Trinity Grammar School v Ashfield Council

[2007] NSWLEC 733

Land and Environment Court

of New South Wales

CITATION:	Trinity Grammar School v Ashfield Council [2007] NSWLEC 733 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	Applicant: Council of Trinity Grammar School Respondent: Ashfield Municipal Council
FILE NUMBER(S):	10192 of 2007
CORAM:	Roseth SC
KEY ISSUES:	Development Application - Swimming Pools :- heritage impact, parking, power to impose conditions
LEGISLATION CITED:	Ashfield Local Environmental Plan 1985
CASES CITED:	Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; PYX Granite Company Ltd v Ministry of Housing and Local Government and Another [1958] 1QB 554; Newbury District Council v Secretary of State for the Environment [1981] AC 578; Building Owners and Managers Association of Australia Ltd v Sydney City Council [1984] 53 LGRA 54; Parramatta City Council v Peterson [1987] LGRA 61; Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] 20 LGRA 208; Waverley Municipal Council v P E Bakers Pty Ltd [1985] 54 LGRA 309; Toadolla Co Pty Ltd v Dumaresq Shire Council [1992] 78 LGRA 261; Mison v Randwick Council [1991] 23 NSWLR 734; Carr v Minister for Land and Water Conservation [1998] 109 LGERA 175; Mirvac Projects v Sydney City Council [2003] 131 LGERA 363; Caringbah Investments Pty Ltd v Sutherland Shire Council [1970] 20 LGRA 377; George Brand Real Estate Pty Ltd v Gosford City Council [1995] NSWLEC 230; Hill v Blacktown City Council [2007] NSWLEC 401.
DATES OF HEARING:	19/10/2007, 22/10/2007, 23/10/2007, 24/10/2007, 25/10/2007, 26/10/2007, 30/10/2007, 01/11/2007
DATE OF JUDGMENT:	7 November 2007
LEGAL REPRESENTATIVES:	Applicant: Mr P McEwen SC, Dr S Berveling barrister instructed by Mr M Winram, solicitor of Emil Ford & Co Respondent: Mr P Jackson, solicitor of Pike Pike & Fenwick solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

7 November 2007

10192 of 2007 The Council of Trinity Grammar School v Ashfield Municipal Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Ashfield Municipal Council (the council) of a development application to erect a swimming pool, a multi-purpose hall, a building containing classrooms and an underground parking station on lots 20, 21 and 22 DP 15765 (113-117 Prospect Road), lot 100 DP 1049869 (119 Prospect Road), and lots 10, 11, 12, 13, 14 and 15 DP 15765 (32, 34, 36, 38, 40, 40A, 42 and 44 Seaview Street) Ashfield.

The site

2 The site comprises a street block, with frontages: to Prospect Road. Victoria Street and Seaview Street and the fourth boundary adjoining Yeo Park. Twenty-two dwellings surround the northeast corner of the school, of which the School owns all but five. The 17 houses owned by the School are used for teachers’ accommodation.

3 The site contains the existing Trinity Grammar School with numerous buildings including a gymnasium, a 25-metre swimming pool, assembly hall, classrooms and an oval. The Headmaster’s Cottage and the Chapel are heritage items.

4 Several heritage conservation areas surround the site. The Victoria Square Heritage Conservation Area is directly to the north, while the Prospect Hall Heritage Conservation Area is to the east. There are heritage items at the corner of Prospect Road and Hurlstone Avenue, Prospect Road and Seaview Street and at 153 Victoria Street. The 22 dwellings surrounding the school grounds are not part of a conservation area, though there has been an attempt, so far unsuccessful, to declare them the Trinity Grammar Estate Heritage Conservation Area.

The proposal and its history

5 The applicant proposes to demolish eleven of the 17 dwellings in its ownership and to erect a 50-metre swimming pool building, a multi-purpose hall, a building containing 18 classrooms and an underground carpark for 230 cars.

6 The applicant lodged the development application in March 2006. Following notification, the council received 81 letters of objection and three letters of support. Following the submission of amended drawings and re-notification, the council refused the application in April 2007 for reasons that largely conform to the matters in contention in these proceedings. The applicant lodged the appeal in March 2007 against deemed refusal.

Relevant planning instruments and policies

7 The Ashfield Local Environmental Plan 1985 (the LEP) zones the larger part of the site 5(a) Special Uses – Church and School and the houses around the northeast corner 2(a) Residential. Educational uses are permissible with consent in the 2(a) zone. Clause 17 of the LEP specifies the maximum Floor Space Ratio (FSR) of 0.75: 1 for buildings other than dwellings the in 2(a) zone. There is no density control within the 5(a) zone.

8 State Environmental Policy No 1 – Development Standards (SEPP 1) provides for Objections to vary development standards. The applicant has lodged such an Objection to the FSR of 0.75:1.

9 Development Control Plan – Heritage Conservation (the Heritage DCP) deals with heritage items and conservation areas. Development Control Plan – Parking (the Parking DCP) establishes parking requirements for various uses including secondary schools. Development Control Plan 1 – Dwellings in Residential Zones (the Dwellings DCP) contains the specific objectives of FSR controls.

Matters in contention

10 The council submitted a Statement of Contentions containing ten matters, of which it pressed six, ie

§ The concerns of the objectors.

§ The impact on traffic and parking is unacceptable.

§ The bulk and scale are excessive.

§ The heritage impact on the surrounding heritage items and conservation areas is unacceptable.

§ The impact on amenity is unacceptable.

