The Contributors Society Ltd trading as Western Grammar School v Blacktown City Council

[2021] NSWLEC 1442

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Contributors Society Ltd trading as Western Grammar School v Blacktown City Council [2021] NSWLEC 1442

Hearing dates:

7-8 June 2021

Date of orders:

4 August 2021

Decision date:

04 August 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the application and rely upon amended plans marked Exhibits B, C, D and E subject to paying the Respondent’s costs thrown away as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The appeal is dismissed.

(3) Development consent for Development Application DA-20-00607 seeking consent for Staged development for alterations and additions to Western Grammar School at Lot 1 DP 1172313, 15 Cannery Road Plumpton is refused.

(4) All exhibits are returned, except for Exhibits A, B, E and 8.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an existing educational establishment – development prohibited in the R2 zone – clause 4.6 written request – height exceedance

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 and 8.15

Blacktown Local Environmental Plan 2015 cll 4.3 and 4.6

State Environmental Planning Policy (Educational Establishments and Child Care Centres) 2017, cll 19A, 35 and 39, Schs 2, 4

Rural Fires Act 1997

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Texts Cited:

Blacktown Development Control Plan 2015

Category:

Principal judgment

Parties:

The Contributors Society Ltd trading as Western Grammar School (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Denison Toyer (Applicant)
Bartier Perry (Respondent)

File Number(s):

2021/48945

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Blacktown City Council (the Respondent) of Development Application DA-20-00607 seeking consent for Staged development for alterations and additions to Western Grammar School at Lot 1 DP 1172313, 15 Cannery Road Plumpton (the site).

2. The Applicant, trading as Western Grammar School, seeks consent for the following works:

• demolition of the existing single storey administration building;

• removal of 4 temporary demountable buildings;

• construction of two new 2-storey school buildings and a basement staff car park with access off Bottles Road;

• increase student number from 320 to 550 with 20 additional staff; and

• associated landscaping, stormwater drainage works and signage.

The site and its context

3. The site has frontages of 51.1m to both Bottles Road to the north, and Cannery Road to the south, comprising a total site area of 4,112m².

4. The site is an operating school, with a number of buildings arranged around a central, external play space.

5. Vehicle access is provided via secure gates operated by security staff on both Bottles Road, which is used for student drop off and pick up, and via Cannery Road, which is for staff and visitor parking associated with the administration building, reception functions and the like.

6. A number of schools address Bottles Road. Immediately opposite the site to the north are the Plumpton High School and Plumpton Public School.

7. On the southern side of Bottles Road, at the intersection with Rooty Hill Road North, to the east of the site, is the campus of the Plumpton House School.

8. The area between the subject site and Plumpton House School is predominantly occupied by single storey detached dwellings.

9. Medium density townhouse and multi-dwelling development predominates between the subject site and Hyatts Road to the west of the subject site, and a building used as a place of worship is located at No 9 Cannery Road, although the site also has a frontage to Bottles Road.

10. A large area of open space known as Plumpton Park lies to the south of the site, across Cannery Road which is classified as RFS Bushfire Zone, Category 1 and the site is identified as RFS Bushfire Zone, Buffer 1 according to the Respondent’s bushfire map (Exhibit 2, folio 280).

The application is amended

11. At the commencement of the hearing, the Applicant sought leave to amend the application and rely upon amended plans that it submits are responsive to joint expert conferencing.

12. The Respondent opposed leave being granted on the grounds that the amendments were served late, depriving the Respondent of the opportunity for relevant expert review.

13. In particular, amendments now proposed to the car parking arrangement on the Bottles Road frontage provides for the addition of five canopy trees which has the effect of relocating two car parking spaces to an enlarged basement carpark. The Respondent submits the amendments raise new contentions.

14. In particular, the landscaping now proposed is contrary to the General Terms of Approval (GTA’s) issued by the Rural Fire Service (RFS) placing certain limits on landscape plantings on the site, which is located within a bushfire buffer zone, and for which expert advice is required.

15. Additionally, the parties made submissions on whether the amendments now proposed were minor for the purposes of s 8.15(3) of the EPA Act.

