Land and Environment Court of New South Wales CITATION : Noori v Strathfield Municipal Council [2007] NSWLEC 84 APPLICANT H. B. Noori PARTIES : RESPONDENT Strathfield Municipal Council FILE NUMBER(S) : 10229 of 2006 CORAM: Tuor C Development Application :- Adaptive re-use of existing buildings KEY ISSUES: traffic and parking, impact on heritage buildings impact on residential amenity Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Strathfield Planning Scheme Ordinance Strathfield Draft Local Environmental Plan 2003 CASES CITED: New Century Development Pty Limited v Baulkham Hills Shire Council (2003) NSWLEC 154 DATES OF HEARING: 4/10/2006, 5/10/2006 and 14/02/2007 EX TEMPORE JUDGMENT DATE : 15 February 2007 APPLICANT Mr A. Woodward, solicitor of Pricewaterhouse Coopers Legal LEGAL REPRESENTATIVES: RESPONDENT Mr P Larkin, barrister Solicitors Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 15 February 2007 10229 of 2006 H B Noori v Strathfield Municipal Council JUDGMENT 1 This is an appeal against the refusal by Strathfield Municipal Council (the council) of a development application (DA0405/264) for the adaptive re-use of existing buildings for use as a primary and secondary school at 416-420 Liverpool Road, Strathfield (the site). The site and its context 2 The site is located on the southern side of Liverpool Road at the corner of Hill Street. It also has a frontage to Hillcrest Avenue with a site area of about 10,000 sq m. 3 The site is occupied by three main buildings: Leigh Hall, Brundah and Vickery Chapel. These buildings front an internal road accessed off Hill Street and exiting onto Liverpool Road. There is a large grassed area at the rear of the buildings and an informal car park area off Hill Street. 4 Adjoining the site to the south and south-west is a townhouse development constructed on land that was formerly part of the site. To the east, on the corner of Hill Street and Hillcrest Avenue, is a Sydney Water Board depot and an electricity substation. 5 Development in the surrounding area is predominantly single dwellings. Development along Liverpool Road is a mixture of dwellings, residential flat buildings and commercial development. Planning Framework 6 The site is zoned Residential B under Strathfield Planning Scheme Ordinance (SPSO). Educational establishments are permissible with consent within the zone. 7 Leigh Hall and Brundah are identified as heritage items under SPSO. Clauses 59A and 59D require an assessment of the impact of the proposal on the heritage significance of the buildings and the submission of a heritage impact statement. 8 Other clauses of relevance in SPSO are: cl 32(b), which requires a consideration of whether vehicle entry and exit and parking are adequate for the development; cl 41B applies to land within residential zones and relevantly requires an assessment of the compatibility of the proposed development and the likely impact on the amenity of existing residential development. 9 Strathfield Draft Local Environmental Plan 2003 (Draft LEP) is a relevant consideration. No issues were raised regarding the proposal's compliance with this instrument, nor whether it was imminent or certain. 10 Strathfield Development Control Plan No 4 - Off-street Parking (the DCP) sets out the number of parking spaces required for primary and secondary schools. The proposal exceeds the amount specified in the DCP. The proposal and its history 11 The development application was lodged on 4 April 2005. The application was notified and a number of objections were received. A public consultative meeting was held. The main concern of the residents related to traffic. A number of traffic management plans have been prepared seeking to address this concern. Council subsequently refused the application. 12 The application is to use the site as a school for kindergarten to year 12 with 450 students. The application involves works to Leigh Hall and Brundah, construction of a formal sealed car park, and drainage works. 13 The school is currently operating. There is consent for school use of the site but this is not consistent with the current operation of the school and therefore a new development application is required. 14 The Statement of Basic Facts outlines the history of approvals on the site as follows: · Development consent DA92/56 was granted over the site on 19 August 1992 to establish an educational centre for languages. · Development consent DA93/114 was granted on 14 February 1994 for the use of rooms 15 to 17 within one of the buildings on the site. · Development consent DA97/103 was granted deferred commencement consent on 10 February 1998 to continue use of the premises as an educational centre for English and to also include a high school with 49 of the allowed 450 students being high school students. This was based on the construction of 80 car park spaces. · DA97/103 was subsequently modified on 18 May 1998 to allow the school to operate without providing additional car parking spaces (which were required to be 80 spaces) with the proviso that student numbers were limited to 200. Any expansion of student numbers was contingent upon providing for the increase in parking spaces to 80. · DA97/103 was amended again, on 17 May 1999, to allow for dormitory accommodation. 15 Since 1914 the site has been used for educational purposes being a theological college for the Methodist Church. The issues 16 The final Statement of Issues before the Court raised two issues. Issue 1 related to the adequacy of the traffic management plan and changes that needed to be made. An amended traffic management plan was tendered and together with conditions largely addressed this issue. 17 Issue 2 related to whether, given the large number of objections, the proposed development serves the public interest. 18 The key issues raised in the objections related to traffic, the impact on the heritage buildings, the impact on residential amenity and consistency with previous approvals. 19 The Court visited the site on 4 October 2006, and heard evidence from Mr C McLaren, the Court appointed traffic expert, and a considerable number of residents. Dr Taluja, the owner of the property, gave evidence in Court on the impacts of the proposal. 20 On 14 February 2007, Justice Pain granted limited leave for Dr Taluja to intervene in the proceedings through her solicitor, Mr Ardino, for the purpose only of tendering evidence in relation to structural issues associated with works undertaken. 