Arkana College Limited v Hurtsville City Council - [2007] NSWLEC 877

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Arkana College Limited v Hurtsville City Council [2007] NSWLEC 877

PARTIES:
APPLICANT
Arkana College Limited
RESPONDENT
Hurtsville City Council

FILE NUMBER(S): 10971 of 2007

CORAM: Murrell C

KEY ISSUES: Development Application :- to increase shool from 150 to 300 students, parking and traffic impacts, safe drop-off and pick-up, constraints of site on major State Road.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Hurstville Local Environmental Plan 1994
Hurstville Development Control Plan
State Environmental Planning Policy No 1

DATES OF HEARING: 11/12/2007 and 12/12/2007

EX TEMPORE JUDGMENT DATE: 12 December 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr A. Perkins, solicitor
of Collins Biggers Paisley
RESPONDENT
Mr S. Flanigan, barrister
Instructed by Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

12 December 2007
10971 of 2007 Arkana College Limited v Hurtsville City Council

This determination was given extemporaneously
and it has been edited prior to publication

JUDGMENT

1 COMMISSIONER: This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Hurstville City Council’s refusal of a development application for alterations and additions to a school college at the address known as 342-346 Stoney Creek Road Kingsgrove.

2 The Respondent provided an amended Statement of Facts and Contentions and I will read the site location in brief.

The site is located in a residential 2(a) area and is an irregular shaped site comprising three allotments with a total frontage of 51.5 m to Stoney Creek Road, yielding a site area of 2,525 square metres. The site is located on the northern side of Stoney Creek Road. Existing on the site is a part two-storey/one-storey brick and rendered building, 18.6 m from the front boundary. There is a single storey brick dwelling house fronting Stoney Creek Road with a setback of nine metres. A demountable classroom is located on the centre of the site and another demountable on the south west corner. The proposed site will include 342-346; the current site is 342-344. There is a single dwelling currently on the property at 346 with a 9 m wide frontage to Stoney Creek Road.

3 The area surrounding the subject site is predominantly low-density single storey with some more recent two-storey development in the vicinity of the subject site. Immediately adjoining the site to the west is a townhouse villa complex with some 9 units within the complex.

4 The Court met on site with the parties yesterday morning and also heard evidence from a number of objectors to the proceedings. This included Mrs Campbell who resides in the villa townhouse complex at 2B St Elmo Parade and Mrs Minnis and Mrs Townsend also both of the same complex. Mr Plunkett of 4 St Elmo Parade also gave evidence to the Court.

5 When the matter was advertised by the Council it is noted there were some nine objections to the development application and a lesser number to the amended development application. In summary, the residents’ concerns are with respect to the traffic and parking associated with the current operation of the school. The school currently has 150 students and the residents are most concerned about what they referred to as double parking, illegal parking in no stopping areas in the vicinity, in particular in St Elmo Parade.

6 It is noted that Stoney Creek Road is a main road and is very heavily trafficked which is not disputed in the proceedings. The subject site only has frontage to Stoney Creek Road and no other local streets as such. In the vicinity there are also other schools, a high school and a primary school although not immediately adjoining the subject site.

7 At the rear of the site there are residential properties fronting Rayment Avenue which runs off Margaret Street. Rayment Avenue runs parallel to Stoney Creek Road and this is slightly over 7 m wide carriageway. As such, it has the capacity, when cars are parked on either side, for only one moving vehicle. There is a right of way that provides pedestrian access from Rayment Avenue through to Stoney Creek Road, all but one to the frontage of the subject site.

8 The proposal is to increase the number of classrooms from 7 to 14, that is take it from a one-stream school to a two-stream school catering for children from 1-6. The student population currently is approximately 150, that is what the current approval for the school provides for, which was granted in 2001. It is proposed that this be expanded to some 300 students and that the staffing ratio, which is currently 9, would double to 18.

9 The statutory planning framework for the proposal is the Local Environmental Plan for Hurstville City Council of 1994 zones the subject site residential 2(a) and educational establishments are permissible with consent. A relevant clause is cl 13 that provides for a maximum floor space ratio for buildings not used for residential purposes of 0.5:1. As such, a State Environmental Planning Policy Number 1 objection to vary the standard was submitted with the development application.

10 The other relevant guideline is that known as Development Control Plan Number 2 and the parking provision in the proposal satisfies the requirement which is 9 spaces with one per two staff in Council’s DCP and the proposal provides for ten parking spaces on site.

