The Muslim League of New South Wales Incorporated v Liverpool City Council

[2006] NSWLEC 369

Land and Environment Court

of New South Wales

CITATION:	The Muslim League of New South Wales Incorporated v Liverpool City Council [2006] NSWLEC 369
PARTIES:	APPLICANT The Muslim League of New South Wales Incorporated RESPONDENT Liverpool City Council
FILE NUMBER(S):	10394 of 2005
CORAM:	Brown C
KEY ISSUES:	Development Application :- additions to an existing educational establishment - height - visual impact of multi-purpose hall - resident objections to traffic and parking
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Liverpool Local Environmental Plan 1997
DATES OF HEARING:	7, 8/06/06
DATE OF JUDGMENT:	06/28/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr J Bingham, solicitor SOLICITORS Deacons RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

28 June 2006

10394 of 2005 The Muslim League of New South Wales Incorporated v Liverpool City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Liverpool City Council (the council) of Development Application 1931/04 for additions to an existing educational establishment at 264 - 270 Wilson Rd., Green Valley (the subject site).

The subject site and surrounding area

2 The subject site is Lot 42 in DP 14637 and Lot 2 in DP 883953, having a total area of 1.713 hectares. It is irregular in shape with a 53.93 m eastern frontage to Wilson Rd. and a southern frontage (but not total southern boundary) of approximately 65 metres to Coronation Dr. The western boundaries adjoin open space as does part of the northern boundary. The remaining portion of the northern boundary and that part of the southern boundary that does not have access to Coronation Dr adjoin residential development.

3 The subject site currently contains a single storey Mosque and community centre and a preschool and primary school made up of demountable classrooms. A sealed car parking area is located in front of the Mosque and community centre with access from Wilson Rd.

The proposal

4 The proposal has been the subject of considerable change since the development application was determined by the council including a reduction in student numbers from 1200 to 825, the deletion of the third storey throughout the proposed development, increased setbacks and additional landscaping.

5 The amended proposal provides for extensions to the existing Green Valley Islamic College over 10 stages. The 10 stages will occur over eight or nine years. The plans submitted with the development application indicate the staging of the buildings.

6 The proposal, in general, provides for the proposed buildings to be located behind the existing Mosque and community centre. The secondary school is to be located to the north, the primary school to the south and the multi-purpose hall to the west. The school buildings are to be two storeys in height. The multi-purpose hall is to be single storey although the roof approximates a two-storey building because of the need to accommodate a high roof for the basketball court. The existing car park off Wilson Rd is to be retained but reconfigured and a new basement car park created under the multi-purpose hall. Access to the basement car park is from Coronation Dr as is an off street pupil drop-off and pick-up facility.

Relevant planning controls

7 The subject site falls within a 2(a) Residential zone and a 6(a) Public Recreation zone under Liverpool Local Environmental Plan 1997 (LEP 1997). The proposed development is permissible with consent within both zones. Clause 6 provides definitions and cl 9(4) provides that consent may be granted only regard has been given to the general objectives (cl 2) and other objectives of the plan and the objectives of the zone (cl 39).

8 Clause 14 provides requirements for building appearance, cl 16 provides requirements for environmentally significant land, cl 22 provides requirements for water bodies, cl 40 provides general restrictions on development and cl 44 provides height requirements in residential zones.

The issues

9 The council originally filed a Statement of Issues containing 19 issues. Following the submission of amended plans, additional reports and further conditions of approval, the council did not press the issues relating to the relationship with adjoining residential properties, urban design (excluding the multi-purpose hall), landscaping, the reduction in open space, the potential impact on threatened species and threatened ecological communities, drainage and on-site detention, traffic, access and parking, compliance with the Building Code of Australia and bushfire protection.

10 The remaining active issues for the council are:

1) whether the State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) objection to the height development standard is well founded, and

2) whether the visual impact of the multi-purpose hall is acceptable when viewed from Coronation Drive.

11 The council also raised the issue of the development not being in the public interest. A number of residents provided evidence at the Council Chambers following an inspection of the site and surrounding area. The Court was provided with notes of the evidence given at this time in addition to copies of all the submissions provided to the council when the development application was advertised. The residents who provided evidence at the hearing were:

• Mr Peter Mayhew of 7 Hewison Ave,
• Ms Julie Low of 12 Cartier Cr,
• Ms Mila Pucouski of 36 Coronation Dr,
• Ms Helen Dundovic of 24 Coronation Dr,
• Mr Michael Curcio of 288 Wilson Rd,
• Ms Wendy Peckham of 26 Lyrebird Cr, and
• Mr Joseph Marizzi of Lot 41 Wilson Rd.
  

12 The concerns of the local residents centre largely on the traffic and parking problems already experienced at the school and the concern that this would be exacerbated by the proposed extension making the subject site unsuitable for the proposed use. Numerous examples were provided to the Court of current problems experienced with the traffic and the behaviour of persons driving vehicles associated with the school.

