Western Grammar School v Blacktown City Council (No 2)

Case •

[2014] NSWLEC 1224

•

04 November 2014

Land and Environment Court


New South Wales

Medium Neutral Citation: Western Grammar School v Blacktown City Council (No 2) [2014] NSWLEC 1224
Hearing dates:Written submissions 10 October 2014
Decision date: 04 November 2014
Jurisdiction:Class 1
Before: Dixon C
Decision:

1.Development consent is granted to DA -13-2106 for the expansion of the school located at 15 Cannery Road, Plumpton in accordance with the plans identified in condition 2.1 of the conditions in Exhibit 7 and amended in accordance with this judgment.

2.The Council will file conditions which reflect my reasons for judgment within 7 days.

3.The Exhibits are returned except for Exhibits A, and C, 7.

Catchwords: DEVELOPMENT CONSENT: Conditions - requiring a monetary contribution pursuant to section 94 - contributions for trunk drainage and local roads - nexus with development
Legislation Cited: State Environmental Planning Policy (Infrastructure) 2007
Environmental Planning and Assessment Act 1979
Blacktown City Council Section 94 Contributions Plan No.1 - 1980's Release Areas
Blacktown City Council's Section 94 Contributions Plan No. 02 - Local Roadworks
Category:Principal judgment
Parties:

Western Grammar School (Applicant)

Blacktown City Council (Respondent)
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

  1. On 12 September 2014 I delivered judgment in an appeal by Western Grammar School, the applicant, made under s 97 of the Environmental and Assessment Act 1979 (the Act). The proceedings were Western Grammar School v Blacktown City Council [2014] NSWLEC 1191. The case concerned the expansion of a private school in Plumpton.

  1. The judgment records my intention to grant a conditional consent to the development. However, at the time of handing down my reasons for judgment the parties had not finally resolved the terms of the conditions of consent. For that reason, I deferred making final orders and invited the parties to provide me with their written submissions in respect of any conditions in dispute.

  1. On 10 October 2014 I received the parties' written submissions and I am now in a position to finalize the terms of the conditions and make final orders reflecting my reasons for judgment.

The Conditions in dispute

  1. According to the parties' written submissions conditions 2.1.2, 4.1.1, 4.1.2 4.1.4 and 7.4.3 in (Exhibit 7) are in dispute.

Condition 2.1.2

  1. Condition 2.1.2 states as follows:

2.1.2 The number of students permitted to attend the school the subject of this development consent is restricted to a maximum of 320 students at all times and only for years kindergarten to year 4.

  1. The applicant proposes a maximum of 320 students at all times from kindergarten to year 10. It submits that there is no planning basis to impose a limitation to year 4.

  1. The Council seeks to restrict the school to year 4 but offers no planning basis for such a restriction.

  1. After a consideration of the evidence, I must agree with the applicant that there is simply no evidence to support a restriction or limitation on the grades at the school from kindergarten to year 4.

  1. Therefore, I allow the applicant's amendment to condition 2.1.2 to permit a maximum of 320 students at all times and only for years kindergarten to year 10.

