Sydney Church Of England Grammar SchooLv Willoughby City Council

[2008] NSWLEC 1441

Land and Environment Court

of New South Wales

CITATION:

Sydney Church Of England Grammar SchooLv Willoughby City Council [2008] NSWLEC 1441

PARTIES:

APPLICANT
Sydney Church Of England Grammar SchooL

RESPONDENT
Willoughby City Council

FILE NUMBER(S):

10458 of 2008

CORAM:

Bly C

KEY ISSUES:

Modification Application :- conditions of consent, school playing fields, traffic and parking.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Willoughby Local Environmental Plan 1995

DATES OF HEARING:

23/09/2008 and 24/09/2008

 
DATE OF JUDGMENT: 

4 November 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso S.C.
Instructed by Deacons Lawyers

RESPONDENT
Mr I Hemmings, barrister
Instructed by Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

4 November 2008

10458 of 2008 Sydney Church Of England Grammar School v Willoughby City Council

JUDGMENT

Introduction

1 The Sydney Church of England Grammar School (“Shore”) has its main campus in North Sydney and has its sports grounds on land at the corner of Alpha Road and Sailors Bay Road in Northbridge. These grounds, known as the Shore 1914-1918 War Memorial Planning Fields were first opened in 1919 and are utilised for various sports including rugby, cricket, tennis and football. The sports grounds site currently contains a main oval, five other full-sized playing fields plus tennis courts and cricket practice nets. There is a new grandstand on the west side of the main oval. The existing car park to the south of the main oval and which is utilised by the school's early learning Centre is accessed off Sailors Bay Road. The sports grounds are extensively used on Saturdays and on weekday afternoons when boys travel directly from the North Sydney campus after classes.

2 The site, comprising lot 1 DP 319871 is partly zoned 5(a) Special Uses - School and 6(a) Open Space (Existing Recreation) under Willoughby Local Environmental Plan 1995.

3 There are three consents that were granted by the Willoughby Council for the playing fields that are relevant to this appeal:

• Development consent - DA-2002/1915/A dated 13 December 2004;
• Deferred commencement consent - DA 2006/432 dated 8 November 2006; and
• Development consent - DA 2006/432/B dated 27 August 2007.

4 The Notice of Determination for the December 2004 development consent is for the:

Construction of a new playing field that can be used as an occasional car park and land swap to rationalise the boundary between Shore Playing Fields and Willoughby Market Garden site.

5 The new playing field has been constructed and is now known as "playing field G."

6 The Notices of Determination for the November 2006 deferred commencement consent and the August 2007 development consent are for:

Demolition of existing grandstand, seating, tennis courts and outbuildings and construction of grandstand, nine tennis courts, soccer/tennis pavilion and car parking spaces.

7 The deferred commencement conditions require various amendments to the tennis courts, fencing and an access ramp. They also require that the eastern end of playing field G be made available for car parking during all home GPS rugby games and the parking configuration is to be shown on the plans.

The modification applications

8 On 2 April 2007 Shore's architects P D Mayoh Pty Ltd lodged two modification applications with the Willoughby City Council under s 96 of the Environmental Planning and Assessment Act 1979 seeking certain modifications to the 2006/2007 consent. The first of these applications involves the tennis courts and car parking. The second involves the staging of works and other general items.

9 This appeal now involves conditions 71 and 73 in the 2007 consent that relate to the utilisation of playing field G for car parking during certain rugby games and the use of the car parking area south of the grandstand (under construction) for parking during after-school sport and for the pickup of students on weekdays.

Advertising

10 The modification applications were advertised and the council received a large number of submissions. Three of the authors of those submissions gave evidence when the hearing began on-site. The submissions generally comprise objections to the proposed modifications, expressing concerns mainly relating to traffic. In particular, the conditions of consent should not be changed because of the importance of providing an appropriate level of car parking on-site that is necessary to mitigate the serious traffic flow and parking problems in the locality caused by the school's sporting events. The traffic and parking problems mainly arise under two sets of circumstances: first, after normal weekday school hours when students are being picked up from sport training and from the pre and K1 school; and second when the school hosts GPS rugby games on Saturdays. Particular concerns associated with these rugby games that arise include virtual traffic gridlock, illegal parking and blocking of resident's driveways.

