Brigidine College St Ives v Ku-ring-gai Council
[2011] NSWLEC 1186
•02 June 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Brigidine College St Ives v Ku-ring-gai Council [2011] NSWLEC 1186 Hearing dates: 2-3 May 2011 Decision date: 02 June 2011 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to conditions including implementation of a Plan of Management
Catchwords: Development modification: whether the development is substantially the same; Plan of management including a trial period Legislation Cited: Environmental Planning & Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance
State Environmental Planning Policy (Infrastructure) 2007Cases Cited: Peter Duffield and Associates Pty Limited v Canada bay City Council [2002] NSWLEC 168
Moto Projects (No 2) v North Sydney Council [1999] NSWLEC 280
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
1643 Pittwater Road Pty Ltd v Pittwater Council ...[2004] NSWLEC 685
Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315Category: Principal judgment Parties: Brigidine College St Ives (Applicant)
Ku-ring-gai Council (Respondent)Representation: Mr R Lancaster SC (Applicant)
Mr M Staunton (Respondent)
Ms C Rose
Maddocks Lawyers (Applicant)
Ms L Finn
HWL Ebsworth (Respondent)
File Number(s): 10955 of 2010
Judgment
COMMISSIONER: This is an appeal pursuant to s 96(6) of the Environmental Planning & Assessment Act 1979 (the Act) against the refusal by Ku-ring-gai Council (the council) to approve a s 96 modification application MOD161/10 to modify a condition of consent imposed on DA1510/03.
The approved development was for the construction of a multi-purpose hall (Bowie Hall - the hall) and visual arts centre at Brigidine College, St Ives (the site). Bowie Hall opened on 18 September 2005 and has been in continuous use since that time.
The condition in contention is Condition 5:
The multi-purpose hall is not to be leased or let to organizations outside the school community and all functions are to cease at 11.00pm.
The applicant seeks orders to replace that condition with the following:
All functions are to cease at 11.00pm Monday to Saturday and 5.00pm on Sundays. The hall is not to be used for community functions before 10.00am. The maximum number on non-school activities per year is not to exceed 15.
The site and locality
Brigidine College is bounded by Mona Vale Road to the west, Woodbury Road to the south and residential dwellings to the east and north. The hall is located in the central eastern portion of the site. The surrounding development is residential land use. There is seniors living development to the north and south.
Vehicular access to the hall is principally via gates to a car park on the south-eastern corner of the site off Woodbury Road.
Background to the appeal.
Since its opening in 2005 the hall has been in constant use for school-related purposes both in and out of school hours. In January 2010, council's compliance officer received complaints relating to the use of the hall by the Suzuki music school. That use extended over a period of 3 days. The school was issued a warning letter regarding the alleged non-compliance with Condition 5.
In May 2010, council's compliance officer investigated the use of the hall by Ku-ring-gai Philharmonic Orchestra and a notice of intention to serve an order was subsequently issued.
Information provided in the application shows usage of the hall after school hours for the period 5 February 2009 to 24 June 2010. Apart from the use by the Suzuki music school and the Ku-ring-gai Philharmonic, 3 other schools used the hall for their speech nights.
In July 2010, the school lodged modification application MOD161/10. The application was notified and 13 submissions supporting the application were received as were 11 submissions objecting to the proposal. Ten of the 11 objectors reside in streets within the immediate vicinity of the school. The supporters appear to be from further a field.
The objectors raised a number of issues including concerns about noise, parking, hours of finishing associated with existing activities and the concern that additional activities would exacerbate the problem. A number of nearby residents accepted that by living close to a school some noise was to be expected from school-related activities but objected strongly to use of the hall for commercial activities.
In September 2010 council refused the modification application on the following grounds:
1. The proposed modification is not substantially the same as that approved. The originally approval was for the use of the hall for school activities only and the proposed modification would allow community and commercial use that would lead to greater impacts on the adjoining properties.
2. The nature of the modification is unclear and the proposed condition of consent does not provide certainty and would be difficult to enforce. Particularly, how are non-school events to be defined and the final finishing times are unclear.
3. Insufficient information to enable a thorough assessment of the impacts, in particular an acoustic report, waste management, the shortfall in car parking, and the absence of a traffic and pedestrian management plan. (The issue of waste management has since been resolved.)
These are the council's contentions in this matter.
The assessment framework
The Ku-ring-gai Planning Scheme Ordinance (KPSO) as amended 31October 2008 is relevant. The site is zoned 5(a) Special Uses "A - School.