Conditions 4.1.1 and 4.1.2

  1. Conditions 4.1.1 and 4.1.2 in Exhibit 7 state as follows:

4.1 Section 94 Contributions
4.1.1 The following monetary contributions pursuant to Section 94 of the Environmental Planning & Assessment Act 1979 must be paid. The amounts below are BASE contributions which WILL BE INDEXED from the nominated base date to the date of payment. Payment of the indexed amounts must be made (BY BANK CHEQUE IF IMMEDIATE CLEARANCE IS REQUIRED. NOTE Council DOES NOT accept payment of S.94 Contributions by credit card or EFTPOS) prior to the issue of a Construction Certificate (for building works) or Subdivision Certificate (for subdivision works) either by Council or any accredited certifier, whichever occurs first.
Contribution Item    Base Amount   Relevant C      I.P. Base Date
(i) Trunk Drainage $21,124           C.PNo.1          1 June 2010
(ii) Local Roads     $40,676           C.PNo.2          1 June 2007
(Cannery Road)
(Hi) Local Roads  $49,874           C.PNo.2          1 June 2007
(Bottles Road)
The contributions will be indexed according to the Australian Bureau of Statistics' Implicit Price Deflator for Gross Fixed Capital Expenditure (Private Dwellings) and the Consumer Price Index (Sydney Dwellings).
Copies of the following relevant Contributions Plan may be inspected/purchased from Council's Development Services Unit:
S.94 CP No. 1 - 1980s Release Areas
S.94 CP No. 2 - Local Roadworks
The Section 94 Contributions have been based on the total developable area and the road frontage nominated below. Should the final plan of survey indicate any change in the total developable area or should amendments change the potential additional population, the Section 94 Contributions will be adjusted accordingly.
Developable Area: 4112sqm
Road Frontage: 51.1m (Cannery Road)
51.1m (Bottles Road)
4.1.2 Any Compliance Certificate issued for the payment of Section 94 Contributions shall be accompanied by a letter from Council acknowledging that the correct Section 94 Contributions have been paid for that particular development.

  1. Relevantly, when the Court first approved the use of the site for a school on 29 November 2011, in Best Western Services Pty Ltd v Blacktown City Council [2011] NSWLEC 1380, it approved a development application for an independent school with a maximum of 125 students on the land at 15 Cannery Road, Plumpton subject to conditions of consent ("the original consent").

  1. The Council did not require a condition on the original consent requiring payment of a monetary contribution for "Trunk Drainage" and "Local Roads" because the original consent involved alterations and additions only to the two existing dwelling houses and associated outbuildings on the subject land and it was acknowledged by the applicant and the Council at that time that the development, the subject of the original consent, was not the final form of development proposed for the land.

  1. Condition 4.1.1 of the original consent required payment of a monetary contribution in respect of "Major Roads" and "Overbridge" pursuant to s 94 of the Environmental Planning Act and Assessment 1979 and Blacktown City Council's Section 94 Contributions Plan No.1 - 1980's Release Areas.

  1. Condition 4.1.1 of the original consent provides as follows:

4.1 Section 94 Contributions
4.1.1 The following monetary contributions pursuant to Section 94 of the Environmental Planning & Assessment Act 1979 must be paid. The amounts below are BASE contributions which WILL BE INDEXED from the nominated base date to the date of payment. Payment of the indexed amounts must be made (BY BANK CHEQUE IF IMMEDIATE CLEARANCE IS REQUIRED. NOTE Council DOES NOT accept payment of S.94 Contributions by credit card or EFTPOS) prior to the issue of a Construction Certificate (for building works) or Subdivision Certificate (for subdivision works) either by Council or any accredited certifier, whichever occurs first.
Contribution Item Base Amount Relevant CP. Base Date
(i) Major Roads $8,715 No. 1 June2010
(ii) Overbridge $1,394 No. 1 June 2010
The contribution(s) will be indexed according to the Australian Bureau of Statistics' Implicit Price Deflator for Gross Fixed Capital Expenditure (Private Dwellings) and the Consumer Price Index (Sydney Dwellings).
Copies of the following relevant Contributions Plan(s) may be inspected/purchased from Council's Development Services Unit:
S.94 CP No. 1 - 1980s Release Areas
The Section 94 Contribution(s) have been based on the total developable area, the site's road frontage and/or the potential additional population nominated below. Should the final plan of survey indicate any change in the total developable area or should amendments change the potential additional population, the Section 94 Contribution(s) will be adjusted accordingly.
Developable Area: 4112sqm
Additional Population: Nil

Power to Impose Conditions 4.1.1 and 4.1.2

  1. The development under review comprises the following works:

  • Demolition of a metal clad building on the land that currently houses the library and computer room and one classroom;
  • Construction of a two storey building comprising six classrooms, library and computer room, toilets and staff service.
  • The provision of five additional car parking spaces.

  1. The development also seeks to increase 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.

  1. The Council now seeks to impose a condition of consent in respect of the development requiring payment by the applicant of a monetary contribution for "Trunk Drainage" and "Local Roads".

