Al - Faisal College Limited v Canterbury Bankstown Council

The site and its context

1. The site comprises three separate lots: 65 Croydon Street (Lot B DP 395768); 67 Croydon Street (Lot C DP 315991) and 69 Croydon Street, Lakemba (Lot 2 DP 1036358). The consolidated land area is 4654.3m².
2. Relevant to the issues in contention the adjoining properties contain the following developments:

• 72 Sproule Street: is a residential aged care facility within a two storey building. The floor level of this building is set below the existing ground level of the subject site. By reference to the survey the eaves of aged care facility are approximately RL 41.57. The proposed outdoor play area has a proposed finished level of RL 39.6.
• 90 Sproule Street: is a residential flat building containing 12 units located to the south- west of the subject site. No survey information has been provided that indicates the floor levels within this property.
• 73 Croydon Street and 75 Croydon Street: are residential flat buildings containing 12 units each located to the north- east of the subject site. The boundary of these sites adjoins part of the proposed outdoor play area of the school. Both developments have three levels of apartments. By reference to the survey: the eaves of 73 Croydon Street are approximately RL 51.01; and the eaves of 75 Croydon Street are approximately RL 51.83.
• 77 Croydon Street: is a residential flat building containing 12 units located to the south- east of the subject site. The boundary of this site adjoins part of the proposed outdoor play area of the school. The development has three levels of residential apartments. By reference to the survey the eaves of the building are approximately RL 48.55 and RL 49.55. Ground level is indicated as RL 40.40.
• 79 Croydon Street: is a residential flat building. The property does not share a common boundary with the subject site.
• Holy Spirit College, an existing school, is located to the north of the subject site at 37-49 Croydon Street.

1. The relationship of the subject site to the surrounding development is detailed in the following:

Public Submissions

1. The development application was notified by the Council and submissions were received by adjoining residents and the community. The submissions received during the notification of the amended application (refer paragraph [1(6)]) raised the following issues with the proposed development: 1. the safety of children, and other pedestrians, entering and leaving the proposed school site; 2. the potential for increased traffic in Croydon Street to add to congestion and create unsafe conditions; 3. that the proposed school should operate under a Plan of Management (POM) which includes a contact point for members of the public; 4. the residents currently experience impacts from the Holy Spirit School and an additional educational facility will increase this burden. The impacts of main concern are: traffic congestion, noise, and inconvenience of traffic delays in exiting and returning to the area; 5. the proposed staggering of lunchtimes is inappropriate and does not take into account the potential for future expansion of the school; 6. the provision of 17 car parking spaces is insufficient for the proposed use; 7. the approval of this school will restrict the future expansion potential of the Holy Spirit School; 8. the proposed school will impact on the privacy and amenity of adjoining residents. In particular residents will experience increased noise, rubbish, the blockage of driveways and overlooking of their properties; 9. the proposed school has the potential to create a conflict of religious beliefs within the community; 10. the potential noise impacts have not been correctly assessed by the applicant, in particular the cumulative impact on residents from the existing school (Holy Spirit) and the proposed school; 11. the traffic movements associated with the drop off and pick up of students will create unacceptable noise pollution for the residential properties immediately adjacent; 12. the approval of the proposed school will detrimentally affect the residential character of the area.
2. Two residents also addressed the Court at the commencement of the hearing and expressed concern about the development. They emphasised their concerns in relation to the impact of the proposed development on traffic, parking and congestion in Croydon Street and the acoustic impacts that would arise from the approval of a school use on the subject site.

