Land and Environment Court New South Wales Medium Neutral Citation: Kensington Bowling Club Pty Ltd v Randwick City Council [2011] NSWLEC 1064 Hearing dates: 10 February 2011 Decision date: 11 February 2011 Jurisdiction: Class 1 Before: Brown C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION - use of an existing but disused bowling green as a multi-purpose sports area - noise - light spill - inadequate car parking Legislation Cited: Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 1998 Category: Principal judgment Parties: Kensington Bowling Club Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: Ms J Reid, solicitor (Applicant) Mr P Rigg, solicitor (Respondent) Solicitors: Pikes Lawyers (Applicant) Norton Rose Australia (Respondent) File Number(s): 10963 of 2010 Judgment 1COMMISSIONER: This is an appeal against the refusal by Randwick City Council (the council) of DA/22/2010 for the use of a disused bowling green as a multi-purpose sports area on the southern part of the site used by the Kensington Bowling Club at 1 Day Lane, Kensington. The multi-purpose sports area will contain two fields, perimeter fencing with netting above, 8 x 5 m high light posts with lights and the provision of an artificial grass surface. The proposed hours of operation are proposed at 9am to 10pm, 7 days a week. 2The Kensington Bowling Club forms part of a 3.96 ha area of open space bounded by Day Lane, Barker Street, Edward Avenue and Cottenham Avenue that is known as Kensington Park. It is used for a range of organised sporting activities including cricket, rugby, football games and training as well as more passive activities such as a children's playground. 3The contentions raised by council fall within two categories. Firstly, the potential impacts on the residential amenity of adjoining and nearby properties from noise and light spill and secondly, the inadequate car parking. Relevant planning controls 4The site is within Zone No 6A(Open Space Zone) under Randwick Local Environmental Plan 1998 . The proposed development is characterised as "recreation facilities" and is permissible with development consent within this zone. Clause 9 provides that consent may only be granted after consideration has been given to the extent to which the development is consistent with the general aims of LEP 1998 and the zone objectives. The aims of LEP 1998 are found in cl 2 and the zone objectives are found in cl 18. 5Clause 38 provides specific considerations for development in Zone No 6A. Amenity impacts 6In considering the amenity issues, the Court heard from a number of residents at the site inspection opposing the development, citing the likely loss of amenity from the proposal and existing unacceptable impacts associated with the existing operation of the Kensington Bowling Club. Noise 7Noise was not addressed through any expert evidence or site specific acoustic reports. Instead, the parties relied on an extract from an acoustic report submitted by the applicant as part of the documentation for the development application. The report by West and Associates (the West report) conducted noise measurements at a similar facility operated by the applicant at Curl Curl. The West report found that at this facility the Average LAeq 15 min level was 52.6 dB(A). Based on the submission of Ms Reid, for the applicant, that by applying a 5 dB(A) modifying factor to compensate for the impulsive nature of the noise generated by the activity as required by the Industrial Noise Policy , the recommended maximum amenity noise level of 55 dB(A) in the Industrial Noise Policy (Table 2.1) for an evening period (6pm to 10pm) in an urban environment, was satisfied. 8Ms Reid further submitted that the noise assessment at Curl Curl was undertaken at a distance of 5 m from the boundary of the field whereas the nearest residential receptor, in this case is around 23 m from the field, thereby achieving greater compliance with the recommended maximum amenity noise level in the Industrial Noise Policy . 9In the absence of any expert evidence to contradict the conclusions in the West report or its applicability to the site, I accept that noise generated by the development would not warrant the refusal of the application. Light spill 10Light spill was not addressed through any expert evidence or site specific illumination reports. Instead, the parties relied details of the proposed lighting including technical specifications relating to the distribution of light spill. The applicant also accepted conditions proposed by the council that required the lights to satisfy the requirements in Australian Standard AS2560.1-2002-Sports Lighting-General Principles, Australian Standard AS2560.2.3-2007- Specific Applications-Lighting for Football (All Codes) and Australian Standard AS 4282-1997-Control of the Intrusive Effects of Outdoor Lighting. Compliance with the requirements in these standards is required by condition 7. Condition 6 also requires certification of the lights prior to occupation. 