  1. The Council contends that it is entitled to impose such a condition pursuant to section 94 of the Act and Blacktown City Council's Section 94 Contributions Plan No.1 - 1980's Release Areas and Blacktown City Council's Section 94 Contributions Plan No. 02 - Local Roadworks.

  1. Sections 94(1)-(4) of the Act states:

"94 Contribution towards provision or improvement of amenities or services
(1)If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring:
(a) the dedication of land free of cost, or
(b) the payment of a monetary contribution, or both.
(2) A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned.
(3) If:
(a) a consent authority has, at any time, whether before or after the date of commencement of this Part, provided public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area, and
(b) development for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services,
the consent authority may grant the development consent subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services (being the cost as indexed in accordance with the regulations).
(4) A condition referred to in subsection (3) may be imposed only to require a reasonable contribution towards recoupment of the cost concerned.

  1. Sections 94B (1)-(3) of the Act states:

"94B Section 94 or 94A conditions subject to contributions plan
(1) A consent authority may impose a condition under section 94 or 94A only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).
(1)However, in the case of a consent authority other than a council:
(a) the consent authority may impose a condition under section 94 or 94A even though it is not authorised (or of a kind allowed) by, or is not determined in accordance with, a contributions plan, but
(b) the consent authority must, before imposing the condition, have regard to any contributions plan that applies to the whole or any part of the area in which development is to be carried out.
(3) A condition under section 94 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction."

Section 94 Contributions Plan No.1 - 1980's Release Areas - Trunk Drainage

  1. The Council submits that it seeks to levy a contribution in respect of "Trunk Drainage" based on the Blacktown City Council's Contributions Plan No.1 - 1980's Release Areas ("CP No. 1").

  1. Clause 1.1 of CP No. 1 provides as follows:

1.1 Purpose of Plan
This Contributions Plan outlines Council's policy regarding the application of Section 94 (S.94) of the Environmental Planning and Assessment Act, 1979 in relation to the provision of Infrastructure and baseline facilities within the City's 1980s Release Areas.
Within the 1980s Release Areas S.94 contributions are levied for the following amenities and services:
      • Trunk Drainage
      • Flood Mitigation
      • Major Roads
      • Eastern Creek Overbridge
      • Open Space and Recreation
      • Community Facilities
This Plan has been prepared in accordance with the Environmental Planning and Assessment Act, 1979 and the Environmental Planning and Assessment Regulation, 2000.
The initial Contributions Plan for the 1980s Release Areas was approved by Council on 21 July 1993 and came into force on 4 August 1993.
This plan was reviewed in March 1999, with a further review in March 2006, coming into force on 29 November 2008.
The S.94 contributions contained in this Plan have been determined on the basis of "Contribution Catchments". This is tie area over which a contribution for a particular item is levied. Within each catchment there is an identifiable "list" of works, which are scheduled for provision.
Council applies contribution formulae to each catchment for the purpose of calculating the contribution rate applicable to that catchment. The formulae take into account the cost of works to be undertaken, the cost to Council of acquiring land on which to undertake these works and the size of the catchment area. The total cost of providing these works is distributed over the total catchment on an equitable basis.

  1. Clause 1.4 of CP No. 1 and the diagram on page 7 of CP No. 1 identifies the land to which CP No. 1 applies. The suburb of Plumpton is identified as one of the Catchment Areas that are subject to the Plan. Clause 1.5 of CP No. 1 outlines development to which the Plan applies and states as follows:

1.5 Development to which the Plan Applies
This Plan applies to all developments occurring within the precinct catchment areas that require the submission of a development application or an application for a complying development certificate, including the intensification of use of a site involving expansion of area occupied by a development and/or the addition of population.

  1. The Council submits that the proposed development involves an intensification of the use of the site and the expansion of the area that is occupied by the development.