§ The proposal does not comply with the aims and objectives 2(a) and (b) of the LEP.

11 In addition to the above matters, questions relating to the power of the Court to impose conditions emerged during the hearing. The applicant submitted that the Court had no power imposing a condition limiting the number of students on the whole site, or a condition placing a limit on the use of school facilities by external users.

Objectors’ evidence

12 During the visit to the site, the Court heard the evidence of objectors. Ms Marion Burford, who lives at 107 Prospect Road, said that she had three main concerns:

§ replacement of houses by school buildings leading to loss of community;

§ loss of parking space; and

§ the extension of hours well beyond school hours.

13 Ms Barbara Matchett, who lives at 20 Victoria Square, had concerns that were partly different and partly the same as Ms Burford’s, namely:

§ loss of amenity due to the demolition of one side of Seaview Street;

§ the new pool being in the wrong location; and

§ intensification of traffic and noise.

14 Mr Alan Melrose, who lives at 14 Hurlstone Avenue, nominated a set of concerns that differed slightly from the above:

§ the existing parking problem extends beyond school hours;

§ the intensification of use that occurs near his house; and

§ heritage impact.

15 Ms Susan Mattick, who lives at 26 Seaview Street at the corner of Prospect Avenue, said that her main concern was the noise and visual impact of the new pool and playground on the roof. She was also concerned about heritage impact. She considered that the school was acting more like a business than an educational establishment. Mr Richard Mattick, of the same address, said that his concerns were noise coming from the pool (for which there are other locations on the site) and the likely increase in student numbers.

16 Mr Peter Dryburgh, who lives at 24 Seaview Street, said that his main concerns were the impact of traffic and parking (which now extends into the weekend) and heritage impact. He pointed out that people park in the street even when the school carpark is empty. Mr Marcus Strom, who lives at 24A Seaview Street within the Victoria Square Conservation Area, said that the proposal would adversely impact on the conservation area. He has no off-street parking and the streets are now full of the cars of the people working in the school. He did not trust that the proposed carpark would be used. He feared that outsiders would use the new pool.

17 Mr Michael Farry, who lives at 34 Victoria Square at the corner of Seaview Street, objected to the demolition of houses in Seaview Street, feared further expansion plans by the school and extensive use of the swimming pool including by water polo teams. Ms Barbara Baraclough, who lives at 13 Hurlstone Avenue, pointed out that she has already lost residential amenity. If the school continues along its present path, the area will soon become a business area. She objected to outside users of the school’s facilities.

18 Mr Peter Giles, who lives 99 Prospect Road, said that he feared that the parking problem would get worse. He objected to the demolition of the Seaview Street houses. Ms Marilyn Wise, who lives at 99 Prospect Road, said that the school was expanding on community space and had a desire to expand beyond the limits of the site. Ms Kerry Paterson, who lives at 30 Victoria Street, said the school was guilty of creeping expansion. The entrance to the carpark in Victoria Street was poorly located. The underground pick-up space would not be used. Ms Kim Hayes, who is the daughter of Ms Mela and Mr Jowad Antinios, the owners of 30 Seaview Street, was concerned about the proposed swimming pool across the rear fence. The noise was bad now and would become worse. The parking situation was already terrible. Mr Steven van der Sluys, who is the owner of 28A Seaview Street, said that his property had lost amenity over the years and he would not want it to lose more. There were better locations for the swimming pool. He was also concerned about increased parking from the school.

19 Mrs Kerry Kemp, who lives at 153 Victoria Street, a heritage-listed property of great beauty, said that the consistent growth of the school over the last eight years has increased its adverse impact on the neighbourhood. There is a problem of parking in the vicinity, partly caused by older students driving themselves to school. She thought that the swimming pool would attract a lot of people to the area. The current disturbance extends from 6am till late at night. In her opinion a parking station for 230 cars is inadequate. The behaviour of some parents who drop off or pick up their children is obnoxious.

20 The residents’ concerns may be summarised in three major categories:

§ Concern with traffic and parking generated but not catered for by the school, aggravated by bad behaviour;

§ Non-acceptance that the new carpark will be used; and

§ Concern with impact on the conservation areas by demolition and excessive bulk.

I turn to these matters below.

Traffic and parking

21 The application includes an underground carpark with 230 spaces and pick-up and drop-off area. The carpark must be completed before the other new facilities are occupied. While the applicant provided an array of different numbers for the staff now on campus, the number of additional teachers due to the proposal was constant at 12.

22 The traffic experts were Mr Anthony Ogle, a civil engineer with the council, and Mr Anton Reisch, a town planner and traffic consultant. Mr Reisch’s analysis confirmed the anecdotal evidence of the objectors: 160 cars that belong to people working or studying in the school are parked each day in the surrounding streets. Mr Reisch had no data on another form of inconvenience about which the objectors complained: the parking in driveways and double-parking while parents pick up their children.

23 In their joint report Mr Ogle and Mr Reisch agreed that:

§ The proposed swimming pool and sporting facilities will not lead to an unacceptable overspill or adverse traffic movement in local streets;

§ The changed traffic arrangements will not have a significantly adverse impact in local streets, provided there is no pedestrian access to Seaview Street during school operating hours.

§ The new Seaview Street carpark has been designed in compliance with AS 2890.1.2004, but consideration should be given to modifying the design to prevent pedestrian through movements, and specifically student movements to the new facilities. (This and the former point require the locking of gates to Seaview Street in school hours, a requirement that the applicant accepts and is reflected in conditions.)

