Land and Environment Court New South Wales Medium Neutral Citation: Ilim College of Australia Inc. v Fairfield City Council [2011] NSWLEC 1216 Decision date: 22 July 2011 Jurisdiction: Class 1 Before: Hussey C Decision: Appeal upheld, development consent granted subject to conditions. Catchwords: DEVELOPMENT APPLICATION – educational establishment in rural zone – site suitability, wastewater arrangements, traffic, visual impact, public interest Legislation Cited: Environmental Planning and Assessment Act 1979 SEPP (Infrastructure) 2007 SEPP No 55 – Remediation of Contaminated Lands SREP No 9 – Extractive Industry SREP No 20 – Hawkesbury Nepean River Fairfield LEP 1994 Category: Principal judgment Parties: Ilim College of Australia (Applicant) Fairfield City Council (Respondent) Representation: Counsel Mr J Robson SC (Applicant) Solicitors Mr A Seton (Respondent) File Number(s): 10234 of 2011 Judgment Background 1This appeal was lodged against council's refusal of a development application proposing the construction of an educational establishment on a semi-rural lot, located in Elizabeth Drive, Cecil Park. For the appeal, the following issues were identified: * Waste water management; this mainly concerned with treatment and disposal of sewage effluent on the site. * Traffic; in terms of the impacts on the local road system from the anticipated traffic generation from the development. * Visual impacts: relating to whether the design of the development is of high quality and sympathetic to the rural environment. * Suitability of the site and public interest; The site 2The site is located at 2089-2109 Elizabeth Drive, Cecil Park and is described as Lot 1, DP 508759. It is generally rectangular in shape with a north east - south west orientation. It has two street frontages with approximately 135 m to Duff Road and 139 m to Elizabeth Drive, northern most boundary of 146 m and the eastern boundary being approximately 141 m. The total area of the site is approximately 2.01 ha. 3The site contains two natural depressions, one running from west to east and the other from south to north, which convey wet weather flow into an existing dam located in the north-eastern corner of the site. These depressions are defined as watercourses being the upper reaches of an unnamed creek, which flows into Ropes Creek. 4There are a number of trees primarily located along the northern, eastern, and southern boundaries. The predominant tree species are identified as remnant Cumberland Plain Woodland. 5The site is bounded by Elizabeth Drive to the south and Duff Road to the west. Rural residential properties are located to the north and west and a commercial plant nursery adjoins the site to the north. On the opposite side of Elizabeth Drive is land known as Western Sydney Parklands, used as public open space. 6The locality is generally characterized by (mostly large) one and two storey detached dwellings, along with sheds and agricultural related buildings. These structures are situated on large parcels of land surrounded by large open spaces, typical of rural-residential allotments. Directly adjoining the subject site to the north is a plant nursery, which is an intensive agricultural use. The proposal 7The proposal involves the following elements: 1. Construction of an education establishment, comprising primary/infants school to cater for 75 students plus 10 teachers and support staff. It consists of a number of portable buildings an administration building, toilet block and 3 Modular Design Range (MDR) classrooms. 2. Demolition of all existing structures on site. 3. Construction of a bus drop off bay and car parking area comprising of sixteen (16) car spaces, including one disabled car parking space and a bike rack. 4. Associated landscaping, fencing and drainage. 5. Removal of selected trees. 6. Existing dam to be filled and replaced by an on-site detention basin. 7. The realigning of the north south and east west land depressions (creek) and major replanting to create a well-vegetated riparian corridor. 8.Installation of a Wastewater Management System including a new, on site secondary sewerage treatment system coupled with shallow sub-surface drip irrigation. 9.Upgrading and widening the Duff Road pavement adjacent. The construction of a Type "CHR" intersection at Elizabeth Drive. Planning controls 8The land is subject to following controls: .1 Fairfield LEP 1994; under which it is in the 1(a) Non Urban -- Residential zone and the development is permissible with consent. Clause 8 states that consent must not be granted unless the consent authority is satisfied that the carrying out of development would be consistent with one or more objectives of the zone. The associated zone objectives in cl 8 are: "(a) To allow rural-residential development; (b) To achieve attractive high quality. development which is sympathetic to the rural environment and minimizes risks from natural and man-made hazards; (c) To ensure that development does not unreasonably increase