11 By Notice of Determination dated 5 August 2008 the council refused the modification applications for four reasons as follows:

1. ... deletion of the 70 car parking spaces at the eastern end of playing field G. reduces the amount of on-site parking to meet demand during home rugby games contrary to Part A.3 and C.4 of Willoughby DCP.
2. ... deletion of condition 71 (Temporary Parking Playing Field G.) - Stage 1 is contrary to Part A.3 and C.4 of Willoughby DCP.
3. ... the allocation of after school parking at the sailors Bay Road parking area, south of the grandstand should be retained meeting Part A.3 and C.4 of Willoughby DCP.
4 ... deletion of condition 75 requiring 4 motorcycle parking spaces is contrary to Part C.4 4B of Willoughby DCP.

12 The applicant has now appealed against this decision although the deletion of Condition 75 that requires the provision of motorcycle parking spaces is no longer sought.

Expert and other evidence

13 Expert traffic engineering evidence was on behalf of the respondent council by Mr C. Hallam and on behalf of the applicant by Mr T. Rogers.

14 Shore’s headmaster, Dr T Wright provided additional evidence regarding the history of the playing fields and how they are and are expected to be utilised in the future.

15 The following conditions are relevant to the appeal:

• Conditions 73 and 74 of the December 2004 consent,
• Deferred commencement condition 1(h) of the December 2006 consent, and Conditions 71 and 73 of the August 2007 consent.

16 Conditions 73 and 74 in the December 2004 consent that are not proposed to be amended provide, in relation to playing field G, that:

73. The playing field is to be used for the parking of spectators’ vehicles, as indicated in the Development Plans, for up to 4 instances per year for the Winter First 15 GPS Competition School Home Games or non-GPS Trial Games.

74. The school is to actively promote the access route (left in/left out from Alpha Road) and availability of the parking on the playing fields for the games referred to in the above condition, including notices and information to parents and other school participants prior to the games.

17 On 8 May 2008 a construction certificate (No: CC-2007/590) (Exhibit 1 - Folio 27) was issued incorporating a plan titled Alpha Road Access and Overflow Parking Details Dwg. No 600120-301 Revision B. That plan shows a layout that reflects the plans accompanying the development application so as to accommodates 220 car parking spaces on playing field G.

18 Deferred commencement condition 1(h) of the December 2006 consent provides that:

1(h) The area at the eastern end of playing field G, adjoining field F, is to be used for additional on-site car parking during all home GPS rugby games and plans are to be submitted showing the car parking configuration and number of spaces. This is in addition to the use of playing field G. as approved under consent 2002/195/A.

19 This condition has been met by the provision of amended plans, including the Proposed Site Plan Dwg. No. D. 001 Issue B (Exhibit 1 - Folio 261). This plan shows the necessary parking area on an area of land between playing field G and playing field F with the notation: additional on-site parking area - 70 car parking spaces.

20 There is however no notation on the plan commensurate with condition1 (h) that these parking spaces are to be used for on-site car parking during all home GPS rugby games as was required by the deferred commencement condition. The applicant does not seek the amendment of this condition.

21 Conditions 71 and 73 as contained in the deferred commencement consent are identical to those contained in the subsequent 2007 consent as quoted below.

The August 2007 consent

22 The August 2007 consent is essentially the reissue of the deferred commencement consent following council's acceptance that the deferred commencement conditions had been met.

23 Condition 2 of the 2007 consent requires that the development must be in accordance with, inter alia, architectural plans numbered Issue B dated July 2007, this being the plan prepared in response to deferred commencement condition 1(h) and identified above as Proposed Site Plan Dwg. No. D. 001 Issue B.

24 Conditions 71 and 73 of the 2007 consent that are sought to be amended deal with temporary car parking on playing field G, and car parking and the pickup of students associated with after school sport.

25 Condition 71 of the 2007 consent provides that:

71. Temporary Parking - Playing Field G.
The school is to actively promote through notices and information to parents and other school participants prior to games the availability of the parking on the playing fields G for home trial GPS games. The access route (left in/left out only from Alpha Road) for playing field G. shall be stipulated.

26 The applicant now seeks the deletion of Condition 71 (but not the identical condition 74 in the 2004 consent) and its replacement with the following new condition (Exhibit C):

71. Playing field G. is to be used for additional on-site parking as provided in this condition to provide for approximately 287 car parking spaces as generally shown on plan.... This additional parking is to be made available for no less than a total of four home GPS competition 1st 15 rugby games and/or home trial rugby games per annum.
The school is to actively promote, through notices and information to parents and other school participants prior to the games, the availability of such parking on Field G.

