Newcastle Grammar School v Newcastle City Council
[2007] NSWLEC 641
•27 September 2007
Land and Environment Court
of New South Wales
CITATION: Newcastle Grammar School v Newcastle City Council [2007] NSWLEC 641 PARTIES: APPLICANT:
Newcastle Grammar School
RESPONDENT:
Newcastle City CouncilFILE NUMBER(S): 10466 of 2007 CORAM: Watts C at 1 KEY ISSUES: Development Consent :- Excessive noise and noise at unreasonable hours
Increased traffic movement and car parking demand on occasions when functions take place at the school.LEGISLATION CITED: Newcastle Local Environmental Plan 2003, (NLEP)
Hunter Regional Environmental Plan 1989, (HREP)
Newcastle Development Control Plan 2005, (NDCP)
Environmental Planning and Assessment Act 1979, ss 79C and 96(6)DATES OF HEARING: 26 and 27 September 2007 EX TEMPORE JUDGMENT DATE: 27 September 2007 LEGAL REPRESENTATIVES: APPLICANT:
Mr M J Neil, RFD, QC, instructed by
Mr R P Mallik, solicitor
SOLICITORS:
Mallik Rees Lawyers, CessnockRESPONDENT:
Mr T F Robertson, SC, instructed by
Ms D E Grant, solicitor
SOLICITORS:
Sparke Helmore, Newcastle
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
27 September 2007
10466A of 2007 (s96) - Newcastle Grammar School v Newcastle City Council
JUDGMENT
1 This involves an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the decision of the Newcastle City Council (the council) to refuse a modification application (now amended) in respect of a consent to demolish five existing buildings and to erect a new multi-purpose school building at Lot 1 DP 76415, Lots 2 & 3 in DP 198354, Lot 1 in DP 181685, and Lots 2, 4, A & B in DP 175309, being No 62 Newcomen Street and Nos 14 & 16 Tyrrell Street, Newcastle, NSW.
2 The amended modification application includes:
· Construction of a new fence to separate Areas 4A and 4B on Level 4 terrace.
· An amendment of conditions to restrict to a maximum of 140 persons, the school use of Area 4A between 7.00am and 10.00pm Mondays to Saturdays and 8.00am to 10.00pm Sundays and Public Holidays.
· An amendment of conditions to restrict to school use Area 4B between 7.00am and 6.00pm Monday to Fridays.
· An amendment of conditions to provide ‘soft-fall’ surface treatment for Roof Terrace Area 5 only and not Roof Terrace Area 4.
3 I visited the land in company with the parties on the morning of the first day of proceedings.
4 I have concluded that the modification application should succeed and approval granted subject to conditions.
Site planThe land
5 The land is situated on the northwestern corner of Tyrrell and Newcomen Streets, Newcastle. It is largely rectangular in plan with boundaries of 57.793m x 40.292m and 59.663m x 40.258m, giving an area of some 2,325.1m2. The southeastern corner of Newcastle Grammar School is under separate title and is not included in the land for development.
6 The land slopes down from west to east and also from south to north. It is part of a larger ‘L’-shaped land holding that also has frontages to Church Street and Wolfe Street and which constitutes the Newcastle Grammar School grounds.
7 Four of the five original classroom buildings have been demolished under the terms of the consent. The others will be demolished in Stage 2.
8 Nearby development, opposite Tyrrell Street, consists of a mixture of single dwellings and multi-unit residential buildings, with the James Fletcher Hospital opposite in Newcomen Street.
Relevant planning controls
Newcastle Local Environmental Plan 2003, (NLEP)
Under the provisions of the NLEP the land is zoned 2(b) Urban Core Zone and the proposal is permissible with consent.
Hunter Regional Environmental Plan 1989, (HREP)
9 The HREP is relevant.
Newcastle Development Control Plan 2005, (NDCP)
10 Under the NDCP - Element 41 - Car parking is relevant.
The consent and its history
11 The council granted consent on 6 September 2005 for a development application to demolish five buildings and to erect of a new five level, multi-purpose school building, comprising classrooms, specialist teaching spaces, seminar rooms, student and staff facilities and storage and plant rooms. The development was in two stages, with completion expected in or before 2010. The first stage of the approved development is now nearing completion.