demand for public facilities and services; (d) To allow people to carry out a reasonable range of agricultural activities which are compatible with the living environment of neighbours; and (e) To limit activities that have a detrimental effect on the environment, particularly on noise levels and on the quality of soil, air and water. " Clause 11 states that the consent authority must not grant consent for specified works on flood - liable land unless the provisions of the Council's Flood Management Policy have been taken into consideration. .2 SREP (Infrastructure) 2007; .3 SREP No 9 - Extractive Industry .4 SREP No 55 - Remediation of Contaminated Lands .5 SREP No 20 - Hawkesbury Nepean River .6 Fairfield City Wide DCP 2006. The evidence Wastewater 9Detailed evidence on this issue was presented in a joint report by: * Mr M Passfield; council's consulting engineer * Mr A Norris; applicant's consulting engineer. 10The engineers responded to this contention by reference to the detailed site contamination report prepared by Martens Consulting Engineers that was submitted with the application. This involved a detailed assessment of the site and included detailed soil sampling. From this the report concluded that: Site investigations included the collection and analysis of soil samples for a range of parameters appropriate for the site in light of identified current and previous land uses. Laboratory analysis results indicated that all parameters analysed were below guideline limits excluding asbestos. Two fragments of fibre cement sheeting containing asbestos were found at two sampling locations (TP14 and TP24) during the site assessment. On the basis of these findings it is concluded that site remediation involving removing asbestos material from the site and disposing of it at a suitably licensed waste facility is required to render the site fit for the proposed primary school land use. Based on investigations to date, only areas surrounding TP 14 and TP24 are identified as having fragments of asbestos material in soil. However, all areas near existing buildings shall be carefully assessed after demolition to ensure asbestos is not left on-site. As works progress, contractors are to ensure any identified asbestos fragments are removed and areas where asbestos material is found are fully and carefully investigated and remediated to ensure long-term exposure risk for future students are acceptably low. 11Accordingly, the engineers agreed that the wastewater proposal was satisfactory for the scale of the subject application as described in the SEE by reference to the following matters: * the wastewater generation rate of 40L/person used in the Martens's report is appropriate for system design and highly conservative, * that the likely generate rate of the site shall be the order of 11 -- 15 L/day, * in the event that any future expansion of the school was proposed, monitored flow rates from the site would be applicable for the system design, * the proposed irrigation area of 1751 sq m using the design waste water flow of 3.4 KL/ day is satisfactory, * to ensure an acceptable public health and environmental outcome, the drip lines should be installed and the depth of 200 mm, * that disinfection standard of 100cfu/100 ml for E Coli be adopted for the site, * that as part of the site sewerage management systems monitoring plan, monthly inspection of the irrigation deal should be undertaken by the site operator, * that the following buffers be provided to other sensitive water receptors: - 10 m to "Stream B" is adequate to ensure protection of the drainage line and downstream receiving environments. - 10 m to the stormwater detention basin and overland flow past Swale showed of me "Flood Plan" is adequate to ensure protection of the drainage line and downstream receiving environments, - 20 m to "Stream A" (shown on Flood Plan) is adequate to ensure protection of the drainage line and downstream receiving environments. * That any provision of wet-weather storage on the site would be counter-productive given the low volume of waste and large available areas on the site, * That as part of the Section 68A approval for the site, council should require the preparation of a site management plan to enforce the implementation of recommendations of the Marten's report, as amended. That management plan should include a "policy" statement of the form of the attached typical policy from the National Recycled Water Guidelines. 12Insofar as Council raised other particularised aspects of the wastewater issue, the engineers did not consider that the proposal would have any material impact on the matters raised, subject to the implementation and maintenance of the aforementioned points. 