Land and Environment Court of New South Wales CITATION : Lippmann v Burwood Council [2007] NSWLEC 126 APPLICANT Ed Lippmann PARTIES : RESPONDENT Burwood Council FILE NUMBER(S) : 10768 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Construction of new school, parking/traffic, noise, public interest Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Burwood Planning Scheme Ordinance 1979 Development Control Plan No. 9 DATES OF HEARING: 20/12/2006 and 15/02/2007 DATE OF JUDGMENT: 19 March 2007 APPLICANT Mr S Austin, QC Mr S. Balafoutis, barrister SOLICITORS LEGAL REPRESENTATIVES: Norman Waterhouse RESPONDENT Mr D Baird, solicitor SOLICITORS Maddocks Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 19 March 2007 10768 of 2006 Ed Lippmann v Burwood Council JUDGMENT Background 1 This appeal was lodged against council's refusal of a development application proposing the relocation of the existing MLC Junior School (Kindergarten to year 5) from its current site at "Kent House", to the proposed development site in Park Road, Burwood. The development site currently contains existing tennis courts (20-26 Park Road), and 2 buildings, each containing 2 semi-detached dwellings (12 - 18 Park Road), which are to be demolished. 2 Insofar as a number of issues were initially identified by council for the appeal, conferencing between the parties, reduced the outstanding issues to: o traffic management/parking and amenity, o acoustic amenity, o public interest considerations raised by objectors, including the height of the development, the safety of residents and pedestrians, loss of views and impact on property values. 3 The parties agreed to the appointment of Mr C Hallam, as the Court-appointed expert (CAE) for the traffic issues. Also, to the appointment of Mr G Atkins as the Court-appointed expert (CAE) for the acoustic issues. The site 4 The subject site is located at 16 - 26 Park Road, Burwood, and comprises: o Lot A, DP 32091; o Lots A & B, DP 411961; o Lot A, DP 335050; o Lots C, D, E and F, DP 31105. 5 These lots have a 74 m frontage to Park Road and a total area of 5,350 sq m. This site slopes approximately 4 m from Park Road to the eastern rear boundary. 6 The existing improvements on the land comprise tennis courts and the two pairs of semi-detached dwellings. 7 This site is situated within a mainly residential locality with single dwelling houses located to the north, west and east. To the south is the school hockey (sport) field over a basement carpark structure, which has access from Britannia Avenue. 8 Parramatta Road and commercial properties are located approximately 90 m to the north of the site. The proposal 9 This proposal as initially presented involved: o The demolition of the existing dwellings and tennis courts; o Excavation of the area of the site adjacent to Park Road; o Extension of the current basement car park, which is accessed via Britannia Avenue and located under the current playing fields on adjacent land to include an additional 37 car parking spaces and vehicular access to a new student pickup and drop-off area; and o Erection of a part 2 and part 3-storey school building which contains: o Basement/lower ground floor level - future workshop/store, clothing/coffee shop, classrooms, staff area, gallery, student pickup/drop-off area, outdoor landscaped area and netball court. o Ground floor area - classrooms, staff area toilet facilities, outdoor landscape area and multi-use playground. o First floor: a studio, storage area and terrace area. o The proposal is also to facilitate a pre-school class for up to 20 children. o In response to concerns raised during the hearing, further amendments were made to the basement carpark, involving its reconfiguration to achieve an increase of 45 car spaces and a "one way flow through" alignment to better facilitate student drop-off/pick-ups. The basement entry accessway was also shifted southward to connect onto Britannia Avenue, between Nos. 31 and 35. Planning controls Burwood Planning Scheme Ordinance (BPSO) 1979 10 Under this BPSO, the site is zoned Residential 2(a) and the proposed use is permissible with consent. A maximum height development standard of 8 m, or as council permits, applies to development. Development Control Plan 9 (DCP) 11 Of particular relevance in this matter is Pt 22 – Car Parking. The evidence 12 In addition to the CAE evidence, other evidence was presented by Mr J Coady, traffic consultant (Exhibits G and H) and submissions were made by Mr S Cooper (acoustic consultant). A conference was also held with Mr Lippmann (project architect) and Mr B Olsen (council's town planner). 13 A number of written and oral objections were made and considered. This included a detailed petition requesting the appointment of an unbiased professional traffic engineer to assess the traffic conditions. The petition also referred to community review of any conditions of consent. 