Car Parking Development Control Plan DCP No. 43 (DCP43). The relevant clauses in DCP43 are;
1.2 Aims of the DCP:
Ensure that adequate parking is provided for developments in Ku-ring-gai, firstly to minimise the overflow of parking onto surrounding streets...
The Code also provides standards for assessing car parking requirements related to generation rates and appropriate technical standards that will:-
2. Provide sufficient on site car parking for the various activities defined in the Code...
3. Provide sufficient guidance to allow Council where appropriate to approve departures from the numerical standards of the Code where an applicant can demonstrate to Council's satisfaction that there will be no impact on the surrounding area.
Clause 3.1 and the associated table set out the minimum on-site parking requirements for various land uses. Relevant in this matter are:
Primary and Secondary Schools - 1 space per equivalent full-time employee plus 1 space per 8 year 12 students. Where an auditorium or similar rooms are proposed, additional parking might be required...
Cinemas, Public Halls, Theatres, Places of Assembly - minimum parking provision to be 1 space per 10 seats, for day time parking. Recommended parking provision is 1 space per 6 seats, for Friday/Saturday evening.
Clause 3.2 provides objectives for departures from car parking rates. In general, if the use of existing premises is being changed, and the proposal does not result in an increase in floor space, and the use of the building is not being changed, then additional car parking provision shall not generally be required.
Part 4 sets out the design elements required for car parks including materials and signposting and suitable landscaping, including where possible, the conservation of existing vegetation. Stack parking is permissible as long as it is no more than 10% of the required parking, is for people employed on the site and only for part of the day or night. Proposals for multiple occupancies are reviewed on their merits.
State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) clause 28 - Development permitted with consent
(3) An educational establishment (including any part of its site and any of its facilities) may be used, with consent, for any community purpose, whether or not it is a commercial use of the establishment.
The hearing
The matter commenced as a s34 conciliation conference on site. This involved hearing from a number of objectors and a view of the site and the surrounding streets. The conciliation conference was subsequently terminated and the parties agreed to me hearing the matter.
The summary of the resident objectors' concerns voiced at the s34 conference was tendered as evidence. The main concerns are summarised as:
- No legitimate reason for a school to operate a commercial venture
- Off-street parking constantly used including school holidays and the inconvenience this causes
- Noise before and after events despite setting time limits and the impacts on sleep
- Caterers arriving and leaving well before and after events
- Traffic congestion on nearby streets
- Chose to live near a school but not an entertainment centre
At the hearing, leave was granted for the application to be amended to include a Plan of Management (POM) for Bowie Hall prepared by Glendinning Minto & Associates. The POM provides proposed directions and controls for the use of the hall for non-school related functions. It includes definitions, the duties of the hall manager, maximum number of patrons, the type and number of school events, requirements to limit the impacts on residents, parking arrangements, fire safety, cleaning and maintenance and the production of information brochures.
The POM proposes 15 non-school events per year to be capped at a maximum audience of 400 including speech nights for other schools with up to 1000 attendees.
Acoustic evidence
Mr G Atkins of Atkins Acoustics gave expert evidence for council. The applicant did not engage an expert. Mr Atkins was engaged to conduct a noise audit of activities associated with the hall. He visited the site on Thursday 31 March 2011, a night of a school musical performance, and made measurements and observations from 7.30 to 11.00 pm. The observations included the number of vehicles on site and in surrounding streets as well as vehicle movements on and off the site. Noise measurements of ambient background and music were taken at the common site boundary between the school, 59 Woodbury Road and 8 The Cloisters. Informal audits were taken by walking around the streets and listening. He notes that insects controlled the background noise in The Cloisters.
It appears that part of the reason for the acoustic report was to compare the results with a Noise Compliance Report prepared by Wilkinson Murray on 16 September 2004 with respect to Condition 37 of DA1510/03. This condition required:
A report on the building design by an Acoustic Engineer is to be provided that clearly indicates that the noise associated with the development use will not be increased at the boundary.
Whilst the table of results in the Atkins report shows noise levels above ambient background levels at the boundary, there are no times at which the measurements were taken shown in the report. The other recorded observations do not indicate where or when or for how long the observations were made. Noise levels associated with car park activities were said to exceed the level for sleep disturbance however there is no detail as to where these measurements were taken.
There was some cross-examination of the witness however I find that the lack of precision and the absence of any detailed method statement in this report render it of little value to the Court.