16. I determined that some amendments may be described as ‘housekeeping’, such as the apparent correcting of drawings to show the removal of a covered play shelter. Other amendments, such as those evident on the landscape plans may require an assessment by the planning and urban design experts in respect of visual impact on the Bottles Road frontage, and by bushfire experts in respect of the consistency with GTA’s issued by the RFS.

17. As the GTA’s issued by the RFS were before the Court (Exhibit 3, Tab 11) and so their scope and content known, the Applicant was granted leave to amend the application, but I concluded that the amendments were more than minor, and that the Applicant must pay the Respondent’s costs thrown away as agreed or assessed.

18. For clarity, the documents for which leave was granted include the following:

• Amended architectural plans (Exhibit B)

• Amended landscape plan (Exhibit C)

• Amended waste management plan (Exhibit D)

• Supplementary noise assessment and School Management Plan (Exhibit E)

19. In the course of the hearing, the landscape plan was substituted with a further amended landscape plan, and the Court directed the Applicant to file and serve expert advice in respect of compliance with the GTA’s issued by the RFS by 9am of the day following the Court reserving its decision, which was done.

20. The expert advice identified non-compliances, broadly defined as requiring removal of trees, insufficient separation between plantings, requiring alterative plant selections, or a maintenance plan.

21. The Court also directed the parties to confer on the proposed draft without prejudice conditions of consent and to file an agreed set of conditions or in the event that agreement is not reached, parties are to provide conditions with short commentary on the conditions remaining in dispute within 14 days.

22. Within the same period, the Respondent was directed to seek the expert advice of a bushfire expert and provide short submissions if deemed necessary.

23. The parties were granted an extension of time to comply with the Court’s directions.

24. Late on 26 July 2021, the parties filed conditions of consent that were agreed, except for two conditions in respect of waste generation (Condition 3.8.1), and acoustic treatment (Condition 6.2.1).

25. The Respondent also provided to the Court an expert report prepared by Mr Matthew Adamcewicz dated 15 July 2021, opposed by the Applicant, and revised GTA’s issued by the RFS, subject to conditions, dated 21 June 2021.

The issues

26. As I understand the issues in contention, they may be grouped in the following four broad domains:

• Visual impact and amenity

• Acoustic impact

• Traffic, parking and pedestrian issues

• Waste management

27. In considering the issues, the Court was assisted by the following experts:

• For the Applicant: Mr John Wasserman (Acoustic), Mr Nick Juradowitch (planning), Mr James Cosgrove (Waste), Mr Robert Varga (traffic).

• For the Respondent: Mr Stephen Gauld (Acoustic), Ms Sami Ahangari and Mr Peter Smith (planning), Mr Garry Dickens (waste), Mr Matthew McCarthy (traffic).

The onsite view and public submissions

28. In accordance with its usual practice, the proceedings commenced with an onsite view that initially convened at the school gates fronting Cannery Road and from where public submissions were heard.

29. In the company of the parties and the experts, the Court was taken west on Cannery Road to observe the open space of Plumpton Park, the medium density residential development, and place of worship, before turning north on Hyatts Road at which point the location of the Good Shepherd Catholic School and Plumpton shopping centre were identified.

30. The Court was then taken east along Bottles Road and beyond the subject site from where the grounds and built form of the Plumpton High School and Plumpton Public School were observed.

31. While standing on Bottles Road looking west, Mr Juradowitch identified a location east of the site, from which the subject site, buildings at the Plumpton High School and parts of Hyatt Road are in view, and that Mr Juradowitch believes to be a relevant point of reference in considering the proposed built form in its context.

32. As stated earlier, oral submissions were taken at the commencement of the onsite view, from three residents. Notes taken during their submissions were agreed by the parties and marked Exhibit 8. Written submissions from those residents, and others, are contained in Exhibit 3, Tabs 1-9.

The provisions of the State Environmental Planning Policy (Educational Establishments and Child Care Centres) 2017 apply

33. The site is located within the R2 Low Density Residential zone under the Blacktown Local Environmental Plan 2015 (BLEP), in which development for the purposes of an educational establishment is not permitted within the Land Use Table.

34. However, as the development the subject of the development application is for alterations and additions to an existing educational establishment, the provisions of the State Environmental Planning Policy (Educational Establishments and Child Care Centres) 2017 (Education SEPP) apply.