§ The proposed car park and set down facilities will operate to an appropriate level of efficiency and safety.

§ A transport management plan is required. (The applicant provided a transport management plan. Mr Ogle accepted it as adequate.)

24 Notwithstanding his expert’s agreement with the applicant’s expert, Mr Jackson, for the council, submitted that

The current situation is so unacceptable with such large detrimental impact on residential amenity by cars in the local street that the Court would not entertain granting consent to such a large expansion and intensification of the use without fully knowing that current impacts would be addressed as well as any impact in respect of the intensified use.

25 I do not accept this submission. While it is true that the applicant has provided varying figures for the number of staff (probably caused by a confusion over full-time and part-time staff), if the highest staff estimate is accepted, the car park provides 15 fewer spaces than the Parking DCP requires. On the basis of its latest count of staff numbers that takes into account the part-time employment of some staff, the applicant disputes that there is any shortfall.

26 However, even if I accept the council’s contention that the carpark provides 15 fewer spaces than required, I do not think that this is a reason for refusal. Fifteen is a small number in comparison with the 160 cars that now park in the surrounding streets, presumably because there is no space for them on the school site. Moreover, I note that the Parking DCP makes allowance for existing development that provides less parking than would now be required, ie

Council will apply parking credits in relation to changes of use and/or alterations and extensions to existing buildings that are legitimate uses based on the parking requirements detailed in section 4 of this Part. This is to ensure that applicants are not unfairly penalised in situations where an existing property is operating legally but has insufficient parking relative to the requirements of this Part. In this situation the additional parking to be provided for the development (if any) is the difference between what is required for the proposed and that required for the current use.

27 On the basis that student numbers and the level of external use of facilities will not increase, the additional parking required of this application is therefore that required for the additional 12 teachers. Ie 12 spaces. The new carpark provides 230.

28 I turn to the objectors’ concern that the carpark will not be used because teachers and parents will continue to park in the street despite the availability of safe under-cover parking. I do not think that this is a valid concern. The majority of the 160 cars now parked in the surrounding streets belong to teachers. A minority belong to other staff and older students. They park there because they have no parking allocated to them on the site. The teachers and staff will be allocated parking spaces in the new carpark and will be required to use those spaces. However, even if there were no pressure on them to park within the car park, it seems to me that most of them are likely to do so for their own benefit. Not only is the carpark under cover, it provides much better security than the street. There may be some members of staff who find it difficult to park within a car park; they are likely to be a minority. Theoretically, even if one of the 160 cars now parked in the surrounding streets moves to the car park, the residents are better off than before. The number of cars in the carpark (and therefore not in the streets) is likely to be more than one and may even be 160.

29 As regards students’ cars, I note that students require the school’s permission to bring their cars to school. The Transport Management Plan proposes to withdraw driving privileges from students who do not park within the school grounds. Even if some students circumvent this requirement, they are likely to be in the minority.

30 I conclude therefore that the provision of a new parking station for 230 cars is likely to be of enormous benefit to the residents of the surrounding area. I can only explain the council’s and the residents’ opposition to the car park on the basis of long-standing frustration and animosity in the relations with the school. The fact that the School has been issuing older students with permits to drive to school in the full knowledge that the students will park in the surrounding streets explains much of the existing animosity. However, the past is the past. The construction of the carpark will go a long way towards improving the relationship between residents and the School in the future.

Bulk and scale

31 The applicant’s experts on this aspect were Mr Neil Ingham, a consultant planner and Dr Richard Lamb, an expert in visual analysis. The council’s expert was Mr Nigel Dickson, an architect, planner and urban designer.

32 The council contends that two aspects of the proposal make it an overdevelopment in the 2(a) zone. The first is the need for a SEPP 1 Objection in respect of the FSR of the buildings containing the multi-purpose hall and 18 classrooms. The second is the appearance of the swimming pool building towards Prospect Road.

33 I turn to the SEPP 1 Objection prepared by Mr Ingham. The building’s FSR is about 1:1; the maximum permissible FSR is 0.75:1. The Objection follows the usual format. It justifies the additional floor space on the basis that much of it is underground and therefore cannot be seen, the visible part having a FSR of less than 0.75:1. The main matter in dispute was whether the FSR of 0.75:1 met the objectives of the development standard, in particular (i) of the objectives to be found in clause 4.1.2 of the Dwellings DCP, ie

(i) To reduce the bulk and scale of development relative to that of the surrounding neighbourhood, so introducing a more acceptable degree of openness for the benefit of existing and future residents;
(ii) To prevent the overdevelopment of small sites, which dues to the constraints created by their size, shape, width, orientation and relationship to neighbouring land, are incapable of achieving acceptable standards of internal and external amenity, at higher densities;
(iii) To provide greater certainty as to permissible densities and to ensure that uniform built densities are achieved on sites of equivalent size and shape; and
(iv) To give overriding weight to heritage considerations in conservation areas.

34 It seems to me that a FSR standard of 0.75:1 for non-residential buildings in a residential area where most of the houses have FSRs less than 0.4:1, accepts that non-residential buildings will appear larger than houses. It aims to ensure that the difference in scale is not huge. In my opinion, the proposed building, of which only about three-quarters is visible, meets this objective of the standard.

