The issues in these proceedings are as follows:

1

Particulars

The proposed development fails to comply with various elements of the Community Uses Development Control Plan. The DCP is required to be taken into account in the assessment of any proposal for an education establishment.

2

Particulars

The Community Uses DCP identifies the need for the preparation of a Master Plan for special use developments including educational establishments. A Master Plan would establish the parameters for growth of the school and enable forward planning for accommodating expected student numbers. The application has not been prepared with the benefit of a Master Plan.
The existing school is zoned Special Uses A (Community Purpose). This zoning is appropriate for the development of a Master Plan for the school in identifying suitable locations for expansions of the school.

3

Particulars

The application, as amended, identifies reliance on the existing school campus for recreational space. No details have been provided as to whether there is sufficient or suitable area available to meet the requirements of students in accordance with the DCP requirement for a minimum of 20 sq m per student.

4

Particulars

The proposed alignment of student pedestrian travel in the forecourt area conflicts with an area specifically identified for and utilised on site by office tenants for smoking breaks.
The applicant has provided a management plan, however is not willing to, have this form part of any development consent that may be granted.
The movement of members of the public onto and through the site is unregulated. The application involves the regular movement of students to and from the site throughout the day. The management of this presents the opportunity for conflict with other visitors and occupants of the site.

5

Particulars

The site has a corporate identity where business and commercial activity predominates. The proposed school use would conflict and detract from the established corporate use of the site.
The high degree of adult supervision required for the school use of the Cambridge Office Park site presents an impractical regulation and enforcement issue given the immediate accessibility of the site to the public domain and Epping commercial centre.

6

Particulars

The existing school population does not include years 11 & 12 and the amended application does not address the accommodation of the senior students on the existing site as proposed.
The establishment of the junior secondary school at 50 Oxford Street Epping enabled the progression of students from the Arden Primary School at Beecroft to Year 7 from 2003. The continued progression of students to years 11 & 12 relies on the proposed development, which demonstrates a deficiency in master planning for the school and the ad hoc nature of the proposed development.

7

Particulars

Concerns have been raised by owners and tenants within Cambridge Office Park and are summarised as follows; incompatibility with corporate environment, inadequate amenities, noise, disruption to use of recreation area by tenants and clients, parking, pedestrian safety, security, disabled access, fire egress, lack of Master Plan for the school expansion.

21 In addition to the issues raised by the First Respondent in these proceedings, the Second Respondent proposes to raise the following issues in the proceedings:

1. Whether the Applicant's proposed amended development application prepared by Stuart Harding of Willana Associates dated November 2006 and filed with the Land and Environment Court on 1 December 2006 ("Proposed Application") constitutes such an amendment from that of the original development so as to warrant the lodgement of a new development application.

Particulars

a) The Proposed Application is now dependent upon the existing Arden School site, which is not part of the subject site for which development consent is sought.
b) The Proposed Application asserts reliance upon Development Consent No 1/83 however the details provided with the Proposed Application do not indicate that the use is operating in accordance with the approved plans and details

2. Whether the Proposed Application is so dependent upon the existing Arden School site as to represent an intensification of the use of the existing Arden School site from that which the site is capable of supporting for which no assessment has been provided.
3. Whether it is appropriate to grant consent based on the management plan forming part of the Proposed Application when the Applicant does not consent to that management plan forming part of any development consent.

Particulars

See point 6 of Appendix B to the Proposed Application.

4. Whether the Proposed Application adequately addresses pedestrian and vehicular traffic movements and the associated safety implications which arise as a consequence of the school use, and in particular, the increased pedestrian movements across Oxford Street.

Particulars

a) The Proposed Application is reliant upon the frequent and continued movement of students and staff between the Cambridge Office Park and the existing School site.

b) The peak traffic periods surrounding both drop off and pick up times associated with the school use has the potential to conflict with the continued efficient use of the business park by commercial users to an unacceptable degree.

c) The increased and frequent pedestrian traffic across the road between the Cambridge Office Park and the existing School site at all times throughout the day has the potential to unacceptably conflict with both pedestrian and vehicular movements coming to and from the business park.