Planning Controls

1. State Environmental Planning Policy 55 - Remediation of Land (SEPP 55) applies to the site. This policy provides for the remediation of contaminated land for the purpose of reducing the risk of harm to human health, or any other aspect of the environment, of any existing land contaminants on the site.
2. Relevantly cl 7 of SEPP 55 provides a precondition to consent as follows: (1) A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is Contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. …
3. It is agreed between the parties that the report titled 'Phase 1 Preliminary Site Assessment: 65, 67, and 69 Croydon Street' prepared by Enviro Tech Environmental and Engineering Consultancy Services, and the proposed conditions requiring the implementation of its recommendations, meets the requirements of cl 7 of SEPP55.
4. It is agreed between the parties that State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 does not apply to the current application given the savings and transitional provisions included at cl. (1)(1) of Schedule 5 of the instrument.
5. State Environmental Planning Policy (Infrastructure) 2007 (SEPP I) permits development for the purposes and "educational establishment" with consent in the "prescribed zones".
6. Clause 27 in Division 3 of SEPP I includes the following definition: educational establishment has the same meaning as it has in the Standard Instrument. Note. The term educational establishment is defined by the Standard Instrument as follows: educational establishment means a building or place used for education (including teaching), being: (a) a school, or (b) a tertiary institution, including a university or a TAFE establishment, that provides formal education and is constituted by or under an Act.
7. It is agreed between the parties that the proposed development meets the definition of an educational establishment.
8. The "prescribed zones" in which an educational establishment is permissible include the R3 Medium Density Residential Zone and the R4 High Density Residential Zone. The subject site is zoned both of these relevant zones. Therefore, notwithstanding the provisions of the Canterbury Local Environmental Plan 2012, the development is permissible with consent.
9. Clause 32(2) of SEPP I: Determination of Development Applications requires the consent authority : (2) Before determining a development application for development for the purposes of a school, the consent authority must take into consideration all relevant standards in the following State government publications (as in force on the commencement of this Policy): (a) School Facilities Standards - Landscape Standard - Version 22 (March 2002), (b) Schools Facilities Standards - Design Standard (Version 1/09/2006), (c) Schools Facilities Standards - Specification Standard (Version 01/11/2008). (3) If there is an inconsistency between a standard referred to in subclause (2) and a provision of a development control plan, the standard prevails to the extent of the inconsistency.
10. Relevant to the preceding clause the planning joint expert report (Exhibit 3) states: The experts agree that the School Facilities Standards no longer exist, and did not at the time this appeal was filed. We note that the Department of Education recently carried out a comprehensive review of the documents which previously made up the School Facilities Standards. Stage 1 of the review identified a number of recommendations for how the existing documents needed to be updated to ensure they are able to provide modern learning facilities into the future. Stage 2 of the review saw the creation of a new system to house the guidelines. The Educational Facilities Standards and Guidelines (EFSG) is the new web based platform. … On the basis of Clause 32 (Determination of development applications) of the Infrastructure SEPP and the preface to the EFSG, the Guidelines need not be rigidly applied, particularly in terms of numeric standards. They are simply required to be considered. The experts note a letter prepared by Planning Ingenuity, dated 14 February, 2018 provided consideration of the originally filed proposal against the EFSG. The experts have further considered the EFSG in light of the Revision E plans and are satisfied that the plans adequately respond to the relevant parts. (Exhibit 3)
11. On the basis of the agreed evidence of the planning experts I am satisfied that the application adequately responds to relevant standards. Equally I am satisfied that cl.32(2) of SEPP I has been considered in the assessment and determination of the application.
12. Pursuant to Canterbury Local Environmental Plan 2012 (LEP 2012) the lots that form the subject site are zoned as follows: 1. 65 and 67 Croydon Street are located within the R4 High Density Residential Zone; 2. the balance of the subject site is located within the R3 Medium Density Residential zone.
13. The objectives of the R4: High Density Residential zone are: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
14. The objectives of the R3: Medium Density Residential zone are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
15. Part 4 of LEP 2012 contains principal development standards, with cl. 4.3 designating a maximum building height and cl. 4.4 designating a maximum floor space ratio. The parties agree that the development complies with these development standards.
16. The development is subject to the requirements of Canterbury Development Control Plan 2012. The applicable version is that which was in place prior to the amendment on 30 January 2017 (DCP 2012). In relation to the issues in contention, the provisions of DCP 2012 are only relevant to the draft conditions, and are therefore discussed later in the judgement.

Experts

1. The parties and the Court were assisted by the evidence of town planners Mr Jeff Mead (for the Applicant), and Mr Scott Barwick (for the Respondent). Given the joint report detailed their agreement that the relevant planning contentions were resolved; they were not called for oral evidence. I have read and considered the joint report of the planners (Exhibit 3) and concur with their reasoning and conclusions in relation to the matters they agree are resolved by the amended application.
2. Expert Acoustic evidence was also provided to the Court by Mr Barry Murray (for the Applicant) and Mr Steven Cooper (for the Respondent). Their joint report was tendered as Exhibit 4. Their evidence is discussed in the following.

Acoustic issues in dispute

1. The areas of disagreement between acoustic experts, and the positions of parties, can be broadly grouped into the following: 1. Whether there is an applicable noise criterion, above the existing background noise level, which the noise from the outdoor play area should meet at the adjoining residential properties. 2. Whether the sound power level utilised in the assessment of acoustic impact is representative of the noise that is likely to be generated by children in the outdoor play areas; and 3. Whether the applicant has provided sufficient specificity to allow the Court to determine if the projected impacts are reasonable. The areas in contest are: 1. the predicted noise levels from the external play areas at the various residential receivers; and 2. the acoustic impact from the car park on the adjoining residential properties 1. Whether the internal noise generated by the music room is appropriately mitigated, or whether controls on the types of instruments utilised by the school is required as a condition of any approval.