Traffic evidence
The traffic experts were Mr Varga for the applicant and Mr McLaren for council. The experts agree that the after-hours use of the hall should undertaken in accordance with the POM except that the number of speech nights with up to 1000 attendees should be capped at 3. They also agree that there should be no non-Brigidine school use of the hall on Sundays and public holidays.
The experts agree that patrons, performers and staff be actively encouraged to park on the school site or along the Mona Vale Road frontage and to avoid parking in Hume Street, Woodbury Road and other nearby streets. In addition, they recommend that a pedestrian gate between two wings be locked after hours to discourage partons from parking in Woodbury Road and other nearby streets. Similarly, they agree that the main gate off Woodbury Road closest to the hall at the south-eastern corner of the site be locked 40 minutes before the commencement of any event.
With respect to the current on-site parking capacity, they agree that there are 106 on site including 16 unformed spaces under trees with a further 20 on-street kerbside parking spaces in front of the school on Mona Vale Road. The total being 126 parking spaces. Mr McLaren did note some concerns over the permissibility of the unformed spaces and considers the use of these should be considered by an arborist and an acoustic expert. However, both traffic experts agree that the use of those spaces is acceptable from a traffic management perspective. The experts agree that the on-site parking provisions in DCP43 are met for events of up to 400 attendees. Mr McLaren agrees that with adequate management, some on-street overflow parking is acceptable for larger scale events. Mr Varga suggested that the use of buses for the speech nights would reduce the likely number of private vehicles.
The traffic experts consider that if the after-hours usage of the site is likely to require more than 126 parking spaces additional car parking could be provided in accordance with two parking management plans they devised. The Informal Parking Management Plan would provide 195 spaces. The Informal plus Tandem Parking Management Plan would provide 230 potential parking spaces without the need for partons or performers to park in Woodbury Road or Hume Street provided that the plan is adequately enforced and subject to a 2 year trail period.
The joint report contains an estimate provided to Mr Varga (presumably by the school but the source is not stated) of the attendances, vehicle occupancies and parking requirements of events held in the hall between May 2010 and April 2011. This table would appear to demonstrate that there is adequate parking on site however the numbers are estimates only.
In addition, the traffic experts agree that the school should keep records of all after hours usage of the site including date, commencement time, duration of event and numbers of patrons, performers and staff. Mr McLaren considers that the trial period should be independently assessed at the end of each school year. Mr Varga considers that the evaluation of the trial period should be limited to evaluating the extent of parking in nearby streets as these are the source of resident objections.
In order to better manage parking the experts agreed of the need to impose a condition to ensure that non-school events do not take place during school hours or when school events are in operation.
Planning evidence
Mr I Glendinning gave evidence for the applicant and Mr H Sanders for the respondent.
The experts agree that as it stands, Condition 5 imposes few limitations on the manner in which the hall is used i.e., school community related uses. This includes activities conducted by the Parents and Friends Association and ex-pupil association. Mr Glendinning considers the wording of Condition 5 could be interpreted to only apply to circumstances to where the hall is 'leased' or 'let' to outside organisations, Mr Sanders considers that the planning intent of the condition refers to all non-school users of the hall.
With respect as to whether the proposed modification is substantially the same as the original development for which consent was given, Mr Sanders is of the view that non-school use is inherently different to school-related activities and therefore not substantially the same. He also considers that extending the use to community and commercial groups represents an intensification of the use of the hall that will give rise to additional activities and impacts (such as traffic, noise, parking) that were not encompassed by the original consent.
Mr Glendinning considers that there will be no fundamental change to the use of the hall and that the modification will result in a greater level of control than currently exists. He contends that any adverse impacts will be mitigated by the implementation of the POM.
There was some debate over the definition of "user group" in the POM. Mr Sanders argues that any reference to 'social' and 'recreational' should be deleted. He considers that while there are likely to be benefits to the wider community by extending the use of the hall, he says that these benefits must be balanced against the impacts on the amenity of the locality. He stated that it is his understanding that the current permitted use of the hall has had an adverse effect on local amenity and this should not be exacerbated by any additional use of the hall.
Mr Sanders considers that should the Court uphold the appeal, the number of non-school events should be limited to 5 and the restrictions in the POM be applied to school uses as well, in particular prohibiting the use of the hall on Sundays and public holidays.
Mr Glendinning stated that the definition of 'user group' is one used by council in relation to its own public facilities and that the existing school uses include both social and recreational activities. Mr Glendinning considers that the negative impact on amenity and subsequent complaints has been overstated and is quite recent. He contends that as the occupation certificate for the original development was granted, the noise condition is assumed to be satisfied.