5. Whether the Landowner's consent has been obtained for the Proposed Application as well as for the works within the common areas of the Cambridge Office Park.

6. Whether an amended acoustic assessment in light of the Proposed Application is required given the increased movement of students between the Cambridge Office Park and the existing school campus.

7. Whether the Proposed Application can be approved where it fails to provide clear details of the longer-term requirements of the school and where the Applicant has failed to provide a Master plan as required by Council's Community Purposes DCP.

8. Whether the proposed development is consistent with the objectives of the Business B (Special) Zone.

Particulars

The use of the established business park for the purposes of an educational establishment is, for the reasons outlined in the following issues, inconsistent with the continued use of the site for the purposes of commercial activities and is therefore inconsistent with objectives (a) and (b) and (c) of the zone.

9. Whether the site of the proposed development is suitable for the proposed use as an educational establishment (s.79C(1)(c)) having regard to the incompatibility of the proposed use with the existing uses in the business park in which the use if proposed.

Particulars

The present levels of security of the business park permits access by members of the public to the park in an uncontrolled manner, which is inconsistent with school uses. However, any increase in security, which reduces access, will adversely affect the operations of the Second Respondent.

10. The proposal fails to adequately provide sufficient disabled access in accordance with the Council's "access and mobility DCP".

11. Whether it is appropriate to grant a development consent requiring supervision, discipline and other controls of school students using both public roads and private property.

Particulars

See the Proposed Application, for example, paragraphs 2.17, 2.19, 2.20. 2.25.

12. Whether it is appropriate to grant development consent where the proposed management plan prepared by the Applicant dated 2 December 2006 and filed with the Land and Environment Court on 8 December 2006 ("Proposed Management Plan") does not provide sufficient information or adequately address the educational administration ramifications of the Proposed Application.

Particulars

a) The Proposed Management Plan makes generalised and vague assertions (for example see paragraphs 21(a) and 12 of the Proposed Management Plan) and does not specify the number of staff and students involved (for example see paragraphs 5 and 9 of the Proposed Management Plan).
b) The Proposed Management Plan purports to rely on policy documents (see paragraphs 22 and 23 of the Proposed Management Plan) which are not provided and as such creates uncertainty as to behavioural and supervision expectations.

13. Whether it is in the public interest (s79C(1)(e)) to locate educational establishments within commercial premises generally or purpose built office parks in particular.

Particulars
See the particulars to paragraphs 9 and 12 above

22 The 1st respondents evidence came from:

Mr N McCarry, town planner with the Council

23 The 2nd respondent’s evidence came from:

Mr D Craig, consultant acoustic engineer

Ms J Sneyd, consultant town planner

Dr K Tronc, consultant education administrator

Mr C. T. McLaren, consultant traffic engineer

24 The applicant’s evidence came from:

Mr P Knowland, consultant acoustic engineer.

Mr S Harding, consultant town planner

Mr P Twiney, consultant traffic engineer

Mr M Cambridge, general manager property services of the Glebe Administration Board of the Anglican Church.

Mr P. J. Heath, headmaster St Andrew’s Cathedral School.

Mr C. May, headmaster the Arden Anglican School.

25 The parties had agreed on a joint acoustic expert that the Court should appoint. Mr S Cooper consultant acoustic engineer had carried out tests on site and made calculations of potential noise nuisances in the business park related to student activity.

The evidence

26 At the commencement of the hearing in November 2006, a legal representative of the owner of Cambridge Business Park appeared to advise that Oxcap Pty Limited, the owner, had not consented to the development application. It seemed that the estate agent/property manager for the site had signed the application form believing there was power to do so. The applicant asked for an adjournment to deal with this event.

27 Part of the reason, apparent for Oxcap’s intervention was representation to it by Unilever and other tenants of the office park who are concerned about the comings and goings and presence on the site of up to 200 school students. Especially of concern to them was the proposal for the students to use during class recesses, the gardens, swim pool, tennis court, BBQ and change room/toilets in the grounds.

