Western Grammar School v Blacktown City Council

[2014] NSWLEC 1191

Land and Environment Court

New South Wales

Medium Neutral Citation:	Western Grammar School v Blacktown City Council [2014] NSWLEC 1191
Hearing dates:	10 and 11 June 2014
Decision date:	12 September 2014
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	See paragraph [39]
Catchwords:	MODIFICATION OF DEVELOPMENT CONSENT: existing school -development of additional buildings and increase in student numbers- acoustic impacts on adjoining properties - traffic impacts in locality
Legislation Cited:	Environmental Planning and Assessment Act 1979 Blacktown Local Environmental Plan 1988 Draft Blacktown Local Environmental Plan 2014 State Environmental Planning Policy (Infrastructure) 2007 Blacktown Development Control Plan 2006.
Cases Cited:	Best Western Services Pty Ltd v Blacktown City Council [2011] NSWLEC 1380 Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Category:	Principal judgment
Parties:	Western Grammar School v Blacktown City Council
Representation:	A Pickles (Applicant) A Seton (Respondent) Mr Toyer of Denison Toyer (Applicant) Ms McCullan of Marsdens Law Group (Respondent)
File Number(s):	10135 of 2014

Judgment

Introduction

1. The Western Grammar School (the School) is an independent school located at 13-15 Cannery Road, Plumpton (the Site). The use of the site for that purpose commenced in 2012 following the grant of a development consent by the Court on 29 November 2011 in Best Western Services Pty Ltd v Blacktown City Council [2011] NSWLEC 1380.

1. Initially, the School operated as a "single stream school "(i.e. 1 class per year) catering for primary school children from Kindergarten to year 4. However, in successive years the School has expanded and it now caters for 127 students from Kindergarten to year 8.

1. On 5 November 2013 the School lodged a development application (DA -13-2106) with the Blacktown City Council (the Council) for approval to carry out the following development:

(i)   Demolition of a metal clad building on the land that currently houses the library and computer room and 1 classroom;

(ii)   Construction of a 2 storey building comprising 6 classrooms, library and computer room, toilets and staff facilities;

(iii)   The provision of five (5) additional car parking spaces;

1. The overall objective of the development is to increase the student capacity from its current level of 125 students to 320 students (an increase of 195 students) and staff numbers from 12 part/full time staff to 15 full time staff. The reasons for the development are more fully explained in the statement by the School's principal Irfan Afzal, which is Exhibit F.

1. The Council had not formally refused the School's development application when this appeal was lodged with the Court under s 97(1) of the Environmental Planning and Assessment Act 1979. Despite that the contentions identified in Part B of the Council's Statement of Facts and Contentions (Exhibit 1) clearly identify the Council concerns with the proposal. In summary the Council contends that the proposed built form is inconsistent with the existing and desired future character of the area and, the proposed increase in student numbers will generate unacceptable traffic and noise impacts.

1. In coming to that position the Council has considered the submissions received from adjoining and nearby landowners and occupiers in response to the notification of the application from 15 January 2014 to 29 January 29014. The submissions include two individual objections and a petition of 8 signatures. They raise the following concerns:

• Impacts upon local road system by traffic and parking;
• Difficulties in accessing driveways of residences;
• Proximity of the proposed building to the boundary;
• Visual impact of the building design;
• Building height will dominate the skyline;
• Supply of existing schools in the area;
• Noise impacts from school activities;
• Noise impacts from maintenance activities on weekends;
• Noise impacts from construction activities;
• Impacts upon Plumpton Park.

1. Two objectors attended the commencement of the hearing to voice their individual concerns and the concerns of others who were unable to attend. Noise was a major issue for the residents of the town house complex exacerbated by the fact that the acoustic fence and vegetation conditioned on the first approval had never been carried out.

Amendment to the original development application

1. As is often the case the application was amended during the hearing to address the matters identified by the contentions. The amendments include: a revised traffic management plan, a redesign of the car parking/ drop/off area proposed on street signage, additional acoustic measures and design changes on the western boundary between the two-storey building and the town houses and an acoustic fence/landscaping on the eastern boundary near the tuck-shop.

1. The amended proposal is outlined in the plans (Exhibits A and B) and the draft conditions (Exhibit L) and the traffic management plan (Exhibit J).