11 The design of the proposal is that the classrooms are to be elevated such that under the classrooms at grade would be the parking provision for the ten vehicles and this would also provide for some of the play areas for the school. As such, the proposal is, elevated with a large undercroft area and then it appears as a single storey above that elevated undercroft with the appearance of a two-storey development in built form when perceived from Stoney Creek Road. It is noted that the height of the proposal only marginally exceeds the height of an adjoining two-storey dwelling on Stoney Creek Road.

12 The Court also heard evidence from the experts to the proceedings, Mr Robert Varga, the Applicant’s consultant traffic engineer and the single expert for traffic engineering matters is Mr Craig McLaren. For the Applicant, Mr Charles Glanville, the architect for the proposal who also prepared the SEPP 1 objection, gave evidence to the Court and Mr Steven Layman, consultant architect planner, provided evidence on behalf of the respondent council.

13 The Court has the opportunity of reading the Council’s bundle which contains the objections to the proposal and also contains background information including the material submitted with the development application. The council officer’s report contained in the bundle also provides a history of the proposal and external referrals.

14 I should say at this point that in the Council’s amended Statement of Contentions the issues in dispute are:

That the existing allotment is not suitable for the proposed development as the proposed new school building will result in a development that does not comply with the Council’s relevant floor space ratio; the proposal is located on a State road and parents use adjacent residential streets to drop their children to avoid the clearway on Stoney Creek Road. This results in traffic parking and safety issues in these adjacent streets.

15 The Applicant lodged a SEPP 1 objection to the FSR, this indicates the additional floor space is required for circulation corridors inside the school building and this has resulted in a need to seek a variation to the FSR. The Council maintains the proposal is inconsistent with the relevant FSR control.

16 Council strongly argues the increase in student numbers will result in safety, traffic, parking issues in surrounding residential streets. The Applicant contends that the car parking requirements are as required by the DCP.

17 As I said, the Court has the benefit of an extensive site inspection and also the evidence of the experts. The Court, in its determination of this matter, has considered the Applicant’s request that, given that the traffic parking arrangements may not be satisfactory, it would be appropriate for the Court to grant a deferred commencement consent to enable the Applicant the opportunity to submit a traffic management plan to be approved by the relevant bodies. This means the consent would not be operational until that deferred commencement condition is satisfied.

18 At this point, given this is an ex tempore judgment, I will give my determination of the matter and provide the reasons. The Court, in its determination, has considered the SEPP 1 objection, which I will go to in greater detail later, but overall I am not persuaded that the proposed development warrants approval. In this regard, I have been persuaded by Mr McLaren’s evidence in his traffic report on the proposed development. Also, in summary, I do not consider that a deferred commencement condition would overcome what I see as the fundamental problem with the development application. In summary, I do not consider under s 79C(1)(c) of the Environmental Planning and Assessment Act 1979, that the site is suitable for the proposed development.

19 The Court heard from the traffic engineers and indeed Mr Varga was allowed to give verbal evidence even though a written report had not been provided. I requested the experts to confer and, as such, concurrent evidence was provided to the Court, even though they could not agree on a written statement as such.

20 Mr Varga is of the opinion that the proposed development is satisfactory and would not create traffic problems within the area. Furthermore, his report that accompanied the development application stated same. On questioning, I am not satisfied that Mr Varga’s conclusion is based on a rigorous analysis of the existing traffic and parking situation of the area. Clearly his attendance at the site on just one morning did not provide him with the opportunity to witness the current parking and traffic difficulties experienced in the area.

21 The subject site is a constrained site being on the very busy main road of Stoney Creek Road and no cars are allowed to stop on Stoney Creek Road for the dropping off or picking up of children due to the immense traffic volumes and the clearways. The subject site does not have frontage to any other street to allow for safe drop off and pick up or a drop off and pick up zone that could be reasonably seen to relate to the subject school site.

22 The evidence of Mr McLaren is far more rigorous and, in my assessment, more comprehensive and has regard to the existing parking situation but also has regard to the capacity of the local road system, in particular that of Rayment Avenue, that is behind the subject school. The difficulties of parking and traffic experienced currently in the vicinity of the school that may be able to be more appropriately managed to cater for the current number of pupils. However, they certainly, in my assessment with the benefit of Mr McLaren’s advice, would not provide for an appropriate or acceptable parking and traffic situation to service a school of 300 pupils. Rayment Avenue is one that only allows single lane traffic when there are cars parked on either side and clearly with proposed student numbers of 300, the use of Rayment Avenue would be much greater than its current utilisation. St Elmo Parade also experiences difficulties at the current student population of 150 and the increased time to walk from further a field to the subject site would also increase the turnover periods for parking spaces.

