Brigidine College v Ku-ring-gai Council

[2012] NSWLEC 1076

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brigidine College v Ku-ring-gai Council [2012] NSWLEC 1076

Hearing dates:

19 March 2012

Decision date:

29 March 2012

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. By consent, the appeal is upheld.

2. Development Application No. 0817/10 for a staged development proposal for Brigidine College, St Ives is approved, subject to the conditions in Annexure A.

3. The exhibits are returned, with the exception of exhibit 1.

Catchwords:

DEVELOPMENT APPLICATION: Consent orders; alterations and additions to existing school; staged development; resident objectors.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Texts Cited:

Land and Environment Court of NSW Practice Note Class 1 Residential Development Appeals

Category:

Principal judgment

Parties:

Brigidine College St Ives (Applicant)

Ku-ring-gai Council (Respondent)

Representation:

Counsel
Mr P Tomasetti SC (Applicant)

Mr M Staunton (Respondent)
Solicitors
Maddocks (Applicant)

HWL Ebsworth (Respondent)

File Number(s):

10372 of 2011

Judgment

1. COMMISSIONER: This appeal comes before the Court for consent orders in relation to Development Application No. 0817/10 (the application) for a staged development proposal for alterations and additions to an existing secondary school, Brigidine College, 325 Mona Vale Road, St Ives (the site).

1. The application sets out a concept proposal for the development of the site in six stages. The application includes a detailed proposal for Stage 1. Stage 1 works includes a Performing Arts Theatre and a basement car park, adjacent to the northern boundary of the site; a multi purpose court adjacent to the eastern boundary of the site; a garbage area adjacent to Mona Vale Road on the western boundary and associated landscaping. The Stage 1 works include increasing the student numbers to a total of 940 students.

1. The appeal was the subject of a conciliation conference on 2 August 2011 under s 34 of the Land and Environment Court Act 1979 (the Court Act). The conference was adjourned to allow the applicant to provide amended plans. The s 34 conference was resumed on 25 August 2011, then adjourned and resumed 8 September 2011, when the parties were given directions to respond to matters raised in an email of 5 September 2011. The conciliation conference was terminated pursuant to s 34(4)(a) on 17 October 2011.

1. Prior to the hearing, the parties agreed to enter into consent orders, based on amendments made to the original application. The principle changes were:

• Parking:
• The proposed on-grade car parking was replaced with a basement carpark, adjacent to the northern boundary, as part of the Stage 1 works;
• Tennis courts:
• The proposed two tennis courts were deleted and replaced with a single multipurpose court, with an increased setback from the eastern boundary;
• Performing Arts Theatre:
• The northern façade of the Performing Arts Theatre was modified to address potential acoustic impacts on nearby residents.

1. In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides:

Application for final orders by consent of parties

35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval.

36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii)the date of the hearing by the Court to consider making the proposed consent orders; and

(iii)the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.

1. In accordance with the Practice Note, three local residents provided evidence at the consent order hearing. The residents' concerns can be summarised as:

• The proposal represents an overdevelopment of the site;
• The proposal would have a negative impact on the values of residential properties in the vicinity of the school;
• The proposal will impact on the amenity of surrounding residents;
• There is insufficient playground area for the proposed student numbers;
• The proposed Performing Arts Theatre is out of character with the school and it should only be used for school functions;
• The location of the vehicular entry and exit to the site; principally the management of vehicular entry and exits within school hours and after hours and a request that there be no parking adjacent to the northern boundary once the basement parking has been constructed;
• Noise from the Performing Arts Theatre; principally the air conditioning unit associated with the Performing Arts Theatre and the multi-purpose court;
• Potential damage caused by 6 gum trees proposed for the northern boundary;
• Noise and dust during the construction phase.

Planning Framework

1. The application sets out a concept proposal for the development of the site in six stages, pursuant to the provisions of Division 2A of the Environmental Planning and Assessment Act 1979 (EPA Act), Special procedures concerning staged development applications (clauses 83A to 83D). Clause 83B includes a definition of a staged development application as follows:

(1) For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development.

1. Approval of a staged development consent does not authorise the carrying out of development, without consent being subsequently granted following a further development application in respect of that part of the site (clause 83B(3)). Therefore, a development application for each subsequent stage of the concept proposal will need to be submitted to the consent authority for determination. Clause 83D(2) requires that further development applications in respect of the site must be consistent with the consent granted on the determination of the staged development, while it remains in force.

1. The staged development application can provide the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent at clause 83B(3)(b). The application before the Court includes a detailed proposal for the Stage 1 works.

Parking

1. The on-grade parking is deleted from the proposal and the plans have been amended to provide on-site parking within a basement car park adjacent to the northern boundary, as part of the Stage 1 works. Entry to the car park will be provided via the vehicular entry in the middle of the western boundary of the site, from Mona Vale Road (gateway number 2).

1. The existing vegetation fronting Woodbury Road is to be retained and the existing vegetation in the setback from the northern boundary is to be retained and enhanced. These amendments are shown on the amended plans (listed in Condition 1).

1. I am satisfied that the removal of on-grade parking and retention of a landscaped setback around the shared boundaries of the site will address the concerns raised by resident objectors regarding over-development of the site and impact on residential amenity, by providing a visual buffer between the school and the neighbouring residents. The vehicular entry to the site via gateway 2 is in the centre of the western boundary along Mona Vale Road and will ensure the least impact on neighbouring residents to the north.

