Land and Environment Court of New South Wales CITATION : Al Noori Muslim Primary School v Bankstown City Council [2008] NSWLEC 1405 Applicant: Al Noori Muslim Primary School Ltd PARTIES : Respondent: Bankstown City Council FILE NUMBER(S) : 10534 of 2008 CORAM: Roseth SC KEY ISSUES: Development Application :- use of house as a school DATES OF HEARING: 8 October 2008 DATE OF JUDGMENT: 16 October 2008 Applicant: LEGAL REPRESENTATIVES: Mr S Kondilios, solicitor of Maddocks Lawyers Mr A seton, solicitor of Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 16 October 2008 10534 of 2008 Al Noori Muslim Primary School Ltd v Bankstown City Counckil JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal of a development application to use an existing house as a primary school for sixty children on lot 3 DP 14587, known as 93 Greenacre Road, Greenacre. The site 2 The site is on the north side of Greenacre Road, between Hillcrest and Noble Avenues. The site is over 1,600m2 in area; however, the rear half is under a transmission line and not suitable for a play area. The front half contains a two-storey house, with two large rooms on the ground floor, which the application seeks to use as classrooms. The site has almost no vegetation or soft landscaping. 3 About seven allotments to the east, at the corner of Noble Avenue, is the existing Al Noori Muslim Primary School. Apart from this school, the remaining properties in the street are houses. The properties to the north are also houses fronting to Mimosa Road. The proposal and its history 4 The applicant proposes to use the existing house as a two-class school for sixty children. The original application was for an annex type school; subsequently it was changed to a stand-alone school. Without definition, these terms seem to me meaningless. It is inconceivable that there will not be some interaction between the two schools. The applicant has agreed to the council's request to construct a footpath between the two. 5 The applicant lodged the application in November 2007. Following notification, the council received five letter of objections and over four hundred letters of support. The council refused the application in January 2008. The applicant lodged the appeal in May 2008. Relevant planning controls and policies 6 Local Environmental Plan 2001 zones the site 2(a) Residential, a zone in which educational establishments are permissible. Development Control Plan 2005 applies. Part D8 of the DCP deals with parking. For schools it requires one car space per employee or classroom. Part D11 deals with educational establishments. The proposal cannot comply with the building envelope controls because the building is already built under the controls applying to a house. The DCP contains location criteria for schools, such as being next to open space and community uses. The proposal does not meet these criteria. The existing Al Noori Primary School does not meet them either. While the DCP does not state this in terms, the criteria appear to be relevant to green field development. It is my understanding that the council does not consider this to be a determinative issue. Matters in contention 7 The council submitted its Statement of Contentions listing nine matters. These were reformulated during the hearing as follows: · The site is too small and poorly located. · The cumulative traffic and parking impacts (added to those of the existing school) are unacceptable. · The noise impact is unacceptable. · The Plan of Management is unacceptable. Objectors and supporters 8 The council received letters from five objections of which two were not identified. Of the objectors who identified themselves, only one lived in Greenacre Road, far removed from the site. The council also received over four hundred letters of support. Some of these came from outside the area, while many were form letters. However, even making allowance for this, it is clear that the proposal receives a great deal of support. Site too small and in wrong location 9 The council bases its contention that the site is too small on the size of the play area and the inability to accommodate more than two cars. The play area is 248m2.. This is clearly tight for sixty children and would not allow a great deal of running around. I do not think, however, that it presents danger to the children's health. The school management may overcome the problem by staggering the play periods. In respect of on-site parking, it was common ground that one parking space per employee would be adequate. The applicant maintained that there would be only two teachers in the school; the council considered that this was unlikely. I have no way of deciding who is correct. The fact is that there is no space for more than two cars. The lack of space for a third car is not sufficient reason for refusing the application. 10 While I agree with the council that the site is small, I do not think that it is so small that it justifies refusal. Traffic 11 The applicant's traffic expert was Mr R West; the council's was Mr M Bridgman. While there was some difference in the traffic generation figures that they assumed, the real difference between them was one of attitude. They agreed that the traffic conditions due to the existing school in the afternoon pick-up period were chaotic. Mr West said that the additional traffic due to the proposal would increase traffic by a minor amount. He considered that, while the existing traffic conditions were poor, they were no worse than they are in front of hundreds of other schools in Sydney. 