13However, in regard to flooding, the engineers referred to the plan SHT 09158P03, floodway 09158 as provided in the IDAC assessment report, and agreed that the proposed realigned watercourses "Stream A" and "Stream B" contain the PMF flow. The engineers agree that this will prevent inundation of irrigation areas under any extreme PMF conditions. Traffic 14The other main contention concerns traffic impacts arising from the proposed development of the site, particularly the increase in traffic in the vicinity of the Elizabeth Drive intersection and the associated impacts on traffic and pedestrians. This is one of the issues that are of major concern for some of the objectors who pass the intersection regularly. 15Mr D Thompson, the applicant's traffic consultant undertook a detailed traffic assessment based on his initial Traffic Impact Statement (April 2010), the RTA review and the IDAC consideration. Accordingly, it is apparent from the evidence that this issue has received extensive consideration, as summarised below. 16On 17 May 2010 council's Senior Traffic Engineer (P Saverimuttu) advised he had no traffic objections but the application should be referred to the RTA. i.Following this referral, Sydney Regional Development Advisory Committee (SRDAC) advised of some concerns and provided a number of conditions that should be imposed on any consent. ii.On 10/6/10 the RTA advised that it also had some concerns and it required the following treatment on Elizabeth Drive; 1.In accordance with Section 4.5.12 of the Road Design Guide the warrant is met (as a result of the proposed development) for the provision of a Type 'CHR' intersection treatment on Elizabeth Drive at the Duff Road intersection. The 'CHR' treatment shall be designed and constructed in accordance with the RTA's Road Design Guide. 2.The developer is required to enter into a Works Authorisation Deed with the RTA for the construction of the 'CHR' intersection treatment In this regard the developer is required to submit detailed design plans and all relevant additional information, as may be required in the RTA's Works Authorisation Deed documentation, for each specific change to state road network for the RTA's assessment and final decision concerning the work, 3.The CHR intersection treatment shall be constructed and operational, prior to the Occupation Certificate. 4.All works associated with the proposed development are to be at no cost to the RTA. iii.Subsequently on 28/6/11 the council requested the applicant to provide a Master Plan to indicate any future expansion expectations. The applicant's consultant provided a notional plan for the site development. iv.Following discussions between the various authorities, SDRAC responded on 16/11/10 by identifying some issues of concern and indicating updated conditions to be imposed on any consent. 17The identified issues were further considered by the council's traffic engineer and reported to the Independent Development Assessment Committee (IDAC), which on 10/2/11 recommended the application for conditional consent. Notwithstanding this, I note the objectors concerns and the submissions for council that certain traffic matters are still not considered satisfactory. 18In responding to these concerns, Mr Thompson listed the following works to be undertaken in conjunction with the development of the site: Internal * Vehicle access to the school and associated car park has been provided via separate entry and exit driveways off Duff Road whilst separate pedestrian access has also been provided. * On-site staff and parent parking are significantly In excess of established Council's requirements. * Staff and parent parking, parent set-down / pick-up and bus set-down / pick-up areas have been separated as much as is practicable to ensure that there is no unreasonable internal conflict. Where pedestrian desire lines cross internal roadways, formalised marked pedestrian crossings have been provided. * The parent set-down / pick-up area has been doubled in length thereby being capable of accommodating a simultaneous capacity of 10 vehicles. External * Duff Road is to be widened to provide four lanes ensuring that vehicles entering the site do not impede trailing through vehicles. This widening wiII also provide an additional lane on approach to Elizabeth Drive thereby assisting the ability of vehicles to access the State Road. * 'No Stopping' parking restrictions are to be installed within Duff Road immediately adjoining and opposite the site to ensure that all parking and parent set-down / pick-up occurs on-site, rather than on-street. * A 40kmlh school zone speed limit is to be installed within Duff Road to ensure that vehicle speeds are commensurate with the school environment. * Elizabeth Drive is to be widened on approach to Duff Road to accommodate an exclusive right turn bay thereby assisting vehicles exiting the State Road. 19One of the concerns relates to traffic safety along Duff Road due to vehicles apparently regularly exceeding the 80 kph limit and potentially increasing the traffic risk to persons entering/leaving the school and those using the nursery entrance to the north of the site. This risk is apparently exacerbated by the location of the crest to the north of the site, which restricts to some extent visibility of the proposed school entrance/exit. 20Mr Thompson assessed this concern and said that the risk to schoolchildren during normal school hours will be minimised because there will be a mandatory 40 kph limit adjacent to the school. He says that motorists will be able to access and exit the site with a reasonable level of safety and efficiency. 