35 I note that Mr Dickson said that he would consider the Objection valid if the building were used in some other, more residential-like way than that proposed. I do not understand this criticism, which suggests that the educational use that is permissible on residential land should have some residential characteristics. I do not think this is correct. I note also that Mr Dickson estimated that the building could hold 2,400 people (at 1 person/m2). The applicant suggests that this is an exaggeration, which seems to me likely, since the density assumed by Mr Dickson would provide very uncomfortable conditions.

36 Mr Jackson submitted that the Objection did not turn to the fourth question asked in Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46, namely whether a development which complies with the development standard is unreasonable or unnecessary. Given the main thrust of Mr Ingham’s Objection, one can extrapolate that the answer would be that, since the additional floor space is underground and cannot be seen, a complying building is unnecessary. In my opinion, the SEPP 1 Objection to the FSR standard is well founded. The variation in development standard is not a reason for refusal.

37 I turn to the appearance of the swimming pool building to Prospect Road. Mr Dickson considered it an alien element in the streetscape and Dr Lamb conceded that without landscaping it would not be acceptable. I note, however, that there is a considerable setback and the building will be seen against the background of the existing school buildings, which are quite large in scale. While this element of the proposal is its least attractive. I do not consider it of sufficient weight to justify refusal.

38 Several residents and Mr Dickson have argued, on the one hand, that the swimming pool is not needed and, on the other, that there are other locations on the site for it. It seems to me beyond the ability of this Court to determine something as subjective as the need for the pool. (I expect that there are not many schools in Australia with both a 25-metre and a 50-metre pool; but does this mean that the school does not need the new pool?) Nor is an assessment of need required by s79C of the Environmental Planning and Assessment Act 1979. As regards alternative locations on the site, this matter was not explored during the hearing. A cursory inspection of the site plan suggests to me that it is easier to talk about suitable alternative locations in the abstract than to actually find one.

39 The bulk and scale of this proposal are not a reason for refusal.

Heritage impact

40 Clause 37 of the LEP provides that the consent authority take into consideration

the likely effect of the proposed development on the heritage significance of a heritage item, heritage conservation areas…and on its setting, when determining an application for consent to carry out development on land in its vicinity.

41 The council contends that the proposed development will have an unacceptable impact on heritage significance in the following ways:

§ It will affect two Heritage Conservation Areas (Victoria Square and Prospect Hall) and two heritage items in Prospect Road by changing the outlook from them as well as by introducing a new scale of buildings close to them;

§ It will demolish eleven houses of the 22 that have been considered suitable for a heritage conservation area and thereby destroy the residential buffer between the existing school, the northern side of Seaview Street and the Victoria Square Heritage Conservation Area.

42 The applicant’s expert was Mr Graham Brooks, while the council’s was Mr Mark Robinson, both of them heritage architects. As is so often the case in this type of dispute, the applicant’s expert said that the impact on conservation areas and heritage items would be acceptable, while the council’s expert considered that the reverse was true. I searched in vain in the evidence for a statement of what, in the opinion each expert, constitutes unacceptable impact. The nearest I came to it was the suggestion that the proposed buildings would have a larger scale than the houses in the conservation area. Several questions arise from this. Is the mere difference in size sufficient to constitute an unacceptable impact? How much difference in size is acceptable? How close does the larger building need to be to the conservation area or heritage item to constitute an unacceptable impact?

43 I do not accept that the proposal will have an unacceptable impact on the conservation areas. The proposed buildings are bigger than the houses that they replace, but they will not be so large as to dominate the conservation areas. They are removed from the conservation areas and the relevant heritage items, so that they can be seen in the one visual frame only from a few points. While the change in scale will have an effect, that effect is, in my opinion, not unacceptable.

44 I note that Mr Robinson bases his opinion partly on the assumption that the proposal will generate more traffic and parking in the conservation areas. This assumption is not borne out by the traffic evidence. In fact, the proposed underground carpark is likely to reduce substantially the existing adverse impact caused by traffic and parking. The benefit of significantly fewer cars in the conservation areas is likely to be much greater than the visual impact due to the larger scale of the new buildings.

45 I turn to the proposed demolition of eleven houses. The houses are within a proposed heritage conservation area. In this case, proposed means that the council has prepared an amendment to its LEP that would declare the houses a conservation area; however the amendment has not been exhibited, so the area is not a draft heritage conservation area. Moreover, there is no suggestion that the amendment is about to be exhibited. It is common ground between the experts that three of the eleven houses to be demolished are highly rated, ie they would be contributory items if the area were a conservation area. I accept that the houses have a pleasant scale and complement the street nicely; however, nothing in the evidence persuades me that they are of such value that they justify the refusal of the application.

46 There is also a further consideration. Currently the rear yards of the 22 houses adjoin the most intensively developed part of the school grounds. The owners of two of the five houses that do not belong to the school have concerns about the closeness of the relationship. It seems to me that a street is a much better demarcation line between a school and residential use than the rear fence of a house. In my opinion the proposal’s impact on the significance of nearby heritage items and heritage conservation areas is acceptable.

Impact on amenity

47 Amenity is dealt with partly under Heritage impact and partly under Traffic and Parking.

Compliance with LEP objectives

48 The council contends that the proposal is inconsistent with the aims and objectives of the LEP, in particular with 2(a) and (b). Section 2 of the LEP sets out aims and objectives, ie

This plan aims to

(a) promote the orderly and economic development of the local government area of Ashfield in a manner consistent with the need to protect the environment; and
(b) retain and enhance the identity of the Ashfield area derived from its role as an early residential suburb with local service industries and retail centres; and containing the first garden suburb of Haberfield (now listed as part of the national Estate).