35. Alterations and additions to educational establishments, which includes schools, may be defined as complying development where undertaken on land within the boundaries of an existing school pursuant to cl 39 of the Education SEPP. However, cl 19A(1) precludes development from being defined complying development where proposed on land that is subject to bushfire attack, as is the case in this matter.

36. Clause 35(1) of the Education SEPP permits development for the purpose of a school to be carried out with development consent on land in a prescribed zone, which is the R2 zone in this case. However, before determining an application for such development, the consent authority, or the Court exercising the functions of the consent authority on appeal, must take into consideration the following, at subcl (6):

Before determining a development application for development of a kind referred to in subclause (1), (3) or (5), the consent authority must take into consideration—

(a) the design quality of the development when evaluated in accordance with the design quality principles set out in Schedule 4, and

(b) whether the development enables the use of school facilities (including recreational facilities) to be shared with the community.

37. The relevant design quality principles in Schedule 4 of the Education SEPP that are applicable to the issues in contention are:

Principle 1—context, built form and landscape

Schools should be designed to respond to and enhance the positive qualities of their setting, landscape and heritage, including Aboriginal cultural heritage. The design and spatial organisation of buildings and the spaces between them should be informed by site conditions such as topography, orientation and climate.

Landscape should be integrated into the design of school developments to enhance on-site amenity, contribute to the streetscape and mitigate negative impacts on neighbouring sites.

School buildings and their grounds on land that is identified in or under a local environmental plan as a scenic protection area should be designed to recognise and protect the special visual qualities and natural environment of the area, and located and designed to minimise the development’s visual impact on those qualities and that natural environment.

…

Principle 5—amenity

Schools should provide pleasant and engaging spaces that are accessible for a wide range of educational, informal and community activities, while also considering the amenity of adjacent development and the local neighbourhood.

Schools located near busy roads or near rail corridors should incorporate appropriate noise mitigation measures to ensure a high level of amenity for occupants.

Schools should include appropriate, efficient, stage and age appropriate indoor and outdoor learning and play spaces, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage and service areas.

…

Principle 7—aesthetics

School buildings and their landscape setting should be aesthetically pleasing by achieving a built form that has good proportions and a balanced composition of elements. Schools should respond to positive elements from the site and surrounding neighbourhood and have a positive impact on the quality and character of a neighbourhood.

The built form should respond to the existing or desired future context, particularly, positive elements from the site and surrounding neighbourhood, and have a positive impact on the quality and sense of identity of the neighbourhood.

38. Clause 35(9) of the Education SEPP constrains the operation of provisions found in the Blacktown Development Control Plan 2015 (BDCP) in the following terms:

(9)  A provision of a development control plan that specifies a requirement, standard or control in relation to development of a kind referred to in subclause (1), (2), (3) or (5) is of no effect, regardless of when the development control plan was made.

39. The Applicant submits that the effect of the provision is to set aside the requirements, standards or controls of the BDCP, while the Respondent argues that the kind of development the subject of cl 35(1) is for a school, in respect of which the BDCP contains no requirements, standards or controls.

40. I accept the Respondent’s submission that as the exclusionary effect of subcl 35(9) is limited to provisions contained in the BDCP in respect of development of a kind set out, relevantly, in subcl (1) being the development of a school. As the BDCP contains no such provisions, there is no limit placed on the operation of the BDCP in the circumstances of this case.

The proposed development exceeds the height of building standard

41. The proposed development includes a two-storey building fronting Bottles Road, known as Building 5, that exceeds the height of 9m permitted by cl 4.3 of the BLEP.

42. Building 5 comprises a new school hall over ground floor classrooms and an undercroft area intended to be used as a covered space for student drop off and pick up in the morning and afternoon, that the Respondent contends is incompatible with the streetscape of the locality.

43. The Applicant relies upon a written request that seeks to justify the contravention, prepared by Mr Juradowitch in accordance with cl 4.6 of the BLEP (Exhibit A, Tab 41) (the written request).

44. As the proposed development relies upon a written request to justify the contravention of the height of buildings development standard, I must first consider the written request in order to establish whether the Court’s jurisdiction to grant development consent is enlivened in accordance with cl 4.6 of the BLEP, prior to consideration of the merit issues in dispute.