Mr Glendinning considers that the proposed modification to allow external use of the hall is consistent with cl 28(3) of SEPP Infrastructure and State Government and council policies of encouraging the use of school halls for community use. He also referred to the Commonwealth Government's 'Building the Education Revolution' (BER) program and a condition within that which requires schools with halls funded by that program to make them available for community use.
With respect to the number of non-school functions, Mr Glendinning stated that the figure was indicated by the school but could be reduced to 12 including 3 speech days.
Both planners agree that should the modification application be granted, the imposition of a two-year trial period for non-school events is appropriate.
Submissions - Contention 1 - substantially the same
Mr Staunton for the respondent argues that the site is zoned 'Special Use - School' and therefore the original development approval was for a multi-purpose hall for the purpose of a 'school' and that condition 5 focuses on that use and not a use outside the school community. He contends that the use sought by the applicant creates a separate independent use for the hall that would include the school plus the community and therefore the modification sought is not substantially the same as the development that was originally approved. In this respect, s 96(2)(a) is not satisfied.
In support of this contention he cites Peter Duffield and Associates Pty Limited v Canada bay City Council [2002] NSWLEC 168 at [40] to [45] where the proposed use of a building was not qualitatively the same as the use originally approved.
In further support of his arguments he cites Moto Projects (No 2) v North Sydney Council [1999] NSWLEC 280 at [55] and [56] where Bignold J states:
55 The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as posed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development.
56 The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).
Again he contends that the circumstance of the original development approval was for a school hall and not for what would amount to a 'place of assembly'. The quantitative aspects of the proposal, that is, the increase in the number of events, particularly those events for up to 1000 people, and the traffic parking and noise issues that flow from that, will have a qualitative impact on the amenity of the local residents and therefore result in a different development.
Mr Lancaster for the applicant contends that the modification sought is not substantially different to the development that was originally approved. He submits that the scope of the current condition is very broad as it does not limit the number and type of functions. Apart from a general finishing time of 11.00 pm the only other control is that the hall not be 'leased or let to organisations outside the school community'. Therefore at one extreme, the condition would enable the hall to be used for free by those organisations. Similarly, the use of the words 'school community' reflects the broad range of current uses. Likewise with respect to the alleged breaches of the condition he contends that if students of the college attended the music classes or were part of the orchestra, the condition is so broad that these activities could be construed as being within the school community.
He contends that compliance with the current condition is difficult to enforce and had the council meant the use to be limited to the school, the condition could have stated 'for school use only'.
Mr Lancaster cites Moto Projects at [27] and [30] and North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 pp473-475 where the decision of Stein J in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 is considered. That is: 'substantially' when used in the section means essentially or materially having the same essence.
He argues that the range of school-related activities, as described in the list provided by the school includes musical performances, drama, cabaret, musicals, presentations, dinners and cocktail parties. He contends that the non-school related activities held at the school and are likely to be held if the appeal is upheld, are no different to those held by the school. The only difference he says will be that the attendees may not be affiliated with the school. Similarly, the attendees will come and go in the same manner as those attending school-related functions. He contends that as there are no limits to the number of school events that can be held it can be argued that there is quantitatively little difference except that there will be more controls placed on the non-school uses. In these respects he contends that the non-school use is not materially different to the school use and as such, the proposed modification is qualitatively and quantitatively substantially the same as the development for which consent was originally granted.
Findings - Contention 1 - substantially the same
Section 96(2)(a) of the Act relevantly states - A consent authority may...modify the consent if it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted...
The council's reason for refusal and the wording of contention 1, Particular (b) - Development Application No. 1510/03 granted consent to use of the hall for school activities only (my emphasis) does not accurately represent the original approval which was for 1. Construction of a new building - multi-purpose hall; 2. Refurbishment of existing Romuald hall and conversion to visual arts centre . Condition 5 does not prohibit the use of the hall by organisations outside the school community, it simply states that it is ' not to be leased or let to organizations outside the school community '.
In this matter I am persuaded by Mr Lancaster's arguments. Given the very broad range of existing school-related uses it could be quite difficult for a casual observer to note any discernable difference between a Brigidine school community function and any similar non-Brigidine function.
In consideration of the planning evidence, Mr Sanders could not articulate what likely non-school uses would not be comparable to the current school-related activities and could not substantiate why the words 'social' and 'recreational' should be deleted from the POM. The POM includes 'Prohibited Uses' and these include rock concerts, weddings and birthday parties. I am not satisfied that the range of likely non-school activities will be substantially different to the range of current uses.