49 The council contends that the proposal is inconsistent with orderly and economic development because of the expansion of the school use into residential areas. I see no basis for this contention and I can find no substantiation of it in the material before me. As regards the second aim, I do not think that the proposal will affect Ashfield’s identity. I do not accept that that identity relies on the continuing existence of the houses surrounding the school on the northeast.

Power to limit the student numbers

50 The council proposes Condition 5 limiting the number of students to 1,400. The applicant submits that the Court has no power to impose such a condition because s80A(1)(a) of the Act provides that a condition of development consent may be imposed if

It relates to any matter referred to in section 79C(1) of relevance to the development the subject of the consent.

51 Mr P McEwen, on behalf of the applicant, submits that the development the subject of the consent in this case is not the whole school but the four new elements now proposed, ie the swimming pool, the multi-purpose hall, the classrooms and the carpark. It is only in respect of these elements that a condition may be imposed. Mr McEwen supports his submission by several judgments to which I return.

52 Mr P Jackson, on behalf of the council, submits to the contrary. In Mr Jackson’s submission, the proposed new buildings are not severable from the existing parts of the school, the new and existing activities will be integrated and the Court has a duty to look at the operation of the whole school after the addition of the new elements rather than at the operation of the new elements alone (which would not, at any rate, be possible). Mr Jackson also relies on several judgments (different from Mr McEwen’s) to support his position. He tendered deposited plans of the site to demonstrate that the new buildings partly or wholly occupy lot 110, which is the main allotment containing the existing school.

53 In my opinion, the Court has not only the power but the obligation to impose a condition limiting student numbers, though the reason is not related to either of the above submissions, but arises out of the facts of the case. On page 5 of the Statement of Environmental Effects accompanying the application, is the following statement:

There will be no increase in student numbers and only a small increase in staff numbers.

54 In response to an enquiry by the council, the applicant’s architects Collard Architects, wrote to the council’s General Manager on 20 April 2006 confirming the above statement, ie:

Page 5 of the Statement of Environmental Effect in clause 1.4 on page 5 states that there will be no increase in student numbers an only a small increase in staff numbers.

55 The Joint Statement by the traffic consultants Mr Ogle and Mr Reisch includes the following statement (page 3):

Based on the background research prepared by Mr Reisch in preparation of his Statement of Evidence, and confirmed (10 October 2007) by Mr Dungan Campbell, the Summer Hill campus has a student population of approximately 1,400 boys (2007)….

56 On the same page is a further statement:

It is agreed by Mr Ogle and Mr Reisch that, were there an intention to increase student numbers at the Summer Hill campus, additional access, traffic and parking analysis would be required. Notwithstanding, it is agreed by Mr Ogle and Mr Reisch that the current proposal, subject to appropriate consent conditions, is reflective of the current school population and external use.

57 In oral evidence Mr Reisch confirmed that, if there were an increase in student numbers, it would be necessary to assess the impact as part of a new assessment. In fact, he had done a further analysis assuming 1,650 students, which came to the conclusion that the impact was acceptable. That analysis came to the Court too late for Mr Ogle to comment on it.

58 On the basis of the above I conclude that the evidence supported by both experts exists only in relation to no increase in student numbers. There is no agreed position before the Court on traffic impact if the number of students increases. (Even Mr Reisch’s last-minute analysis justifies a limit, though the limit is higher than the existing numbers.) The consent therefore requires a condition limiting the number of students. Moreover, a consent that limits the number of students to the existing reflects the applicant’s own statement in the Statement of Environmental Effects accompanying the application. It is therefore hard to see why Mr McEwen argues against a condition that only confirms his client’s stated intentions.

59 I turn to Mr McEwen’s submission that the Court can impose conditions only in respect of the new elements that are the subject of the application. If he is correct, a condition limiting student numbers would be along the following lines:

The swimming pool, multi-purpose hall and classrooms must not contribute to an increase of the existing number of students on the Summer Hill campus.
However, the above condition would be meaningless unless it included the existing number of students. The condition would therefore need to be:
The swimming pool, multi-purpose hall and classrooms must not contribute to an increase of the existing number of students on the Summer Hill campus, which is x.
This seems to me to be, in effect, the same as the condition that the council wishes the Court to impose, ie:
The total number of students on the Summer Hill campus must not exceed x.

60 I turn to the question of the actual number of students to which the school should be limited. While the assessment of traffic impact was based on 1,400 students, the applicant provided two further numbers during the hearing, with a third number (1,490) for the students enrolled for 2008. The council submits that the number should be 1,400, since that is the number given in the application and the briefing of the traffic consultants. However, if the number of students enrolled for 2008 is 1,490, it is reasonable to assume that the existing school can accommodate that number without the new classrooms. Mr Reisch had assessed the impact of a larger number (namely 1,650) and concluded that the impact is acceptable, though Mr Ogle had no opportunity to comment on this assessment.

61 It would be unreasonable to set the limit at a smaller number than the students already enrolled for 2008, since this would require the school to reverse decisions it has already taken. If I accept the existing number of students as 1,490, the limit of 1,500 suggests itself. There is expert opinion before the Court (albeit from one side only) that the traffic impact for that number is acceptable. Balancing all the facts and considerations, it seems to me that a limit of 1,500 students is a reasonable compromise between competing claims. Condition 5 therefore becomes:

The number of students at the Summer Hill campus shall not exceed 1,500.