  1. Part 2 of CP No. 1 relates to "Trunk Drainage". Clause 2.1 of CP No. 1 provides as follows:

2.1 Nexus
In order to levy S.94 contributions Council must be satisfied that development, the subject of a Development Application, will or is likely to require the provision of or increase the demand for amenities and services within the area. This relationship or means of connection is referred to as the nexus.
The nexus between development and the increased demand for trunk drainage works is based on the community held expectation that urban land, especially residential land, should be satisfactorily drained and flood free. Development produces hard impervious areas and this results in increased stormwater runoff and greater flows occurring in the natural drainage system. If these flows are not controlled by an appropriate drainage system inundation from floodwaters may occur both within the area being developed and further downstream. An appropriate drainage system may include modifications to the natural watercourse such as piping, channel widening, culverts and retention basins.
The 1980's Release Area was essentially sparsely developed rural land at the time it was released for urban development. Council identified that substantial trunk drainage works were required to ensure that these areas and properties down steam were not inundated by floodwaters as a result of development.
In accordance with Council's standard for new urban development the proposed trunk drainage system for the 1980's Release Area has been designed to accommodate a 100-year Average Recurrence Interval flow for the critical storm event, with a 0.5 metre freeboard on top of the calculated maximum water level. This standard is compatible with current State Government guidelines
The major objectives of the trunk drainage design are:
      • To minimise and control nuisance flooding and to provide for the safe passage of less frequent flood events.
      • To limit flows after development to the existing or historic drainage flows.
      • To stabilise the landform and control erosion.
      • To protect property.
      • To optimise the land available for development.
      • To minimise recurrent maintenance costs to the community for the trunk drainage system.
      • To provide opportunities to optimise trunk drainage systems for dual use recreational pursuits.

  1. The Council submits that there is a sufficient nexus in order to levy a contribution for Trunk Drainage because the proposed development will benefit from the provision of existing trunk drainage works and trunk drainage works yet to be carried out.

  1. It is clear from the development plans and planning and traffic evidence that the development will result in a significant increase in hard impervious areas on the site. Clause 2.2 of CP No. 1 provides as follows:

2.2 Contribution Catchment
The 1980's Release Areas contains ten separate catchment areas for trunk drainage on the basis of the natural watersheds which occur in these areas. Maps showing the location of the trunk drainage contribution catchments are contained in Appendix "A". In some instances land outside of the 1980s Release Areas is included as part of the catchment. This is because it was (at the time of release of the adjoining land) undeveloped land that will benefit from the provision of the drainage works.
In order to determine actual provision levels and, ultimately, contribution rates, the developable area of the trunk drainage catchments has been calculated. The developable area is the area over which the cost of providing the works has been distributed and is explained further in Section 9.4.
The developable area of the trunk drainage catchment is stated in Appendix "H".

  1. Appendix A.2 (1 of 2) on page 33 of CP No. 1 identifies that land between Bottles Road and Cannery Road, Plumpton (on which the subject land is located) falls within the Catchment Area identified as "Bells Creek".

  1. Appendix A.2 (2 of 2) on page 34 of CP No. 1 outlines the Schedule of Trunk Drainage Works for the Catchment Area of Bells Creek.

  1. Clause 2.3 of CP No. 1 identifies the formula used to calculate the contribution rate for Trunk Drainage and thereafter states as follows:

A schedule of works for each contribution catchment is provided in Appendix "A.1 to A.10" together with maps of the catchment indicating the location of the works.
The values of the components of the contribution formula are contained in the Schedule being Appendix *H*.
The resultant contribution rates are contained in the Schedule being Appendix "I".

  1. Appendix "I" (1 of 1) on page 84 of CP No.1 identifies that the Contribution Rate for Bells Creek is $51,371.00 per hectare. The subject land has a total area of 4,112 m2 (0.4112 hectares).

  1. The contribution sought to be levied in respect of Trunk Drainage for the Bells Creek Catchment Area for the subject development, based on a developable area of 0.4112 hectares is therefore $21,123.76 ($21,124.00).

Section 94 Contributions Plan No. 02 - Local Roadworks - Local Roads

  1. The basis upon which the Council seeks to levy a contribution in respect of "Local Roads" is outlined in the Blacktown City Council Section 94 Contributions Plan No. 2 -Local Roadworks ("CP No. 2").