Whilst the respondent considers the modification to allow non-school use of the hall will result in an intensification of the use and therefore be qualitatively different, the condition as it exists does not set any limits on the number of events the school may hold. It is therefore difficult to determine what additional impact the non-school events may have. With the intended implementation of a POM for non-school events, there is likely to be substantial improvement in the management of the nuisance caused by traffic, parking and noise than would ordinarily occur during school events.
On the evidence before me I am satisfied that the development to which the consent as modified relates is substantially the same development for which consent was originally granted and s 96(2)(a) is satisfied.
Before moving on to the remaining contentions, I note that whilst SEPP - Infrastructure does enable a school to use any of its facilities for a community purpose, commercial or otherwise, the use requires consent. With respect to Mr Glendinning's reference to the BER program, whilst it appears that BER funds were used for landscaping and entry upgrading works, the hall was not funded through this program however I accept that the purpose of the BER program and SEPP infrastructure is, in part, to increase community use of what may be publicly funded projects. In saying that, it is reasonable that any use should not unduly impact on surrounding neighbours.
Submissions - Contention 2 - the proposed modification is unclear
Mr Lancaster contends that the POM provides the necessary degree of certainty that would enable the enforcement of the modified condition. Whilst there is no precise knowledge of what future non-school functions may be held (with the exception of speech nights), apart from the limits set in the POM, the physical constraints and location of the space will be known by future users. He also contends that the applicant is unlikely to approve any function that may jeopardise its position in the community.
Mr Staunton argues that the applicant has failed to provide adequate information on the likely non-school events but by deleting 'social and recreational' events, as Mr Sanders recommends would promote a more conservative use of the hall. With respect to enforcement, Mr Staunton considers the POM does not provide enough information on how patron numbers are to be limited, such as by the issuing of tickets, and similarly on how the management of functions will be managed by the school and the external organiser.
Findings - Contention 2
I am satisfied that the inclusion of the POM in the modification application has significantly improved the clarity of the proposal. I agree with the respondent that the original application lacked operational details. In my opinion, the POM sets limits that have a better chance of enforcement than the original version of Condition 5. The POM responds to many of the concerns raised by the residents however some parts of the POM require some refinement. These are addressed later in this judgment. I therefore find that contention 2 has been satisfactorily addressed.
Submissions - Contention 3 - Insufficient information - noise car parking, traffic
Mr Staunton contends that the Atkins acoustic report demonstrates that the existing use does not comply with Condition 37 and that the applicant has not demonstrated that the modification will not result in the same non-compliance. As discussed by McClellan CJ in 1643 Pittwater Road Pty Ltd v Pittwater Council ...[2004] NSWLEC 685 at [40]-[41], he contends that it is appropriate for the council to impose a condition on noise that requires no exceedence of ambient background noise from activities in the hall when measured at the boundary of adjoining properties.
With respect to the parking and traffic, he contends that the information provided to Mr Varga in the joint report [31] is based on estimates and not surveys and therefore the impact of traffic on nearby residents is still uncertain. He also considers that even the best management plan cannot prevent people parking on the street.
With respect to the POM he refers to the questions devised by Brown C in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 with respect to whether a Management Plan is appropriate for a particular use and situation. He asks whether the people subject to the POM, in particular the patrons, can be reasonably expected to know the requirements of the POM. Similarly, he contends that policing of compliance with the POM should sit with the applicant and not for others, such as the residents, to enforce.
Mr Lancaster contends that this case is not about non-compliance with noise conditions and in any event, council has the capacity to enforce any breaches if they occur. The applicant has agreed to a condition requiring the external noise from activities within the hall to not exceed the ambient background noise by greater that 5 db(A) when measured on the boundary of any adjoining property. This he says this condition is adopted from council's original draft without prejudice conditions and he objects to the change mooted by the council during the hearing.
With respect to the POM he contends that the experts, particularly the traffic experts, are generally content with the details contained within it.
Findings - Contention 3 including the POM
I am satisfied that the POM and the extent of the proposed additional conditions of consent generally provide sufficient detail to satisfy contention 3 and as a result, I see no reason to refuse the appeal. With respect to Mr Staunton's concerns about whether the patrons could be expected to understand their responsibilities, the POM proposes an information brochure to be prepared for each user group specifying times, parking locations etc. I consider that this is a reasonable method of conveying that information however it must be enforced during and after any non-school events. With respect to parking, the nearby streets are public streets with no parking restrictions and as such can be freely used; I consider the POM is a serious attempt to limit on-street parking and associated noise and therefore address some of the residents' concerns. The traffic experts are to be commended for their constructive comments and recommended conditions. As previously stated, the Atkins Acoustic report was of little value in these proceedings given the shortcomings of the methodology.