Power to limit use of facilities by external users

62 The existing school facilities, in particular the gymnasium and the 25-metre pool, are used by students of other schools as well as by members of the public. The chapel is used for weddings, funerals and similar functions. The council’s draft Condition 10 prohibits the use of any of the school’s facilities, old or new, by anyone other than a student or teacher of Trinity Grammar at Summer Hill, Strathfield or Lewisham or a student or teacher of another school participating in organised school activities.

63 Mr McEwen submits, in an argument similar to that used in relation to the Court’s power to limit the student numbers of the school, that the Court has no power to prohibit the use of existing facilities by external users, since the existing facilities are not part of the application. Mr Jackson, again in an argument similar to that used in relation to student numbers, submits that the existing and new facilities are so interdependent that a condition limiting their use is within power.

64 If one takes Mr McEwen’s submission to its logical conclusion, then the Court may impose a condition prohibiting the use of the new facilities by external users, while leaving unconstrained the use of the existing facilities. In practice this would lead to the odd, even absurd, situation that a person who is not a student or a teacher may swim in the 25-metre pool but not in the 50-metre pool. Not only would this appear silly to everyone, it would also be impossible to police.

65 As with the question of limiting student numbers, I prefer to deal with this question on the facts rather than on the basis of legal argument relating to power. The expert evidence on traffic and parking impact was based on an assumption that external use of the school’s facilities would remain at the existing level. Mr Reisch said that he did not need to analyse the impact of external use so long as there was no intention to change its intensity. He also agreed that, if the level of external use were to increase, an analysis of its impact would be required. Given that evidence, it is appropriate for the Court to impose a condition limiting external use of facilities to its present level; otherwise it has no basis on which to grant consent.

66 The applicant submitted a Summary of Current Use of School Facilities by External Users that came to the Court as Exhibit EE. This indicates the following existing use:

§ Sports centre: weekdays, no weekends;

§ Swimming pool: Weekdays, Saturday noon to 2 pm, 8 days per

year on weekends;

§ Ovals: Wednesdays and Fridays;

§ Delmar Gallery 6 exhibitions of 4 weeks per year;

§ Functions: 12 per year plus 4 dinners per year;

§ Concerts: 12 per year;

§ Chapel time unspecified for weddings, funerals,

baptisms, carols.

67 The applicant submitted that a condition may limit external activities to the above Summary. I accept the submission in principle, however, I think such a condition would be hard to understand and should be simplified.

68 Mr Jackson submitted that the above summary did not specify the intensity of use, ie how many people would use the facilities. It seems to me that this would be very hard to do and, if it were done, would be impossible to police. Mr Jackson further submitted that some of the uses are commercial and prohibited in the 5(a) zone. Such uses appear to take place in the Chapel. I do not think that it is appropriate for the Court to become involved, in the context of a Class 1 appeal, in interfering with the uses of a Chapel that was built 80 years ago and is not part of the application. If the council wishes to take action to stop weddings in the Chapel, it may do so separately from these proceedings. For this reason, I do not propose to refer to the Chapel in Conditions 10.

69 Based on the Summary of External Uses, a simplified condition replacing draft Condition 10 would be:

The use of the facilities by people other than students and teachers of Trinity Grammar is restricted as follows:

§ Sports centre: weekdays only;

§ Swimming pool: weekdays, Saturdays noon to 2 pm, plus

8 days per year on weekends;

§ Ovals: two days per week;

§ Delmar Gallery exhibitions up to six months per year;

§ Functions: 30 per year.

Case law relevant to the imposition of conditions

70 Given the above, it is not necessary to deal with the judgments referred to by the parties in argument. However, for the sake of completeness and ample caution, I have examined them for relevance to this appeal.

Cases referred to by the applicant

71 In PYX Granite Company Ltd v Ministry of Housing and Local Government and Another [1958] 1QB 554 at 578 Lord Denning, Hodson and Morris LJJ observed that:

Although the planning authorities are given very wide powers to impose “such conditions as they think fit”, nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development.

72 In Newbury District Council v Secretary of State for the Environment [1981] AC 578 four peers of the House of Lords, led by Viscount Dilhorne, established three criteria that a condition of consent must meet. Paraphrased, these criteria are:

§ it must be for a planning purpose;

§ it must relate to the development; and

§ it must be reasonable.

73 In Building Owners and Managers Association of Australia Ltd v Sydney City Council [1984] 53 LGRA 54 Cripps J restated and applied the Newbury test for conditions of consent. In Parramatta City Council v Peterson [1987] LGRA 61 Stein J at 297 restated and applied the Newbury test for conditions of consent.

74 A condition limiting student numbers for the whole school meets all three of the Newbury tests. Since the student numbers determine the impact, a limit on the numbers is for a planning purpose. For reasons explained above, the limit on numbers, while, for the sake of practicality, expressed in relation to the whole school, relates to the three buildings in the development application. As the limit on numbers reflects what the applicant requested in the application, it must be reasonable.

75 Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] 20 LGRA 208 deals with a condition limiting the hours during which a building may be used. Although Mr McEwen submitted it in support of his argument, I cannot find anything of relevance in it to this appeal.

76 In Waverley Municipal Council v P E Bakers Pty Ltd [1985] 54 LGRA 309 Perrignon J dealt with an application to alter the height and width of a bakery loading dock. His Honour found that a condition of consent attempting to regulate the hours of use of the dock was beyond power because it did not relate to the alteration of the height and width of the dock. In this appeal the additional buildings, in particular the additional classrooms, could increase student numbers. Since an increase in student number would be in contradiction to the terms of the application, a limit on student numbers is not beyond power.

