Land and Environment Court of New South Wales CITATION : Trustees of the Christian Brothers v Waverley Council [2004] NSWLEC 210 APPLICANT Turstees of the Christian Brothers PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10108 of 2003 CORAM: Murrell C KEY ISSUES: Appeal :- Appeal against s290 Order -impact on amenity of residential area in vicinity of school swimming pool. LEGISLATION CITED: Protection of the Environmental Operations Act 1997 CASES CITED: DATES OF HEARING: 12/11/2003 and 09/02/2004 EX TEMPORE 02/09/2004 JUDGMENT DATE : APPLICANT Mr C Leggat, barrister SOLICITOR Carroll & O'Dea LEGAL REPRESENTATIVES: RESPONDENT Mr J Atkin, barrister SOLCITOR M E McMahon & Associates JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10108 of 2003 Murrell C 9 February 2004 Trustees of The Christian Brothers Applicant v Waverley Council Respondent Judgment 1. This is a verbal judgment for an appeal under s 290 of the Protection of the Environment Operations Act 1997. Section 290 of that Act provides that, "any person given a noise notice, or, against whom a noise abatement order is made, may appeal to the Land and Environment Court against the notice or order within 21 days." Section 292 provides that in the determination of appeals, "a court to which an appeal is made under this Act may hear and determine the appeal," and subcl (2), "the decision of the court on an appeal under this Act is final and binding on the appellant and the person or body whose decision or notice is the subject of the appeal." 2. This matter came to me in November for the hearing of the appeal in respect of the notice issued by Waverley Council on 14 January 2003 to the Waverley College. The noise notice was in respect of certain activities associated with the schools swimming pool. The premises were described as being the swimming pool and the equipment related thereto. 3. The swimming pool has been in existence since approximately 1972 and the original development application was submitted to the council in 1969. Waverley College has some 1400 students and the evidence to the Court is that the swimming pool facility is the only heated swimming within the Waverley local government area and that the pool is used from time to time by persons not attending Waverley College, whether that be other schools, learn to swim classes or evening college classes. 4. The Court heard evidence from Mr Louis Challis a consultant acoustic engineer and Mr Cooper, for the applicant, gave evidence, also an acoustic consultant engineer. On behalf of the respondent council there was evidence given to the Court by a number of objectors. Ms Forsythe gave evidence to the Court and she resides at 23 Campbell Street, Waverley. Mr Johnston resides at 17 Salisbury Street and he gave evidence to the Court and expressed his concerns about the operation of the swimming pool. 5. For the record I summarise their evidence. Mr Johnston is concerned about the swimming pool operation in the evening, in particular, between the hours of 5 and 7pm. He also considers that the swimming pool should not open until 7.30am, which is consistent with council's evidence in this matter, although he did say that he is an early riser, he does however have a son who is a shift worker and a 7.30am commencement would be more appropriate in his opinion. He is concerned that the swimming pool creates noise that is, from time to time, intrusive and in particular it is the jolting noises such as whistle blowing and the diving impact of sharp noises that is of concern to him. Mr Johnston has lived in the dwelling since 1984 which is single-storey dwelling at the street and two-storeys at the rear. He lives there with his wife and two children. 6. Ms Forsythe of unit 3, 23 Campbell Street, lives on the ground floor corner unit and she is concerned about the early morning starts prior to 7.30am and the period between 5pm and 7pm of an evening. She also considers it is worse in the evening in terms of the use of the pool and the noise from the pool. On the site inspection this morning evidence was also heard by Ms T Anneur of 21B Salisbury Street who has lived in her dwelling for some 10 years. 7. The area can be described as one that is of a low to medium density area. The residential dwellings are a mixture of residential flat buildings, semi-detached houses and other houses. Salisbury Street forms what could be called the rear of Waverley College, the main frontage of Waverley College being Birrell Street. There is a history to the application in terms of complaints from residents and previous submissions were provided to the Court. It is noted in a 1995 petition from the residents that they requested a 7am start as opposed to what it would have been at the time, at 6am start, and in that same petition a 5pm finish. The residents in this petition were also concerned about the erection of an acoustic wall and expressed concern that such a wall should not be built and therefore such a wall has not been built. It is also noted that Mr Johnston or Mrs Johnston was a signatory to that particular petition and noted that the 6 to 7am period was disturbing to them because of the number of people in the swimming pool area. 8. This is a case where a school has existed in the area for many years and it is important that in residential areas that schools, which are a permissible use in residential zones, coexist in a reasonably harmonious way with adjoining residential areas and do not unreasonably disturb the residential amenity of the neighourhood. The issue for the Court in these proceedings is to determine whether it is reasonable or unreasonable to allow the swimming pool to operate prior to 7.30am of a morning and between 5 and 7pm of an evening daylight saving time, and 5.00 to 6.00 of an evening during non-daylight saving time, and whether the swimming pool should cease its operation on a Saturday at 12 noon as argued by the respondent council or 2pm as requested by the applicant. 9. It is noted also that there is agreement with respect to special events and such special events are not to exceed five per annum in any 12-month period and that the times of those events have also been agreed to except for the commencement for such events, once again the difference being 7.00 or 7.30. It is also noted that there are no special events on a Sunday. 10. The Court also heard evidence from acoustic experts and what they considered to be appropriate from their respective areas of expertise and experience. In these cases the Court must be mindful of a balanced view in terms of what is fair and reasonable and it must assess the appeal in terms of the facts before it. 11. The facts of this matter that transpired through these proceedings is that there has been further clarification in terms of noise disturbance or potential noise disturbance, in particular, between the hours of 5 and 7pm and the applicant would agree to: no use of whistles; and no diving. These are the two matters identified as of most concern to residents. 