Teakle v Wollondilly Shire Council

[2007] NSWLEC 740

Land and Environment Court

of New South Wales

CITATION:

Teakle & Anor -v- Wollondilly Shire Council [2007] NSWLEC 740

PARTIES:

APPLICANT
Mr R. Teakle and Mrs K. Teakle

RESPONDENT
Wollondilly Shire Council

FILE NUMBER(S):

10426 of 2007

CORAM:

Bly C

KEY ISSUES:

Development Application :- Use of an existing rural/residential property for the purposes of a business training facility, educational establishment, zone objectives, amenity of neighbours

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Wollondilly Local Environmental Plan 1991
Environmental Planning and Assessment Model Provisions 1980

DATES OF HEARING:

04/09/2007 and 02/11/2007

 
DATE OF JUDGMENT: 

13 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Hannaford, solicitor
of Hannaford Lawyers

RESPONDENT
Mr D. Baird, solicitor
of Marsden Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Bly

13 November 2007

10426 of 2007 Ross Teakle & Ors -v- Wollondilly Shire Council

JUDGMENT

Introduction

1 This appeal relates to Development Application No D694-06 for the use of an existing rural/residential property for the purposes of a business training facility at 210 Donald Range Rd., Razorback. The owners of the property also propose to use the premises on a limited basis (weekends) for residential purposes. Sixteen on site car parking spaces are to be provided, two of these in the garage.

2 According to the applicant's plan of management, that is intended to be incorporated into the proposed conditions of consent, there will be no seminars or training days on Saturdays or Sundays with a maximum of 15 training days per calendar month. Participants in these training days (ie those who attend the training courses) will only be provided with overnight accommodation for a maximum of eight nights per calendar month. Any one-day seminar will be for a maximum of 20 participants and any two-day seminar will be for a maximum of 12 participants. These numbers do not include trainers or cleaning, gardening and catering staff.

3 The site being Lot 22 DP 708515 has a frontage of about 147m to Donalds Range Road, an area of 2.034ha and is developed with an existing dwelling house that has been variously modified for the proposed training facility. Otherwise the site is extensively cleared although there is an area of scattered vegetation, comprising mature trees between the house and the Donald Road frontage.

4 The locality primarily comprises rural residential properties with some low intensity agricultural uses to the west and south.

5 This judgement concludes that the proposed training facility being an educational establishment is permissible with development consent. It also concludes that the proposal will appropriately meet the objectives of the applicable land use zone and, subject to appropriate conditions will not so affect the amenity of its neighbours that it should be refused.

Planning controls

6 The site is zoned 7(c) Environmental Protection C (Rural Living Zone) under Wollondilly Local Environmental Plan 1991 ("the LEP") and in this zone an educational establishment, is permissible with development consent whereas commercial premises are prohibited. In this regard it was initially contended by the respondent that the application must be refused, as it comprises the use of the site for commercial premises, which are prohibited in the 7(c) zone.

7 When the hearing began on-site I dealt with the question of prohibition or permissibility, deciding that the proposed training facility was an educational establishment and was thus permissible with development consent.

8 The Environmental Planning and Assessment Model Provisions 1980 ("the model provisions") are adopted by the LEP in cl 7. Commercial premises and educational establishment are respectively defined therein as:

Commercial premises means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere specifically defined in this clause.

Educational establishment means a building used as a school, college, technical college, academy, lecture hall, gallery or museum, but does not include a building used wholly or principally as an institution or child care centre.

9 By excluding a building or place elsewhere specifically defined, commercial premises thus excludes an educational establishment that is separately (i.e., elsewhere within the model provisions) specifically defined. Hence, if the proposal on its facts falls within the definition of educational establishment then it is not commercial premises.

10 In my opinion the proposal does comprise an educational establishment. I reached this conclusion taking into account the description of the training activities conducted by the applicants who are qualified to conduct such activities and having seen their brochures and the training facilities and equipment. In reaching this conclusion I also took into account the fact that some sleeping accommodation and catering facilities are provided, to enable those participating in the training to stay overnight as part of a two-day training course. In my opinion these facilities are ancillary to the principal purpose of educational establishment.

