Land and Environment Court of New South Wales CITATION : Vieira v Ku-ring-Gai Council [2006] NSWLEC 414 APPLICANT Jose Vieira PARTIES : RESPONDENT Ku-ring-Gai Council FILE NUMBER(S) : 10258 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- Installation of tennis court lights Environmental Planning and Assessment Act LEGISLATION CITED: Ku-ring-gai Planning Scheme 1971 Development Control Plan No. 38 - Residential Design Manual DATES OF HEARING: 23/06/2006 EX TEMPORE JUDGMENT DATE : 06/23/2006 APPLICANT Mr J Vieira, self represented LEGAL REPRESENTATIVES: RESPONDENT Mr A Johnson, solicitor SOLICITORS Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 23 June 2006 10258 of 2006 Jose Vieira v Ku-ring-gai Council JUDGMENT This decision was given extemporaneously and has been revised and edited prior to publication 1 This appeal relates to Development Application No. 1369/05 for the installation of light fittings on 8 m high poles to illuminate the existing approved tennis court at 29 Lucinda Avenue, Wahroonga. The tennis court is situated on the north-western corner of the existing subject hatchet shaped allotment and has zero setbacks from the northern and western boundaries. 2 The subject property is partly zoned Residential 2C and partly County Road Reserve under the Ku-ring-gai Planning Scheme 1971 ("the planning scheme"). The tennis court itself and the adjoining lands to the north and west are included in the County Road Reservation. The proposal is permissible with development consent under the planning scheme. It is to be noted that Sch 9 contains objectives requiring that new development should maintain the amenity and character of the area in which it is situated. 3 Also applicable to the site is Development Control Plan No. 38 - Residential Design Manual ("the DCP 38"). DCP 38 also contains objectives which seek to avoid impacts on the amenity of the neighbourhood. The DCP also adopts council's Tennis Court Policy ("the policy") which contains policy and guidelines aimed at maintaining and improving exiting amenity and contains requirements that tennis courts be sited a minimum of 3 m from side or rear boundaries and 5 m from any habitable area of any dwelling on an adjoining property. The 3 m setback requirement is to enable the provision of landscaping. The policy also provides that council will not approve temporary or permanent lighting of private tennis courts for night play due to the possible unreasonable detrimental effect on neighbour amenity. Also the use of tennis courts for purposes other than normal domestic usage is prohibited. 4 The application was notified to adjoining property owners with submissions being received from Mr and Mrs Weir of 33A Lucinda Avenue, Wahroonga, and Mr and Mrs Fernando of 35 Lucinda Avenue, Wahroonga. Evidence by or on behalf of these residents was given when the hearing began on site. Their concerns predominantly relate to light overspill and noise, especially up to the approved and proposed 9.30 pm limit. 5 On behalf of the respondent council, planning evidence was given by Mr G Stewart. He raised a number of concerns, including non-compliance with the Tennis Court Policy, particularly in relation to illumination, taking into account that the normally required 3 m setback has not been provided. Relevantly he said that: Whilst non-compliance with the setback requirement and the installation of lighting would not significantly affect local amenity at this time, it may lead to further applications to light the other eight tennis courts in the near vicinity and the local area generally and this could have a detrimental cumulative effect. 6 Having considered the evidence of Mr Stewart and taking into account the residents' concerns I have not been persuaded that the illumination of this tennis court and its use until 9.30 at night would so affect the neighbours amenity that it should be refused. In reaching this conclusion I have taken into account the distance of separation between the tennis court and neighbouring dwellings. 7 I have also taken into account the fact that the tennis court is approved for use until 9.30 at night without lights and this means that in summer time, tennis play could occur until about this time. 8 Also relevant to this particular aspect of the illumination is Australian Standard 4282-1997 Control of the Obtrusive Effect of Outdoor Lighting. Taking into account the particular requirements for illumination limitations at the boundaries of nearby residential properties in Table 2.1 and the illumination diagram provided by the applicant, I accept that relevant to the neighbouring residential properties that are occupied with dwelling houses, that the standard in that table is met by the proposal. 