12. As I stated earlier, it is important in our society for uses such as schools and residential areas to coexist. The Court is mindful, in having regard to this factor that the mere existence of a facility does not allow for unreasonable impacts to occur. On the other hand the school was established many years ago and people who buy into an area where there is a school should clearly have an expectation that there would be noise emitted from the school premises and this was also agreed to by the council in terms of its expert. The issue in these proceedings for the Court to determine is the hours of the use of the swimming pool to provide reasonable amenity for the adjoining residential properties. 13. From the evidence I have heard in this case from the residents and the petitions that I have had before me, and in terms of the number of residents that would appear to be disturbed, I am of the opinion that the swimming pool, could continue to operate for the same hours in a reasonable and satisfactory manner without undue disturbance to the residential amenity of the area provided the activities of the swimming pool are restricted to training of the swimming team or swimming squad between the hours of 5.00pm and 7.00pm and a maximum of 30 persons in the swimming pool at that time. Furthermore no diving should be allowed or whistles blown for this period as clearly from the evidence this creates greater disturbance to residents. 14. The college should also use its best endeavours to encourage users of the swimming pool prior to 7.30am of a morning, that is, between 7am and 7.30am to use other entrances to the school not the Salisbury Street entrance and this would be consistent with the plan of management. Clearly, the residents are accepting of the fact there is an entrance on Salisbury Street and it is clearly more convenient for certain people, especially during main school hours and before and after school, to use that entrance. Nonetheless in terms of residential amenity it is reasonable that between 7.00 and 7.30 that potential swimming pool users be encouraged to use the Birrell Street entrance. 15. In terms of the hours of operation of the disputed morning period it is a short time frame of between 7 and 7.30am. From the evidence to the Court it would appear that previously commenced at 6am and the council and the residents' requested a 7am commencement. Clearly a 6am opening of the swimming pool and its use would impact more on the residential amenity of the area. In terms of the evidence including the experts the Court has before it, and the ambient noise levels in the area, a 7am commencement is considered appropriate in my assessment. It is also noted from the verbal evidence the residents that they are more concerned about the evening period or the late afternoon period as opposed to the 7.00 to 7.30 time period. 16. The council issued the noise control notice whereby noise is to be restricted outside of certain hours and the notice requires that certain background noise levels not be exceeded at certain times. In that table the period Monday to Friday inclusive will read 7am to 7pm, that is daylight saving time, and 7am to 6pm non-daylight saving time. The period of 5 to 7pm is where the residents are seeking not to have sharp intrusive noises and the provision to ensure that the use of the whistles and diving is not carried out during that period should assist in this regard. 17. In terms of the timetabling of events and activities. I do not believe that the evidence to the Court is such that it would be appropriate or reasonable to expect the college to reorganise timetables. And on the evidence that I have before me it seems reasonable that the training of the swimming team, that is approximately 30 people should be allowed between the hours of 5 and 7pm. It is noted at the moment that the swimming team is approximately 15 to 20 persons so a provision that it be used by no more than 30 people is appropriate in the circumstances of this case. 18. From the evidence that the training of people swimming laps in the pool is a reasonably limited noise source and it is not considered to unduly or unreasonably impact on the residential amenity of people in the vicinity of the area, in particular, Salisbury Street. 19. The plan of management that the college has provided is for the year 2003-2004. The plan of management identifies a number of areas where the school is prepared to ensure that the pool operates in a manner that is compatible with the residential amenity of the area and meet reasonable expectations. 20. A residential area within school generally creates higher ambient noise levels than in other residential areas. The area around the college is one that is a residential area and there is an ambient background noise level that is noticeable and noted. It would be unrealistic and unreasonable to expect a school not to have any impact whatsoever in a residential area but in terms of my assessment of the use of the hours of the swimming pool I am satisfied, with careful consideration of all the evidence to the Court and the residents' concerns, that the pool and the college can coexist in a manner that is conducive to maintaining reasonable residential amenity. The residents must however also recognise that clearly there cannot be the expectation of the area being as quiet as other residential areas where there are no schools. 21. On the basis of the Court's assessment in this matter which has been over two days, originally the first date being 12 November 2003 and today's proceedings, I have had the opportunity to assess the information, hear from the residents, conduct an onsite view to understand the juxtaposition of the school and its surrounds and the residential area, and have regard to the experts written reports. I am satisfied that with appropriate provisions inserted into the notice in terms of the activities to be conducted and curtailed at certain times, and the notification of special events to the residents with a seven day warning period, this is appropriate in the circumstances of this case. 22. As I said, this matter must be assessed in terms of the facts before the Court and I am of the opinion that the 7am to 7pm Monday to Friday, and 7am to 6pm non-daylight saving times, and 8am to 2pm on a Saturday are appropriate operating periods, apart from special events. For special events these are to be notified to residents 7 days in advance and no more than 5 such events shall take place in any 12 month period. It is noted that residents are concerned that the operation of the swimming pool, for non-event days, does not commence before 8am on a Saturday and I think this is appropriate. As I have said, it is not envisaged that the special events occur on a Sunday, so the residents also have the knowledge that there will not be major events and disturbance of a Sunday. 23. Therefore on the basis of my assessment the notice issued by the council in respect of the Waverley College swimming pool is to be amended such that the hours of operation are as above with the additional provisions to restrict certain activities, that is the use of whistles and diving, after 5.00pm. The school should also use its best endeavours to encourage the users of the pool prior to 7.30am of a morning to use other entrances to the Salisbury Street entrance. The patrons and students that use the swimming pool should also be encouraged to use the Birrell Street entrance between the 5.00 to 7.00pm period. For security the Salisbury Street gates ar locked between 7.00pm and 7.00am. ________________________ J S Murrell Commissioner of the Court Mp/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.