The expert evidence

13 The parties agreed to the appointment of Mr Gary Shiels as the Court appointed town planning expert and Mr Craig Hazell as the Court appointed traffic and parking expert. Leave was granted to the applicant to provide additional urban design evidence from Mr Michael Harrison.

SEPP 1 objection - height

14 Clause 6 states that "Height, in relation to a building, means the vertical distance measured between ground level at any point at which the building is sited, and the ceiling of the topmost floor of the building above that point".

15 Clause 44 provides that a building may be erected in the 2(a) Residential zone "only if its height, not including any floor which is an attic, does not exceed 7.2 metres". Clause 44 applies only to that part of the development located within the 2(a) Residential zone. This includes the primary and secondary school buildings and a small part of the eastern end of the multi-purpose hall. The remaining portion of the multi-purpose hall is located within the 6(a) Public Recreation zone.

16 The breaches of the height development standard occur at locations where a skylight is proposed on the roofs of the primary and secondary school buildings, in addition to a small area of roof around the skylight. The majority of the roof form of the multi-purpose hall (within the 2(a) Residential zone) breaches the height development standard as the height is measured to the underside of the roof, this being the ceiling of the topmost floor of the building.

17 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state:

3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

18 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 (EPA Act). These objects state:

5.The objects of this Act are:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
(ii) the promotion and coordination of the orderly and economic use and development of land.

19 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

20 The SEPP 1 objection states that the development standard does not have identified objectives in LEP 1997 however the primary intent is described as "to promote consistency in residential building height so as to avoid unreasonable overlooking, overshadowing, view loss and in general, to ensure the amenity of adjoining on nearby residents is not unreasonably impact upon". The SEPP 1 objection goes on to describe, in detail the location of the breaches with a conclusion that in each case the intent of the development standard is maintained.

21 If the height development standard is read in conjunction with the definition of height in LEP 1997, I would also see the underlying objective to include the opportunity for some flexibility in roof design, as there is no overall height limit. In this case, the breach occurs largely from the absence of a normal ceiling within the buildings and the desire to provide additional natural light. I am not convinced that the breaches add, in any meaningful way, to the bulk of the building or create any amenity impacts on adjoining properties.

22 If the variation to the development standard is tested against the underlying objectives mentioned above, I accept that compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Consequently, strict compliance with the development standard is unreasonable and unnecessary in this instance and it follows and that the SEPP 1 objection is well founded.

23 The proposal is also subject to Draft Environmental Planning Policy (Application of Development Standards) 2004 (the draft Policy) as it is a draft environmental planning instrument that had already been placed on public exhibition with the advertising period concluding on 18 June 2004. It provides for the repeal of SEPP 1. In this case, the draft Policy is a relevant consideration and the Court is required to determine the amount of weight to be placed on its provisions in the assessment of the proposed development.

24 As no evidence was produced on the status of the draft Policy, I find that the draft Policy is not imminent or certain and consequently, it should be given no weight in proceedings.

Visual impact of the multi-purpose hall

25 The relevant objective of the 2(a) Residential zone is "to permit other types of buildings, if they do not have adversely affected the amenity of the locality" (cl 39(1)(b)).

26 The objectives of the 6(a) Public Recreation zone are:

(a) to ensure that there is a sufficient and equitable distribution of open space to meet the recreational needs of residents and to enhance the environment of Liverpool, and

(b) to ensure preservation of significant landscape elements.

27 Clause 14 requires that before determining an application consideration must be given to the "character, location, siting, bulk, scale, shape, size, height, design and probable aesthetic appearance of that building when viewed from any… road, public reserve or land zoned for open space".

28 Clause 40 provides that consent may only be granted for building "if it would be compatible with the character and amenity of both the existing and likely future nearby residential areas in terms of its scale, bulk, design, height, siting and landscaping".(cl 40(a)).

29 The concerns expressed by Mr Shiels relate to the location of the multi-purpose hall when viewed from Coronation Dr. He states that while recent amendments have reduced the height of the primary and secondary school buildings, the multipurpose hall has remained largely unchanged except for its position, which is now further to the west. His specific concerns relate to the proximity of the residential dwellings located on the opposite side of Coronation Dr. and the perception of bulk and scale from this area.

30 Mr Harrison states that the multi-purpose hall is set well back from Coronation Dr at about 8.4 metres to the street boundary and is offset from the nearest existing residents. The leading edge of the hall is about 12 metres from the nearest dwelling and is about 3 metres high at this point. This height is substantially less than two-storey dwellings permissible within the residential zone. The maximum height of the hall is at the central ridgeline of the curvilinear roof that runs parallel to Coronation Dr, a distance of 27 metres from the street boundary.

31 Overall, and considering that educational establishments are appropriately located within residential precincts, Mr Harrison states that the design of the multi-purpose hall is acceptable as it makes a sufficient transition in its scale and bulk from its highest roof form to its edges and its separation distance from the closest dwelling.