27 In response the respondent says that condition 71 can be replaced with the following (Exhibit 6 - respondent's letter dated 22 September 2008):

71. Playing field G is to be used for additional on-site parking, to provide a total of 287 car parking spaces as shown on Plan XYZ. This additional parking is to be made available on all days when home GPS competition First XV rugby games and home trial rugby games are played.
The school is to actively promote through notices and information to parents and other school participants prior to the games, the availability of this parking on playing field G.

28 The alternate version of condition 71 in Council's letter dated 23 September 2008 (Exhibit 8) was not pressed.

29 Mr Hallam and Mr Rogers agreed that the following should be incorporated into condition 71 in relation to with playing field G (Exhibit 5):

A plan of management of the parking is required, prior to the operation, showing how the parking will be laid out and how spectators will be managed in the parking area. The plan could include, but not be limited to, procedures for setting out the car park and the number of traffic marshals required and their duties.

30 I do not understand that the traffic experts' requirement for a plan of management is opposed.

31 A comparison between the two different versions of proposed condition 71 reveals the disagreement between the parties to be whether the now proposed 287 car parking spaces should be:

... made available for no less than a total of four home GPS competition 1st 15 rugby games and/or home trial rugby games per annum.
Or,
... made available on all days when home GPS competition First XV rugby games and home trial rugby games are played.

The associated conditions and evidence

32 As already noted condition 73 of the 2004 consent requires that playing field G be made available for up to four instances per year for 1st 15 GPS competition or non-GPS trial games. The applicant's proposed condition for a total of four games would not be inconsistent with this condition whereas the respondent's condition that it be available on all days goes beyond it.

33 The additional 70 car parking spaces provided in response to deferred commencement condition 1(h) in the 2006 deferred commencement consent were originally to be located between playing field G. and playing field F. These are now to be provided on playing field G, in addition to the originally provided 220 car spaces. The car parking spaces were required by condition 1(h) to be provided during all home GPS rugby games and in my opinion it would be appropriate to give the plain meaning of this requirement weight, even though condition 71 in the 2007 consent adds the word ‘trial’ in referring refers to home trial GPS rugby games.

34 With regard to the phrase home trial GPS games in condition 71, I note that the council officer' s report of 8 November 2006 (Exhibit 1 -folio 70) that preceded the issuing of the deferred commencement consent contains a recommended condition 69 that is in relevant respects identical to condition 71 and contains the phrase home trial and GPS rugby games. In the circumstances and bearing in mind the evidence of Dr Wright (that I will refer to shortly) it is appropriate to interpret condition 71 as if it refers to home trial and GPS rugby games.

35 In his letter dated 17 September 2008 (Exhibit B) Dr Wright explained that in relation to winter rugby:

Up to eleven Saturday fixtures are played in Terms 2 and 3 between mid-May and the end of August. Seven of these Saturday fixtures have historically been GPS competition matches, with four played at home and three away in any one year and vice versa in the alternate year. The other matches played are called trial fixtures and are also played home or away (with approximately half the games at home), although the schools played may vary.

36 Hence, five or six (alternate years) of the eleven 1st rugby games are played on the main oval.

37 Dr Wright also addresses the question of crowd attendances at the home matches that are greatest for the 1st and 2nd grades. Family members of the boys who are playing in the match and other Shore boys typically dominate such attendances that can be up to 300 although a match for the premiership would attract twice as many. It was his opinion that the improved facilities, including the new grandstand would not necessarily generate any additional attendance at the games.

38 The above-mentioned council officers report in considering traffic generation concludes that a total of 450 on site car parking spaces would be satisfactory to cater for demand associated with peak usage times associated with GPS home games and up to 300 spaces at other times. This number of parking spaces was not incorporated into the 2006 deferred commencement consent or the 2007 consent.

39 In the traffic engineer's joint report Mr Hallam was of the opinion that the new grandstand plus bank spectator areas will have a greater spectator capacity than the previous arrangement with a total capacity of about 900. Mr Rogers did not disagree but contended that the new grandstand would not generate any additional demand for parking. They agreed that the provision of 290 car parking spaces on playing field G would satisfy the requirements of condition 1(h).

40 Hence the planning matter that needs to be decided is whether playing field G should be made available for no less than four or for all 1st XV have games per year in the light of condition 73 of the 2004 consent that gives the applicant the option of using it for up to four games per year. Development Consent 1(h) that refers to all home GPS games and condition 71 in the 2007 consent.

