Watson v Ku-ring-gai Council

[2008] NSWLEC 1190

Land and Environment Court

of New South Wales

CITATION:	Watson v Ku-ring-gai Council [2008] NSWLEC 1190
PARTIES:	APPLICANT Ian Watson RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10199 of 2008
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Installation of night lighting in existing tennis court, hours of use for night play, noise
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s.96 relief sought Ku-ring-gai Municipal Council
DATES OF HEARING:	16 May 2008
EX TEMPORE JUDGMENT DATE:	16 May 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr S. Kondilios, solicitor; Ms N. Hammond-Deakin, solicitor, of Maddocks Lawyers RESPONDENT Mr A. Hudson, solicitor, of Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

16 May 2008

10199 of 2008 Ian Watson v Ku-ring-gai Council

JUDGMENT

1 This is class one Appeal 10199 of 2008 Ian Watson and Ku-ring-gai Council in regard to an application to erect pole lights for night playing at an existing tennis court at number 82 Bent Street, Lindfield. The hearing was attended by respondent’s representatives Mr A. Hudson, solicitor and Mr S. Segall, council planner, and Mr N. Ragmundo, council planner and Mr S. Natildt, council planner. The applicant was represented by Mr S. Kondilios, solicitor, Ms N. Hammon-Deakin, solicitor, Ms S. Gillett, paralegal, Mr A. Minto, town planner, Mr M. Ficker, Premier Lighting and electrical specialist and Mr and Mrs Watson applicants.

2 The existing Court was approved in Appeal no. 20210 of 1998 with Condition 7 that night play and night lights not be allowed unless specifically approved by Council. The terms of the Condition do not need amendment to enable consideration of this appeal.

3 The Council has in its Residential Development Control Plan cl 4.6.2, for new tennis courts, a provision that night play and lighting will generally not be permitted. The terms of that clause are not a prohibition. The Development Control Plan refers to a tennis court policy applied since 1986, that in cl 2 says that Council will not approve night play and night lighting due to the possible unreasonable detrimental effects on the amenity of the neighbourhood. It refers to offensive noise, light glare and peace and quiet. The terms of the policy are not a prohibition either but do require a merit assessment.

4 The council has been assiduous in its assessment of other applications for night lighting of tennis courts and have found only four that have been granted two by the Land and Environment Court and two by Council, and they limited night lighting and play to nine and ten at night.

5 In the current case all the adjoining neighbours support the current proposal and they are:

• P. Fleming of No. 47 Beaconsfield Parade;
• P and G Pauline of 43a Beaconsfield Parade;
• J. Won of 84 Bent Street
• M. Hurst of 80 Bent Street;
• and J. Milne of 78a Bent Street.

6 Numbers 47 and 84 are uphill of the site, No. 43a is at the rear, and Nos. 80 and 78a are downhill. Number 43a has dense vegetation between it and the court. Numbers 80 and 78a are downhill such that only their roofs and backyards would get any light from the tennis courts. Numbers 47 and 84 currently have a view over the top of the tennis court.

7 The applicant accepts the condition of the respondent to plant a screen hedge along the boundary with Nos. 47 and 84 up to 5.3 metres high measured on the subject site side of the boundary. It will reduce both light and vision to and from the court itself, and would not obstruct views from either property to hillsides in the distance. The neighbours had not asked for screening vegetation. Mr Minto had also looked at solar access to the neighbours uphill, which is the southern side of the property and concluded that the hedge would not cause any significant overshadowing.

8 Mr Ficker had done light calculations using Australian Standard 4282 which is in regard to control of obtrusive effects of outdoor lighting. He had used schedule 2.1 pre-curfew standards for illuminence and luminence. The former is light levels in lux on the surface being lit, and the latter is glare and candle power perceived by an observer looking at the light fitting from a point location.

9 The respondent said he should have used the post curfew standards since Ku-ring-gai could be said to require no night lighting, so sunset is curfew not the usual eleven pm time.

10 Mr Ficker showed that except for the downhill properties the sensitive locations of the other neighbours would comply with the luminescence standard for post curfew times. On the downhill side any glare would occur on the roofs of houses not in any windows and in their backyards where it would have little impact. He agreed that glare shields on the downhill side light bulbs would further reduce that impact.

11 The shields are also on the light bulbs on the uphill side of the tennis court. The proposal would not comply with post curfew illuminence levels but it would comply with pre-curfew standards at the property boundary which is where the standard applies.

12 The screen vegetation would reduce any illuminence beyond the boundaries on the uphill neighbours when it grew.

13 Mr Ficker is of the opinion that the light spill from the special light fittings would be quite acceptable to the neighbours, particularly in view of the fact that they support the proposal. The light fittings are special shielded flood lights with special reflectors to contain light spill. They are called Spectra Ace Shoebox Flats with glare shields and using the single bulb Toshiba 4000.

14 The applicant suggested some additional conditions on hours and no use of the court or its lights except for tennis. The respondent accepted the conditions but sought the hours be reduced to 9 pm and 10 pm respectively in Exhibit ‘G’ conditions (i) and (ii). I think that is reasonable as it brings the hours of use and possible noise nuisance into line with previous consents.

15 In regard to noise, Mr Minto said that since it is a private tennis court and no commercial use is permitted that it is similar to other residential recreational activities namely intermittent, a couple of nights per week, depending on the season and the weather. In this particular case, including the support of the neighbours, that appears to be a reasonable opinion. Overall I find no reason sufficient to refuse the application subject to appropriate conditions as in Exhibit ‘G’ and Exhibit 10 as annotated and amended by this judgment.

16 Therefore the orders of the Court are:-

1. The Appeal is upheld.
2. That night lighting of in existing tennis court at 82 Bent Street, Lindfield and night play is approved, subject to conditions in Annexure ‘A’ hereto.
3. The Exhibits are returned to the parties; except Exhibits 2,10, A, B, E, G, H.

___________________

K. HOFFMAN
Commissioner of the Court
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