Best Western Services Pty Limited v Blacktown City Council [2011] NSWLEC 1380

Land and Environment Court New South Wales

Medium Neutral Citation: Best Western Services Pty Limited v Blacktown City Council [2011] NSWLEC 1380 Hearing dates: 14, 16 and 29 November 2011 Decision date: 29 November 2011 Jurisdiction: Class 1 Before: Murrell C Decision: (1)The appeal in respect of the property known as Nos 13-15 Cannery Road Plumpton is upheld. (2)The development application submitted to Blacktown City Council and as amended for an independent school with a maximum of 125 students is approved subject to the conditions in Annexure A. (3)The exhibits are returned to the parties with the exception of A, F, I and 8. Catchwords: DEVELOPMENT APPLICATION - Appeal for a school with 125 pupils - impacts on adjoining residential area - traffic, parking and acoustic impacts Legislation Cited: State Environmental Planning Policy Infrastructure 2007 Category: Principal judgment Parties: Best Western Services Pty Limited (Applicant)

Blacktown City Council (Respondent) Representation: Counsel Mr Pickles (Applicant)

Mr A Seton (Respondent) Solicitors Marsdens Law Group (Respondent) File Number(s): 10893 of 2011

Judgment 1This is an appeal about an independent, private school for 125 students, at the property known as 13 to 15 Cannery Road, Plumpton. The proposal is for kindergarten to year four at this stage, and it involves alterations and additions to two existing dwelling houses and associated outbuildings on the subject land. The subject site is some 51 m by 80 m, yielding a site area of over 4,000 sq m. 2By way of background the subject site is located with frontage to Cannery Road and it also has rear access from Bottles Road. Within the vicinity of the subject site there are other schools, namely the Plumpton High School and the Plumpton Primary Public School both on Bottles Road. It is proposed in the application that all entry to the school, apart from entry for disabled persons, be via Bottles Road. 3The Court heard evidence from resident objectors in this matter and from the traffic consultants: Mr Robert Varga for the applicant and Mr Chris Hallam for the respondent. The town planners are Mr Nick Juradowitch for the applicant; and Mr Neil Kennan for the respondent. The acoustic engineers are Mr Gould for the respondent and Dr Kean for the applicant. 4There are a number of contentions raised by the council. The first is acoustic impacts warrants refusal because of the unacceptable impact on the adjoining residential premises in the surrounding area, in particular for the eight townhouses to the west of the subject site, at the upper storey level bedroom windows of a number of those townhouses. 5Contention 2 is traffic/parking impacts. The school should be refused because of the impacts of traffic and parking, including the impacts on Bottle Road and other intersections in the area. The other contention is suitability of the site and the impact on residential amenity. 6The Court in its determination of this matter has had regard to the site inspection and also to the resident objectors' concerns and the experts' evidence. As this is an extempore judgment I will say at this stage and give my reasons to follow, I have determined that there is no reason that would warrant the refusal of the application and as such it should be approved. 7In terms of the resident objectors I note for the record that there were a large number of objectors to the proceedings and the Court heard from them on site. The residents at 4 Cannery Road consider that there are an adequate number of schools already within the area and this is a low residential area. The traffic is extremely congested in the area, in particular Bottles Road and also they cited the new shopping centre. There were photographs tendered to the Court to show congestion of cars within the area and the concern about the proposal exacerbating the traffic impacts within the area. They also expressed concern about the site being inadequate in terms of space for physical education and the buildings themselves and their suitability in terms of the summer heat. 8A church is located at 9 Cannery Road and the pastor of the Church also indicated concern in terms of the impact of the school on the adjoining townhouses and traffic congestion within the area. 9The owner of number 18 Cannery expressed concern about the development not being in the best interests of the residents, that it is already over populated with schools and the lack of play areas and the noise from children playing. 10The owner of 24 Cannery considered that the safety of children should be considered and that the traffic delays within the area would be exacerbated. 11Number 19 Cannery Road is concerned about the increase in the number of student population in terms of the economies of scale of the development and also expressed concern about the drop off zone at the rear of the site. 12The owner of 2/11 of the townhouse development, expressed concern about the inadequate area for recreation for the children, playing areas. Concern about pressure or impact and demand on the Plumpton Park where there is the Cumberland Plain threatened species woodland. 13The owners of number 6/11 who are shift workers also expressed concern about the impact of the school in terms of noise on the area. 14The Court in its consideration of the application has considered the residents' concerns and it is not a matter for the Court to limit the number of schools within an area, but rather the suitability of the subject site for the application must be assessed. Clearly if there was a number of schools located together and the cumulative impact was one that would warrant refusal that would be a relevant matter for consideration. I must assess the merits of the application. 