28 A further concern is the balconies outside the proposed school rooms on each level of Building C, that the students are also proposed to use. It was put that even their presence on the balconies that overlooked the gardens and recreation facilities would give rise to nuisance for other tenants of the business park.

29 Unilever in particular said the gardens are used for product launches, photo shoots, guest and staff entertainment, quiet places for staff to have outdoor meetings, as well as to withdraw to for relaxation during breaks from work. None of this could continue with up to 200 students coming in and out of the gardens, or overlooking the gardens from the balconies, it was said.

30 Due to the circumstances surrounding the owner’s consent, the adjournment was granted. Over the next 5 months there were negotiations, and finally owner’s consent was provided to the Court in Exhibit H. That provided only for the occupation of the lease areas within Building C to be used by the school and students, and reasonable access thereto. This necessitated amended plans and reports. The amended plans came in Exhibit J.

31 The plans show a reduced number of internal facilities compared to the original description. There are now an entry, a foyer, 10 classrooms, 2 corridors and locker areas, a students' common area, a teachers' common room, a store room, male and female and disable persons toilets, an internal stair for access between floors, access to fire escapes and the Building C lift lobby.

32 The objectors still had concerns, mainly about the number of students and staff coming and going including the morning arrivals, daytime movement between the Oxford Campus and the Cambridge Campus, movement between the Cambridge Campus and other places during the day, and afternoon departures.

33 The amended issues of the 1st and 2nd respondents relate to this amended proposal. It was said, if I can summarise, that the presence and activity of school students is incompatible with the high amenity and prestige image provided by the business park for its tenants, particularly those who have international headquarters on site. One particular location of impact being the entry stairs off Oxford St that necessitate the students moving past the interview rooms’ windows and entry lobby of Unilever in Building C, and the use of the associated terrace to move to and from Oxford St to gain access to the proposed school lobby.

34 There is also concern about the students using the Cambridge St entrance, and walking through the gardens to/from Building C. It seems that there is a public Right of Way through the gardens via the stairs and terrace of Building C, that allows anyone to walk between the two streets. There is concern of the mixing of students and the public and customers and staff of the other tenants on the terrace and stairs.

35 Dr Tronc was asked now that the students are confined to the interior of Building C, and buildings and recreation spaces of the Oxford Campus across the street, do his fears about security remain?

36 He said even though they are senior students, most are below 18 years and technically children. They will be in school uniform and mix with the public crossing between the Oxford and Cambridge Campii. On a single dedicated school property security can be managed, and intruders easily checked, but he feared the split campii could not achieve this.

37 Reliance on the trust of students to obey rules is not appropriate as youth has a pattern of misbehavior. This is evidenced by the school having rules of conduct and disciplinary measures and expulsion for repeat offenders, he said.

38 The amended design of the senior study centre means that staying indoors will not be attractive at free periods or class recess periods. Students will tend to leave the Cambridge Campus and go to Oxford, or, as the rules allow for senior students at lunch recess, down to the shops at Epping. The numbers of student movements, he thought, are underestimated as they are only calculated on class timetable shifts and scheduled events like chapel, assembly, peer support groups, school House Team meetings. He noted that the current class timetable is not proposed to be “locked in” by any consent conditions, because as time passes curricula and timetables must change. As a result, student movements will change too.

39 Also he made the observation the classes offered showed 31 subjects for current senior school enrolments of 60 – expected to rise over time to 200. Dr Tronc said 31 subjects are not viable, and only serve in the development application to reduce the number of student movements at class changeover. In practice, he expects that the subjects offered will be reduced, and more students will attend individual classes, and so it will be those increased numbers that will move at class changeover.

40 In cross examination of Dr Tronc, it was noted he had provided only a brief supplementary report when the proposal had changed considerably by deleting the Cambridge garden and balcony areas. In being questioned on his opinions in the supplementary report he said, in summary:

Items (a) and (b).

Items (c), (d), (f), (j), (k), (l), (p).

Item (e).

Items (g), (h), (i) and (m).

Item (n).

Item (o).

Item (q).