21However, Mr Thompson acknowledges that the sight distance is limited under the prevailing speed limits, based on the following estimates: * Sight distance between the northern-most driveway and Duff Road to the north is in excess of 101 m; * Sight distance between the northern-most access driveway and Duff Road to the south is 83 m; * Sight distance between the southern-most access driveway and Duff Road to the north is in excess of 138 m; and * Sight distance between the southern-most access driveway and Duff Road to the south is 56 m being the separation of this driveway from Elizabeth Drive. 22Accordingly, Mr Thompson says that: Figure 3.2 of AS2890.1-2004 states that the desirable and minimum sight distance between an access driveway and a frontage road with a speed limit of 60km/h is 83m and 65m respectively. The above desirable sight distance is provided in all situations with the exception of the southern-most access driveway which is limited by the proximity of that driveway to Elizabeth Drive. The provision of 56m of sight distance between the southern-most access driveway and Elizabeth Drive is however considered satisfactory considering the significantly reduced speed vehicles will approach the site along Duff Road from the south having had to negotiate a turning movement form Elizabeth Drive. In consideration of this and the above discussion, the proposed sight distance provisions between the site access driveways and Duff Road are considered to be satisfactory. 23Insofar as Mr Thompson agreed in cross-examination that an 80 kph speed limit would require a SISD from the south to the driveway of 135 m (desirable) and 105 m (minimum), then there would be a deficiency. But he says that where there are streetlights as in the subject location, the notional speed limit of 60kph would apply. Also, he considers that the widening of Duff Road adjacent to the school will improve safety by allowing through vehicle to pass on the left, past any turning vehicles. Whilst this proposition is open to conjecture, it is the only expert traffic evidence before the Court. 24Taking into consideration then the extensive aforementioned traffic implication assessments by council's traffic engineer and the RTA, which do not indicate any particular concerns with the sight distances, I am then inclined to rely on the expert opinion of Mr Thompson that the traffic safety will be reasonable for the movements generated by the scale of the proposed development. 25Another traffic aspect concerns the efficiency of operation of the Elizabeth Drive intersection. Mr Thompson's (limited) traffic counts indicate that it currently operates in the morning peak at a Level of Service (LOS) of "F", which is the lowest. Whilst he agreed that the no detailed site intersection counts had been undertaken, nevertheless he maintained his position that the pavement widening of Duff Road and widening of the intersection pavement (CHR treatment) would be adequate for the proposed scale of traffic from the 75 place school. 26In this regard, he refers to the responses initially from SRDAC (19/5/10) that stated the RTA would require traffic signals to be installed prior to the enrolments reaching 150. The evidence before the Court shows that there were ongoing discussions with the RTA, resulting in the following outcome, as stated in the IDAC report dated 10/2/11: Further discussion was held about whether there were to be traffic lights at Elizabeth Drive and Duff Road intersection and the RTA has decided that only upon any additional children being proposed at the school (when the number gets to 150) it will be a requirement that there be traffic lights at the intersection installed at the school's expense, but at the present time the RTA does not believe that there will be sufficient traffic generated to require lights and will not allow them to be installed at this time. A condition requiring the installation of traffic lights when enrolments reach 150 children has been recommended for inclusion in any consent granted. 27Accordingly, I am satisfied to rely on the expertise of Mr Thomson that traffic lights are not required at this stage as a result of the development of the subject school. Visual impact 28This issue was raised on the basis that the design of the development is not high quality, nor sympathetic to the rural environment, particularly taking into account the sites prominent position adjacent to Elizabeth Drive. Mr G Peacock, the applicant's consulting town planner provided detailed responses to this issue and those dealing with 'suitability of the site' and 'public interest'. 