23 I am not satisfied that an expansion of this school is suitable in terms of the site not being suitable for a larger number of children given its relationship to the adjoining main road and the lack of a convenience or a safe drop off and pick up zone. This is unfortunate for the Applicant who provided information of a traffic report and this has been referred to the Roads & Traffic Authority. I note that the Roads & Traffic Authority responded in their letter of 3 March 2005 as follows:

24 The RTA clearly did not have the benefit of Mr McLaren’s much more rigorous analysis and assessment of the existing situation and of the local road situation in terms of Rayment Avenue and St Elmo Parade.

25 I also note in the council officer’s report that the development application has a history as follows:

While it was submitted in 2004, it was referred to the RTA on 7 April 2005.
The Traffic Committee considered the application and the Committee sought clarification regarding pedestrian safety.
On 28 April 2005 the Traffic Committee reconsidered the application, lack of pick up and drop off facilities and pedestrian facilities cited as areas of concerns.
On 6 June 2005 Applicant responded to RTA Traffic Committee with a pedestrian report.
On 4 August 2005 Traffic Committee reconsidered with additional traffic and pedestrian report.
Traffic Committee recommendations and traffic and pedestrian report sent to RTA.
Traffic Committee advised the lack of drop off and pick up facilities and pedestrian facilities are areas of concern.
On 1 September 2005 Traffic Committee reconsidered application, indicated serious concern in relation to suggested pedestrian fencing and long term parking effect on surrounding streets, the lack of pick up and drop off facilities and pedestrian facilities and the proximity of the school to surrounding streets.
Then 12 January 2006, the RTA further advised that a written response to Council was required and it was referred to the Sydney Regional Development Advisory Committee meeting.
January to June 2006 there were various discussions with council officers, RTA et cetera
7 June 2006 application was considered by the RTA Sydney Regional Development Advisory Committee and
11 July RTA Sydney Regional Development Advisory Committee recommendations received by council.

26 The history of the application is one that indicates that the suitability of the site in terms of dropping off students has been of concern for a considerable period of time. The Traffic Committee indicated, and is in the council officer’s report, “the proposal is problematical in relation to pedestrian access and the lack of drop off and pick up points for parents” and it is noted that Stoney Creek Road is a busy state road and that using the existing kerbside lane for dropping off children would lead to safety issues.

27 I do not accept Mr Varga’s report where he concludes:

“Finally, whilst some parents may continue to park on the southern side of Stoney Creek Road, it is anticipated that the number of parents parking in this area will remain very low and consequently the need for any improved pedestrian facilities will also remain very low.”

28 I note that both Mr Varga and Mr McLaren did not suggest that there should be parking or dropping off of students on the southern side or on the southern streets of Stoney Creek Road because this is a dangerous situation.

29 As I said earlier, Mr Varga’s analysis I do not consider is one that stands up to scrutiny and I prefer the evidence and I accept the evidence of Mr McLaren. I note in Mr McLaren’s evidence that at the end of his report, provided some suggestions or ameliorative measures. However he prefaces these by saying “whilst a traffic management plan could be considered to eliminate or ameliorate the issues and concerns discussed above, such a plan may not be feasible in practice”. And he did make a number of suggestions in terms of staggering the starting time by forty minutes such that half the pupils would start 40 minutes earlier and finish 40 minutes earlier to alleviate or ameliorate the impacts of the proposed development. He also suggested a mini-bus to transport students, because this only requires a kerb length of 7 m compared to 50 m for 8 cars.

30 It is noted that all of the students to this school come by car and there is an occupancy rate of approximately just over 1.8 students per car. That is no students walk or cycle to the subject site and Mr McLaren’s evidence is that with other primary schools that there is generally a split of some 30 to 40 per cent that would come by bus and some 20 per cent that may walk or cycle.

31 Clearly, primary schools do not have to provide on-site parking for parents of students and only require parking at a ratio of 1:2 for the teachers. But at the same time the juxtaposition of the site in terms of the road system must be considered in terms of the safety and efficiency of traffic management and parking. Of utmost importance clearly is the safety of students.

32 It is noted that Mr McLaren observed people double parking or standing in no parking/no standing areas at drop off and puck up times. In my assessment I have not assumed people would break the law but at the same time one must have regard to what the facilities are and the likelihood of whether it provides for reasonable safety of traffic and parking in the vicinity of the subject site. This is the critical and determinative issue in my assessment of the application.

33 Even though this is an extempore judgment I have also considered the matter of the SEPP 1 objection which is a threshold question. As provided for in Winton v North Sydney referred to the Court, this is a judgment of his Honour Lloyd J, (2001) NSWLEC 46, the Court must have regard to the objectives or underlying objectives in this case, of the standard of the floor space ratio of 0.5:1. In this regard, in terms of the various calculations the applicant submitted that 0.536:1 is the FSR for the proposal and Mr Layman calculated 0.672:1. The difference in their calculations is in terms of the circulation areas and whether undercrofts should be included and various other elements.