12 The modification application in respect of development application No 05/0018 was lodged with the respondent council on 16 May 2006, and relates to the roof on levels four and five of the Stage 1 building.
13 Condition 3.6 of the original consent is to be deleted:
- “3.6 The floor surfaces of all roof terrace areas being covered with a soft fall material such as astro-turf, marine carpet or similar as identified in the facsimile from Vipac Engineers & Scientists Limited, dated 11 July 2005. Full details of the proposed soft-fall material being certified by an appropriately qualified acoustic consultant and included in the documentation for a Construction Certificate application.
Written certification from the said consultant confirming that the recommended acoustic treatment has been implemented in accordance with the requirements is to be submitted to the Principal Certifying Authority prior to the issue of the required Occupation Certificate.
Reason: To confirm the terms of consent and to minimise the potential for noise nuisance arising as a result of the use of the premises.”
14 The soft-fall surface treatment of the roofs on levels four and five has been laid, however, the school, concerned for continued maintenance, has requested the deletion of this condition so that when time comes to replace the surface, in three to five years, a more serviceable material might be chosen. The school has now received advice that the soft-fall surface is not required for acoustic reasons and a painted concrete roof surface that can be maintained easily is preferred. The school would like to have the option of not replacing the soft-fall surface.
15 Condition 5.17 of the original consent, reads:
- 5.17. The use of the roof terrace areas being restricted to between 7:00am and 6:00pm Monday to Friday.
Reason: To confirm the terms of consent and to minimise the potential for noise nuisance arising as a result of the use of the premises.
16 The s.96 application originally proposed that Condition 5.17 be replaced with the following:
- 5.17.1. The use of the roof terrace area is to be restricted to between
· 7:00am and 10:00pm, Mondays to Saturdays, and
· 8.00am to 10.00pm Sundays and public holidays.
- 5.17.2. During the period of twelve (12) months, commencing from the date of Council’s consent to the amendments, activities occurring on the roof terraces between 6.00am and 10.00pm on Sundays and public holidays are to be randomly monitored on at least six separate occasions by a suitably qualified person engaged by the school to ensure that the noise emissions do not exceed the EPA Industrial Noise Policy criteria. The results of such monitoring are to be reported to Council at the end of the twelve-month period.
17 In order to achieve the necessary acoustic performance, the applicants proposed that the height of the acoustic screen on the western side of the roof terrace (Level 5) could be increased from 1800mm to 2300mm. This would have required an amendment to Condition 5.19 of the consent, which restricts the height of the proposed acoustic screens to 1800mm.
18 The council’s Environmental Services Unit, (ESU) had originally suggested a height of 2800mm for the acoustic screen, but, under the terms of council’s resolution the height of the acoustic screen was restricted to 1800mm, as originally sought by the applicants.
19 Following the Public Voice session in October 2006, the applicants amended the s 96 modification application to now propose that Condition 5.17 be varied to read as follows:
- 5.17.1. The use of the Level 5 roof terrace area (ie the western or top terrace) being restricted to between 7.00am and 6.00pm, Monday to Friday.
5.17.2. The use of the Level 4 roof terrace area (ie the eastern or lower terrace) being restricted to between
· 7.00am and 10.00pm, Mondays to Saturdays, and
· 8.00am to 10.00pm, Sundays and public holidays.
20 Following the Public Voice session, the school headmaster clarified the proposed usage of the eastern or lower terrace (Level 4):
- The School’s programme changes from year to year so I have outlined activities below, based on this year, should we elect to use the Lower Terrace for School functions and/ or activities. But as Council has asked, here is a list, which must not be taken as being exhaustive. Should the School elect to use the Lower Terrace on every occasion, this is what the usage could be.