  1. Clause 1.1 of CP No. 2 provides as follows:

1.1 Purpose of the Plan
This Contributions Plan outlines Council's policy regarding the application of Section 94 (S.94) of the Environmental Planning and Assessment Act, 1979 to the provision of local roadworks in specific areas of the City.
This Plan has been prepared in accordance with the Environmental Planning and Assessment Act, 1979 (the Act) and the Environmental Planning and Assessment Regulation, (the Regulation) 2000.
The initial Contributions Plan was originally approved fay Council on 1 September 1993 and came into force on 9 September 1993.
This Plan was reviewed in June 1998, March 2000, December 2003 and March 2008, with a further review in September 2007, coming into force from 4 June 2008.
This current document contains the most recent data available and is exhibited for public comment prior being considered for adoption by Council.
The residential areas of the City where this Plan applies are characterised by existing small tots, which were created many years ago. Public amenities and services such as local roads and drainage were not provided at the time of subdivision. Specific industrial roads, which have likewise experienced fragmented development, have also been included.
It is much more efficient for Council to collect contributions for the construction of local roads than to require developers to construct half width roads adjoining the frontage of individual developments. A piecemeal approach is very costly in terms of both initial construction and maintenance. A contribution system allows Council to stage the building of longer sections of local road as contributions become available.
The contribution levied for local roadworks is determined by the length of frontage a lot has to the adjoining road and the ultimate standard of construction proposed for the road. The contribution provides for the half-width construction of the road to which a development has frontage. Where a single residential dwelling development fronts more than one road (and subdivision is not proposed) the contribution shall only be levied for one frontage, generally the rateable frontage. For single dwelling houses however, where vehicular access is gained to the property from other than the rateable frontage, contributions shall be levied for the frontage that allows vehicular access. Payment will be required for the construction of at least one of a comer block residential property's road frontages. All developments other than single dwellings are required to pay contributions for each of the local roads to which they have a frontage.
Developments are levied contributions according to the extent of frontage their site has to the S.94 road. All developments are required to pay an equitable share of the total cost of each road's construction. Therefore, instead of developers paying for the actual road in front of their property/s, the plan uses the individual frontage as a means of calculating each development's share of contribution towards the total cost of the local roads forming this Plan.

  1. Clause 1.4 of CP No. 2 identifies the land to which CP No. 2 applies. Item 4 in clause 1.4 is identified as "Bottles & Cannery Road - PLUMPTON". Appendix A (4 of 19) on page 18 of CP No. 2 identifies the land which falls within the Bottles & Cannery Road, Plumpton Catchment Area, which includes the site.

  1. The site has a frontage to Bottles Road and Cannery Road, Plumpton. Clause 1.5 of CP No. 2 identifies development to which the Plan applies and states as follows:

1.5 Development to which the Plan Applies
This Plan applies to all developments occurring within the catchment areas that require the submission of a development application to Council including the intensification of use of a site involving expansion of the area occupied by a development.

  1. The Council submits the proposed development involves an intensification of the use of the site and the expansion of the area that is occupied by the development. Both Bottles Road and Cannery Road will be used by new vehicles (including additional school buses, service vehicles and staff vehicles) associated with the development. Although the primary vehicle access point for the parents of students and other visitors to the school is Bottles Road the staff parking is accessed from Cannery Road. The evidence supports a finding that both streets provide pedestrian and vehicle access to the development.

  1. Clause 2.1 of CP No. 2 provides as follows:

2.1 Nexus
A nexus can be drawn between the increased development anticipated in the areas subject of this CP and the need to upgrade the existing local road system.
Prior to development being undertaken in these areas the existing road system consisted of either unformed roads or roads developed to a rural standard with narrow pavement widths and no kerb and guttering.
In order to safely accommodate traffic flows arising from development of the type proposed in these areas it will be necessary to upgrade the existing roads to acceptable standards. This will require the construction of kerb and guttering, full sealing of the roads and road drainage. The extent of works required on a particular road will vary according to the current standard of the road.