34 The precise exceedence or percentage of exceedence is not what the Court needs to address but rather the purposes of the Standard. In Mr Layman’s report, which Mr Glanville agreed with, the purpose of or the underlying objective of the standard is to control the bulk and scale of the development, for a non-residential development in a residential area. Also to have regard to the intensity of the development that includes the traffic generation from a building used for a non residential purpose.

35 Clearly the purpose of the standard is to allow non-residential uses to harmoniously fit within a residential area and I am satisfied that in terms of the built form the proposed development is not unacceptable. The architecture of the building is such that whilst it will read as a school the components have been scaled and sized such that it provides for an appropriate presentation in terms of the surrounding residential area. This requirement or objective of the standard is satisfied. However, in terms of the generation of traffic that might result from an exceedence of the FSR, I am not satisfied the proposed development is one that is satisfactory. In this regard, the objective is not satisfied and therefore the SEPP 1 objection also fails. In many respects my merits assessment overlaps with the SEPP 1 assessment of the subject proposal.

36 As I stated earlier, the applicant requested in submissions given that they had only received the traffic report last Friday that they have not had the opportunity to respond with a traffic management plan and indeed a plan of management for the operation of the school. From the objections heard on site, it could be seen that the operation of the school does have impacts on the surrounding residential amenity and for non-residential uses within a residential zone this use should be reasonably managed to ameliorate the adverse effects to ensure that schools within a residential area can harmoniously coexist. Cleary a new development application or an application for alternations and additions is not required to institute or implement a ‘plan of management’ to ensure a more harmonious relationship and to reasonably manage the impacts for the adjoining properties.

37 It could be seen on site that there is no noise attenuation for the adjoining property at number 2B, in particular Villa 9. Villa 9 has its courtyard for the length of the open undercroft area which is currently used for play and assembly. Whilst the proposed development would overcome this concern as the undercroft would be enclosed and become a library, the benefit of same and the improved residential amenity for Villa 9 does not outweigh my concerns in terms of the fundamental problem of the traffic and parking for the proposed development. There are other measures that could be instituted with of a ‘plan of management’ or some form of acoustic fence to alleviate the concerns of Mrs Townsend that are not dependant on approval of this DA.

38 Whilst not determinative also in the Court’s consideration, I did request that the Applicant provide some details of any appropriate guidelines for the development of schools. It is clear that there are not specific guidelines on criteria, for example the amount of open space required per student. There are some general guidelines provided for individual schools, that is the Board of Studies provides guidelines and typically school facilities include indoor open space, an outdoor recreational space and must also include other school facilities of libraries, computer rooms et cetera. In terms of the size of a site, the guideline is very broad. It states the maximum area of useable land required by DET for school sites, primary schools, (the size of this school) is up to three hectares - and this provides little guidance. But at the same time the subject site is constrained and it is only some 2,500 square metres and while this has not been determinative and is not a reason as to why I refuse the application it is a matter that certainly would require further examination in terms of the open space areas provided on site to the ratio of students proposed.

39 Mr Glanville, for the Applicant, said the school could be characterised as an inner city school and on further questioning this is not because of the location but in fact because of the constraints of the site. This is clearly not an inner city location and there is an expectation that there would be more space available for a school located in a middle ring suburb as opposed to the inner city. However, I make it clear that that is not a reason for my refusal of the application but it is the traffic and parking issued and safety of children.

40 Accordingly, on the basis of my assessment, the Orders of the Court in this matter are:

___________________

J Murrell

Commissioner of the Court

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Arkana College Limited v Hurtsville City Council [2007] NSWLEC 877

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CITATION:	Arkana College Limited v Hurtsville City Council [2007] NSWLEC 877
PARTIES:	APPLICANT Arkana College Limited RESPONDENT Hurtsville City Council
FILE NUMBER(S):	10971 of 2007
CORAM:	Murrell C
KEY ISSUES:	Development Application :- to increase shool from 150 to 300 students, parking and traffic impacts, safe drop-off and pick-up, constraints of site on major State Road.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 1994 Hurstville Development Control Plan State Environmental Planning Policy No 1
DATES OF HEARING:	11/12/2007 and 12/12/2007
EX TEMPORE JUDGMENT DATE:	12 December 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr A. Perkins, solicitor of Collins Biggers Paisley RESPONDENT Mr S. Flanigan, barrister Instructed by Deacons