29Mr Peacock's visual assessment comprises: * An identification of the visual catchment area of the site, including the surrounding residential properties, neighbouring nursery and Elizabeth Drive, * An assessment of the natural features including ridgelines, creeks and existing vegetation. * View assessment from neighbouring properties and other critical viewing opportunities. 30From this Mr Peacock explains the nature of the MDR and associated buildings and provides photographic evidence of their compatibility within other areas, which he considers represents current best practice for high standard design. He then examines the role of the designated landscaping, which he says complies with the NSW Government's School Facilities Standard ("SFS") to achieve the following outcome: * The landscaping will identify entrances to the school site from the Duff Road frontage. * Bright reflective surfaces are avoided. Around the new building the disturbed area will be turfed and planted out, with groundcover plantings along the footpath system. The new plantings will effectively screen views into the site from the nearest dwelling, at No. 1-7 Duff Road. * The scheme provides for suitable surfaces and plant materials to support the intended function of open spaces. * The plantings allow sufficient natural light to school buildings. All new plantings will be primarily to the west and east of the new classrooms. 31The visual impact assessment is based on the provisions of the Dept of Urban Affairs & Planning "Rural Land Evaluation Manual", wherein the assessment criteria is as follows: Table 2.1: Assessment Criteria - Visual Impact Visual Impact Significance of Visual Impact Low Nil - minimal changes in the shape of the overall topographic panorama evident as a result of proposed development. Proposed development either not visible or barely visible. Minor changes in the overall topographic panorama evident as a result of the proposed development. Small area only affected, with no significant adverse impact on overall visual character. Impact capable of being mitigated or offset by beneficial impacts. Lands of Low Visual Quality affected. Moderate Proposed development is visible. Moderate impact on visual character. Moderate sized area of impact. Lands of Low/Moderate Visual Quality affected. High Highly visible. Affects lands of High Visual Quality affected to a significant degree. 32From this assessment, Mr Peacock concludes: * A school building in a rural area will, almost inevitably, be noticed for what it is and, in character, be differentiated from the rural environment. However, that differentiation need not equate to harm to the amenity of the local area or incompatible development. The proposed development is sensitive to the amenity of the area, even though it is for a nonresidential use. * The magnitude of the visual impact is assessed as NIL to LOW, with LOW-MODERATE impacts likely at the receiver at No.1-7 Duff Road until screening vegetation is established on the school site. A mitigating aspect is that the land on the site falls away from the road, with some of the view of school buildings partially obscured by intervening topography. * The proposed development is a low-scale, one storey development with screening provided by existing and proposed plantings. The scale of the proposed development responds appropriately to this non-homogeneous local character. The undulating topography of the site together with the location of the site within a valley and the design elements incorporated into the development help in reducing the visual impacts of the development. The landscaping proposed along the perimeter of the site further assist in minimising the visual impacts of the proposed development. These features result in a development that respects its surrounding visual environment. * Related to the above, the site coverage of these rural structures, on a number of these sites, is more extensive than that envisaged for the present development. The school's overall site coverage will not be as intense as some of the other rural developments in the locality and the landscaping, building separations and building pattern will be more varied and visually interesting, albeit softened by landscaping, than some of the intensive agricultural developments abutting the site. When considering the totality of the proposal, I am satisfied that these elements come together to form a development that is compatible with the existing character of the nearby area. * It is considered that the applicant has sufficiently demonstrated that the proposed development is of a scale, bulk and built form that are not uncharacteristic of the rural area. * Given its low-rise nature, the proposed school building complex will not extend above the tree canopy. * Surrounding large sheds and greenhouses appear as industrialised structures in a rural landscape. * Considering the relative setbacks and separation to neighbouring dwellings, the screening effect of the existing boundary fence and the proposed screening