9 Concerns were expressed on behalf of the council that approval of this tennis court would produce an undesirable precedent and might undermine council's policy. However this cannot be so, because for a precedent to be undesirable the consent which generates such a precedent must of itself be undesirable and I have not reached such a conclusion. Moreover for a precedent to be established, if it exists, it can only be applied to a different development application having similar or identical circumstances. In this case I have difficulty understanding how other tennis courts in the locality would have similar or identical circumstances to what exists here. 10 Of considerable concern to the respondent council are the circumstances associated with the County Road Reservation of which includes part of the site and significant areas of adjoining land. This reservation is identified by the Department of Infrastructure Planning and Natural Resources and the Roads and Traffic Authority as the B2/B3 road corridor extending between Wahroonga and South Turramurra. According to a letter dated 1 August 2003 and an accompanying report prepared by Don Fox Planning Pty Limited, this road corridor has been abandoned. 11 The corridor has been divided into a number of precincts and a process is underway for the re-zoning of Precincts 7 to 11. Precincts 1 to 6, which are located between Pearce's Corner, Wahroonga and the Comenarra Parkway are not the subject of any current re-zoning proposal. The site adjoins Precinct 1. 12 In relation to the corridor, the Court was assisted by the evidence of Mr A Fabbro who is council's Manager Urban Planning and the author of Exhibit 6. He explained that Precincts 1 to 6 will, in the future, be subject to a re-zoning such that the county road reservation will be re-zoned partly to residential and partly to open space. The council is not pursuing such a re-zoning at this time because it is applying its available resources to the preparation of a new local environmental plan for the whole local government area. It is also Mr Fabbro's understanding that the Department of Planning is conducting investigations into the blue gum forest that is found within Precincts 1 to 6 and that this, amongst other factors, is delaying the re-zoning process. 13 It is clear from the evidence of Mr Fabbro and the materials that he has provided that the land adjoining the existing tennis court to the west and the north is, at some time in the future, likely to be re-zoned for residential and/or open space purposes. 14 Mr Vieira told the Court that in his opinion, based upon the existence of a number of significant mature trees close to the tennis court, that it is likely that this area would either be zoned for open space or, given the existence of these trees, would not be developed with houses. This, however, is not a submission that I can accept in the absence of expert advice. Nevertheless taking into account the likelihood that the adjoining land will be re-zoned, it would be wrong of the Court to approve any form of development that would unreasonably hinder or constrain the re-zoning of this adjoining land. 15 The approval of lights for the tennis court, as sought, could, if the adjoining land were to become residential, impose an unreasonable constraint on the development of that land and possibly even a constraint on its re-zoning. This is because of the recognition that the lighting proposed does not comply with the light overspill requirement in the Australian Standard across these boundaries in table 2.1. 16 Added to this is the absence of what I would consider to be the reasonable 3 m setback requirement (which is provided for in council's tennis court policy) that would facilitate landscaping. In these circumstances it is my decision that the tennis court lighting should not be approved. However, any re-zoning of the neighbouring land is likely to take some years and given what I have concluded in relation to amenity impacts, I would be prepared to approve a time limited consent for the installation of such lights where after that time the consent will lapse. A provision for extension could also be included. 17 Finally in relation to the conditions, Conditions 1-6 will remain. Condition 7, the controlled timing device that will stay except the last sentence including the words "The required timing device … Australian Standard" is omitted. This is to ensure that the utilisation of the tennis court after 9.30 pm is effectively prevented, consistent with the timing that is available for the tennis court. 18 Condition 8 which includes a requirement that the lights be installed in accordance with the Australian Standard is deleted given the earlier discussion regarding light spill. 19 Therefore the orders of the Court are: 1. The appeal is upheld. 2. Development application No. 1369/05 for the installation of lighting on the existing tennis court at 29 Lucinda Avenue, Wahroonga, is determined by the granting of development consent subject to the conditions in Annexure "A" hereto including an additional condition limiting the time of the consent. 3. The exhibits are returned. ___________________ T A Bly Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.