45. The written request identifies the exceedance of the height standard by a maximum of 1.5m to be a preferable and better outcome on the grounds that, should the 9m height standard be strictly applied, it would result in either an inadequate ceiling height for a school hall facility or, in the alternative, would require the relocation of the 4 ground floor classrooms elsewhere on the site at the expense of the outdoor play area.

46. Indoor activities of a kind conducted in the Activity Hall such as basketball, badminton and volleyball are not feasible unless an internal height in the order of 5.5m-6m is achieved.

47. Likewise, the written request advises that classrooms located below the Activity Hall typically have a ceiling height of 3500mm. While it is not stated in the written request, I note that in this case, those classrooms are shown with a ceiling height of 2700mm.

48. In identifying the extent of the variation proposed to the height standard, the written request notes that a height of 12m is permitted for school buildings defined as complying development under the Education SEPP, and that the exceedance in this case results in a height of 10.5m.

49. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (“Initial Action”), for the Court to have the power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court be satisfied that:

1. Firstly, that the applicant’s written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3), including setting out reasons as to why compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and that there are also sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

2. Next,  the written request must demonstrate that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out (cl 4.6(4)(a)(ii)).

50. In respect of cl 4.6(3)(a), the written request asserts that compliance with the numerical standard of 9m is unreasonable or unnecessary as the objectives of the height control at cl 4.3 of the BLEP are achieved, notwithstanding the non-compliance, for reasons summarised as follows:

1. Building 5 does not result in a reduction of privacy, impose an unreasonable impact on solar access to neighbouring properties or an adverse visual impact on Bottles Road due to the boundary setbacks, existing and proposed landscaping and minor exceedance at the corners of the building of only 500-600mm, especially when compared to a complying development of 9m in height, that is permitted to be located 1.5m from side boundaries.

2. Compatibility with the height, bulk and scale of the surrounding residential localities and commercial centres within the City of Blacktown is achieved by compatibility with the existing classroom buildings on the site and the nearby high school, and by the substantial side setbacks that avoid the presentation of excessive bulk and scale to adjoining properties.

3. Consistent with the objective to define focal points for denser development in locations well serviced by public transport, retail and commercial activities, the subject site is adjacent to large schools, and close to retail centres and bus services.

4. Requiring strict compliance with the height standard would require the reallocation of the proposed classrooms, and the Activity Hall with the consequence being a reduction in the central outdoor play area for no environmental or planning benefit.

51. Next the written request states that there are sufficient environmental planning grounds to justify the contravention of the height standard for the following reasons:

1. Firstly, despite the objectives of the height standard being primarily designed to cater to lower density residential development, the proposal achieves the objectives in the context of a site developed for school purposes with substantial setbacks from residential development.

2. Secondly, strict application of the height standard would require changes to the design of the development that would result in a less satisfactory planning outcome, and a significantly reduced outdoor play area where the building as proposed suitably responds to the site context, without imposing material adverse impacts on the environment, character or amenity of the locality.

3. Thirdly, the proposal meets the objectives of the height standard, and the objectives of the R2 zone and will be in the public interest.

52. Clause 4.6(4)(a)(i) requires the written request to adequately address the matters required to be demonstrated by subcl (3). The Court must form a positive opinion of satisfaction that the applicant’s written request has adequately addressed both of the matters required to be demonstrated at subcl (3)(a) and (3)(b), but does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b). Instead, the Court has only to indirectly form the opinion of satisfaction that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b) (Initial Action at [25]).

53. However, as shown by the Court of Appeal in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 (RebelMH), at [51], in order for the Court to be satisfied that an applicant’s written request has “adequately addressed” the matters required to be demonstrated by cl 4.6(3), the consent authority needs to be satisfied that those matters have in fact been demonstrated, and this state of satisfaction must be reached by reference to the written request.

54. While the evidence in the proceedings can assist in understanding the written request and in considering the adequacy of the request, it cannot supplant or supplement the contents of the written request.

55. After careful consideration of the written request, the submissions made by the parties, the architectural drawings at Exhibit B and the expert evidence, I am unable to form an opinion of satisfaction that the written request has, in this instance, adequately addressed the matters to be demonstrated by subcl (3) for the reasons that follow.