15The site is a large site and the role of the Court is to assess the reasonableness of impacts. Clearly as for many developments they are not embraced in residential areas, nonetheless in this particular zone 2B, schools are a permissible use with consent. 16The objectives of the residential zone are to identify locations in existing urban areas with special considerations required. In terms of the zone objectives are to make general provision to set aside land to be used for housing and associated facilities and identify residential areas, predominantly single storey character and to maintain the character by prohibiting residential flat buildings to enable sensitive infill development, enable development of a variety of housing forms and to allow, in particular, objective F a range of non residential uses which (1) are capable of visual integration with the surrounding environment, (2) are to serve the needs of surrounding population, the needs of the City of Blacktown without conflicting with the basic intent of the zone and do not place demands on public services beyond the level reasonably required for residential use. 17In terms of these objectives, the Court has carefully considered the matters and in particular those raised by the traffic engineers and the acoustic consultants in terms of providing an appropriate fit with the residential area and ensuring that the demands are not too great for the area in which the proposed school is located. 18The traffic engineers to the proceedings considered the additional traffic and also considered the staggered school hours of starting and finishing times being different to the surrounding schools in order for the local road system to be able to accommodate the subject proposal. 19It is noted that the roads are local roads. In Mr Varga's opinion the road acts more as a collector road than local road. Whereas in Mr Hallam's opinion it is what he would call a 'higher order' local road. 20An analysis of the intersections was undertaken as was the environmental capacity of the roads and the actual capacity of the roads in terms of the existing demand placed by the existing schools and what the additional demands would be projected for the proposed development. 21I accept the experts' opinion that the road system can accommodate the proposed school and it will operate within the capacity of the roads. There will be additional traffic but in their opinion the additional traffic generated by the proposed school can be handled at the intersections without any need for further or any other ameliorative works. They are also of the opinion that the capacity of adjoining or rather adjacent intersections will be satisfactory. 22I heard the residents' concerns about traffic but at the end of the day I accept the experts' views traffic. It is clear, which is not unusual in any area where there are high schools and local primary schools and other kindergartens located within residential areas, that there are peak periods of traffic congestion but this in itself would not be one that would warrant refusal of the application. And indeed I am satisfied that the capacity of the road network is one that can accommodate the proposed school with a maximum of 125 students. 23There was concern expressed by residents that the school may expand, its numbers being greater. In this regard the State Policy on Infrastructure, State Environmental Planning Policy Infrastructure 2007 was cited cl 31A which allows for additions as complying development for existing schools. I have considered the provisions of the clause and it does allow for additional facilities to be provided but at the same time I accept the submission on behalf of the applicant that the consent as proposed would be for a maximum of 125 students and any variation to same would require a s 96 amendment to the consent or a new application. There are a number of facilities associated with schools that are permitted by cl 31A but I accept the applicant's submission that an expansion of the school in terms of numbers is not one that is specifically allowed for in that clause. Although I also acknowledge that this may be open to interpretation, nonetheless the condition of consent is for 125 students. 24There was concern expressed about the school being for up to year four only only and the Court in fact did question what happens to children when they reach classes five and six. Clearly that would be something that would need to be dealt with under this consent within the capacity or the total number of school students, that is a 125 students and indeed it may be in the future that classes five and six are provided within that 125 capacity as children move through school. 25The other matter of great concern to the residents and also one that consumed a great deal of time in the court proceedings concerns the level of acoustic noise. It has been consistently held in this Court that schools, whether they be childcare centres or schools, for that matter, are complementary and should be able to harmoniously coexist within a residential area. The Court heard evidence from the planners that a boundary fence of 4 m on the boundary would not be acceptable in visual terms and I certainly agree with their assessment. There was also a proposal to provide for a higher acoustic fence 2 m from the boundary with landscaping to ameliorate the visual impact for the residents of the townhouse. I say at this point that the acoustic impact or the exceedence in the ambient background noise level only concerns the upper levels of the townhouse development to the west, to the east is single storey residential and there is no impact in terms of that property. 