It was put to him that voyeurism could not be a major concern in public areas, anymore than in the street or buses or trains when the students come and go from school. Also the Oxford Campus, has many residential apartments on its perimeter, as do many schools everywhere, from which voyeurism might occur, and voyeurism had not become a reason for refusal. He said that was not the point, students coming/going to/from school is a parental responsibility, the school has a “duty of care” during school hours that cannot be avoided. He agreed, however, that if supervision of students crossing the road and the entry stairs and terrace is adequate, the students would be as safe and at the same risk of voyeurism as to/from school.

Item (r).

41 In cross-examination, he agreed he used the word "terrorism" to describe incidents where surprise and assault were involved. He said the public right of way through the business park and past the proposed entry doors to the senior student centre meant a perpetrator would not be easy to identify and could get within striking distance. In cross examination he agreed that almost any school is relatively open to trespass, except that once within school grounds, staff might notice a stranger more easily than this proposal.

42 Dr Tronc agreed further that there would be better security from invasion with the proposal to issue students and staff with electronic passes, without which the doors at the entry to the senior student centre would not open. Also, the secretary’s counter is located just inside the glass doors so that observation of persons approaching would be available. He thought the glass could easily be broken if violence is intended.

43 He also had a concern about office park staff and students mixing on the entry terrace. He had noticed the office park staff used the terrace as a smoking zone, this would be unhealthy for students.

44 Mr Cambridge agreed his role is property manager and he has little to do with actually running classes and students. His study tour of New York, London and Hong Kong schools set in business centres was brief, but he said discussions with school staff at them and St Andrews Cathedral School, Sydney, indicated to him that senior students at least could fit into the Cambridge Office Park without nuisance to the business environment.

45 It was put to him that he had, in the original scheme, thought the garden areas of Cambridge campus were important for student recreation, and now that was eliminated. The Common Area and the corridor of the Building C gave only 121 sq m for up to 200 students, and that is obviously too small.

46 He said the classrooms themselves would be vacant during recess, and senior students are allowed to be in them at recess. Also there are, across the street on the Oxford Campus the library, music room, drama rooms and the recreation yard areas that serve the current students. Although the senior students only totaled 60 at the present due to progression of the age groups through school years since the Oxford Campus opened, the total numbers of students permitted by Consent No.1/83 would not be exceeded as the students in senior years 11 & 12 grew.

47 It was put to Mr Cambridge that the comparison of the Cathedral School occupation of city high-rise offices, with the subject office park is faulty because, for one thing at least, the City building is occupied by Anglican based organisations. He said there were many non-religious tenants as well, and the religious organisations are in the minority. He referred to the Town Hall Station shopping arcade, the ABS offices, public carpark, and the public pedestrian thoroughfare from York and Bathurst Streets through to the station. All these are in St Andrews’ buildings.

48 He added that any incidents in the public areas would be reported to him, and he had none involving St Andrews’ students. The headmaster would deal with any “in school” incidents and he would not hear of them.

49 Mr Heath was allowed to give evidence only on how discipline works at his school with a split campus and mixed use premises of school plus commercial. He has not visited Arden School.

50 One of the St Andrew’s school high-rises is off Druitt St. It has separate entries for the students’ and the commercial spaces. But they both enter from a common plaza that has coffee shops, retail outlets and healthcare centre. The tenants have changed over the 15 years of his position as headmaster.

51 Students of both the senior and the junior classes move between the two buildings called “St Andrews” and “Bishop Barry”, passing many shops, foyers, cafes along the way and crossing streets. During the student movements there are no supervisors, except that there would be up to 25 teachers changing classes at the same time along the same route. The school has two plain clothes “sergeants” who operate as security, but their duties are not to supervise student movements although they may do so if on the route.

52 St Andrew’s has a demerit system for non-compliance with rules, but not the same as Arden. Mr Heath said he does not have an ”approval” role of any new tenants that is handled by Glebe Administrative Board. He may be asked for a comment by the Board, more often at St Andrews’ than Bishop Barry.