56. I am not satisfied that the written request has demonstrated that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case.

57. The objectives of the height standard, at cl 4.3 of the BLEP, are in the following terms:

(a)  to minimise the visual impact, loss of privacy and loss of solar access to surrounding development and the adjoining public domain from buildings,

(b)  to ensure that buildings are compatible with the height, bulk and scale of the surrounding residential localities and commercial centres within the City of Blacktown,

(c)  to define focal points for denser development in locations that are well serviced by public transport, retail and commercial activities,

(d)  to ensure that sufficient space is available for development for retail, commercial and residential uses,

(e)  to establish an appropriate interface between centres, adjoining lower density residential zones and public spaces.

58. Objective (a) of the height standard seeks, in part, the minimising of the visual impact to surrounding development and the adjoining public domain.

59. General assertions made in the written request as to the absence of impacts on adjoining properties or in respect of visual impact on Bottles Road are not supported by drawings, views or diagrams that assist in the demonstrating of those assertions.

60. The written request contains only one diagram, Figure 1 on p 2 which is identified as an East-West Cross Section View with 9m Maximum Building Height Controls Shown. I record here for completeness that the Figure is not identical to the section taken at the same location on Drawing 5.03 Issue G (Exhibit B). Still, Figure 1 is re-produced below:

61. I understand the written request to rely upon the setbacks identified in Schedule 2 of the Education SEPP, summarised at [48(1)], that the visual impact of the proposed development is acceptable by virtue of its boundary setbacks. Schedule 2 sets out requirements for schools defined as complying development, which is not the case in this matter.

62. Nowhere in the written request, or the application more broadly, are views, diagrams or images provided that assist in determining how the visual impact resulting from the proposed development is minimised in its particular setting.

63. A 3-dimensional view provided on the cover sheet, Drawing 0.00 Issue I (Exhibit B), re-produced below, does not depict surrounding development, and is not taken from a viewpoint approximating the public domain.

64. There is also no RL to indicate the height of Building 5 at the gutter line to the south of the Activity Hall, shown on Section B4 & B5, on Drawing 5.03 Issue G (Exhibit B), yet this gutter is clearly higher than the level of the gutter to the Bottles Road frontage, shown as RL 59.21.

65. The written requests states, at par 29, that a height clearance of 4.9m is achieved along the southern wall. However, this is clearly not the case. Instead, I understand this to be an error that should read ‘northern wall’ to which a dimension of 4900mm appears to relate.

66. The RL at this location is relevant to understanding the physical parameters of the building, and consideration of whether the objective to minimise the visual impact of the proposal is demonstrated.

67. This is particularly so because it is at this point that Figure 1 of the written request shows a mezzanine level located at, or close to, the highest point of the Activity Hall that is otherwise argued as being necessary to render activities in the Hall feasible.

68. The written request does not address the mezzanine at all, and so the contribution made by the mezzanine to the minimising of the visual impact from surrounding development and the public domain is also not addressed.

69. Additionally, in seeking to be further assisted by the architectural drawings at Exhibit B, I note that other than a dashed outline on the site plan/roof plan at Drawing 5.04, Issue N (Exhibit B), the architectural drawings omit any reference to adjoining properties to the east and west that would assist in the demonstrating of the assertions made in the written request.

70. In particular, the dwelling house and outbuildings at No 17 Cannery Road are not located on the 3D images, shadow plans or floor plans in Exhibit B. I also note that the address, height, setbacks and other relevant features of adjoining properties either side of the subject site are missing from the elevations, as is a western elevation of the Activity Hall itself, all of which are required by Schedule A of the Court’s Practice Note on Class 1 Development Appeals, as are spot levels and contours on adjoining properties that are also required by Schedule A.

71. Finally, in seeking to be assisted by the evidence of the planning and urban design experts in respect of objective (a) of the height standard, I note Mr Juradowitch’s evidence is that a future residential development at the rear of No 17 Cannery Road, fronting Bottles Road, will serve to partially obscure the form of Building 5 by virtue of the 9m height standard applicable in the R2 zone, and that the existing hedge plantings to the Bottles Road frontage will partially obscure the development when directly in front of the school.