Conclusions - proposed condition 71

41 In my opinion the respondent's contention that playing field G should be available for car parking for all games is consistent with condition 71 and deferred commencement condition 1(h) of the 2007 consent. In my opinion, greater weight should be given to the more recent condition 71 than condition 73 in the earlier 2004 consent that only requires the use of playing field G for up to four instances per year.

42 Hence, to modify the consent such that the use of playing field G for car parking should be for no less than four games per year and should the school decide not to open the field for parking on the one or two other days when first XV games are played, would result in adverse traffic and parking impacts on surrounding areas of the kind described by the resident objectors and referred to by the traffic experts. This impact would vary depending upon whether the games held on the one or two other days involved a large or a small attendance. There will nevertheless be an impact.

43 I understand that the school wishes to use its discretion in relation to the one or two other days, taking into account likely attendance and no doubt the arrangements that need to be made and impacts on the playing surface. In my opinion this is not the point because even if only a relatively small attendance was involved there must still be some impact bearing in mind that none of the now proposed 287 car parking spaces would be available on those days.

44 I also note that there is a level of uncertainty associated with the applicant's proposed condition 71 in that the minimum four games need not necessarily comprise those games that attract the greatest attendance and therefore the greatest amount of traffic and its attendant impacts.

45 In these circumstances I am of the opinion that the development as modified by the applicant's proposed condition 71 would, in relation to car parking, exhibit a degree of unnecessary uncertainty. Also, if modified as sought, the development would be likely to cause additional traffic and car parking impacts. In this context, I accept that the use of field G on one or two additional occasions would not unreasonably interfere with the ability to use the field for scheduled rugby. The applicant's proposed condition 71 is thus not acceptable.

46 The uncertainty and the likely additional impacts will be avoided by the respondent's version of the condition and having been persuaded that it would be an appropriate response to the deletion of the present condition 71, I have decided to impose it.

47 I also agree that the above-mentioned additional condition requiring a plan of management for playing field G as recommended Mr Hallam and Mr Rogers should be incorporated into condition 71.

48 Condition 73 of the 2007 consent provides that:

73. Parking - After School Sport.
Parking during after-school sport and the pickup of students on weekdays shall occur within the car parking area located south of the grandstand accessed from Sailors Bay Road.

49 The applicant seeks the deletion of condition 73, notwithstanding that it now proffers the following alternative version (Exhibit 7 - Mr Rogers):

73 – Parking – After School Sport.
The school shall permit parking associated with after-school sport (both staff and students) on weekday afternoons to occur within the western car park, located to the south of the grandstand, accessed off Sailors Bay Road.
The school shall direct students associated with after-school sport on weekday afternoons not to park their vehicles on Sailors Bay Road.

50 In response the respondent says that condition 73 can be replaced with the following (Exhibit 7 - Mr Hallam):

73 Parking for after-school sport on weekdays shall occur within the car parking area located south of the grandstand accessed off Sailors Bay Road or on Alpha Road.
The pickup of students on weekdays shall occur within the car parking area accessed off Sailors Bay Road, on the northern side of Sailors Bay Road or on Alpha Road.
The school should put into place management procedures to encourage parents/carers to use the on site area for picking up students, instead of on Street areas, and to expressly permit students to park on the site. Buses setting down and picking up students shall use kerb space in either Alpha Road (eastern side) or Sailors Bay Road (northern side).

The disagreement in relation to proposed condition 73

51 Relevantly, the first two paragraphs of the respondent's proposed condition 73 have essentially the same effect as the existing condition 73 in the 2007 consent. The proposed third paragraph introduces certain management procedures that are not included in the existing condition.

52 The applicant's proposed condition 73 is similar to the existing condition 73 except that instead of requiring that parking shall occur in the car parking area south of the grandstand, such parking need only be permitted. Also, there is now no reference to the pickup of students within the car parking area.

53 The main differences between the two alternative versions of condition 73 are as follows:

• The applicant's condition requires that it shall permit parking to the south of the grandstand whereas the respondent's condition requires that parking shall occur to the south of grandstand.
• The respondent's condition requires that the applicant permit on-site parking by students whereas the applicant's condition provides that it shall direct students not to park on Sailors Bay Road.
• Whilst the applicant's condition does not deal with the pick up of students, the respondent's condition requires that the pick up shall occur in the car parking area or the northern side of Sailors Bay Road or on Alpha Road and the implementation of management procedures to encourage on-site pickup.