11In the absence of any evidence to suggest that the lights could not satisfy the requirements of condition 7, I accept that the light spill is not a reason to refuse the application. Traffic/parking 12Traffic generated by the proposed development was a matter raised consistently by the local residents as no parking is available on site. Their concerns relates to the existing high levels of on-street parking created by students at the nearby University of New South Wales, patrons of the Kensington Bowling Club and the general use of Kensington Park. 13A parking survey and traffic report was prepared by ML Traffic Engineers (the ML report) and accompanied the applicant's development application. Expert evidence on traffic and parking was provided by Mr John Coady for the applicant and Mr Philip Brogan for the council. Mr Coady and Mr Brogan accepted the traffic survey in the ML report and based their evidence on the findings in that report. There was general agreement on the likely demand for parking for the proposed development. Mr Coady calculates 32 spaces and Mr Brogan calculates 33 spaces. There was also general agreement on the availability of on-street parking and this is shown graphically in Mr Coady's evidence (at p 8) between 9am and 9pm on Monday to Friday and for a more limited time during Saturday. 14Assuming that the proposed development will, at maximum times of operation, generate the need for 33 spaces, then based on Mr Coady's graph, on-street parking in the area near the site will be available from around 3pm Monday to Fridays. On-street parking will be available at all times on Saturday and Sunday to cater for the expected maximum number of vehicles. 15In my view, the question to be answered is whether, as proposed by the council, no activity should take place on the site before 5pm or, as proposed by the applicant, the activities prior to 4.30 pm should largely be limited to users that do not utilise vehicles for access to the site. In this regard, additional conditions were proposed by the applicant that prior to 4.30 pm, users should be restricted to schools or students from the University of New South Wales where no more than two cars are generated and after 4.30 pm, the facilities should not exceed more than 80 persons at any one time. 16On this issue, I accept the applicant's position on the appropriate times for operation. I see no reason why the facilities should not be used by students prior to 4.30 pm when the only significant issue at this time is the availability of on-street parking. The proposal clearly provides a beneficial recreational facility for residents of the area. While Mr Rigg's submission on the difficulty of enforcing the applicant's condition is not without some merit, I am mindful of the unchallenged details in the development application that state that 95% of the traffic generated by the proposed facility will occur after 5pm and during the day at weekends. 17There was also some disagreement between the parties on the overall hours of operation, particularly the closing times. The council seeks closing times at 9pm on Monday to Wednesday; 9.45pm on Thursday to Saturday and 8.30 pm on Sundays. The applicant seeks closing times at 10pm with the last game to finish at 9.30 with lights off at 9.45, 7 days a week. There was also some disagreement over starting times on weekends. 18In considering the competing evidence of the expert and the residents and the proximity of residential dwellings to the site, I am satisfied that the appropriate times for the facility are; Monday to Friday - 9am to 4.30pm for students and other users as identified by the applicants additional condition and 4.30pm to 9.30pm for other activities and lights off and the facility vacated and locked by 9.45 pm, Saturdays - 8am to 9.30pm for activities and lights off and the facility vacated and locked by 9.45 pm, and Sundays - 9 am to 7.30pm for activities and the lights off and the facility vacated at locked by 7.45 pm. 19Clause 38(2) requires consideration of a number of matters in determining whether development consent should be granted. The council's Recreation Needs Study was tendered and the Court was taken to the relevant parts of this document, particularly pp x, 17, 21, 79 and 90. In considering the matters in cl 38(2) and the relevant parts of the Recreation Needs Study , I can comfortably conclude that the proposed development supports and is consistent with the findings and recommendations in the study and that there is no basis for the refusal of the application on the matters in cl 38(2). 20I also find that pursuant to cl 9, the proposed development is consistent with the relevant general aims of LEP 1998 and the zone objectives. Orders 21The orders of the Court are: 1. The application is upheld. 2. DA/22/2010 for the use of a disused bowling green at the Kensington Bowling Club for 2 x multi-purpose sports pitches, fencing, lighting at Day Lane Kensington is approved subject to the conditions in Annexure A 3. The exhibits are returned with the exception of exhibit B. G T Brown Commissioner of the Court ********** 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. Decision last updated: 17 March 2011