53 Mr May the head of Arden said the school encourages safe driving courses for students who are getting their driver’s licence, but does not allow students to bring a car to school, except for the parents dropping off or picking up. He is not aware of any non-compliance to date. Parents are required to enter into a contract with the school when a student is accepted, to ensure co-ordinated effort by both in nurturing a student.

54 He confirmed that senior students can stay in their classrooms over breaks, and the rooms are regarded as common rooms at those times. For senior students, computer rooms are not needed, they have to have laptops that are “wireless” from the school server. Only special equipment rooms such as laboratories are to be vacant between classes, there are none proposed on Cambridge Campus.

55 The alternate emergency exit and disable access would, of necessity be via doors at each level from the school leasehold into the tenants’ main lift lobby and through it to fire stairs.

56 Mr May denied Dr Tronc’s allegation that 31 subjects are “not viable”. He said there are a number of pre-requisite subjects, and then a number of elective subjects for smaller numbers of students. He said the student class timetable is worked out by a computer program, and that needs to change at least each year depending on the elective choices, and the numbers of students. That is why the timetable cannot be a condition of any consent.

57 The estimates of bulk student movements are from the timetable for the pre-requisite subjects where the largest number of students moving between campii at the one time will be 53, on three occasions per day. That could be a condition of any consent.

58 Mr May was asked why there was no Master Plan submitted for the expansion of the school. He said in effect this is the last of any supposed master plan. The school is not expanding students beyond the approved 600 in Consent No. 1/83. And the school has only 318 students at the moment projected to be 512 by year 2012. There are only 60 seniors at the moment. By 2012 there will be 78 students each in Years 7-10, and 100 each in years 11-12.

59 To keep pace with the times and demands of up-to-date education, the school wanted to offer a better pedagogy to its senior students. To provide a better transition from school-to-university, the use of office type or university style lecture rooms and environment is required.

60 It was put to him that Oxford Campus had just run out of space. He agreed the changes to curricula wanted by government especially since 1983 had caused the school to convert a number of standard classrooms to special purposes. Since 1983, he said Information Technology, Australian History, Design Technology, Food technology, Visual Arts, Drama, Software Design, Textiles, Health and Physical Education courses, to name a few, had required these changes. However Years 11 & 12 are currently given these classes at the Oxford Campus, it is the change in pedagogy that motivates this development application.

61 It was put to him that the senior centre would be absent any outdoor recreation space that even Mr Harding, the applicant’s town planner said was needed. Mr May said the Oxford Campus is approved and accredited for 600 students and that would not be exceeded as the total on Oxford plus Cambridge campii. The Cambridge Office Park gardens had only been included in the original application because they had been offered.

62 The senior students would still have the Oxford outdoor spaces, and they would in Year 12 be able to go down to the Epping shops/cafes at lunch recess. Also on the Oxford Campus is the canteen, library, music, assembly hall, visual arts, technology, science facilities. Seniors are able to make decisions for themselves on “out-of-class time” as part of the pedagogy.

63 Asked how many staff Arden had, he said 45 teachers at Oxford and 54 at the Beecroft school. Put to him that the one staff said to be on the terrace at the 3 bulk movement times, is only named as a “monitor”, Mr May said that students who might not comply with rules, would be reported and disciplined in co-ordination with their parents. Non-compliance was very rare in senior students.

64 He was asked about students arriving before class and loitering on the terrace. He said some classes for seniors start at 7.30am, the monitoring teacher will be there at 7am and the rule says no students to arrive before 7.15am. The last class for seniors finishes at 5pm. Most classes are scheduled between 8.30am and 3.15pm. Morning and lunch recesses are at 10.35am and 12.45pm. Senior students are to remain in Cambridge Campus for morning recess. Asked about public address and period bells, he said Years 7-12 do not have them, students are expected to be responsible for being on time. In his experience senior students arrive just before class. All sport is after school, and students go to Epping oval, or they may play tennis or basketball at Oxford.

65 Put to him that including arrival and departure there would be 5 bulk movements per day. He said the early morning and after school classes were usually the electives, and some senior students may have free periods in the morning or in the afternoon, so the arrival/departure movements would be spread out. The first class for some may be at Oxford, so they would not come to the office park, unless it is to drop off at their locker.