The Lower Roof Terrace may be used as an area for hospitality at the beginning, during or end of various functions that occur at the School. So it will be used more for people mingling and I would not see that on any occasion there would be more than 100 people. It would be more likely that on most occasions there would be less than 30. There will be no amplified music. The activities that are conducted by the School at present fall into the following categories: staff professional development; parent meetings; parent/teacher meetings; staff and parent functions; and student activities. It must be stated that not all of these activities may occur in the staff room but have the opportunity to use the staff room and may then spill out onto the Lower Terrace for supper. Below is what the staff room and Lower Terrace could have been used for had it been in operation in 2006. However, I do not believe all of the activities listed below would use the Lower Terrace on each and every occasion (I’m not sure if the weather would permit).
It must also be pointed out that the School is conducting these activities now and reiterates that, should some of these activities occur on the Lower Terrace, they may well have less impact on the neighbours than if they were to be conducted in other locations around the School. The professional advice and the location of this terrace, is such that the School just wishes to use the terrace as it would use any other facility on the site.
· Staff professional development – 9.
· Parent meetings – 37. These may include Friends meetings, Artslink, Rowing Supporters, Spring Fair Committee, Camp briefings, sports meetings.
· Parent/Teacher meetings – 12.
· Staff functions – 11. Headmaster's Christmas Drinks, end of term drinks, staff farewells, hospitality after Executive meetings.
· Student activities – 17. This includes HSC Art & D&T Exhibitions, Concerts, Sonnet Strolls, SATU Dining-in Nights, Student lectures on weekends, student art exhibitions.
· Parent Functions – 10.
- The number of functions will vary each year depending on the ebbs and flows of the School calendar but I do not see the Lower Roof Terrace being used, on average, more than twice a week.
The School has been present on this site for a very long time and tries to serve its Community. The School has conceded a great deal by not seeking any extra use of the Upper Terrace, however it will see any restriction on the Lower Terrace as something which needs to be treated very seriously because it believes that the School is within its legal right and believes that the proposed hours of use of the Lower Terrace should be supported by Council.
21 The applicant’s architects stated:
- The above uses nominated by the school are consistent with the acoustic modelling previously carried out. This terrace was modelled by Vipac Engineers and Scientists using a noise level of 70 adults speaking with raised voices (this would translate to at least 140 adults on the terrace as the expectation is with a group of people that no more than half would be talking). The required EPA noise criteria in this case for weekend, day time and evenings is between 45 and 48 dBA, and the Vipac results from the 3D modelling of the building range between 26 and 41 dBa, which is well below the required criteria.
It is considered that the use of the Level 4 terrace for extended hours should be supported as it is well within the EPA noise criteria, it is at a lower level than the adjoining roof terrace, is screened from the residential area by the staff common room and stair well elements of the building, and largely faces Newcomen Street.
Notification
22 The original modification application was notified to nearby residents and occupants in accordance with the council’s public notification policy from 23 May 2006 to 6 June 2006 and the council received six (6) letters of objection. A Public Voice Session took place on 12 October 2006. Submissions raised the following issues:
· continued opposition to the development approved by the consent;
· continued opposition to the use of the roof top areas for any purpose;
· opposition to the evening use of the roof top terraces - the approved hours of use should be retained.
· potential for evening use for non-school related usage, such as functions and weddings;
· lack of on-site parking in relation to evening usage;
· potential noise nuisance;
· the requirement for ‘soft-fall’ covering should be retained;
· loss of privacy;
· potential glare from exterior lighting; and
· loss of views.
23 Despite the public opposition the council’s planning officers recommended approval of the modification application, subject to a number of additional conditions.
The council’s decision
24 On 3 April 2007 the council resolved to refuse the application to modify the consent and the notice of determination was issued on 11 April 2007. The reasons for refusal were:
(a) The proposed modification would be likely to be detrimental to the amenity of nearby residential properties having regard to the increased potential for noise outside normal school hours.
(b) The proposed modification would be likely to generate an increased demand for parking that cannot be satisfactorily accommodated within the site or within the existing public infrastructure in the locality.