Waste Management

1. The Stage 1 works include the removal of the waste bins from the Woodbury Road frontage and relocating the waste area to the Mona Vale Road frontage (shown on amended plans listed in Condition 1),

1. I accept that locating the waste area adjacent to Mona Vale Road will preserve the landscaped setback along the Woodbury Road frontage.

Landscaping

1. The preservation and protection of existing trees is addressed by Conditions 32-35, 39 and 82-87 and the provision of a landscaped buffer on the eastern side of the multipurpose court is addressed by Condition 42.

1. I accept that the retention of a landscaped setback around the shared boundaries of the site will provide a visual buffer between the school and the neighbouring residents.

Student and staff numbers

1. An increase in student and staff numbers to 940 students and 105 staff will not to take place prior to the Occupation Certificate of Stage 1 works (Conditions 5 and 7).

1. A temporary increase in student and staff numbers to 905 students and 105 staff may take place for a period of 12 months starting at the commencement of Stage 1 works. The requirements of the temporary parking plan of management must be implemented at all times during the construction phase (document identified under Condition 1 and Conditions 5A and 5B).

1. I accept that the temporary parking plan of management will ensure that an increase in student and staff numbers, prior to the construction of the basement carpark, can be accommodated in terms of on-site parking during the construction phase of the Stage 1 works.

Multipurpose court

1. The proposed two tennis courts have been deleted and the drawings amended to show a single multipurpose court, with an increased setback from the eastern boundary.

1. The conditions of consent include the following measures to assess and reduce noise generated by the multipurpose court:

• a requirement for an acoustic management plan (condition 94) and recommendations for additional measures, if required, to address acoustic impacts (Condition 20);
• a requirement for acoustic treatment to the multipurpose court (Condition 93);
• a requirement that the multipurpose court will not be used or illuminated for night play (Condition 118); and
• limiting the hours of use of the multipurpose court (Condition 120).

1. I am satisfied that the increased setback of the single court and its acoustic treatment will maintain the amenity of surrounding properties.

Use of the Performing Arts Theatre (Stage 1) and Bowie Hall (Existing)

1. The conditions of consent address potential conflicts between the use of the Performing Arts Theatre and the existing consent for the use of Bowie Hall. The consent includes a requirement that the Performing Arts Theatre is to be used for school function only (Condition 18a) and it is not to be used on the three nights per year when a maximum of 1000 patrons is permitted in Bowie Hall (Condition 8b).

1. The hours of operation of the Performing Arts Theatre are specified in the Plan of Management - Performing Arts Theatre (Condition 18b). There is provision for a review of the Plan of Management - Performing Arts Theatre after a 24 months trial period (Condition 18c).

1. The use of the Performing Arts Theatre for school functions only is in response to submissions made by resident objectors regarding their opposition to the use of the Theatre for public events. I am satisfied that the 24 month trial period for the use of the Performing Arts Theatre and its exclusive use for school functions addresses the concerns of the resident objectors.

Noise

1. The windows in the Band Room on the northern side of the Performing Arts Theatre are not to be openable (Condition 41) and electronic noise limiters are required for all amplified equipment associated with the use of the Performing Arts Theatre (Condition 95).

1. An acoustic design report is required prior to the issue of a Construction Certificate (Condition 51) to identify all potential noise generating equipment, including mechanical ventilation systems (also addressed by Condition 96) and amplified sound equipment, in order to provide acoustic design detailing and recommendations to address any potential noise impacts. Noise generated is not to exceed 5dB(A) above the background noise level during the day, when measured at the nearest boundary and shall not be audible within a habitable room in any residential premises at night.

1. Conditions 108 -111 and 115 address noise criteria levels to be monitored and complied with for the Performing Arts Theatre, the multipurpose playing court, plant and machinery and the school property generally at night time.

1. I accept that the conditions of consent addressing acoustic requirements and monitoring are sufficient to protect the amenity of surrounding properties.

Playground areas and school facilities

1. The plans indicate that the proposal will ultimately increase the playground area.

1. The applicant is required, prior to the issuing of a Construction Certificate, pursuant to Clause 32 of State Environmental Planning Policy (Infrastructure) 2007, to provide an assessment of Stage 1 against the relevant school facilities standards (Condition 22).

1. The ultimate increase in playground area and the requirement to provide an assessment of the Stage 1 works against the relevant school facilities standards adequately addresses the concern of the resident objectors regarding sufficient playground area for the pupils of Brigidine College.

Construction Phase

1. I accept that the hours of work (Condition 60), construction noise (Condition 65) and dust control measures (Condition 67) during the construction phase are sufficient to minimise amenity impacts on surrounding properties.

Conclusion

1. In considering the amended plans and documents (listed in Condition 1, Annexure A) and agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the objectors, I am satisfied that it is 'lawful and appropriate' to grant the consent, having regard to the whole of the circumstances, including the proposed conditions of consent.

Orders

1. The orders of the Court, by consent, are:

1.   The appeal is upheld.

2.   Development Application No. 0817/10 for a staged development proposal for Brigidine College, St Ives is approved, subject to the conditions in Annexure A.

3.   The exhibits are returned, with the exception of exhibit 1.

Susan O'Neill

Commissioner of the Court

ANNEXURE A

Decision last updated: 30 March 2012