12 Mr Bridgman adopted a less pragmatic position. He thought that a traffic consultant could not agree to a development that made an existing poor traffic situation worse. The applicant suggested that there should be a no parking zone of about 60m in Greenacre Road outside the site and the adjoining sites (which the Al Noori School owns). The experts agreed that this would assist, though it would not completely offset the impact of the additional traffic due to the proposal, because parents do not observe the two-to-three minutes limit on staying in such a zone. 13 Given that there was agreement that the existing traffic situation was poor and the new proposal would make it slightly worse, the Court must decide whether these facts justify refusal. In my opinion, they do not. I note Mr West's evidence (with which Mr Bridgman did not disagree) that the traffic situation is no different from most other schools in Sydney. I do not see any point in applying criteria to this school that are not met elsewhere. Noise 14 The applicant's acoustic expert was Mr D Craig. The council did not employ an expert and relied on cross-examining Mr Craig. The cross-examination focused on Mr Craig's assumptions about the noise levels emitted by sixty children and whether these would be louder than those emitted by children in childcare centres (who are younger). The question was also asked whether thirty children singing together would exceed the criteria that Mr Craig assumed. Mr Craig agreed that, should all thirty children sing a loud song together, the windows would have to be closed in order to achieve the acoustic criteria next door. 15 The council's advocate, Mr A Seton also questioned Mr Craig on the criterion he adopted for an acceptable noise level in adjoining properties. Mr Craig assumed this to be 10dBA above background, instead of the more usual 5dBA. Mr Craig said that this was a criterion often used in childcare centres. I accept his evidence. 16 I am strengthened in the above conclusion by the knowledge that the applicant owns the adjoining properties in Greenacre Road. The council submits that this is an irrelevant factor. I do not agree. The properties would be let by the school, probably to someone associated with the school, or sold to a purchaser who would be aware of a school operating next door. In either case, a school operating next door would not come as an unwelcome surprise. Plan of Management 17 The council has asked for a Plan of Management, which the applicant has supplied. The council contends that the Plan of Management is inadequate because it describes the application rather than the way the school is to be operated. I accept that the Plan Of Management is of little use; however, I do not think that a Plan of Management is required for the approval of the application. 18 The only possible interest to the council in a Plan of Management can be the movement of children between the larger and the smaller school, since this is the only activity that takes place in the public domain. The movement will be on the footpath that will be constructed by the applicant as a condition of this approval. I do not think that sixty children moving a distance of a hundred metres is likely to impact on public amenity to such an extent that it should be regulated under planning legislation. The lack of objections from nearby residents of Greenacre Road supports this conclusion. Time-limited consent 19 The applicant offered to accept a consent limited to three years. The council does not want a time limit. In my opinion, time-limited consents are not suitable for specialised schools, since they could lead to the closure of schools whose students have nowhere else to go. The time limit is therefore not imposed. 20 The applicant objected to several conditions relating to sewerage and drainage. The councils pressed them on the grounds that, while the building exists, the use is new. I accept the council's submission. Conclusions 21 In an ideal world every development would cater for its impact within its own site but this is not always achievable in the real world. The council's reasons for opposing this application are that the impacts are not internalised. The applicant's position is that it has done everything it can to reduce the proposal's impact but that the constraints of the site do not allow it to do so fully. Given that the impacts cannot be further reduced, the question for the Court is whether they are so bad that they justify refusal. I do not think that they are. The appeal is therefore upheld. Orders 1. The appeal is upheld. 2. Development application to use an existing house as a primary school for sixty children on lot 3 DP 14587, known as 93 Greenacre Road, Greenacre is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 5 and H. ________________ Dr John Roseth Senior Commissioner 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.