(c) The proposed modification would be likely to give rise to increased traffic and kerbside parking congestion within the nearby streets, with consequential detrimental impacts on the existing residential amenity of the neighbourhood.
(d) Having regard to the above, approval of the application is not considered to be in the public interest.
The hearing
25 The appeal was filed on 21 May 2007 against the council’s refusal of an application to modify the conditions and to permit the deletion of one condition.
26 At the hearing the Court heard evidence on behalf of the respondent council from:
· Ms L J Thwaites, resident of No 145 Brooks Street, Cooks Hill, Newcastle, (address not shown in Exhibit 3);
· Ms E G Widdup, resident of No 22 Tyrrell Street, Newcastle;
· Ms J K Lenaghan, resident of No 9 Tyrrell Street, Newcastle;
· Ms A M C Tait, resident of No 9 Barker Street, Newcastle;
· Ms R Colman, resident of No 2 Barker Street, Newcastle;
· Mr M S Widdup, resident of No 22 Tyrrell Street, Newcastle; and
· Mr D Monroe, resident of No 75 Newcomen Street, Newcastle.
27 A letter of objection was received from Mr and Mrs R Cerny, residents of No 24 Tyrrell Street, Newcastle, [Note: Exhibit 2].
28 Ms K Gresham, of EJE Architects, gave evidence on behalf of the applicant.
29 Messrs C T McLaren, traffic engineer, and N Pennington, acoustic engineer, were the single party experts.
30 Mr G Newton, authorised officer of the respondent council, prepared the statement of basic facts and contentions dated 22 June 2007.
The contentions
31 On 22 June 2007 the council filed a statement of contentions.
- 1 The proposed modification is likely to be detrimental to the amenity of nearby residential properties in terms of excessive noise and noise at unreasonable hours.
- 2 The proposed modification is likely to give rise to increased traffic movement and car parking demand on occasions when functions take place at the school during the evening, such increased car parking demand being unable to be satisfactorily accommodated within the site or within the existing public infrastructure in the locality and thereby detracting from the amenity of nearby dwellings.
(a) Newcastle Grammar School is to provide a total of 6 -10 on-site car parking spaces under the terms of the Consent.
(b) Element 4.1 of the Newcastle Development Control Plan 2005 requires off street parking for educational establishments to be provided at the rate of 1 space per staff, plus 1 space per 8 senior students, plus 1 space per 100 students enrolled for visitor parking. On this basis, a total of 61 parking spaces are required in respect of the school, leaving a historic parking deficiency of 51-55 spaces.
(c) The applicant proposes to extend the hours of usage of the Level 4 lower terrace beyond the hours normally applying to school premises.
(d) The applicant has not provided sufficient information regarding the proposed use of the lower terrace and adjacent facilities to enable the consent authority to determine the extent of likely traffic generation and associated car parking demand or to satisfy the consent authority that the proposed increase in hours will not give rise to an increase in traffic generation or car parking demand.
32 The following emerged as the salient issues:
· excessive noise and noise at unreasonable hours; and
· increased traffic movement and car parking demand on occasions when functions take place at the school.
33 During the hearing the applicant amended the modification application. Consent is now sought for:
An additional clause be inserted as follows:
The Applicant shall construct a fence as shown in Exhibit A so as to separate the area shown as 4A in Exhibit A from the Area shown as 4B in the above Exhibit A.
[Condition] 3.6 be amended by deleting from the first line the words “all Roof Terrace areas” and substitute in their stead the words “Roof Terrace area 5”.Condition 5.17 be amended as follows:
5.17. The use of that part of the Roof Terrace Level 4 shown as 4A in Exhibit A, is restricted to between 7.00am and 10.00pm Mondays to Saturdays and 8.00am to 10.00pm Sundays and Public Holidays.
5.17.1. The use of that part of the Roof Terrace Level 4 shown as 4A in Exhibit A in conjunction with the staff room, during the hours of 6.00pm to 10.00pm Monday to Friday, 7.00am to 10.00pm Saturday and 8.00am to 10.00pm Sunday and Public Holidays for educational purposes, is to be [for] no more than 140 persons at any one time.