11 With the proposed educational establishment being permissible with consent, cl 10 (3) of the LEP becomes relevant. This clause requires that consent shall not be granted to the carrying out of development unless the consent authority is of the opinion that the carrying out of that development is relevantly consistent with the objectives of zone 7(c).

12 The objectives of the 7(c) zone said by the respondent to be applicable are:

(a) To provide for rural living opportunities, and

(b) To encourage the preservation of the rural landscape character by ensuring that development is compatible with that character.

13 Also, in my opinion, the following objective is also relevant:

(d) to maintain existing significant stands of indigenous vegetation.

14 Clause 13B of the LEP deals with the subdivision and the erection of dwelling houses within Zone No 7(c). In effect it requires that allotments created by subdivision must have an area of at least 2 ha and that consent for the erection of a dwelling house cannot be given unless the allotment upon which it is to be erected has an area greater than 2 ha.

15 There are two development control plans that are relevantly applicable to the site. The Wollondilly Rural Living Development Control Plan relevantly deals with scenic and landscape quality, water quality, access driveways and roads. Whilst Development Control Plan No 7 – Off Street Parking contains requirements for the provision of car parking spaces and the design of car parking areas no issue was raised in relation to its provisions.

Advertising and Council's decision

16 The application was advertised and six submissions were received from nearby property owners raising objection to the proposal. In essence the matters of concern include:

• The site and locality are unsuitable for the proposed conference centre.
• Increased traffic volumes on dangerous local rural roads is inappropriate and will compromise safety of residents.
• The training facility will, taking into account the commercial nature of the proposal and its signage, be out of character with the locality.
• The allotment is too small for the purpose, being unable to disguise the commercial activity.
• The training facility has been operating for almost a year, presumably legally.
• Night-time light spillage impacts on neighbouring properties.
• Overlooking of neighbouring properties, especially by strangers.

17 A number of letters of support for the proposal were also submitted to the council following its decision to refuse the application. These letters suggest that the proposal would continue to have a very low impact on the character of the area particularly in terms of noise and traffic.

18 The application was refused by the council for reasons that in essence comprise:

• The training facility does not meet objectives (a) and (b) of the 7(c) zone in relation to rural living and landscape character.
• The training facility would not be compatible with existing surrounding rural residential land uses.
• The training facility would as a result of its impacts on the existing amenity not be in the public interest.

19 These reasons for refusal form the basis of the council's contentions that the proposed development is unacceptable because it does not provide for rural living opportunities and will detract from the rural landscape character and is thus inconsistent with objectives (a) and (b) of the 7(c) of the LEP.

The evidence

20 Mr M. Brown, the parties' single expert, provided expert town planning evidence for the assistance of the Court. Subject to appropriate conditions of consent he supported the proposal.

21 A number of objectors and supporters gave supplementary oral evidence to the effect of the above on the first day of the hearing.

Amended plans

22 When the hearing began on-site, the matters of concern to the council were explored at length and with a view to resolving these concerns the matter was adjourned to enable the preparation and notification of amended plans and a management plan. The respondent continues to oppose the proposal for essentially the same reasons that it refused the application in the first instance.

Zone objectives

23 Objective (a) of the 7(c) zone is to provide for rural living opportunities. By virtue of cl 13B of the LEP, subdivision of land into 2 ha lots and the erection of dwelling houses on these lots is permissible. By facilitating development that comprises rural living opportunities this objective is met.

24 As quoted above objectives (b) and (d) provide for the preservation of the rural landscape character by ensuring that development is compatible with that character and the maintenance of existing significant stands of indigenous vegetation.

25 By considering objectives (a), (b) and (d) together. It is clear that the primary intention of the 7(c) zone is to facilitate rural residential development in a rural landscape whilst maintaining indigenous vegetation.

26 This primary intention would not be met by the proposed training facility, it being an educational establishment rather than comprising rural residential development. (The occasional use of the premises for residential purposes would not be contrary to this intention but this use is, in my opinion, secondary to the principal use of the educational establishment). But this cannot be determinative of a development application for an educational establishment, being a land use that is permissible with development consent in the 7(c) zone. Objectives of a land use zone cannot prohibit a land use that is made permissible by the land use table.