  1. The Council contends that there is a sufficient nexus in order to levy a contribution for Local Roads because the proposed development will benefit from the provision of existing roads adjacent to the subject land and the existing road system.

  1. Clause 3.4 of CP No. 2 states that the contribution rates for Local Roads are shown in Appendix "B". Appendix "B" on page 34 of CP No. 2 outlines the Schedule of Local Road works and identifies Bottles Road and Cannery Road and the corresponding sections of those roads as "LR4.1" and "LR4.2".

  1. Appendix "C" on page 35 of CP No. 2 identifies the Base Contribution Rates for Local Roads. The contribution rate in respect of Bottles Road is $976.00. The contribution rate in respect of Cannery Road is $796.00. The note to Appendix "C" identifies that the contribution rates are per lineal metre.

  1. The length of the frontage of the subject land to both Bottles Road and Cannery Road is 51.1 metres.

  1. Clause 1.1 of CP No. 2, referred to above, states that "the contribution levied for local road works is determined by the length of frontage a lot has to the adjoining road", and that "all developments other than single dwellings are required to pay contributions for each of the local roads to which they have a frontage".

  1. The contribution sought to be levied for Local Roads (Bottles Road) is therefore $49,873.60 ($49,874.00).

  1. The contribution sought to be levied for Local Roads (Cannery Road) is therefore $40,675.60 ($40,676.00).

  1. The applicant submits the neither CP1 nor CP 2 addresses development for a school. "Both plans are couched in terms of requiring payment of money for the development of land to help fund the increased demand for public amenities and public services. Schools are themselves an element of public service designed to serve the local populace, not a form of development that generates a demand for public services and facilities" (at [9] AWS). The applicant concedes that no contribution for local roads was sought when the school was first approved and contends that it is inappropriate to impose a condition requiring payment now for the expansion of the school. It submits that there is no evidence of a requirement for this type of contribution from any other school.

  1. The applicant submits that the rate imposed equates to a contribution for trunk drainage for the whole site and does not give a credit for contributions made in relation to demand for urban facilities generated by existing authorized development. In short the contribution assumes that the development is new. It contends that the whole site is presently authorized for a school and at most a contribution could only be sought for additional buildings and hard stand areas that generate additional demand for trunk drainage.

  1. The applicant submits that the two main existing buildings on the site existed as dwellings before CP came into effect. A further additional building approved by the Court having an area of 97.76m2 is to be removed. The only additional built area proposed by the development comprise the new classroom building occupying an area of 436.2m2 including paved areas. The remainder of the site is already utilized for the development approved by the Court. The only additional demand for trunk drainage would be derived from the additional hard paved surfaces less the authorized buildings to be demolished. This equates to a contribution in accord with the plan of $51,371x 0.053396ha (being 436.2m2 - 97.76m2 =$274.

Finding Trunk Drainage and local roads s94 contributions

  1. I accept the Council's submissions that the proposed development involves an intensification of the use of the site by an increase in student and staff numbers and the expansion of the area that is occupied by the development.

  1. In those circumstances I am satisfied as required by s94 (1) of the Act that the development will or is likely to require the provision of or increase the demand for these public amenities and public services and a monetary contribution in accord with the relevant contributions plans is appropriate and justified . Furthermore, I am satisfied that the proposed s94 conditions are reasonable and calculated in accord with the relevant contribution plans as discussed above.

  1. I accept, as the Council submits that when the Court approved the school use on the site on 29 November 2011, in Best Western Services Pty Ltd v Blacktown City Council [2011] NSWLEC 1380, it approved a small independent school with a maximum of 125 students. At that time, the Council did not require the imposition of a condition on the original consent requiring payment of a monetary contribution for "Trunk Drainage" and "Local Roads" because the original consent involved alterations and additions only to the two existing dwelling houses and associated outbuildings. As is clear from the Court's original judgment it was always accepted that the development, the subject of the original consent, was not the final form of development proposed for the land.

  1. For the reasons stated by the Council I am satisfied that this development justifies the imposition of the proposed s94 contributions for trunk drainage and the local roads for both the Cannery Road and Bottles Road frontages.