However, there are some parts of the POM and some conditions of consent the parties decided I should determine.
With reference to exhibit E - the Applicant's Proposed Conditions and Exhibit 12, council's Conditions Without Prejudice, I make the following comments on those conditions/ elements that were disagreed. The numbering is consistent with exhibit E.
I agree that a maximum of 12 non-school events per year is reasonable; the requirement for notification of council of forthcoming events will ensure more transparency and enable more thorough planning. Condition 5D - Calendar of events - is to include the name and contact details of the event manager. With respect to 5E - Trial period, the traffic survey in 5E(d) should be conducted by a traffic consultant agreed to by both parties and the reports submitted to both parties within 4 weeks of the survey.
In 5F - Management plan, the 'Informal'/ 'Informal & Tandem Parking Management Plans are referred to. The plans attached to the joint expert report of the traffic engineers state that "the parking marshals may be either staff or senior students and must wear safety vests". The council conditions proposed that the parking marshals used in the parking management plans must hold the necessary qualifications/ certificates to control traffic being the RTA blue or grey card. I do not think relying on students or staff to manage the parking is reasonable or responsible. Apart from OH&S issues I think it is unreasonable to rely on untrained people particularly with tandem parking arrangements and where disputes may arise. Any non-school user should engage sufficient numbers of appropriately qualified traffic controllers (as specified in council's version) to be on site for at least one hour before the commencement of the event until the final vehicles leave the site. These requirements are to be incorporated into the applicant's conditions 5F, 5F (b) and (d).
With respect to condition 5I - Noise criteria, the applicant's version should remain as it reflects the version put forward by council in its without prejudice conditions.
Conclusions
On the evidence before me I find that the development to which the consent as modified relates is substantially the same development for which consent was originally granted. Whilst many of the residents appear to have a philosophical objection to the use of the hall for non-school purposes, I am satisfied that the POM and the conditions of consent will result in a better outcomes with respect to noise, parking and traffic management issues. The imposition of a 2-year trial period is an incentive for more accountable management. Similarly, the details in the POM and conditions of consent should give nearby residents more certainty as to the number of non-school events and how they are categorised, and the general restrictions that will apply.
With respect to Condition 5 of DA1510/03 I am satisfied that it should be deleted and replaced with the wording in Exhibit E - that is:
5A. The multi-purpose hall (Bowie Hall) may be used only for events or functions by Brigidine College for any school purpose, including functions and events for or by students, staff, the Parents and Friends Association or other school-related uses, except as provided in condition 5B.
5B. Bowie Hall may be used for community purposes (in accordance with the conditions and Plan of management referred to below) on a maximum of 12 occasions during any calendar year ("non-school events") for the trial period referred to below. No function or event shall be held at the school during a non-school event.
5C. All functions held in Bowie Hall are to cease by 11 pm on Monday to Saturday and by 5 pm on Sunday. No function shall be held in Bowie Hall on a public holiday.
The proposed conditions in Exhibit E are to be amended in accordance with the findings in paragraphs [69]-[72] of this judgement. Similarly, for consistency, the POM is to be amended in accordance with the conditions.
As a consequence of the forgoing, the Orders of the Court are:
(1) Appeal No. 10955 of 2010 is upheld.
(2) Modification application MOD161/10 of development consent DA1510/03 for a multi-purpose hall at Brigidine College St Ives is approved and DA1510/03 is modified under s 96 of the Environmental Planning & Assessment Act 1979 by the replacement of Condition 5 with the version in Exhibit E and the inclusion of the Plan of Management prepared by Glendinning Minto & Associates Pty Ltd and additional conditions of consent as amended in accordance with the findings of this judgment.
(3) The applicant is to forward an electronic version of the amended conditions and Plan Of Management, as agreed by the parties, by the close of business 17 June 2011 and the final orders will be made in chambers and the conditions will be included in the published judgment as annexure A.
(4) The exhibits, with the exception of exhibits A, D, E, 1, 10 and 12, are returned.
_______________________
J Fakes
Commissioner of the Court
ANNEXURE A
CONDITONS OF CONSENT
Application No.:
MOD0161/10
Proposed Development:
Modification of DA1510/03 proposing changes to Condition 5 allowing up to 15 non school activities per year
Property:
325 Mona Vale Road ST IVES NSW 2075
Pursuant to clause 122 of the Environmental Planning and Assessment Regulation 2000 , you are advised that approval has been granted to the application for modification of the consent to the above Development Application.