77 In Toadolla Co Pty Ltd v Dumaresq Shire Council [1992] 78 LGRA 261 Pearlman CJ affirmed that, for a condition requiring contribution under s94 of the Environmental Planning and Assessment Act 1979 to be valid, there must be a link between the development and the amenity or facility the contribution is intended to finance. I do not think this is relevant to this appeal.

78 In Mison v Randwick Council [1991] 23 NSWLR 734 Priestley, Clarke and Meagher JJA held that:

In my opinion if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application.
In Carr v Minister for Land and Water Conservation [1998] 109 LGERA 175 Pearlman CJ referred to and confirmed the approach in Mison . In this appeal, the condition keeping student numbers to their current level does not alter the application, since the application itself states that those numbers will be kept to their current level.

79 In Mirvac Projects v Sydney City Council [2003] 131 LGERA 363 Moore C considered a condition requiring a covenant on title limiting future floor space ratio on an allotment for which there was no application to erect a building. Moore C considered the three Newbury tests and found that the second, namely a relationship to the development for which consent was sought, was not satisfied.

Cases referred to by the council

80 In Caringbah Investments Pty Ltd v Sutherland Shire Council [1970] 20 LGRA 377 Else-Mitchell J held that:

Whilst it may be proper in the exercise of the discretion of the council to treat an application seeking approval to alterations to existing commercial premises in a different fashion from that appropriate to an entirely new development, it cannot be said that the council’s powers, in the case of a building which has been erected since the commencement of the County scheme are limited to the provision merely of such additional car parking spaces as the extensions themselves require.
This finding is at odds with those to which Mr McEwen referred. I note that the judgment dates from 1970, ie before the coming into force of the Environmental Planning and Assessment Act 1979 .

81 In George Brand Real Estate Pty Ltd v Gosford City Council [1995] NSWLEC 230 Pearlman J dealt with an application for the addition of a real estate agent’s office to a site on which there was already a motor vehicle workshop. She asked the question whether:

The Court is confined in its examination of this aspect to the need for car parking generated only by the proposed commercial premises, the proposed real estate agency, or whether the Court can consider the whole of car parking needs of the whole site including the motor vehicle workshop.
Her Honour found that the site was not divisible and therefore the Court must look at the whole site and take into account the parking needs of the whole site. The application of this judgment to the current appeal would justify a condition that relates to the whole school, rather than to the three new buildings.

82 Hill v Blacktown City Council [2007] NSWLEC 401 is a judgment as new as Caringbah Investments is ancient. In it Jagot J considered the validity of two conditions imposed on a consent to demolish a dwelling and erect a new dwelling on a site comprising four allotments. The conditions required the four allotments to be amalgamated. Her Honour dismissed the argument that the conditions were beyond power, saying that:

The applicant’s approach to the question of the validity of both conditions is far too constrained; and
The area of the land and the curtilage of the dwelling house were obvious relevant considerations to a development application proposing to erect a dwelling house on a parcel of land comprising four lots.

I do not find much similarity between the above case and this appeal. However, to the extent that there is similarity, Her Honour’s finding supports the council’s position that a condition that relates to the whole school may be imposed on the consent.

What the case law reveals

83 The above decisions are not all consistent with each other. The common theme that runs through them is that a condition of consent must relate to the proposal for which consent is sought, so that if the proposal is an addition to an existing development, the condition must relate to the addition. However, there are exceptions to this general principle when the existing development and the new proposal are so closely integrated or interdependent that they cannot be easily separated. In those exceptional cases a condition of consent may relate to the whole development.

84 Is this appeal one of those exceptional cases? In my opinion, there is an argument that the new classrooms are closely integrated with the existing ones, since they may be used either to spread the existing students more thinly for smaller class sizes or to cater for additional students. On that basis a condition limiting the student numbers for the whole school may be imposed. However, I do not think that the argument extends to the many existing elements of the school that the council now seeks to control, for example the hours of use of the existing gymnasium or swimming pool.

85 As stated above, the principal reason why in my opinion the Court has the power to impose a limit on student numbers and external users for the whole school is that the evidence supports only an application with a limit on student numbers and external use. According to both experts, a higher (or an unconstrained) number of students would require a new assessment and therefore a new application. The same reasoning applies to limiting external users to their current level.

Conditions in dispute

86 Apart from the conditions limiting student numbers and external activities, several other conditions remain in dispute. The council proposes Deferred Commencement Condition 1 requiring the submission, to the council’s satisfaction, of an Operational Management Plan. The applicant contends that Mr Dungan’s evidence includes such a Plan, that there is in existence a Transport Management Plan, and that in any case most of the matters listed (such as hours of operation of existing facilities) are either covered by other operational conditions or are not properly a concern of the council or the Court. I accept this submission. The condition is deleted and consequently Condition 3 is also deleted.

87 The council proposes Deferred Commencement Condition 2 requiring the preparation of a Traffic Management Plan. The applicant has produced such a Plan (Exhibit Q in the proceedings). Both traffic experts agreed that it was adequate. Condition 4 requires that it be part of the consent. This suggests that an additional deferred commencement condition is not necessary and would only confuse matters. The condition is deleted.

88 The council proposes Deferred Commencement Condition 3 requiring full details of the swimming pool ventilation. The applicant contends that this is unnecessary, as the swimming pool ventilation must comply with AS 1668-1991. I accept the applicant’s position. The condition is deleted.