66 It was put to him that unaccounted for in the expected movements are, say:

arrive, go to locker
cross street to Oxford for first class,
back to Cambridge for another class,
go to shops for lunch,
return to Oxford outdoor areas to eat lunch,
back to Cambridge for afternoon classes,
depart.

67 Mr May replied that number of movements would be unusual, most senior subjects are double periods, and seniors arrive just in time for class, and the use of laptops that they take everywhere with them, does not always necessitate a locker visit for books etc. And, most books are on CD’s these days, so there are few books to carry. Also they can only visit lockers every second period so they have to remember what they need.

68 He thought the use of the terrace by office staff for smoking, whilst not desirable for the passage of students, is a part of life travelling to/from school.

69 Asked about other “non-class related” movements, he said:

the peer support movement is about 13 seniors go to Oxford twice a week to liaise with junior students in their school House Teams.

The House Teams meet and do roll call once a week at Oxford, but seniors are not required to attend, and some would not attend except for the twice per term requirement.

School Assembly occurs once a week at Oxford, they would attend that.

The chapel service once a week would require all seniors to attend, that would be the largest single movement with up to 200, once the progression through school years brings the seniors classes to full size.

Another whole school chapel at St Alban’s church would occur once a term.

70 Mr May agreed that there is no rule against seniors coming to school at 7.15am if they don’t have a class until later, and that during free periods they may go, at will, between campii, even if it is only to see school friends or sit in the outdoors. He agreed also that up to a maximum of 13 teachers may move between campii every second period. Those movements are also unaccounted for, but added the latter meant more teachers monitoring student movements. Teachers would have only a shared office on Cambridge, their main staff facilities will remain on Oxford.

71 He agreed for a single teacher to monitor student movement between campii, using the signalised pedestrian crossing, and the seniors entry in Building C, the teacher would have to patrol from the foot of the Oxford St stairs to the top of the terrace.

72 How could students be controlled, as the acoustic experts recommend, to stay at least 2 m away from the Unilever interview room windows as they came up those stairs? He said a line of sight to a mark of some kind, perhaps a school crest in the school window in line with the stairs would work. He said “out of bounds” areas on Oxford Campus are delineated by line of sight, and they are seldom breached.

73 Put to him that he needs 2 monitors to check on that, the pedestrian crossing and movements on the terrace, he said that is an underestimation of seniors. Generally they are treated as adults and they do the right thing.

74 The plans in Exhibit J were shown to him in that the stairs down into the gardens are not in the correct position, and the terrace is shown wider than actually exists. He said he had not realised that, it was not intended to change them.

75 He agreed to add to Exhibit M the management plan, the previous statement that students could not arrive at the Cambridge Office Park premises before 7.15am. He also agreed Exhibit M said entry via security identification card, but it meant electronic swipe card or iris recognition, plus for visitors a buzzer/intercom to the reception desk.

76 The parties said they only needed to cross-examine Mr McCarry on the proposal to put a swim pool type fence near the kerb opposite the entry stairs up from Oxford Street, to stop impulsive crossing of the road rather than using the signalised zebra crossing.

77 Although council had opposed a fence, Mr McCarry said it had been a longer fence then. The current proposal is for a 3 m long fence, and that he said is better for someone getting out of a car parked adjacent the fence. But there is not enough room to open a car door. He agreed if put 1 m from the kerb, a car door could open comfortably. He wondered if a 3 m long fence would deter impulsive crossing of the street opposite the entry stairs. He said council did not like to put extra clutter on footpaths.

78 Mr Cooper and Mr Knowland gave concurrent evidence. Mr Cooper’s calculations are that a group of up to 20 students talking and walking past the windows of Unilever at the entry stairs would be barely audible or inaudible provided they walked at least 2 m away from the glass.

79 He was told the owner’s consent did not allow any work to Cambridge Business Park except within the school’s leasehold. The school had apparently indicated it would do acoustic works if required, but that is now not allowed. Mr Cooper said the windows are mainly large fixed glass, but there are some opening panes. He noticed some glass seals are faulty and needed maintenance, he thought that would be the owner’s responsibility and so long as that is done, his calculations remain accurate. The building is air-conditioned so he did not expect the windows to be opened.