  1. With respect to Trunk drainage Clause 1.5 of CP No1 outlines the development to which the plan applies. In my assessment the works proposed by this development in particular, the additional 5 parking spaces and the two-storey building have a sufficient nexus in order to levy a contribution for trunk drainage.

  1. The evidence supports a finding that the development will result in a significant increase in hard impervious areas on the site. In those circumstances I accept the Council's proposed s94 monetary contributions for trunk drainage calculated in accord with the relevant CP plan to be reasonable because the proposed development will benefit from the provision of existing trunk drainage works and trunk drainage works yet to be carried out.

  1. In forming that view I reject the applicant's submission that the school should be given a credit for the existing dwellings on the site (erected as dwellings before the CP plan came into effect) and now used as a school in circumstances where it has paid no s94 contribution for trunk drainage and the development has been intensified and will benefit from the provision of existing trunk drainage works and trunk drainage works yet to be carried out.

  1. With respect to the local roads contribution I cannot accept on the traffic evidence that the applicant's submission that the development will not intensify the use of the Cannery Road frontage. The Cannery Road frontage serves as a vehicle and pedestrian access for all of the staff of the school and a pedestrian access point for students.

  1. As the Council submits and the evidence suggests there is an obvious intensification of the use of the roads on both frontages by the approval of an additional 193 students and 15 staff. The traffic evidence anticipates additional vehicles and school buses to the site generated by this development. In the present circumstances the proposed s94 contribution for local roads (calculated in accord with the Council's CP No 2) is both justified and reasonable.

  1. For the reasons articulated by the Council I impose the proposed section 94 contribution conditions in respect of trunk drainage and local roads without alteration.

Condition 4.2 - Aesthetics/Landscaping

  1. The Council's condition 4.2 seeks approval of a detailed landscape plan prior to the issue of the construction certificate. The applicant opposes that condition and submits that the landscape plan tendered at the hearing in Exhibit B is satisfactory.

  1. I reject that submission.

  1. In my assessment the applicant's landscape plan in Exhibit B falls well short of being satisfactory. It does not contain any detail about the proposed plant species, screen planting, turf or the proposed retaining walls.

  1. In circumstances where the landscaping is important to buffer the length of the built form and embellish the appearance of the school in the streetscape it is appropriate that a detailed plan (prepared by a qualified landscape architect) be provided to Council and approved before the issue of a building certificate. I endorse the Council's proposed condition.

Condition 7.4.3

  1. The Council submits that the Court should impose a restriction on the hours of construction work. Condition 7.4.3 states:

7.4.3
Construction work on all buildings (except that on single dwelling houses and associated structures on the on the (sic) site of a single dwelling house) shall not occur on Saturdays and Sundays on weekends adjacent to a Public Holiday.

  1. The Council contends that condition 7.4.3 ought to be imposed on the consent because it is reasonable and has a planning purpose that relates fairly and reasonably to the development. It submits that the restriction of construction work on Saturdays and Sundays adjacent to a Public Holiday is necessary in this case to ensure the amenity of adjoining residential uses. In short it will provide a period of respite from construction noise on holiday weekends.

  1. Given the proximity of the development to the adjoining residential uses I consider the Council's condition reasonable because it will protect the amenity of the residents during the construction phase of the development.

Orders

  1. For the reasons stated I make the following orders:

(1)   Development Consent is granted to Development Application DA -13-2106 for the expansion of the school located at 15 Cannery Road, Plumpton in accordance with the plans identified in condition 2.1 of the conditions in Exhibit 7 and amended in accordance with this judgment.

(2)   The Council will file conditions which reflect my reasons for judgment within 7 days.

(3)   The Exhibits are returned except for Exhibits A, and C, 7.

Susan Dixon

Commissioner of the Court

Decision last updated: 04 November 2014

Citations

Western Grammar School v Blacktown City Council (No 2) [2014] NSWLEC 1224

Citations to this Decision

0

Cases Cited

2

Statutory Material Cited

4