21 Dr Taluja's Notice of Motion of 13 February 2007, to intervene in relation to her lease with the applicant was refused by Justice Pain. Previously I had not admitted evidence on this issue or the issue of owner's consent into the hearing on the basis of it not being relevant to the merit considerations of the application before the Court. Traffic and Parking 22 A Traffic and Parking Impact Assessment prepared by Mr J Hewitt of Traffic Planning Associates (traffic study) was submitted with the application. A Traffic Management Plan prepared by Traffix, traffic and transport planners (TMP) was also provided and amended during the course of the application and the hearing to better address resident concerns and matters raised by Mr McLaren. 23 The concerns of the residents centred on the existing traffic conditions in the area. Of particular concern was the turn from Liverpool Road into Hill Street, the location of the school on a bend in Liverpool Road near the interchange of Coronation Parade, the width of Hillcrest Avenue, the extent of the school zones in Liverpool Road, and the blind spot at the corner of Hillcrest Avenue into Hill Street. They considered these existing conditions to be dangerous and unsuitable to accommodate the school use. 24 Further the residents considered that the number of car spaces (55 cars, 5 mini buses plus 7 set-down and pick-up car bays), to be inadequate to meet the demands of the development and that cars and buses would park in the street. They considered the proposed bus parking area in Hill Street to be dangerous. The residents were particularly concerned that despite the TMP people would park illegally and there would be adverse impacts on their amenity and safety. The residents were also concerned that the proposed exit and entry arrangements would increase traffic in Hillcrest Avenue to an unacceptable level. 25 In his consideration of the application, Mr McLaren addressed the resident concerns, the traffic study and the TMP. Mr McLaren made a number of recommendations, which were incorporated into the TMP. These recommendations included that there be no entry to the site off Liverpool Road or Hill Street, a median strip be provided in Hill Street, an increase in the number of parking spaces on the site, including provision for parking for mini buses. Mr McLaren also recommended parking restrictions around the site and these recommendations were incorporated into the TMP. Mr McLaren was satisfied that the parking would meet the needs of the development and the proposal would not result in adverse traffic impacts. 26 While I recognise the residents' concerns that traffic will increase in the area I accept that, if managed in accordance with the TMP, its impacts will be acceptable. The TMP provides adequate on-site parking for cars and mini buses for both parents dropping off students and for staff and visitor parking and restricts access to the site to Hillcrest Avenue. While this will increase traffic to Hillcrest Avenue I do not consider this impact to be unreasonable. The entry/exit driveway to Hillcrest Avenue is located opposite the electricity substation and the restriction on exiting cars to the left turn only recommended by Mr McLaren will limit cars using the street and passing residences. The restriction on entry in Hill Street, the median strip and the proposed left turn only exit will remove the present unsatisfactory entry situation off Hill Street. These measures, together with the parking restrictions, will mitigate the traffic impacts of the development to an acceptable level. Heritage 27 The residents were concerned about the impact of the proposal on the heritage significance of Leigh Hall and Brundah. The application was accompanied by a Heritage Impact Statement prepared by Graham Brooks and Associates (HIS). This indicates that the changes to the building to accommodate the school use were relatively minor and included conservation works to reinstate the verandah and widow's walk. The HIS concluded that the proposal would have an acceptable impact on the significance of these items. Council did not raise heritage as an issue. 28 The residents and Dr Taluja were also concerned that the work, including removal of structural walls, had already occurred. A condition has been included in the consent to ensure that the building meets the requirements of the BCA to accommodate the proposed use. Works that have occurred previously and do not form part of this application are not relevant to my consideration of the application. 29 The two heritage buildings are located on a large site and have previously been used for school purposes. No new building are proposed and the setting of the heritage items remains, although altered to provide parking. It is important for the conservation of heritage items that new viable uses are found. The proposed use is similar to other early uses of the buildings and proposes minimal change and has an acceptable heritage impact. Amenity 30 The residents were concerned about the impacts of the proposal on their amenity. The development does not provide any new buildings and maintains a significant large area of open space between the existing buildings and the adjoining residential development. A 10 m wide planting buffer is proposed to separate use of the outdoor area from residential uses. The noise impact assessment report concluded that acceptable noise levels would be maintained. 31 The site is over 10,000 sq m and the proposed use by 450 students achieves an intensity of use acceptable within a residential zone in which school uses are permissible. Previous approvals 32 The residents also raised issues about previous approvals and the current operation of the school. While there is some ambiguity in the previous approvals this is not a matter that is necessary for me to adjudicate on. The proposal before me is a new application and it is the merits of this application that I am required to consider. 33 From the evidence before the Court I am satisfied that the proposal is acceptable and meets the requirements of SPSO and the DCP. While there are a significant number of resident objections this is not of itself a determinant of the weight to be given to these concerns (see Lloyd J in New Century Development Pty Limited v Baulkham Hills Shire Council (2003) NSWLEC 154. Orders 34 The orders of the Court are: 1. The appeal is upheld. 2. The development application (DA0405/264) for the adaptive re-use of existing buildings for use as a primary and secondary school at 416-420 Liverpool Road, Strathfield, is approval subject to the conditions in Annexure A. 3. The exhibits, except exhibits H, J, K and 7 may be returned. ___________________ Annelise Tuor Commissioner of the Court 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. 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