Date of determination:
Pursuant to section 96 of the Environmental Planning and Assessment Act 1979 , the development consent is now modified as follows:
Condition No. 5 is deleted and the following condition is inserted:
5A. The multi-purpose hall (Bowie Hall) may be used only for events or functions by Brigidine College for any school purpose, including functions and events for or by students, staff, the Parents and Friends Association or other school-related uses, except as provided in condition 5B.
5B. Bowie Hall may be used for community purposes (in accordance with the conditions and Plan of Management referred to below) on a maximum of 12 occasions during any calendar year ("non-school events") for the trial period referred to below. No function or event shall be held at the school during a non-school event.
5C. All functions held in Bowie Hall are to cease by 11 pm on Monday to Saturday and by 5 pm on Sunday. No function shall be held in Bowie Hall on a public holiday.
The following new conditions are inserted:
Conditions to be satisfied at all times:
5D. Calendar of events
A schedule of upcoming non-school events in Bowie Hall is to be provided to Ku-ring-gai Council at least two months in advance. The schedule is to identify the type of event/ function, the date and time of the event, the duration of the event, the anticipated number of persons at the event (including patrons, staff, performers etc), the estimated parking demand and the name and contact details of the Event Manager.
Reason: To protect the amenity of surrounding properties.
5E. Trial period
(a) The use and operation of Bowie Hall for non-school events is not permitted otherwise than in accordance with these conditions.
(b) Bowie Hall may be used for non-school events for a trial period of 2 years from the time this modification becomes operative.
(c) During the trial period, records of the following matters in respect of each non-school event are to be kept:
(i) Date of the event;
(ii) Start and finish time of the event;
(iii) Attendance numbers at event - of both patrons and other support / staff / performers;
(iv) Estimate of the rate of vehicle occupancy.
(d) During the trial period, a traffic survey of the parking in Woodbury Road is to be undertaken by a traffic consultant agreed by both the Applicant and the Council for each of (i) a large non-school event (for example a school speech night) where the attendance is up to a maximum of 1,000 persons; and (ii) a non-school event where the attendance is up to a maximum of 400 persons. The report is to be provided to both the Applicant and the Council within 4 weeks of the survey being completed.
(e) During the second year of the trial period and not later than 3 months before the end of the trial period, a further application (together with the traffic survey) may be lodged to continue the use and operation of Bowie Hall for non-school events.
(f) If such further application is made before the end of the trial period, then the operation outlined in (b) above and in compliance with the other conditions of consent, shall continue until the Council or the Court (as the case may be) determines the application.
5F. Management plan
During the two year trial period, and for such further time as the use and operation of Bowie Hall for non-school events may continue, after-hours use of Bowie Hall is to be undertaken in accordance with the Plan of Management prepared by Glendinning Minto & Associates Pty Ltd and dated March 2011 as modified by this modification and the following:
Use of Bowie Hall for non-school events is not to occur at any time on Sundays or public holidays.
Use of Bowie Hall for non-school events must not involve any of the Prohibited Uses in paragraph 2.1(h).
The "Informal Parking Management Plan" and the "Informal & Tandem Parking Management Plan" attached to the Joint Report of Traffic Engineers dated 21 April 2011 is to be included in the Plan of Management.
The information brochure referred to in paragraph 3.1(f) is to require the appointment by the user group of an "Event Manager". That event manager is to be responsible for liaising with Brigidine College Staff member(s) before and/or on the day of the event or function to ensure that:-
(a) The pedestrian gate between the Connolly Wing and Synan Wing buildings is to be kept locked whenever after-hours usage of the Bowie Hall is proposed (to make it more inconvenient for patrons to park in Woodbury Road, Hume Street or other local residential streets to the south and east of the School).
(b) The gate to the off-street car parking area accessed via the driveway located at the south-eastern corner of the site, off Woodbury Road (ie at the rear of the hall) is to be closed 40 minutes before the commencement of an event in Bowie Hall and opened by a traffic marshal (holding the qualifications specified in (e) below)at the end of the event who is to ensure that vehicle use of the car park occurs in a quiet and orderly manner.
(c) Contact details of the Event Manager, including a mobile telephone number that will be contactable before and during the event, is circulated to participants in the user group, to facilitate central management of the function, compliance with the conditions of the users group agreement, and a contact point in the event of an emergency.