landscaping, I am satisfied that the privacy amenity will be satisfactory. * The generous separation of the proposed school buildings from neighbouring dwellings, coupled with the extensive landscaping proposed around the perimeter of the site, provides a building complex that will be well screened and low-rise when viewed from the public domain. * The development is considered to have adequately responded to the context of buildings within the Cecil Park locality through being broken down into a series of smaller scaled buildings over the site. The buildings are primarily one storey in scale that is less than that found in surrounding rural residential development in the area. Separation between the groups of buildings has been provided which allows for landscaped courtyards and substantial space for landscaping between buildings, thereby reducing the dominance of the built form and reinforcing a "green", attractively landscaped outlook. In addition, all buildings have been situated a minimum of 20 metres from the Duff Road boundary, 30 metres from Elizabeth Drive. The nearest dwelling to any school building, at No. 1-7 Duff Road, is approximately 57 metres away, separated by extensively landscaped areas. 33Having viewed the site and the surrounding area and in the absence of any contrary expert visual assessment, I am satisfied to rely on Mr Peacock's opinion that the visual impact from the subject proposal will be reasonable in the current context and satisfy objective (b) of the LEP. Conclusion 34Having carefully considered the evidence, the submissions and undertaken a view, I am satisfied this site is sensitive to a number of environmental constraints. These constraints include the low-lying nature of considerable parts of the site, which are subject to flooding. Also, it's location at the intersection of Elizabeth Drive and Duff Road, which currently operates at a low LOS "F", is of concern regarding the impacts of any increase in traffic usage to ensure that traffic issues can be safely managed without exacerbating existing traffic problems. 35However, it is also apparent that the proposal for an 'educational establishment' on the subject site is permissible with consent, within the 1(a) Non Urban - Residential zone. Accordingly. I am satisfied that the applicant has responded to the identified issues in a detailed way. 36In terms of the LEP provisions, I am satisfied that subject to the compliance with appropriate conditions, the zone objective (b) would be satisfied, so as to enable consent being granted. 37Next, cl 11 of the LEP requires consideration of arrangements to deal with flood - liable land. Whilst flooding was not raised as an issue, I note that conditions have been imposed pursuant to the detailed engineering investigation and recommendations contained in the "Siteplus - Flood Study (January 2010)". This study refers to the LEP provisions and council's Floodplain Management Policy and concludes that when the recommended drainage works are completed, there will be no increase in flooding and the modelling indicates that downstream properties will benefit from the works in regard to flooding. Accordingly, I rely on these conclusions that the cl 11 provision of the LEP is satisfied. 38An associated issue concerns the control of wastewater. The evidence indicates that the proposed on-site wastewater treatment system has been carefully investigated in term of the subsoil conditions resulting in the respective engineers agreeing that the proposed system is satisfactory. However, I note in this regard that careful management of the system is required, particularly to ensure that only appropriate activities are undertaken on the playing fields, under which the irrigation is located. 39Insofar as the neighbours expressed some concerns about potential pollution impacts due to the proximity of the playing fields to the natural watercourse, the engineers agreed that as the proposed creek upgrading works on "Streams A & B" will contain the PMF, then any inundation of the playing fields should be prevented, thereby minimising any pollution. I rely on the engineer's agreement in this respect. 40The other significant issue concerns traffic impacts. I understand that this is an important matter for the community because of the environmental conditions that occur in the vicinity of the Elizabeth drive/Duff Road intersection. Bearing in mind that the only expert evidence presented to the Court was from Mr Thompson, I rely on his opinion that the traffic safety for the subject 75-place school should be satisfactory, providing the detailed road improvement works are completed prior to the school operating. 41These improvements include the internal pick up/drop off arrangements, internal parking, bus access arrangements, pavement widening of Duff Road adjacent to the school and upgrading the Elizabeth Drive intersection with the construction of the Type 'CHR" intersection treatment. 