32 With the benefit of the site view I agree with the conclusions of Mr Harrison. If the proposed multi-purpose hall is considered in the context of the educational use of the subject site then its form, scale, bulk and height is acceptable. There is merit in Mr Harrison's argument that the parts of the multi-purpose hall located close to residential development are largely single storey with the higher parts of the building located further away, with consequent less visual impact. While not being a determinative consideration, I am also mindful that the floor level of the multi-purpose hall is controlled by the need to provide a free board above the established flood level and the height needs to consider the multi-functional purpose of the hall, including its use for basketball.

33 In accepting that the visual impact of the proposed multi-purpose hall is acceptable, I have placed some reliance on the retention of the natural bush land to the west of the pupil pickup and drop off area. This is subject to a Plan of Management and should be maintained and embellished to provide a permanent level of screening from properties to the west and southwest. I also acknowledge the council's agreement to the triangular part of the road reserve directly south of the multi-purpose hall being included within the landscaping of the subject site. This will provide the opportunity for additional landscaping directly to the south and require an amendment to the applicants landscape plan.

34 The Court also raised the opportunity for increased landscaping through the rationalisation of the two driveways that lead to the pupil pickup and drop off area and the basement car park of the multi-purpose hall. With minimal notice Mr Hazell indicated the benefits of the separate driveways and expressed some concerns, in traffic terms, if the driveways were to be rationalised. While his arguments were not without some merit and may ultimately found to be correct, I am not convinced that some further detailed consideration should not be given to this area of the proposal. This may result in an increase in the area available for landscaping, particularly larger canopy trees. In any event, the landscaping plans provide for no landscaping in this general area and the plans should be amended to provide some level of landscaping even though it is likely to be restricted because of the need for appropriate sightlines for cars using the driveways. I propose to amend the conditions to provide for further investigation and the amendment of the landscape plan (see conditions 14 and 22A).

35 Pursuant to cl 9(4) and having regard to the general objectives and other objectives of the plan and the objectives of the zone, I find that the proposed development is acceptable. In coming to this conclusion I note that the council has no objection to the land zoned for public open space being used for the proposed use. While the land is in private ownership the council did not argue that the land was needed to satisfy objective (a) of the 6(a) Public Recreation zone, that is to provide sufficient and equitable distribution of open space to meet the recreational needs of residents and to enhance the environment of Liverpool. On this basis, I have assumed that the land is not required for public recreation purposes and as such the proposed use is not inconsistent with the objective.

36 Also, considering those matters raised in cl 14 and cl 40 of LEP 1997 I find that the multi-purpose hall is appropriate for its location.

Resident concerns

37 The concerns expressed by the local residents centred mainly on traffic and parking. While traffic and parking was not an issue pressed by the council, Mr Hazell provided further evidence in Court to address the issues raised by the local residents but he did not change his view that the proposed development was acceptable on traffic and parking grounds.

38 As a starting point, Mr Hazell stated that he reviewed the Transportation and Parking Report for the Modified Application prepared by John Coady Consulting Pty Ltd for the applicant. While asking for a review of some data he stated that the conclusions reached in this report were acceptable. He explained that differences between earlier traffic report and Transportation and Parking Report for the Modified Application resulted from different number of students (150 students v 439 students) and the amendments to the plans that provided less traffic movements in Coronation Dr. together with additional off street car parking and pickup and drop off facilities. The amended design had the effect of reducing the level of traffic at the intersection of Coronation Dr and Wilson Road and thereby resulting in a reduced degree of saturation.

39 Mr Hazell states that the 7.6 metre width of Coronation Dr allows for parking on one side of the street with two-way traffic movement available on the remaining width of Coronation Dr. He supports a condition of development consent that will allow Liverpool Local Traffic Committee to place parking restrictions on Coronation Dr based on a warrant for the restrictions as the staged development proceeds.

40 In relation to the provision of car parking, Mr Hazell states that based on the councils parking requirements, there is no overlap of off-street car parking between the school operation and other activities on the site. The proposed development and the existing Mosque and community centre can operate independent of each other in terms of car parking.

41 In hearing the evidence of the local residents I accept that, at times the movement of vehicles associated with the operation of the school can cause inconvenience and frustration for local residents. The Court however must be mindful that inconsiderate and sometimes illegal traffic movements are not matters that appropriate considerations in the Courts consideration of a development application. These are matters that are best dealt with through the school and, if necessary, the local police.

42 I accept the conclusions of Mr Hazell that the proposed development satisfactorily addresses the issues of traffic and parking based on the requirements of council and the accepted traffic assessment procedures used in the Transportation and Parking Report for the Modified Application.

43 The Orders of the Court are:

1) The appeal is upheld.

2) Development Application 1931/04 for additions to an existing educational establishment at 264 - 270 Wilson Rd., Green Valley is approved subject to the conditions in Annexure A.

3) The exhibits are returned with the exception of exhibits A, J and 10.

____________
G T Brown
Commissioner of the Court