Locality/character of the area

1. In dealing with the issue of the consistency or compatibility of the development with the existing and the desired future character of the area I need to identify what I consider the existing locality to include based on the evidence. The parties' town planning experts Mr Kennan for the Council and Mr Juradowitch for the School have provided evidence on this issue in their individual statements and their report that is Exhibit 6.

1. Put simply, the site is comprised of two lots, which contain two former dwelling houses and a shed, which have been converted into a School. The site has a total area of 4,112m2 and two street frontages. The main pedestrian entry to the School and office is from Cannery Road and the main vehicular entry is from Bottles Road.

1. The proposed development is located on that part of the site that fronts Bottles Road. The land to the east of the site comprises single dwellings, mostly of brick and tile construction. Adjoining the site to the west is a medium density housing development comprising 8x2 storey townhouses. Further west is a place of worship and Plumpton Park is located to the south. Across the Bottles Road to the north is Plumpton Public School and Plumpton High School. Approximately 480m to the east and fronting Rooty Hill Road North is Plumpton House School, which is a school for behaviorally challenged students. To assist in the management of the morning and afternoon traffic the schools have staggered start and finish times.

1. With the benefit of a view I accept the town planning evidence of Nick Juradowitch the School's planner as stated in the joint report (Exhibit 6). He describes the existing character of the development in the surrounding locality as a mix of building forms and land uses. It is residential in character only to the west and east otherwise the locality has a number of non-residential uses such as Churches and Schools, which are larger than typical single residential dwellings and have a different building form.

1. I cannot accept Mr Kennan's evidence in this case that the existing character of the locality does not take into account the School uses opposite the site. The development under review is orientated to the Bottles Road end of the site and directly opposite the High School use and Primary School use opposite. I agree with Mr Juradowitch's that it is artificial in this case to draw a line down Bottles Road and ignore the School use opposite simply because it is in a special uses zone. The inappropriateness of this approach is underlined in my view by the fact that "educational establishments" are a permissible use on this site which is zoned Residential 2(b) under Blacktown Local Environmental Plan 1988.

1. Nor is the development, in my assessment of the evidence inconsistent with the desired future character of the area. While the Council's draft Blacktown Local Environmental Plan 2014 proposes to zone the site Low Density Residential and prohibit the use of the land for an educational establishment the fact is the use exists and remains permissible by virtue of Part 3, Division 3 of the State Environmental Planning Policy (Infrastructure) 2007. In its context with 3 other schools proximate - in fact opposite I believe the use is consistent with the desired future character of the area under the prevailing SEPP.

1. As to whether the design of the built form is consistent with the existing and desired future character of the area it must be assessed against not only dwelling houses but the larger school buildings opposite the site, the town house complex and residential flat building and Church to the west and the dwelling houses to the east. The whole area. After a consideration of the area I observed at the view and the evidence I am satisfied that the built form proposed in the amended application is consistent or in harmony /compatible the existing and desired future character of the area.

1. The proposed building is 7.4 m in height and 35.83m long. Under the Infrastructure SEPP a school building can be 12m long. This proposal is considerably shorter than what could be built under the SEPP and it adopts a two storey building height that must be considered compatible with building heights in the locality. There are a number of two storey buildings observed in the locality.

1. The design of the building is based on function as educational facility providing student classrooms and amenities. The surrounding locality includes as I said a mix of building forms and the proposal is compatible with that mix specifically the town house development adjoining which is two storey and elongated down the adjoining site. There is no built form of that nature along the eastern boundary, only landscaping and a fence (which on the evidence is in my view an appropriate privacy/ and further acoustic measure) adjoining the single storey dwelling.

1. I accept Mr Juradowitch's assessment that by its nature permitted non-residential development such as churches and schools will comprise buildings that are larger than typical single residential dwellings and have a different building form. The site interfaces with low-density residential development on only one boundary of the site. I accept his view that the proposed school building is designed to maximize its separation distance to existing low-density residential development to the east. The western elevation of the proposed building will not be readily seen from Cannery Road and Bottles and the building will be substantially screened from Cannery Road by an existing school building on the site and the significant setback from Cannery Road (excess of 30m). While the building is longer than the town house complex to the west it does exhibit building lengths in the area similar to or greater than the proposed school building

1. In my assessment the proposed school building is well articulated in its eastern elevation due to the verandah, two access stairs at each end of the building and the centrally located lift. It does not look like a flat building it is clearly a school but being different does not make the development incompatible: Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [22]. The physical impacts of the development are in my opinion dealt with by the draft conditions as agreed in Exhibit.