(d) The Event Manager or their delegate(s) is/are to remain on site for the duration of the event and ensure a patrol is undertaken of the external areas of the building (eg footway, building surrounds and car parks) at the end of performances as appropriate, to ensure noise impacts to neighbours are limited and patrons leave in an orderly and quiet manner.
(e) Parking marshals used in the application of the Parking management plans must hold the necessary qualifications / certificates to control traffic (RTA blue or grey card). The Parking marshals shall be on site for at least one hour before the commencement of the event until the final vehicles leave the site.
The maximum of 12 non-school events in Bowie Hall in any one calendar year are to be restricted to a maximum of 400 patrons except for a maximum of 3 occasions where the maximum shall be 1 000 (one thousand) patrons.
The after-hours use of Bowie Hall for non-school events shall not occur before or during school day times (8.00am to 4.00pm) during term.
If after-hours usage of the Bowie Hall for one of the non-school events is expected to require more than 126 parking spaces, based on the estimates made in the record keeping required by these conditions, the Informal Parking Management Plan is to be distributed to the user group as part of the Information Brochure and the user group is to be directed to comply with the plan.
If after-hours usage of the Bowie Hall for one of the non-school events is expected to require more than 195 parking spaces, based on the estimates made in the record keeping required by these conditions, the Informal plus Tandem Parking Management Plan is to be distributed to the user group as part of the Information Brochure and the user group is to be directed to comply with the plan.
Any noise-related or other complaints are to be recorded and details of the date, time, nature of complaint and the response undertaken by the School are to be included in the record.
Where necessary, additional conditions relating to the results of acoustic monitoring are to be included in the plan of management after the trial period, and any necessary additional information and/or requirements circulated to user groups as part of the information brochure.
Reason: To protect the safety and amenity of patrons, performers/ staff, motorists, pedestrians and surrounding residents.
5G. Prohibited activities
Weddings, wedding receptions, rock concerts and birthday parties are not permitted in Bowie Hall at any time.
Reason: To protect the amenity of surrounding properties.
5H. Hours of use
The non-school use of Bowie Hall is not to occur outside the following hours:
Monday to Thursday 10.00am - 10.00pm (with all persons to leave the site by 11.00 pm)
Friday - Saturdays 10.00am - 11.00 pm (with all persons to leave the site by 12.00 midnight)
Reason: To protect the amenity of surrounding properties.
5I. Noise criteria
The external noise level from activities occurring in Bowie Hall shall not exceed the ambient background noise level by greater than 5 dB(A) when measured on the adjoining boundary at any affected residential property. The noise level is to be assessed as a Leq over 15 mins and include any corrections for the character of the sound as identified in Table 4.1 of the Department of Environment and Climate Change (formally known as the EPA) Industrial Noise Policy.
During the period 11 pm to 7am, noise emitted from activities within Bowie Hall shall not be audible within a habitable room in any residential premises. A habitable room means any room other than a garage, storage area, bathroom, laundry, toilet or pantry.
Reason: To protect the amenity of surrounding properties.
5J. Acoustic monitoring
Acoustic monitoring by an appropriately qualified consultant shall be conducted on at least two occasions during non-school uses of the hall in the first year of operation to ensure compliance with the noise criteria. The monitoring is to occur with no prior notice to the user group.
Should the acoustic monitoring identify breaches of the noise criteria, a report is to be prepared identifying noise attenuation or management measures necessary to achieve compliance with the noise criteria. All reasonable recommendations identified are to be implemented within 6 months of the acoustic monitoring and additional monitoring is to be conducted after installation/implementation of any recommendations until such time as compliance with the noise criteria is achieved.
The report should be provided to the Council within 14 days of receipt of the report by the applicant.
Reason: To protect the amenity of surrounding properties.
5K. Signage
Signage shall be prominently displayed at all exit locations within the building and car park areas with wording to the effect that patrons are reminded to leave the premises in a quiet and orderly manner.
Reason: To protect the amenity of surrounding properties.
The following conditions are deleted:
5. The multi-purpose hall is not to be leased or let to organisations outside the school community and all functions are to cease at 11.00pm.
37. A report on the buildings design by an Acoustic Engineer is to be provided that clearly indicates that noise associated with the developments use will not be increased at the boundary.
Reasons for conditions
To safeguard the amenity of the locality.
Those conditions attached to the original consent for the above Development Application No. DA1510/03, that are unaffected by the modifications listed in the above notice, still apply.
Decision last updated: 08 July 2011
0
5
3