14 The traffic issue is one of the fundamental matters raised by council and many of the objectors. In summary, the concerns are that the past and existing operation of the school has resulted in excessive traffic in the surrounding narrow residential streets, causing unsafe pedestrian and traffic conditions. Also, frequent illegal parking by school users causes inconvenience in blocking existing residential driveways. Another particular concern raised is that on Saturday sports, chaotic parking apparently occurs in the streets surrounding the school, which causes significant disamenity for residents of the area. 15 In response to these concerns, Mr Coady assessed the traffic implications of the proposal for the applicant. As part of his initial assessment, Mr Coady established that the Junior School has a student enrolment of approximately 300 students and employs a workforce of approximately 25 persons. There is informal parking available on the school grounds for approximately 12 vehicles, which is accessed via Gordon Street. 16 Insofar as the existing school did not make provision for student set-down/pick up activity in the past, this has consequently occurred on the street. This lack of any specific student set-down/pick up area has resulted in random parking, which significantly extends the duration of the set-down/pick up activity. 17 Although, about 6 months ago, the school initiated a supervised student set-down arrangement in the morning using 4 signposted 15 minute parking spaces on the Rowley Street frontage of the school, in order to achieve better traffic control. 18 Subsequently, a survey of student travel characteristics revealed that some 93% are transported to/from the school by private car. 19 The associated observation survey indicated that: o during the AM set-down period (7.30am - 9.30am), a total of 292 students were observed travelling to the school in a total of 249 cars, an average car occupancy of 1.13 students per car, o during the PM student pick-up period (2.00pm – 4.00pm), a total of 198 students were observed departing in 160 cars, an average of 1.24 students per car. An additional 57 students were observed walking from the school with a parent/carer, and it can be reasonably assumed that at least a portion of the students were transported from the school in a private car parked some distance from the school premises. An additional 40 students remained the school participating in sporting activities after the pick-up activity was completed. 20 From these surveys, Mr Coady concluded that approximately 250 private cars are involved in the student AM set-down activity, with approximately 200 private cars involved in the student PM pick-up activity. 21 Accordingly, Mr Coady has presented a Traffic and Parking Management Plan for the new Park Road school, which he considers results in a satisfactory traffic outcome. This Plan incorporates the following features: o The utilisation of the expanded basement carpark, with revised internal configuration to accommodate an additional (37 + 8) 45 car spaces. o The provision of a new accessway alignment from Britannia Avenue to the basement carpark, which is to be located southward from the existing accessway, between house Nos. 31 and 35. o The re-configuration of the carpark is to allow convenient 'drive through movements' to facilitate safe student drop-offs and pick-ups. o The maintenance of a supervised student drop-off/pick-up procedure, which involves some staggering of arrival times for the various classes and school staff assisting with the efficient turn around of vehicles, whereby the drivers are not permitted to alight during the designated student AM set-down activity. o The introduction of a supervised PM pick-up procedure. o The provision of 'No Stopping Signs' along the western side of Britannia Avenue, adjacent to Nos. 33 to 43 - properties owned by the school. o The provision of a raised foot crossing opposite No. 39 Britannia Avenue. 22 As the Court-appointed traffic expert, Mr Hallam independently assessed the parking and traffic issues arising from the proposal and reviewed Mr Coady's traffic Plan. His conclusions are summarised as follows: o Subject to the consideration of the traffic management of the arrival and departure periods, the revised proposal provides a satisfactory level of parking for the Junior School and pre-school activities. o As there will be no change to the existing situation for the demand for parking on Saturdays because the only change involves the location of the Junior School, the proposed additional parking spaces in the basement area, should improve the existing Saturday sports situation. This is on the proviso that arrangements are made for free access to this parking area and the boom gate left open on Saturdays. o Implementation of the traffic plan, incorporating staggered class arrival and pickup times, with these activities being conducted within the basement carpark area and supervised by school staff, should result in satisfactory, traffic arrangements. 23 With regard to the off-site traffic issues, Mr Hallam initially expressed concern that there would be a significant increase in traffic using the Britannia Avenue carpark entrance and that the imposition of parking restrictions could cause disamenity for the neighbouring residential properties in this street. 24 However, Mr Hallam agreed that the revised proposal, with the new (southern) entry to the basement carpark, would allow 'No Stopping' restrictions to be imposed and adjacent to the existing school owned properties Nos. 35 – 43. These new restrictions, together with the existing parking restrictions on the opposite side of Britannia Avenue, should provide adequate road carriageway to convey traffic flows that achieve a satisfactory level of environmental capacity. This is subject to the provision of a raised crossing opposite No. 39 Britannia Avenue and the desirability of providing traffic lights at the intersection of Cromer Street and Burwood Road, at the developers expense. 