89 The council proposes Condition 6 limiting the hours of operation of the school. The applicant submits that the Court does not have the power to limit the hours of use of existing facilities by the existing students. I accept the submission. Moreover the consent contains restrictions on the use of the new facilities, restrictions by external users of the whole school and restrictions on access from the Chapel Drive entrance on Prospect Road. In my opinion, further restrictions would render the operation of the school unworkable and are not warranted by the evidence. The condition is deleted.

90 The council proposes Condition 7(f) limiting the operations of the existing and new swimming pools. The hours are different. For example, the new swimming pool may be used until 7.45pm, while the existing pool may be used only up to 7.30pm. How could the Court justify 15 minutes difference in the use of the two pools? There is no evidence before it to support the condition. The applicant contends that there is no power to impose a condition on the existing pool, and that the hours for the new pool should be 5.30am to 10.00pm every day.

91 In the case of the existing swimming I accept the applicant’s submission that the Court has no power to limit its use. While the evidence supporting the application was based on no increase of student numbers and of external use, there was no such evidence in respect of the use of the swimming pool. The Transport Management Plan requires that early and late users of the new pool arrive and depart via the new car park; therefore there should be no traffic and parking disturbance of nearby residents. The evidence indicates that the acoustic treatment of the new pool will protect nearby residents from noise. Condition 10 already limits the use of both pools by external users. To be consistent with that condition, the use of the new pool should be restricted as follows:

Monday to Friday 5.30am to 10.00pm
Saturday 5.30am to 8.00pm
Sunday closed except for up to 8 Sundays a year 8.00am to 6.00pm, consistent with Condition 10 of this consent.

92 The council proposes Condition 8 limiting the hours of operation of the existing gymnasium and the new multi-purpose hall. For reasons similar to those mentioned above in respect of the existing and new swimming pools, I do not think that the Court has the power to impose restrictions on the use of the existing gymnasium. As regards the multi-purpose hall, the council proposes 7.30am to 5.00pm Monday to Saturday; the applicant requests 6.30am to 10.00 Monday to Saturday. Given the various safeguards, in particular the requirement to come and go via the new car park, I see no reason not to accept the applicant’s request.

93 The council proposes Condition 9 limiting the use of the roofs of the new swimming pool and multi-purpose hall. The applicant submits that, given the acoustic wall and the requirement to come and go via the new car park, the condition is unnecessary. I accept the submission. The condition is deleted.

94 The council proposes Condition 20 requiring a bond of $100,000 to protect trees on the council’s land. The applicant wants to reduce the bond to $50,000. Mr Ogle gave evidence supporting the $100,000 bond. I accept that evidence.

95 The council proposes Condition 35 requiring dilapidation reports in respect of existing dwellings owned by Trinity Grammar. I agree with the applicant that it does not need to protect its own property.

96 The council proposes Condition 44 prohibiting construction work of Saturdays. The applicant requests being allowed to work on Saturdays between 7.30am and 12 noon. This seems normal practice. The condition is amended accordingly.

97 The council proposes Condition 70 restricting entry into the site from Prospect Road after 5.00pm. The applicant submits that only the Chapel Drive entrance should be closed, since the entrance south of this gives access to the Headmaster’s cottage. The applicant wants the Chapel Drive entrance closed only after 7.30pm. I agree with the applicant that the southern entrance should be left open. I agree with the council that the Chapel Drive entrance should be closed at 5.00pm. This will further encourage use of the car park for late arrivals and departures.

Conclusion

98 The proposal to demolish eleven houses and erect a new swimming pool, a multi-purpose hall, a building containing 18 classrooms and an underground carpark for 230 cars has aroused a great deal of opposition among residents of the surrounding areas. Much of that opposition seems to arise from the long-standing frustration the residents feel with the school because employees and students of the school have bee parking for a long time in the surrounding streets. The evidence indicates that up to 160 cars connected with the school are parked outside the grounds. In addition, the dropping off and picking up of students by parents is also a nuisance for the people living around the site.

99 The proposal to create 230 new on-site parking spaces must, in my opinion, improve the existing unsatisfactory situation, even if it may not completely solve it. The car park must be completed before the other new buildings are used. I note and have given consideration to the fact that the residents are sceptical about the suggestion that the cars that now fill their streets will park in the new car park. However, even if not every one of the 160 cars now parked in the surrounding streets finds its way into the proposed carpark, it is likely that most of them will. If this does not completely clear the streets of cars associated with Trinity Grammar, it must nevertheless lead to a significant improvement. In assessing the application, I have placed major weight on the likely improvement.

100 While the other elements of the proposal have an acceptable impact, they cannot be said to be particularly beneficial for the surrounding area. It is the fact that they are combined with the car park that takes the proposal out of the category of acceptable to that of desirable development. For the above reasons the appeal is upheld.

Orders

1 The appeal is upheld.

2 Development application to erect a swimming pool, a multi-purpose hall, a building containing classrooms and an underground parking station on lots 20, 21 and 22 DP 15765 (113-117 Prospect Road), lot 100 DP 1049869 (119 Prospect Road), and lots 10, 11, 12, 13, 14 and 15 DP 15765 (32, 34, 36, 38, 40, 40A, 42 and 44 Seaview Street) Ashfield is determined by the grant of consent subject to the conditions in Annexure A.

3 The exhibits are returned except Exhibits A, B, FF and 15.

__________________
Dr John Roseth
Senior Commissioner

12/11/2007 - wrongly listed as a judicial decision - Paragraph(s) cover sheet