27 Nevertheless any application for a land use that is different to what in this case I have described as the primary intention of the zone (and as described by Mr Brown as the overarching principal of protection of environmental amenity in a rural living context) needs to be considered in the light of that intention and the zone objectives themselves. This is made plain by cl 10(3) of the LEP that requires that development is to be consistent with the zone objectives. For similar reasons, the requirement for consistency with the zone objectives cannot mean that there be no development in the 7(c) zone other than development described as rural living. It must thus be possible for an educational establishment to be established provided that it is, in the light of the objectives, appropriately sensitive to these objectives.

28 In relation to the objectives of the 7(c) zone Mr Brown was satisfied that, taking into account the amended plans and the applicant's plan of management that there was no inconsistency and that the application should be approved. In this context he noted that the use of the property for a training facility does not change the appearance of the existing dwelling and that the car parking area is now appropriately screened, taking into account the existing vegetation and proposed landscaping.

29 Leaving aside for the moment the human activity that is likely to take place on the site, I agree with Mr Brown's conclusions. For the most part the physical development on the site will be very much like other rural residential development in the locality, that being a dwelling house on a 2 ha site with that house being well set back from its boundaries. Whilst much of this site is substantially cleared of vegetation that there will remain (as sought by objective (d) of the 7(c) zone), in the context of a 2 ha site, a visually significant copse of indigenous vegetation that is to be supplemented by further plantings.

30 The main visual impacts that are likely to distinguish the proposed training facility from other rural residential properties in this locality include the car park, traffic generation and extent of human activity on the site.

31 Dealing firstly with the visual impacts associated with on-site car parking, I agree with Mr Brown that the car parking area will be significantly screened from Donalds Range Road and from neighbouring properties by existing vegetation. In addition, proposed additional landscaped plantings will provide further screening.

32 As described above there will be up to 20 participants attending training courses on up to 15 days per month. From time to time, for example during teaching breaks, participants will wander around the site or utilise the allocated outdoor areas and patios. Depending upon where these people are at the time they may or may not be able to be seen from neighbouring properties or from Donalds Range Road. In my opinion if the majority of say 20 participants could be seen from these properties or the road this would be so unlike the appearance of other rural residential development in the locality as to be unacceptable and must be addressed.

33 However it will be relatively easy to ensure that there is no conspicuous significant congregating of participants. In relation to the neighbouring property about 100m to the north, the applicant proposes to mitigate this concern by providing a restricted area to the north of the existing building and extending to the site's Donalds Range Road frontage. Supplementary landscaping in this area is also proposed.

34 For the most part I am satisfied that that the existing vegetation on the site plus the landscaping scheme's supplementary plantings as depicted in the applicant's plans (Exhibit F) will generally achieve the degree of screening human activity on the site and the cars in the car parking area. It nevertheless needs to be improved before the arrangement warrants approval. In this regard the applicant has agreed to amended conditions of consent that require a revised landscaping scheme prepared by a qualified landscape architect. Such a scheme will have the purpose of supplementing existing vegetation in such a way as to screen the car park and reduce opportunities for observing groupings of people on the site especially from the neighbouring property to the north and from Donalds Range Road. Also the landscaping is to be designed so as to be sensitive to the indigenous rural landscape character of the locality.

35 In this context I note that the applicant originally proposed a new screening fence extending along the northern alignment of the existing building a distance of 20m to the west to prevent viewing of the outdoor patio areas from the north. Whilst Mr Brown did not believe this to be necessary I think that it would be appropriate at least until such time as the proposed landscaping is established. In addition the same length of screening fence should be provided on the same alignment a distance of 20m to the east of the existing building. Such a fence, if constructed as a “brush fence” or the like, should have an acceptable appearance and as the landscaping matures become less apparent. A similar screen fence should be constructed adjacent to car spaces 1 and 3 to further screen the car parking area from Donalds Range Road.