25 The other substantive issue concerns acoustic impacts arising from the school activities. Mr Atkins assessed this issue noting that Burwood Council has no published guidelines for the purpose of assessing noise from primary or secondary schools. 26 However, he refers to council's DCP 26 (Child Care Centres), which contains the minimum provisions required for this type of development, wherein the main requirements are to encourage well-planned and designed centres, meet children and community needs, and have a minimum impact on surrounding land uses and the environment. The DCP contains noise goals, which Mr Atkins says are consistent with the current procedures recommended by the EPA for the purpose of assessing and controlling environmental noise impacts. 27 Accordingly, he adopts the guidelines and procedures recommended in DCP 26, which includes: o All indoor areas should be considered for noise minimisation measures such as acoustic cladding, windows, flooring. o The LAeq, 15 minute noise level emitted from the site, (including playground activity noise and indoor activity in noise) shall not exceed the Rating Background Level (the "RBL") by more than 5dB(A) ("background level + 5dB(A)") at the assessment location. o Definition of the assessment location. o Where the level of noise exceeds the background level + 5dBA noise mitigation measures shall be implemented to ensure compliance with this noise level. Such measures could include a limit on the number of children at play at any one time or limit on the total time of play, the appropriate placement of buildings constructed on site to shield the noise or the provisions of acoustic fencing or landscaping. However, such measures shall not impact adversely on the amenity of surrounding properties or the streetscape and character of locality. o Traffic noise generated by vehicles associated with the development of on and off the site (for example, vehicles on a car park on the site, travelling on access ramps or on the street), shall comply with the requirements of the EPA's ECRTN and any residential façade… o Outdoor playgrounds should not be located adjacent to the living, bedroom areas of adjoining residences. o To prevent the cumulative impact of activity noise and noise from any mechanical plant servicing centre, the LAeq, 15 minute noise level from all mechanical plant operating together installed on the premises shall not exceed the RBL ("background level + 0dBA") at the most affected point on or within any residential property boundary. 28 In order to apply these provisions, Mr Atkins assessed the ambient background noise levels at various neighbouring residential properties, including Nos. 10 and 23 Park Road. However, Mr Atkins, expressed some concerns about the lack of detail presented for the various school operations, so as to enable accurate acoustic forecasting. This particularly related to the use of the outdoor areas located to the north of the proposed building, use of the rooftop terrace area, school assembly arrangements and possible traffic noise. 29 Mr Atkins also indicated some dissatisfaction with the proposal, because in his opinion minimal consideration was given to site planning, layout and building design, with respect to the compatibility of active and noisy activities with passive residential amenity. In particular he preferred the outdoor play areas to be located away from the neighbouring residential properties. 30 However, the ambient background noise levels determined by Mr Atkins were challenged by the applicant's acoustic consultant, TAG. Consequently, the parties agreed to further background noise assessments during the adjournment of the matter. The results are contained within Table 1 (Exhibit 8), which shows a reasonable consistency with the background noise levels at Nos 19, 21 and 23 Park Road. Although, the TAG noise levels are generally 5-6 dBA higher than Mr Atkins earlier LA 90 readings. 31 During the adjournment, the proposed acoustic treatments were reviewed and clarified. This included with the upgrading of the site boundary acoustic barriers and provision of acoustic screens around the rooftop terraces. Also, the revised student drop off and pick up arrangements were formalised, to in part reduce adverse noise impacts from these activities. 32 After further review of these amendments, Mr Atkins concluded that: o With appropriate conditions and design, noise from mechanical plant, classrooms and vehicles accessing the underground carpark can be controlled to acceptable levels. o With respect to school meetings, spillouts onto the rooftop outdoor terrace balconies and the school fair, it is not unreasonable to assume that the noise impacts arising from these controlled and restricted events over the 12 months would not be unreasonable. 33 Apart from this, Mr Atkins, maintained his concerns about noise emanating from the various uses of the outdoor playgrounds areas located between the school building and residential properties, particularly No. 10 Park Road. In his opinion, noise from the use of the designated playgrounds areas (Areas 1, 2, 3 and 4) would give rise to audible and intruding noise throughout the day (7 a.m. to 6 p.m.) and unacceptable impacts at other exposed residential properties. 