1. Section 11.4 of the Blacktown Development Control Plan 2006 deals with urban design of non residential development in a residential zone and as Mr Juradowitch points out it states "...such development should be similar in bulk, scale, form, height, siting and appearance to the surrounding built residential environment. To meet this objective special attention to finishes, roof form material paving and landscaping may be required". After a consideration of the building height, setbacks and landscaping and the finishes proposed by this application I am satisfied that the development is compatible with the existing and desired future character of the area.

Council's consultation process

1. It is important to appreciate that the Council has carried out all necessary internal and external referrals in respect of this application and relevantly there has been no objection to this proposal. The process is outlined in the Council's statement. It provides:

Details of internal referrals and responses to internal referrals

The development application was referred to the following Council departments for comment:

Building Branch on 7 November 2013

The referral was returned on 21 November 2013 requesting additional information regarding demolition of existing structures.

Engineering Branch on 7 November 2013

The referral was returned 8 November 2013. No Engineering conditions were applicable to the development application.

Traffic Branch on 7 November 2013.

The referral was returned on 16 December 2013. No objections were raised in relation to the development application.

Environmental Health Unit on 7 November 2013

The referral was returned on 20 December 2013. No objections were raised in relation to the development application subject to conditions being imposed

Land Projects Committee on 14 January 2014

The referral was returned on 3 February 2014. No objections were raised in relation to the development application.

Details of external referrals and responses to external referrals

The development application was referred to the NSW Rural Fire Service (RFS) on 28 November 2013. On 15 January 2014 the RFS issued its general terms of approval (as required under s100B of the Rural Fire Act 1997) subject to the imposition of certain conditions (at [77] in Council's bundle (Exhibit 3)).

The development application was referred to NSW Roads and Maritime Services on 28 November 2013. The Council received a response from the RMS on 6 January 2014 which also raised no objection to the development subject to Council assessing the cumulative impact of the development on the intersection of Bottles Road with Rooty Hill Road North.

Requests for additional information and responses to those requests

An email was sent by the Council to the School on December 2013 seeking:

Demonstration of compliance with Schools Facilities Standards;/-* Payment of fee for referral to Rural Fire Service; and

Demolition details.

A cheque payable to the Rural Fire Service was received on 8 December 2012 and the Council received confirmation of compliance with the Schools Facilities Standards on 13 February 2014.

Traffic

1. The Council's statement raises traffic as a reason for refusal. The contention is particularized as follows:

Traffic Impacts

The development application should be refused because the proposed development, in terms of the increase in student numbers to 320, will have an unacceptable cumulative road network and the Traffic impact Assessment provided with the Development Application is inadequate.

Particulars

Bottles Road serves Plumpton High School, Plumpton Public School and Plumpton House School, as well as a childcare centre and neighbourhood shop.

The Traffic Impact Assessment provided with the Development Application is inadequate as it is based on an increase in student numbers and not 320 as currently proposed.

The increase in student numbers to 320 will increase, and will have an unacceptable impact on, the traffic and parking movements on Bottles Road and Cannery Road.

The increase in traffic and parking movements on Bottles Road and Cannery Road will reduce the performance of the intersection of Bottles Road and Hyatts Road, and of Bottles Road and Rooty Hill Road North.

1. The School relies on the evidence of its traffic consultant Piran Trethewey. His statement of evidence for the appeal is (Exhibit D). It is based on the 2011 the Varga Traffic Report that was filed as part of the original development application.

1. After carrying out the modeling required by the RMS Mr Trethewey told the Court that in his assessment the development will not have an unacceptable impact on traffic. In short he said the development would create moderate traffic impacts, which will be managed by the plan of traffic management (Exhibit J).

1. By the conclusion of the hearing the School's draft operational plan of traffic management had been substantially rewritten to incorporate the recommendations of Mr. Hallam the Council's traffic consultant. Following those changes I am now satisfied that the plan covers all necessary strategies to minimize delays and queuing. The measures include: staff supervision, staggering of pick up times, drop off and pick up procedures for parents and carers and the provision of minivan services for students.

1. In fact the proposal requires the school to provide at least 3 minivan/ busses to transport students to and from the school when the School enrolments reach 250 students. These vehicles are to be accommodated in the revised onsite parking area at Bottles Road. The plan is also subject to review and to be a condition on the consent.