36 A further matter to be considered in relation to the rural residential zone objectives involves the traffic generated by this development. It seems to me that the worst case scenario would involve 16 participant's cars arriving or departing within half an hour or so of a training course commencing or finishing. During this time it is also possible that trainers and catering staff might also arrive. Conversely it is also possible that a fewer number of cars could be involved over longer periods. I also understand that on some occasions, participants will arrive in a minibus.

37 Mr Brown considered the likely traffic generation associated with this development and was of the opinion that in the context of existing and likely future traffic utilising Donalds Range Road that there would be no unreasonable impact.

38 I expect that the additional traffic generated by this development will, taking into account the likelihood of some concentration, on some occasions probably be noticeable by the immediate neighbours, especially given what I understand to be the relatively low volumes of traffic using Donalds Range Road. However I agree with Mr Brown that the impact would not so adversely affect the rural residential character of this area so as to make it unacceptable. In this context I have taken into account the provisions of the plan of management that is aimed at the behaviour of participants coming to and leaving the premises, requiring that they do so in a quiet and appropriate manner. I have also taken into account the reduced impact associated with the sometime use of the minibus and the fact that the two-day training programs are limited to 12 participants with obviously fewer cars.

39 Subject to these above additional conditions I am satisfied that the appearance of the development whether viewed from neighbouring properties or from Donalds Range Road, the carrying out of proposed development would be relevantly consistent with the objectives of the 7(c) zone.

Amenity of neighbours

40 The remaining issues in the case involve whether the proposed training facility would adversely affect the rural residential amenity of neighbouring properties in relation to noise, privacy and light overspill.

41 The neighbours to the north and west expressed some concern that the noise associated with the outdoor activities of the proposed training centre will adversely affect their quiet rural residential amenity. No concerns were expressed as to any indoor training activities.

42 According to the plan of management, participants will only be permitted to congregate outdoors until 10 p.m. on weeknights and 9:30 p.m. on Sunday nights and because only eight overnight stays per calendar month are permitted, these occurrences are limited. According to Mr Brown, given the 10 p.m. restriction this means that the sleep disturbance period as referred to in the Environment Protection Authority's Noise Control Manual would not be infringed. He also said that the additional traffic in Donalds Range Road would not cause any noise disturbance particularly given that the additional traffic generation would typically be outside the sleep disturbance period.

43 I again agree with Mr Brown's reasoning in relation to this matter. I have also taken into account, notwithstanding the significant distance of separation to nearby dwelling houses, the existing quiet rural residential amenity together with the provisions of the plan of management that will be required to be made available to neighbours plus a contact telephone number for use in the event of any issue arising through the inappropriate or unreasonable use of the premises.

44 As for the matter of loss of privacy, I understand that this is only a matter of concern to the neighbours to the north. Taking into account what I have already concluded in relation to landscaping, privacy fences and that restricted area I do not see that this is a matter of determinative significance.

45 The remaining issue of concern to the neighbours involves light overspill, this mainly arising from the applicant's use of spotlights to illuminate the landscape areas around the existing building. The lighting regime now proposed is subject to conditions of consent requiring that floodlights are to be removed and replaced with localised ambient outdoor lighting and that all external lighting other than ambient lighting shall be switched off by 9:30 p.m.

46 As a consequence of these conditions the lighting arrangement on the site will, I expect, be appropriately sensitive to the rural residential environment and as a consequence what is now proposed is reasonable.

47 Finally, it was submitted on behalf of the council that a condition of consent be imposed on the proposal requiring that participants arriving on a Sunday should not arrive before 4 p.m. The applicant says that this should be 2.30 p.m. for flexibility. On the basis that I accept that this opportunity would not be taken up on a frequent basis or indeed by the majority of participants I agree that the 2.30 p.m. time is not unreasonable.

48 I have therefore decided that the appeal should be upheld and conditional development consent granted. The conditions will be in accordance with Exhibits 7 and G, including changes made to the conditions during the latter part of the hearing, particularly in Exhibit G. Exhibits 7, E, F and G are retained.

___________________

T Bly
Commissioner of the Court
EM/ljr