80 Asked about the occasional scheduled 200 students going to assembly or devotions, he said that was so occasional, there is no L(eq) that could be applied. He had allowed for traffic noise from the street in his background noise level. He had not measured existing adults walking or smoking and talking on the terrace, he thought groups of 20 unlikely, and the people smoking were at the outside edge of the terrace and so further away from the windows. They would make less noise than students around 2 m from the windows.

81 Asked about the upstairs offices, he said he had inspected them and there is traffic noise and schoolyard noise from across the street. He thought students at the entry stairs of Cambridge would be shielded by structure from the upstairs offices. The ground floor is the critical one.

82 In establishing the internal office ambient noise level, he had not used the AS2107 figure that might include a general office/typing pool that would be louder than the 40dbA he had used. That had come from the air-conditioning noise in the interview rooms. Conversation in the rooms would be above 40dbA. His calculation of the 20 students talking and walking is 38dbA as heard in the room as they pass outside. That may be just audible in the room, but words would not be distinguishable. He said that is acceptable, but could be called marginal acceptability.

83 I asked him what thickness glass did he use in his calculations. He said 5mm. The windows are large glass panels, asked if 5mm is the actual thickness, he said it had not been measured but he had used 5mm in order to be conservative. For such large panels of glass he thought at least 8mm laminated glass would be installed.

84 For 8mm glass his calculation of 20 students talking and walking 2m away from the windows dropped to 34dbA, or he said possibly 32dbA. That would be inaudible to anyone in the Unilever rooms.

CONCLUSIONS

85 In regard to the concern about acoustic nuisance to the occupants of the offices in Building C of the Cambridge Office Park Complex I believe it is quite clear from the evidence that there would be no noise nuisance.

86 In regard to the requirement for a master plan I accept the principal’s evidence that any supposed master plan would be superfluous at this stage since the current proposal is the final stage of any development of the school. Any further development in student numbers would mean non compliance with the applicable development consent for the Oxford campus which limits total numbers of students to 600. I note that the applicant says its maximum numbers will actually be 530 by the year 2012.

87 In regard to the land owners consent that issue has been resolved and the subject proposal before me has the owners consent.

88 Also the issue in regard to disabled access has been resolved by admission of even the second respondent’s expert and appropriate conditions can deal with that.

89 In regard to the proposed management plan it seems to me that the additional matters required by the draft deferred commencement conditions, plus the measures indicated by the principal of the school to be acceptable additions, there is every expectation that the management of the students and their behaviour and supervision will be adequately addressed.

90 The additional conditions I refer to are:

In management plan item 1 that it had added at the end of that item “ no arrival by students is permitted on the Cambridge office park premises before 7.15 am.”

In item 3 the words “identification card” to be deleted and the following words inserted after the words “security”: “electronic iris recognition or electronic swipe cards that control the main entry doors. There is to be a buzzer and intercom facility established between the entry doors and the reception counter for visitors.”

In regard to the subtitle “Timetabled Activities” it shall be renamed “Scheduled Activities.”

In item 12 the word “between” is to be replaced by the word “during.”

In item 21 the word “timetabled” is to be replaced by the word “scheduled” and after the words “Cambridge Campus” insert the words “for purposes of moving for timetabled classes”.

In item 31 after the words “management plan” insert the words “may only be” and after the word “requirements” delete the word “on” and replace it with the word “in”.

91 Given the reasonable certainty of proper management of the school particularly in regard to its relationship with the adjacent tenants in the office park it seems to me that the issues in regard to supervision, discipline and other controls are satisfied.

92 The concern over the safety of the students using a pedestrian route between the two campii I believe is addressed by the installation of the proposed fence directly opposite the entry stairs adjacent to the Oxford Street kerb so that impulsive crossings of the street are avoided. Supervision of the students during the three major movements per day I believe would be suitably supervised by the one teacher on the terrace supplemented by the other teachers up to possibly 13 in number also changing classes and moving with the students between the campii.