1. Importantly, the additional surveys undertaken by the traffic experts and discussed at the hearing have satisfied the RMS's request for an analysis of the cumulative impacts of the development on the intersection of Bottles Road with Rooty Hill Road North. Based on that evidence I am satisfied that there is no unacceptable impact. In that circumstance the RMS raises no objection to the approval of this application on the grounds of traffic. In the ultimate, after a consideration of the queuing analysis (Exhibit K), the draft conditions and the revised operational traffic management plan Mr Hallam agreed that the proposal addressed the contentions originally identified by the Council.

1. Having considered the final expert evidence on traffic and the objectors' submissions against the relevant controls including the DCP I am satisfied that the contentions raised in respect of traffic have been satisfactorily addressed by the amended application which includes the operational traffic plan of management.

Noise

1. The Council's statement raises noise impacts as a reason for refusal. The contention is particularized as follows:

Acoustic impacts

The development application should be refused because the proposed development, in terms of the increase in student numbers to 320, will have an unacceptable impact on the amenity of the adjoining residence to the east in terms of noise generated from the use of outdoor areas and the acoustic assessment provided with the development application is inadequate.

Particulars

The subject land is adjoined by a single storey residence to the east and eight townhouses to the west.

Whilst the proposed building will provide an acoustic barrier between the playground area and the 8 townhouses to the west, the open playground areas are located without adequate buffer areas to protect the adjoining residence to the east from noise from playground areas as a result of the increase in students to 320.

The Acoustic Assessment provided with the development application is inadequate as it is based on an increase in student numbers to 250 (as originally proposed) and not 320 as currently proposed

The Acoustic Assessment provided with the development application does not address the impact of noise upon the dwelling to the east and whether current acoustic measures are adequate to protect that dwelling from noise impacts.

1. At the hearing the School relied on acoustic evidence from John Wassemann (Exhibit E). The Council relied on acoustic evidence from Mr Gauld. The experts' joint report is (Exhibit 4).

1. In response to the Council's contentions the School carried out a further acoustic assessment of the proposed Stage 1 building as well as an increase in student number to 320.

1. The noise assessment was based on the noise criteria agreed in the joint acoustic report prepared for the application. Both consultant concurred that the relevant background + 10dBA criterion can be applied at playtime is limited to approximately 2 hours per day. Noise predictions were based on the measurement done at the school during lunchtime.

1. Based on the noise predictions, the new building and 160 children in the playground meets the relevant noise criteria without any additional mitigation. With the new building constructed and 320 children in the playground there are exceedances on the first floor of unit B11 Cannery Road and 17 Cannery Road. To mitigate these excedences the following mitigation measures have been recommended by Mr Wassemann:

A 1.5 high noise barrier 2 m in the air between the Stage 1 building and the existing Block A building;

Access to the area adjacent to the boundary with 17 Cannery Road should be restricted to children accessing the food service area; and

The underside of the ceiling /roof of the food servicing area should be faced with acoustically absorbent material.

1. In my assessment these recommended acoustic measures must be incorporated into the consent. I am also of the opinion that any proposed acoustic fence/ and associated landscaping needs to be in place before the new development is occupied.

1. Mr Gauld is accepting of these mitigation measures and subject to those he agrees that there is no other acoustic issue raised by this application. Therefore, noise impacts from the development are not a basis for the refusal of this application.

Conditions

1. Having regard to the draft conditions in Exhibit J it is my understanding that the parties have agreed to the amendment of condition 2.12 to read "kindergarten to year 10 " and the amendment of condition 10.1.2 to read "from Bottles Road entrance between 7am-8am and 9am-3pm and 4pm-6pm on weekdays". I also believe that they agree that conditions 10.1.4 and 10.1.6 are to be amended to refer to the plan of management dated 11/6/2014 in Exhibit J and conditions 4.2.1; 7.4.1; 10.2.6 are to be deleted. The Schools' amendments to condition 10.2.5 are also acceptable.

1. At the conclusion of the hearing the parties indicated, in the event of an approval that they wanted to address the Court in respect of the draft s 94 condition in Exhibit L.

Conclusion

1. For the reasons outlined I propose to grant conditional consent to this amended application. However, as all of the conditions have not been finally settled I must defer my final orders until that takes place. Accordingly, I direct the parties to file a short written submission with respect to the Council's proposed s 94 condition and any other condition that remains in dispute within 14 days.

Susan Dixon

Commissioner of the Court

Decision last updated: 15 September 2014