5.17.2. The use of that part of the Roof Terrace Level 4 shown as 4B in Exhibit A is restricted to between 7.00am and 6.00pm Monday to Fridays.
34 Given this wording, the respondent council’s objection that the s 96 modification application did not relate to the same application as was originally consented to was not pursued. The salient issues remained.
The evidence and findings
35 The amended modification application related primarily to the proposed extension of hours of use from 6.00pm to 10.00pm of Area 4A of Level 4 as set out above in para 33. Area 4A was shown in yellow edging in the Modification Drawing No 1 plan, [Note: Exhibit A]. The hours of operation of Area 4B shown edged in pink in the Exhibit A plan are no longer sought to be changed and its use would cease at 6.00pm. This Area 4B is closest to residential properties in Tyrrell, Barker and Newcomen Streets to the south of the school.
Excessive noise and noise at unreasonable hours
36 Mr Robertson, SC, for the respondent, submitted that the council would have no difficulty with the physical alteration to construct the fence between Areas 4A and 4B. The council also would have no difficulty if the Court were to limit the use of Area 4B in accordance with Condition 5.17.2 and to allow its school use up to 6pm.
37 He submitted that the council would have difficulty if Area 4A were permitted for school use at whatever times and occasions and consent should not be granted. However were the Court against the council in this regard, conditions should be imposed to ensure that Area 4A is used in accordance with the noise conditions of Mr Pennington.
38 Mr Neil, RFD, QC, submitted that all [the applicant has] done in the amended modification application was to give ‘specificity’ to the proposal, and if it were that at some stage in the future, the proposal were not within the scope the council has sought, the council would have its remedies under the Act. He also submitted that the modification application would not change the character of the original proposal and it would be consistent with the original uses.
39 Mr Pennington pointed to the fact that with Area 4B not being used after 6.00pm, any noise emanating from the school use of Area 4A, between 6.00pm and 10.00pm, would be decreased at the residential receivers to the south as a result of the separation distance between noise source and receptors would be increased by around 10m.
40 Mr Pennington also gave evidence that the noise likely to emanate from Area 4A would be attenuated by an effective acoustic barrier on the southern side of Area 4A greater in height than the physical 1.8m-high acoustic screens. The geometry to estimate this greater effective height, he explained on site, was based on constructing straight lines from the mouth of a theoretical person standing in the centroid of Area 4A passing over the top of the nearest northernmost screen, then constructing a straight lines from the receiver at a residential property to the south and passing over the southernmost screen on Level 4. Where these two lines intersect would indicate the effective height of the acoustic barrier between the source and the receiver. This effective height would be greater than the height of the acoustic screen itself and thus his previous noise attenuation calculations would need to be adjusted in that light.
41 He was confident before the change to the modification application that, “…it has been demonstrated that the ‘Industrial Noise Policy’ (INP) noise criteria would be achieved at all receivers”, [Note: Exhibit 1, Tab 19, ‘Acoustic Review’ dated August 2007, p 12]. He indicated that the noise attenuation would be greater with an increased effective acoustic barrier and greater separation distance.
42 I accept the evidence of Mr Pennington and I am confident that attenuation of noise from the school use of Area 4A has been adequately addressed and that noise would be effectively attenuated at residential receivers to the south of the school.
43 It was also Mr Pennington’s opinion that the ‘soft-fall’ surface treatment of Levels 4 and 5 would not be required to reduce noise at the receivers. He was satisfied that if the terrace surface treatment were changed to painted concrete or similar there would be no significant change to the acoustic regime especially after 6.00pm.
44 In the amended modification application a change is now only sought to the soft-fall treatment on Level 4 and not Level 5. From an acoustic point of view, I consider this change could be made to remove the soft-fall surface treatment on Level 4 when next the surface is renewed. Thus, I have amended Condition 3.6 to reflect this conclusion.