42Furthermore, I have given considerable weight to the fact that the traffic issues have been subject to extensive assessment by council's traffic engineer, the RTA and the IDAC, who all indicate that the traffic matters can be covered by appropriate conditions. Therefore I do not consider the application should be refused on traffic grounds. 43With regard to the visual impact issue, I accept that this depends very much on a subjective assessment. I think Mr Peacock's visual assessment methodology is extremely comprehensive and it identifies the key elements that should be considered. Therefore, having viewed the site and surroundings and observed the variety of buildings in relatively close proximity, I am satisfied the proposed development with the proposed landscaping will integrate with existing development so as to achieve a relatively high quality development, resulting in a satisfactory visual outcome. 44Insofar as the suitability of the site for a school was identified as an issue and raised by the neighbours, this mainly depends on the aforementioned merit matters that have been addressed. Apart from this, another aspect that was discussed concerns any future expansion of the school. In this regard, reference was made to the overview of the development contained in the SEE, which states: Given the fact that the operator does not presently have a school established in Sydney, and given the sites rural location, the proposed development has been deliberately designed as a modest-sized project. The project is designed to support a maximum of 75 students, with a maximum of 10 teachers and support staff. The project has been designed to permit the logical expansion of the school, including access and car parking, should student numbers warrant this. Any future expansion of the school will be the subject of future applications. 45Mr Seton's submissions for council express concerns about the form of any such 'future applications' due to the sensitive nature of the site. In particular he refers to the provisions of cl 31A - Complying development of the SEPP (Infrastructure), which states: 31A Complying development-existing schools and TAFE establishments (1) Development carried out by or on behalf of any person on land within the boundaries of an existing school or TAFE establishment is complying development if: (a) it consists of the construction of, or alterations or additions to, any of the following: (i) a library or an administration building, (ii) a gym, indoor sporting facility or hall, (iii) a classroom, lecture theatre, laboratory, trade or training facility, (iv) a tuckshop, cafeteria, bookshop or child care facility to provide for students or staff (or both), (v) a hall with an associated covered outdoor learning area or tuck shop, (vi) if the development is not on bush fire prone land or if the educational establishment is not, or does not contain, a heritage item-an outdoor learning or play area and associated awnings or canopies, (vii) a car park, and (b) it complies with this clause and clause 20B (General requirements for complying development). 46Considering that the approval of the subject application on the non - urban land would change the use to a school, then future developments could proceed on the basis of "complying development" on the 'new school' site. Council has concerns about the adequacy of assessment of the 'future applications', particularly due to the limited environmental capacity of the site. 47Accordingly, the council requires the imposition of a condition for a masterplan to be prepared for the subject site and submitted to and approved by Council prior to any issue of a construction certificate. It is to identify the extent of all/any future buildings on site shall not encroach on the following features of the development which is the subject of this approval and: a. The area on site set aside as the effluent wastewater treatment system. b. The approved playing field at the northern portion of the site and the playground at the southern portion of the site. c. All landscaped areas and tree plantings approved in the landscape plan as either new trees to be planted or existing trees to be retained; and d. The overland flowpath areas identified on the site. 48The masterplan is to indicate the maximum number of students on site, the additional car parking generated and what additional upgraded traffic measures are generated by the increase of activity on site. Consequently, all future development of the site should only occur in accordance with and as outlined in the approved masterplan document. 49However, Mr Robson submits for the applicant that this 'masterplan' condition is unnecessary because the role of the Court is to assess the merits of the subject application and any future application will be subject to the prevailing controls at the time. Nevertheless, the applicant will accept a condition to the effect that the extent of any future development shall not encroach on the aforementioned areas (i) - (iv). 