The associated evidence

54 In relation to car parking, condition 73 is aimed at dealing with the cars associated with between 10 and 20 boys and 20 to 25 staff members that might attend the playing fields on any afternoon after-school. The majority of these cars will arrive at around 4 p.m. and leave between 5.10 and 5.40 p.m. with some leaving as late as 6 p.m. Otherwise boys are brought to and taken away from the playing fields by bus. The pickup and set down of these boys occurs in Sailors Bay Road and the traffic experts have no concerns in this regard.

55 The traffic experts also agreed that there is ample on-site parking in the two-abovementioned car parking areas to accommodate any student parking that otherwise might have taken place in surrounding streets. Some concern was expressed regarding illegal parking in sailors Bay Road.

56 The two car parking areas have a common access and egress (separate) off Sailors Bay Road, one to the south of the grandstand and the other to the south of the main oval. The latter car park is commonly utilised by the early school learning centre where some 50 children can be collected generally between 4 p.m. and 6 p.m. resulting in a 40-minute time crossover with the arrival and departure of the above-mentioned boys and staff members. Dr Wright was concerned here about safety, taking into account that schoolboys with less driving experience than most and who drive through the car park would create a slightly less safe environment for the early learning centre children and their carers. Despite this I agree with the traffic experts that the safety of these children who are under the supervision of an adult, parent or carer in a low speed environment would not be at any unreasonable risk.

57 Mr Rogers was of the opinion that a requirement for all after-school set down and pick up and parking to take place within the two car parking areas would result in inconvenience and additional impacts on the surrounding road network. In reaching this conclusion he took into account the size of the site and the different gates where students can gain egress and where they can be more conveniently picked up. Also, taking also into account that egress from the car park is left out only this would mean, if all pickups were to occur within the car parks, and depending upon the direction of travel (to and from the site) this would generate a number of unnecessary "trips around the block".

Conclusions - proposed condition 73

58 In relation to car parking, condition 73 requires that all car parking during after-school sport shall occur within the car parking area located south of the grandstand. In this regard I understand the applicant's contention that to expect the school to achieve compliance with this condition for all car parking would be unreasonable because it would be so difficult to enforce. However, whilst I agree that enforcement of such parking for parents, carers and others would be difficult, it would not be so difficult to enforce for staff and students. In this regard the school's more direct supervisory powers over staff and students must be recognized.

59 Taking into account that there was no evidence of a serious deficiency of on street parking spaces during the after-school period I have decided that there is no imperative for the imposition of a condition making it mandatory for all such parking to occur on site. I nevertheless agree that it would be appropriate for the car parking area to be made available for this purpose as proposed and for staff and students to be strongly encouraged to use it. In reaching these conclusions I have given weight the fact that condition 73 presently requires on-site parking. Also, notwithstanding the availability of on street parking, to require any less than the encouragement of on-site parking could have at least some parking/traffic impacts on the surrounding streets by comparison with what is presently required.

60 In these circumstances I accept the applicant's version of condition 73, subject to it being amended so as to include a requirement to the effect that not only is parking permitted in the car park but that it is also to be encouraged.

61 Taking into account the concerns about some student parking in Sailors Bay Road, the applicant's second paragraph in proposed condition 73 should also be included. Again, notwithstanding possible enforcement difficulties, I recognise the school’s more direct supervisory powers over its students.

62 Conversely, I agree that it would be difficult to enforce the picking up of students by parent/carers after sport in the afternoons within the car parking area. Taking this into account together with what Mr Rogers said about convenience and inconvenience I would not impose a requirement that the pickup of students must occur within the car park.

63 However, a consequence of the deletion of condition 73 that requires that students must be picked up within the car parking area is that this activity will take place in surrounding streets and it must follow that there would be some resultant impact on traffic in these streets. As a consequence of this impact, I have decided to impose an amended version of the respondent's second paragraph to the effect that the parking area can still be used for the picking up of students. Also its use is to be encouraged, a matter that is within the school's capability.

64 For the above reasons I have decided that conditions 71 and 73 of the 2007 consent can be deleted and replaced with amended versions of the conditions proffered by the parties as described above. In my opinion the amendments that I have made to these conditions deal with the same planning matters as the original conditions and are directly related to the modification applications.

______________________
T A Bly
Commissioner of the Court
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