34 Insofar as the applicant contends that this can be controlled by the provisions of the Operations Management Plan, Mr Atkins disagrees. He takes particular exception with TAG's reliance on a +5dB(A) allowance above the intrusive assessment criteria of background +5dB(A), i.e. an effective +10dB(A) above background noise level. Instead, his opinion is that it is not common practice to adopt the +5dB(A) duration adjustment for events occurring for more than 1 hour in a 24 hour period and a maximum noise level control of RBL + 5dB(A) to be imposed on any consent. 35 Following Mr Atkins detailed cross-examination on this point, I note the applicants concession that careful scheduling of the use of the various Areas 1 – 4, should enable the more restrictive noise control of background + 5dB(A) to be achieved and this can be incorporated by way of conditions in the updated Operations Management Plan. The applicant also agreed to a condition requiring the deletion of the eastern, which should also reduce potential noise sources. 36 An associated issue concerns the acoustic screen specifications and complimentary landscaping. The main screen is located adjacent to the northern boundary, adjoining No. 10 Park Road. It varies in height from a 1800 mm masonry wall, atop of which is a polycarbonate screen with a maximum overall height of 4900 mm. However this screen wall is to be setback 3000 mm inside the school property and the setback area extensively landscaped. This form of acoustic screen also extends along the north-eastern corner of the site for approximately 40 m, adjacent to Play Area 3 and Play Area 4 (netball court), albeit with a reduced setback. 37 The proposal also includes an 1800 mm high masonry acoustic fence along the Park Road frontage. 38 The impacts of the acoustic screens and landscape screening was jointly considered by Mr Olsen and Mr Lippmann. They agreed that suitable native trees and shrubs could be planted between the screen and acoustic wall to effectively reduce visual impact to an acceptable level. Also, that the proposed poly-carbonate screens are appropriate and consistent with similar acoustic walls built locally and that reasonable conditions of consent can be imposed to cover these components. 39 A considerable number of objections were lodged against the proposal. They mainly concern the traffic/parking matters and noise disamenity, which I have addressed. Insofar as other objections were made about past and existing problems arising from the school operations and the school's response to these concerns, I consider them disassociated with the current development application and not of such magnitude that would warrant major redesign of the proposal or its refusal. 40 Nevertheless, I particularly note the school's stated intention to work as a "good neighbour" with the residents of the nearby dwellings and accept a condition requiring a 12 trial period to satisfy the noise criteria and this trial period should also be extended to implementation of the traffic management plan. 41 With regard to the objections concerning the height of the proposal, the proposal has a height of approximately 10 m (3-storey) in the middle of the site, 7 m (2-storey) at the Park Road frontage and 7.6 m (2-storey) at the eastern elevation. Considering the discretion allowed in the PSO, I note the following council officers original assessment: "In the circumstances, no objection is raised to the building heights as the design attempts to utilise the contours land and step down the site. The "s" shape of this area of the 3rd or studio floor, although in close proximity to the front boundary has architectural merit and given the circumstances of the site it is not considered to impact upon the visual amenity of the area or residential amenity of residents on the western side of Park Road. It is noted that the proposed Floor Space Ratio for the development is 0.7:1 and this is not considered to be excessive in this instance ." 42 From my assessment of the evidence and including consideration of the objections, I am satisfied that the discretion can be exercised to allow the proposed building height, based on the aforementioned opinion. Conclusions 43 Having considered the evidence, the submissions and undertaken a view, I consider this revised proposal merits conditional consent. The proposal involves the relocation of some 300 junior students from the existing, small and outdated school buildings in Rowley Street into a new purpose-built school, which allows children to learn in an 'unstructured' environment, which includes outdoor space, communal areas and more functional learning spaces. 44 It is obvious that a development of this scale will generate some changes to the existing school operations and the surrounding residential neighbourhood. One of these changes concerns traffic and parking issues. In an overall consideration of this issue, I am satisfied that the revised proposal to direct all school traffic associated with the Junior School into the new Britannia Avenue accessway, leading to the expanded and reconfigured basement carpark, provides significant opportunities for improvement of the existing traffic/parking problems. 