26The Court has given serious consideration to this matter and I note from the council planner's report that in fact there is a condition to be imposed for follow up or monitoring post operation of the school. I also note that the noise levels, the existing noise levels were assessed in terms of when the adjoining school buildings or the adjoining schools were not in operation which would also tend to give a false or may tend to give a false background noise level reading. I do note that in terms of the exceedence in dB(A) there has been a proposal that the number of children playing could be split which would reduce the exceedence in the dB(A) for the upper levels of the adjoining townhouse development. 27Having carefully assessed the data of the acoustic experts I am of the opinion, and this is a matter that can be conditioned that for the time being does not require an additional 4 m fence or 3.6 or 3.7 or 3.8 fence to be provided now. This should be subject to further monitoring once the school is operational. This will also allow for the consideration of whether it is necessary for a split in the number of children playing outside, that is a maximum number of children at any one time to be outside. The need for providing a 3.8 m acoustic fence which would be then cantilevered from the 2 m point into the school boundary may in fact not be found to be necessary, although the applicant in terms of taking up the consent would have to be aware that if the noise exceedence was such that it required an acoustic fence to be constructed 2 m in from the boundary with the necessary landscaping that this would then need to be provided. And given the nature and the speed with which acoustic fences can be constructed (a) it would be feasible to construct post operating if required by the independent acoustic monitoring but it would be unnecessary in the first instance to require the fence to be provided before there is a real clear indication of the exceedence. Also it would give the applicant the opportunity only if the owners of the adjoining townhouse accepted air-conditioning at the applicant's expense of installation. The Court would certainly not impose this on adjoining properties if in fact they were opposed to same. But it would give the applicant the opportunity of providing air-conditioning to those particular bedrooms that potentially may be impacted by the proposal. 28As such there will need to be a condition crafted so that there is independent post operative acoustic readings and this would be at the applicant's expense and it may be that this be conducted, not just once, because the capacity of the school may not reach 125 when it is first operational. As such it may be required three months after operating in the first instance and then followed up by a twelve-month period thereafter. These are details that I would like the parties to discuss and provide appropriate conditions on. 29As I stated at the end of the day the noise from children playing, and it is often held in this Court is not generally regarded as offensive, schools are seen as acceptable and a compatible use within residential zones within limits. Noise from children playing is to be distinguished from noise from traffic or cars manoeuvring or associated noise emanating from mechanical equipment. Noise of children playing is generally not regarded by the majority of people as offensive. 30It is also noted and I accept the submission on behalf of the applicant that the playing periods are somewhat limited, in particular for a school as opposed to a childcare centre. And the independent monitoring will be able to establish the precise noise levels having regard to when the other school facilities are also in operation. 31I am satisfied that the start and finish times and I accept the condition that the start and finish times of the proposal need to be staggered or different from the existing schools within the area to enable the road system to more appropriately accommodate the vehicles. I also note that there is a proposed mini bus and the proposal also provides for the necessary number of car parking spaces as required of the council's Development Control Plan. I also note the council's Development Control Plan provides for the parking requirement within the schools to ensure adequate traffic safety and management by providing parking for staff within the school, and a certain number of spaces also related to the number of children. 32I am satisfied with the proposed drop off parking and I accept Mr Hallam's assessment in terms of the number of spaces provided is appropriate in the circumstances of this case and meets the needs in accordance with the council's Development Control Plan. 33The Court, as I stated, appreciates that residents are concerned about additional non residential uses within the area, however the subject site, in my opinion in terms of s 79C is appropriate for the subject development. It also meets the objects of the Act in terms of orderly and economic development and I see no reason as to why the Court should refuse consent to the application. 34Accordingly the formal orders of the Court in this matter are (1)The appeal in respect of the property known as Nos 13-15 Cannery Road Plumpton is upheld. (2)The development application submitted to Blacktown City Council and as amended for an independent school with a maximum of 125 students is approved subject to the conditions in Annexure A. (3)The exhibits are returned to the parties with the exception of A, F, I and 8. J S Murrell 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: 12 January 2012