45 Some of the residents were concerned that noise emanating from the use of Terrace 4 between 6.00pm and 10.00pm could be carried on the prevailing northeasterly winds. Some residents described how the amplified sounds of lifesavers giving instructions on the beach nearby were heard at residences in the area near the school in some widn conditions. Mr Pennington was satisfied that the noise from the use of Terrace 4 would be unlikely to be heard in the residential areas near the school. He explained that there is an arching effect as noise is carried on the wind to areas more remote from the source and he expected there would be lesser noise effect near the school. I accept that evidence and am satisfied that even when there are wind borne noises these would be heard further afield rather than nearby.
Increased traffic movement and car parking demand on occasions when functions take place at the school
46 Mr McLaren was satisfied in respect of the original modification application, [Note: Exhibit 1, Tab 18, p 7]:
- …the proposed development is unlikely to give rise to increased traffic movement and car parking demand on occasions when functions take place at the school during the evening. In the event that duality of functions does occur then there is spare parking capacity in the location in excess of the likely extent of additional patronage. The traffic consequence of some 140 patrons arriving in 56 cars if this were to occur can be accommodated within the precinct, in terms of traffic flow efficiency and residential amenity considerations, subject to it not occurring at the same tome as other events within the school grounds larger than 160 persons. [total 300 persons].
47 Mr McLaren was also satisfied in respect of the amended modification application, that provided that school activities between the hours of 6.00pm and 10.00pm are not attended, at any one time, by more than 300 people, that traffic and car parking in the vicinity of the school would be kept within manageable limits. This is despite there being no car parking provided on-site. A condition reflecting this upper limit on patronage of 300 persons is imposed. With that upper limit a recommended management plan for traffic and car parking would not be required.
48 For the above reasons, the appeal is upheld.
Conditions
49 The conditions are those in Exhibit 1 that were imposed on the original consent for Stage 1, with amendments included in Exhibits B and 6.
50 Condition 5.41 is imposed to require the use of Area 4A to cease if the total patronage of any event or combination of events at the school were to exceed 300.
51 Condition 3.6 is amended to delete the requirement for ‘soft-fall’ surface treatment of Level 4 terrace.
52 Condition 5.40 now reads:
- The use of the Roof Terrace Level 4A between 6.00pm and 10.00pm is restricted to School purposes and for no more than 2 occasions per week, including one per month on a Sunday or Public Holiday. The Roof Terraces Levels 4A and 4B under no circumstances are to be used for private functions for commercial/business purposes or for musical performances.
53 Condition 5.17 is also amended to reflect the restricted use of Area 4A.
- 5.17 The use of that part of the Roof Terrace Level 4 shown as 4A in Exhibit A, is restricted to between 7.00am and 10.00pm Mondays to Saturdays and 8.00am to 10.00pm Sundays and Public Holidays, (except as modified by Condition 5.40).
5.17.1 The use of that part of the Roof Terrace Level 4 shown as 4A in Exhibit A, during the hours of 6.00pm to 10.00pm Monday to Friday, 7.00am to 10.00pm Saturday and 8.00am to 10.00pm Sunday and Public Holidays is to be no more than 140 persons for educational purposes, at any one time.
5.17.2 The use of that part of the Roof Terrace Level 4 shown as 4B in Exhibit A is restricted to between 7.00am and 6.00pm Monday to Fridays.
Orders
54 My orders are:
1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is upheld.
2. The modification application to modify consent granted on 6 September 2005 in respect of development application No 05/0018, to demolish five existing buildings and to erect a new multi-purpose school building at Lot 1, DP 76415: Lots 2 & 3, DP 198354; Lot 1, DP 181685, and Lots 2, 4, A & B, DP 175309, being No 62 Newcomen Street and Nos 14 & 16 Tyrrell Street, Newcastle, NSW, is approved subject to Conditions 1 to 7.3 in Annexure A.
3. The exhibits except for Exhibits A, B, 3, 4 and 6 are returned.
S J Watts
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