45 These traffic issues have been carefully assessed by Mr Coady, resulting in his recommendation for the adoption of the Traffic Management Plan (TMP), which requires all student drop-off and pick-ups being staggered and undertaken in the basement carpark, under school staff supervision. Also, improved access to this carpark is provided by parking restrictions adjacent to the school properties between Nos. 35 and 43 Britannia Avenue. 46 The detailed traffic/parking arrangements have been reviewed by the Court appointed expert Mr Hallam, who accepts that the revised proposal is reasonable for conditional consent. He says that with the restrictive parking in Britannia Avenue, the raised crossing and ideally provision of new street signals at the intersection of Cromer Street and Burwood Road, the proposal will result in acceptable levels of road service and environmental capacity. Insofar as his conclusion is qualified by his preference for the installation of new street signals, but he says that this is not essential for approval of the development. 47 In my assessment, the traffic/parking issue has been satisfactorily addressed in the revised proposal and I am satisfied to rely on Mr Hallam's opinion for conditional approval. Nevertheless, I accept that considerable efforts will be required to initiate and maintain these new parking arrangements, especially the supervised student drop-off and pick- up, within the basement carpark, particularly if some of the so described "rogue parents" choose to ignore these arrangements and continue to cause disamenity to the residential neighbours in the existing streets. 48 In this regard, the extremely high dependency on individual car travel (low car occupancy), as revealed by the surveys should also be of some interest and concern. Ideally, the TMP should address measures to reduce this car dependency and encourage more environmentally responsive travel arrangements. 49 Under these circumstances, it seems reasonable to me that the Traffic Management Plan has an effective 12 month trial period, following which council can consider any complaints and review if necessary, the detailed traffic management operations. This would coincide with the agreed 12 month trial period for review of the acoustic controls. 50 The other significant issue concerns acoustic impacts. Insofar as the Court-appointed expert Mr Atkins raised a number of concerns about the design of the proposal and his preference for the outdoor play areas to be relocated away from neighbouring residential properties, nevertheless he ultimately agreed that conditions of consent could be imposed to reasonably address the acoustic issues. This enables the detailed designed philosophy as detailed by Mr Lippmann to be maintained. 51 The item of particular concern is the use of the outdoor Areas 1,2 3, and 4. However, the applicant's concession that the more restrictive background +5dB(A) noise level can be achieved, reasonably satisfies Mr Atkins' concern, so as to enable this matter to be conditioned. 52 Accordingly, I am satisfied that the use of these areas can be reasonably assessed during the initial 12 month trial period to assess the effectiveness of the noise amelioration measures. With new or altered buildings, in sensitive locations, this is a fairly common approach, whereby various aspects of uses within the development can be adjusted to achieve acceptable community outcomes. As I stated, Mr Atkins main outstanding concern relates to the use of the outdoor areas and reference to Table 1 (Exhibit 8) shows that different combinations, which limit the concurrent uses of the various Areas 1, 2, 3 and 4 can comfortably achieve the designated noise criteria. 53 Therefore I am satisfied that the noise issue has been reasonably addressed on this basis. 54 Insofar as a number of objections were made to the proposal, I also note that a number of the neighbours generally supported the proposal for the new purpose-built school and its intention to adopt a "good neighbour" relationship. Whilst this proposal does not address some of the past complaints, nevertheless it should result in a positive community outcome in terms of the main traffic and acoustic issues and the provision of community infrastructure. 55 For these reasons then, the Court intends to make the following orders following resolution of the final conditions of consent. The unresolved, condition matters include: o Rationalisation of the Operational Management Plan (OMP) to distinguish matters associated with the Junior School. o Upgrading of the TMP to incorporate initiatives reduce student dependency on individual car access and include appropriate arrangements for a 12 month trial period and review. o Condition/Deferred commencement; concerning referral of traffic restrictions and signals to the Local Traffic Committee. o Incorporation of conditions for a 12 month trial period for review of the traffic plan. o Upgrading of Park Road boundary fence to incorporate landscaping and improve the streetscape. Court orders 56 Therefore the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted to DA 326/2005 for the demolition of existing structures and construction of new school buildings and associated facilities at Nos. 12 – 26 Park Road, Burwood, for the establishment of a new Junior School, subject to the conditions in Annexure 'A'. 3. Exhibits may be returned except for 4, 8, 9, D, M, O, Q, R, S and T. ________________ R H ussey Commissioner of the Court Rjs/as/ljr 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.