72. While I accept that a future dwelling located to the east of the subject site may partially obscure the east elevation of Building 5 from a location somewhere to the east of the site along Bottles Road, such a scenario, the extent of partial obscuration, and from where in the public domain the building will be obscured, is not demonstrated anywhere in the evidence before the Court.

73. In any event, as I understand Mr Juradowitch’s evidence, the Applicant relies on a hypothetical future development, on adjoining land that is as yet un-subdivided, to support the case that the proposal minimises the visual impact on surrounding development.

74. The east elevation is shown on Drawing 5.01 Issue R to be 22,545mm in depth. Even in the event that a two-storey dwelling was constructed at the Bottles Road frontage of No 17 Cannery Road, I am unable to conclude that the visual impact of such a large volume would be concealed from view, and I believe that the portion most likely to be visible would be the extent of the exceedance.

75. Finally, the written request does not address that the height exceedance is due in part to the particular height clearance required in the undercroft that is directly below the Activity Hall.

76. Put simply, a component of the height of the exceedance is the floor level at which the Activity Hall is set.

77. As stated at [43], the written request asserts that the exceedance is due to the height of the classrooms located below the Activity Hall, the typical internal height of which is said, at [45], to be 3500mm.

78. The waste and traffic experts are agreed that a height clearance of 4.1m in the drop off zone, also located immediately below the Activity Hall, is required to accommodate a waste collection vehicle (Exhibit 6, p 9, and Exhibit 7, pars 150-151).

79. As I understand the arrangement of spaces in this particular area of the site, even in a scenario where the classrooms, shown in the proposal with a ceiling height of only 2700mm, were relocated or removed from the proposal, the height clearance required by the waste vehicle would not, as I understand the agreement of the waste and traffic experts, permit the reduction of the height of the drop off zone, and so the exceedance would remain.

80. In short, the proposal mounts the function requiring the greatest internal height on the site, the Activity Hall, directly over the area that might be said to require the second-greatest height, being the drop off zone that must also function as thoroughfare for a waste collection.

81. This apparently fixed clearance required by waste collection vehicles is not an aspect or element addressed in the written request.

82. While I consider the preceding reasons to be fatal to the written request, I also state here I reach the same conclusion in respect of objective (b) of the height standard which seeks to ensure that buildings are compatible with the height, bulk and scale of the surrounding residential localities and commercial centres within the City of Blacktown.

83. The written request asserts compatibility with the existing classroom buildings on the site and the nearby high school.

84. Compatibility with existing buildings on the site is not sought by the objective, and so is not a ground on which consistency with the objective can be asserted and to the extent that height, bulk and scale of the Plumpton High School opposite is relied upon, I note the following:

1. Firstly, the built form located closest to Bottles Road on the Plumpton High School site is clearly a single storey volume that is fully engaged with the natural ground level and is not elevated.

2. Secondly, a simple inspection of the arrangement of built form on the Plumpton High School site reveals a general characteristic that taller buildings, of greater storeys, are located further from the street frontage.

85. Instead, in this instance, the greatest volume, with the greatest height is located closest to the street frontage, and to the north of the site, where the overshadowing created by that volume and height is imposed on the outdoor play area, which I will come to shortly.

86. For the reasons that precede, I find the written request fails to demonstrate that compliance is unreasonable or unnecessary pursuant to cl 4.6(3)(a) of the BLEP.

87. I also find the written request fails to establish that there are sufficient environment planning grounds to justify the contravention of the standard pursuant to cl 4.6 (3)(b) of the BLEP.

88. For the reasons set out at [77], I do not accept that the relocation of the classrooms would result in compliance with the standard. However, such a scenario is asserted in the written request, and the resulting compliance is claimed to significantly reduce the outdoor play area.

89. While the written request argues that compliance with the height standard would reduce the amenity of the outdoor play area, it fails to address the adverse impact on the outdoor play area caused by the exceedance that is proposed.

90. In their oral evidence, the planners agree that around two-thirds or three-quarters of the passive sitting area is in shadow in mid-winter and, conversely, with the proposed removal of the covered outdoor shelter, the entire passive sitting area along the eastern boundary would likely be in full sun, unshaded in summer.