93 The students are senior students and the pedagogy being introduced by the school in order to give the senior students a better transition from school to work or university should not be given short shrift. Although Dr Tronc casts doubt upon several aspects of behaviour of senior school students it seems to me his concerns are outweighed by the experience of the two headmasters who gave evidence on these matters.

94 The concern about possible school invasion or violence on the campus I believe Dr Tronc’s final evidence indicated that given the additional security measures of electronic passes or iris recognition controlling the school entry doors that security will be adequate and probably better than any schools with open grounds that can be entered almost at will by members of the public.

95 In regard to the issues concerning whether or not the amended application is so different to the original that a fresh development application should be required, I have reached conclusions that:

The physical arrangement of the design has not substantially changed.

The impact of it on the other tenants of the office park is much reduced by the elimination of the students using the outdoor areas and balconies of the office park.

The lessened impact does not constitute a change that would make the proposal substantially different under the E P & A Act 1979, and the building layout or operation remains almost the same.

96 In regard to there being adequate open space for the senior students I note the evidence in regard to their recess periods where they have options for relaxation and refreshment. If such is to be carried on outdoors, the Oxford campus is fully licensed by the appropriate school authorities as being adequate in its outdoor spaces and other facilities for up to 600 students. Therefore the existing facilities must be accepted as reasonable for the numbers provided as in the draft conditions that the Cambridge Campus is considered to be an adjunct and operated only in conjunction with the Oxford Campus.

97 In regard to the issues that the subject site is unsuitable for the proposed development due to its incompatibility with the corporate identity and commercial activity of the office park, it would seem to me that there are other forms of educational establishments that are also permitted with consent within the office park and this must have been a consideration of any prudent tenant prior to signing a lease.

98 Given the evidence that shows minimal interference with the office park amenity and minimum nuisance to the other tenants, I have formed the opinion that there is nothing in the proposal sufficient to make it incompatible or inappropriate on the subject site.

99 Therefore the orders of the Court are:

1. That the appeal is upheld

2. That deferred commencement development consent is given to the use of part of Building C in the Cambridge Office Park at Nos. 37-41 Oxford Street, Epping for use as an educational establishment as shown on plans by Stanton Dahl Architects on drawings with job No. 951.05, drawings A02 issue B1 and A03 issue B3 with the schedule of amendments as submitted in Exhibit J of this appeal and subject to conditions as contained in Annexure A hereto.

3. The exhibits are returned to the parties except for Exhibits 8, 11, J, M, R, R9 and R12.

___________________

K G Hoffman

Commissioner of the Court

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Arden Anglican School vs Hornsby Shire Council 1st Respondent, and Unilever Australia Pty Limited 2nd Respondent [2007] NSWLEC 285

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CITATION:	Arden Anglican School vs Hornsby Shire Council 1st Respondent, and Unilever Australia Pty Limited 2nd Respondent [2007] NSWLEC 285
PARTIES:	APPLICANT Arden Anglican School 1ST RESPONDENT Hornsby Shire Council 2ND RESPONDENT Unilever Australia Pty Limited
FILE NUMBER(S):	10636 of 2006
CORAM:	Hoffman C
KEY ISSUES:	Development Consent :- refusal of consent for the use of an office park building and grounds for year 11 and 12 school facilities, amenity of other tenants, need for future school plan, inadequate student facilities, pedestrian safety, owners consent, acoustic impact, security considerations.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Hornsby Shire Local Environmental Plan 1994 Hornsby Shire Development Control Plan
DATES OF HEARING:	9-10/11/2006, 24/01/2007, 13/03/2007, 2-4/04/2007.
DATE OF JUDGMENT:	25 May 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr I. Hemmings, barrister instructed by Ms M Peatman of Hunt & Hunt solicitors 1st RESPONDENT Mr P. Jackson, solicitor instructed by Ms F Milner of Pike Pike & Fenwick solicitors. 2nd RESPONDENT Ms S. Duggan, barrister instructed by Ms S. Brand of Baker Mackenzie solicitors