50Having considered these competing submissions, it seems reasonable to me that all interested parties should be fully aware of the constraints identified and addressed in the subject appeal for the "modest school" application. However I consider both the private and public interests would be well served by the preparation of the masterplan because the site is environmentally constrained, whereby it is not just a matter that future development should not encroach on the approved areas. 51Instead it seems such future development would require a coordinated assessment to determine the cumulative impacts and ascertain what, if any infrastructure or other safety measures were required. I therefore consider the council's draft condition reasonable in the circumstances to satisfy the 'economic and orderly development' considerations. 52There was also an objection to draft condition 75, which requires the installation of traffic signals at the Elizabeth Drive intersection. However, I am satisfied that the proposed "CHR" intersection treatment is satisfactory for the subject application will a limitation on the maximum number of pupils to 75. Therefore this condition is deleted. 53The other disagreed condition concerns the hours of operation. In draft condition 55, council proposes: The approved hours of operation for the infant/primary school are: a. Monday to Friday: 7:00am to 5:00pm; b. No school activities are permitted on Saturday and Sunday with the exception of 2 Saturdays per year for staff development and 12 Saturdays per year for board meetings. The applicant shall submit to Council annually a statement which indicates when such activities are scheduled. The hours during which such activities shall take place shall comply with subclause (a); and c. No outdoor school activities shall be carried out on weekends or outside the approved hours of operation without Councils prior approval. 54Whilst the applicant agrees with the normal hours in a. and generally with b., it requires some flexibility for: * Teachers to be able to work out of the normal hours, * Out of hours school activities including school functions such as prize giving ceremonies, parents and citizens meetings, item presentation, lectures and information nights on not more than 4 occasions per year for each activity and to finish no later than 11.00pm and not to exceed 150 persons; and * Saturday school sporting or other extra curricular school activities between the hours of 9.00am to 2.00pm involving no more than 60 students, and * The schools board of no more than 12 persons may meet on no more than 12 occasions per year at the site at any time suitable to the board. * Variations to the above to be submitted to the Council for prior approval. 55In principle, the additional flexibility requested would seem reasonable in terms of the normal range of activities offered by a school. However I have some concerns about the potential scale of the nominated after hours activities, particularly traffic impacts. If there are 4 special events nearing 150 people attendance, this raises an alarm about the adequacy of the Elizabeth Drive intersection to safely perform without traffic lights. 56Also, consideration of what arrangements would need to be made for car parking, noting that only 16 car spaces are provided on - site and car parking would not be permitted on the playing fields, in order that the irrigation system is protected. Furthermore, on - street is likely to be restricted so that the minimal sight distances are maintained for safety. Therefore, unless particular arrangements are made, chaotic traffic conditions are likely, which would be contrary to the public interest. 57In these circumstances, I think it appropriate to initially impose the more restrictive council condition. Then when the school is operational and there is a clearer understanding of the impacts of any special events, specific arrangements can be made. After a successful trial period on this basis, consideration could then be given to a modification of this condition. 58Insofar as a number of other matters were raised by the objectors, I do not consider they were not supported by any substantive evidence that would result in the refusal of the application. This includes the proximity to the PGH brickworks, whereby consideration of impacts is required under SREP No 9. However this was not raised or supported as an issue by council and therefore I do not consider it a determinative issue. 59In summary then, I am satisfied that this proposed school is permissible in the zone and merits conditional consent. Court orders 60The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to DA No 401.1/2010 for the construction and operation of an educational establishment - Infants/Primary for 75 children at 2089 - 2109 Elizabeth Drive, Cecil Park subject to the conditions in Annexure A. 3. The exhibits may be returned except 4, 5, 8, 11, A, B and F. R Hussey Commissioner of the Court ANNEXURE A 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: 25 July 2011