91. Mr Juradowitch considers the issue a matter for detailed design. I do not. The amenity of outdoor play area spaces, and access to sunlight, among other things, is a focus of Principle 5, Schedule 4 of the Education SEPP that must be taken into consideration by the Court.

92. There is a clear nexus between the height exceedance and the access of students to sunlight and overshadowing of the outdoor play area, as it is the exceedance of the height standard that contributes to a diminution in the amenity of the outdoor play area.

93. Relatedly, the Court heard evidence that the outdoor play area is already the subject of a management plan (Exhibit E) which, in summary, rotates the number of students engaged in outdoor play activity in what is known as the ‘50/50’ rule, which refers to half of students engaged in play activity in the outdoor play area, and the remaining half engaged in play activity in the proposed new hall.

94. Of the half engaged in outdoor play activity, the management plan assumes a certain number of students engaged in noise-generating outdoor play, referred to as ‘active play’, and a certain number engaged in what is referred to as ‘passive play’. In effect, passive play is seated activity in the passive play area; around two-thirds of which is located in shade in midwinter, and full sun, unshaded, in summer.

95. I record here that this management approach is generally agreed by the experts, if complied with, to result in acceptable acoustic impact on surrounding properties when that aspect of the application to increase student numbers from 320 to 550 is considered.

96. However, as the application seeks to increase student numbers, but does not propose a commensurate increase in size of available outdoor play area, the amenity of the outdoor play area in Principle 5, Schedule 4 of the Education SEPP should be given weight, in my view.

97. The written request does not engage with the impact on the amenity of the outdoor play area as proposed, but only speculates as to the impact on amenity if strict compliance was required.

98. I am not assisted by the statement prepared by the building designer, Moderinn Pty Ltd (Exhibit A, Tab 34), in response to the design quality principles in the Education SEPP, which states only that “…Solar access will be improved, as will natural ventilation”. If anything, this statement appears at odds with the decision to locate the built form with the greatest height to the north of the outdoor play area and so ensure its overshadowing.

99. As the written request fails to demonstrate the matters required of it by cl 4.6(3)(a) and (b) of the BLEP, I find the written request also fails to adequately the matters required to be demonstrated at cl 4.6(4)(a)(i) of the BLEP, and precludes the Court from exercising its power to grant consent.

100. In the joint expert planning report, the Court is invited to grant consent conditional upon the amendment of the development the subject of the development application to reduce the maximum height of Building 5 to 9m. I decline to do so for two reasons.

101. Firstly, the invitation is not to determine the matter under s 4.16(4) of the EPA Act and grant consent for the development, except for a specified part or aspect of that development (subs (4)(b)), or for a specified part or aspect of that development (subs (4)(c)). Instead, the invitation, as it may be understood, is for the exercise of what is known as the ‘amber light’ approach that has been described as having “no statutory basis in the EPA Act, the [Land and Environment] Court Act or any Court Rules” (RebelMH at [107]).

102. This is because the precise nature of the amendment of the application is unknown. The Court is left to speculate whether the amendment may result in a different roof form, that may or may not require the deletion of the mezzanine area and the stairs providing access to the mezzanine level from the Activity Hall, and possibly some external windows.

103. Secondly, according to Mr Jurasdowitch, this amendment would have a significant detrimental effect on the educational value and experience of the school.

104. Whether or not the elements on which the written request fails could be addressed by the purchase of adjoining land was not the subject of evidence. However, it seems only logical that greater site area would permit an alternative path for waste collection vehicles, that would have the effect of decoupling the height required for clearance, from the height of the Activity Hall.

105. Similarly, the current size of the site appears to place serious demands on the outdoor play area that would only be assisted by greater area being allocated to outdoor play.

Orders

106. The Court orders that:

1. The Applicant is granted leave to amend the application and rely upon amended plans marked Exhibits B, C, D and E subject to paying the Respondent’s costs thrown away as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The appeal is dismissed.

3. Development consent for Development Application DA-20-00607 seeking consent for Staged development for alterations and additions to Western Grammar School at Lot 1 DP 1172313, 15 Cannery Road Plumpton is refused.

4. All exhibits are returned, except for Exhibits A, B, E and 8.

…………………..

T Horton

Commissioner of the Court

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Decision last updated: 04 August 2021