Background

1. The application proposes the use of the active outdoor play in the following areas (identified by red hatch):
2. The School Management Plan (Exhibit F) proposes the following as the defined lunch breaks for students: First Lunch: • Years K-2: 10.20am -10.35am (maximum 150 students); and • Years 3 to 6: 11.10am - 11.25am (maximum 200 students) Second Lunch: • Years K-2: 12.15pm -12.55pm (12.15pm to 12.25pm - eating inside the classroom) (maximum 150 students); and • Years 3 to 6: 1.15pm - 1.45pm (maximum 200 students)
3. In addition the School Management Plan provides the following statement in the section "Active Play": The maximum number of students in the playground at one time will be 200 primary school students. Active play will occur before school commences (i.e. from 8.15 to 8.30), and during the recess break (15 minutes) and lunch break (30 minutes). During the 15 minute period before classes commence, teachers will supervise students entering the school, to ensure reasonable noise levels are maintained and direct students to their classrooms at 8.30am. If the maximum number of students approaches 200 students during this period, teachers will commence moving children into the classrooms. (Exhibit F)
4. In terms of acoustic mitigation measures the application includes the construction of a Colorbond fence, of two metres in height, around the full boundary of the property. In addition an "L-shaped" fence, of four metres in height, is proposed along the southern and eastern sides of the playground. The Acoustical Assessment Report prepared by Wilkinson Murray in May 2018 (the May report) notes that "the purpose of this fence is to provide additional acoustical protection for some of the neighbouring properties" (Exhibit D).
5. The Council relies on guidelines developed by the Association of Australasian Acoustical Consultants (AAAC), titled: "Childcare centre acoustical assessment V2" (the Childcare Guidelines).

Expert Evidence

1. Wilkinson Murray Pty Limited has produced three Acoustic Assessments for the subject development. The initial report lodged with the development application was prepared in February 2017, a further report was prepared in response to the issues raised by Council in the Statement of Facts and Contentions (the "May Report", Exhibit 1) and a final report prepared in July 2018 was produced to respond the concerns raised by Mr Cooper during the joint reporting process (the "July Report", Exhibit G).
2. In the May Report Mr Murray identifies that the operation of the school has the following potential noise sources: - Classroom noise; - Car park noise; - Noise from the pedestrian walkway from Croydon Street; - Mechanical noise; - Noise from the outdoor play; and - Noise from school traffic in Croydon Street.
3. The May Report notes: "There are no noise criteria specifically related to noise emission from educational establishments. Further, Canterbury Development Control Plan 2012, which contains development controls, standards and guidelines for all new development in the Canterbury part of the City of Canterbury-Bankstown, does not include any guidance in regard to school noise" (Exhibit D).
4. Mr Murray's approach to the assessment of outdoor play noise can be summarised as follows: 1. there is no guideline to assist in the assessment of noise from outdoor school play. 2. the criterion included in the Childcare Guidelines of background noise level + 10db(A) is not an appropriate benchmark for acceptability of noise impacts arising from outdoor school as it has been developed for childcare centres which have different noise characteristics. 3. the noise from children playing is a low impact noise. He explains this view as follows: … character of noise from outdoor play is not industrial in nature and is generally regarded as resulting in a lower impact that industrial noise, in the view of many residents. Further, the sensitive receivers likely to be affected by noise from audible play are already affected by noise from play at Holy Spirit College. This demonstrates the common situation that play is often audible in residential areas near schools. (Exhibit D) 1. that it is not appropriate to assess the noise from school play in quantitative terms as the noise levels are inconsistent and will vary from time to time, for example between lunchtimes when children are in the classrooms versus the playground. He notes that noise from school play contrasts to mechanical plant or industrial noise which has characteristics of being continuous and consistent throughout the day. 2. he relies on two decisions of the Land and Environment Court that he argues: firstly define the noise from school children playing as not offensive noise (Meriden School v Pedavoli [2009] NSWLEC 183 at [46]); and secondly that the Court had held that it was important for uses such as schools and residential areas to co-exist as part of the community (Trustees of the Christian Brothers v Waverley Council [2004] NSWLEC 210 at [8]); 3. that the results of ambient noise monitoring in the February 2017 report show "the influence of Holy Spirit College with an increase in ambient noise levels occurring at the commencement of morning classes, during recess, lunch and dismissal at the end of the day". 4. that in preparing the May report the representative noise generated from outdoor school play was generated by a predictive model. That model is based on: an assumption of a maximum number of children playing at any time of 200; the noise associated with the play being evenly distributed around the designated play area, and sound power levels of children at play. The resulting levels from the July Report are extracted at paragraph [29]. 5. the sound power levels, that are the basis for the noise generation figures, were based on logged measurements of children at play at Al-Sadiq School in Greenacre. 6. this data was then utilised to determine predicted noise levels, arising from the proposed outdoor play areas, at each to the relevant residential receivers (reference Table 9-1 in the May Report). 7. In the July Report these results were modelled with the proposed barrier mitigation. The results in the report show a maximum result of +14dB above the existing logged background noise (reference Table 3-4 in the July Report). 8. that on the basis of the above analysis it is his conclusion that: "the noise associated with the development of the Al-Faisal College Primary School will be unlikely to cause significant noise impact" (Exhibit D).
5. Given some of the adjoining residential properties (receivers) are units within multi storey residential flat buildings Mr Murray conducted additional field work in late July 2018. The field work sought to determine the extent of variation (if any) to the measured background noise level between the ground floor, and subsequent floors in the residential buildings. Mr Murray's methodology is described in the following: … A test of the difference between the ground floor, first floor and second floor levels was carried out during the period Friday 27 July to Monday 30 July. Measurements were made simultaneously 1.5m above ground level at the western boundary between the existing building and the southern boundary, 1.5m above the first level of the existing building, on the outside stairs and 1.5m above the roof of the building. These three levels are approximately equivalent to the ground floor, first floor and second floor of 77 Croydon Street. (Exhibit G)
6. Mr Murray records the measured background noise levels at the equivalent levels as follows:
7. Mr Murray emphasised in his evidence that the intent of the fieldwork undertaken on these two occasions (27 and 30 July) was to determine the incremental difference in background noise level between the floors of the adjacent residential buildings, not to determine a background noise level. His evidence is that the background noise levels were established in the May Report. In support of this he argues that the background levels established in the May Report have greater veracity as they were logged at three locations adjacent the site and over a seven day period (Exhibit D).
8. Applying the incremental differences tabulated at paragraph [39] (extracted from the July report) and his oral evidence Mr Murray concludes that, with the mitigation measures proposed by the applicant, the +10dB(A) criterion sought to be applied by the Council is exceed for the following properties:

• ground floor of the adjoining residential aged care facility (72 Sproule St): exceedence of +2dB(A);
• 90 Sproule Street: exceedence of +2dB(A);
• 73 Croydon Street, second floor: exceedence of +3dB(A);
• 73 Croydon Street, first floor: exceedence of +1dB(A);
• 77 Croydon Street, second floor: exceedence of +4dB(A);
• 73 Croydon Street, first floor: exceedence of +2.5dB(A);

1. It was Mr Murray's oral evidence that a difference of +4dB(A) in sound levels would be discernible by most people if the two sounds were played concurrently to allow an instantaneous comparison. However it was his view that such a difference would be unlikely to be discernible without such a direct comparison. In other words it is Mr Murray's conclusion that the +10db(A) criteria sought by the Council, and the noise level modelled for the second floor of 77 Croydon Street would be unlikely to be discernible when the school was in operation.
2. In his oral evidence Mr Murray stated that in his opinion the Childcare Guidelines were also not directly applicable to the proposed development on the basis of the characteristics of the noise generated by a school. It was his evidence that the sound generated by approximately 200 students playing would be a relatively constant noise of voices. He characterised this as a "community noise". In contrast it was his evidence that the noise generated by children in a childcare environment is more diverse in the range of sounds and an intermittent noise. In particular he argued that the more frequent sound of children crying in a childcare environment made that noise more intrusive, making the criterion in the Childcare Guidelines more relevant.
3. In his oral evidence Mr Cooper accepted that there is no directly applicable acoustical criterion that regulates the acceptability of noise from outdoor play for educational establishments such as schools.
4. However, in the joint report Mr Cooper argues that "for play lasting less than 2 hours per day, the criterion of background plus 10dB when assessed at an LAeq, 15 mins should be met at residential receivers" (Exhibit 4).
5. It is Mr Cooper's evidence that this criterion should be applied to the proposed development and that, given the material non compliances demonstrated in the applicant's acoustic assessment, the development warrants refusal. His reasoning is as follows: 1. the NSW government has no specific standard, under a noise policy or guideline, that governs the appropriate noise level arising from schools. The only such policy is the Noise Policy for Industry (2017) which applies to industrial noise sources from listed activities. Schools and Child care facilities are not such a listed activity. 2. that in the absence of such a policy criterion, the Childcare Guidelines should be applied to the development to ensure any acoustical impact is reasonable. 3. that the following criterion from the Childcare Guidelines should be applied as the relevant noise criteria for outdoor play for the current development proposal: Up to 2 hours (total) per day - The Leq,15min noise level emitted from the outdoor play area shall not exceed the background noise level by more than 10 dB at the assessment location. 1. that the application of these guidelines is appropriate on the basis that the objectives of the Council in this matter is consistent with the objectives of the Childcare Guidelines, namely: • To protect the reasonable acoustic privacy of nearby residents in their dwellings and private open spaces; • To provide noise goals and noise control recommendations to ensure that a Child Care Centre in a residential area does not generate unacceptable noise levels such as to adversely impact upon the amenity of adjoining properties and other properties close to the site; 1. from his experience the application of the Childcare Guidelines has been supported by the Land and Environment Court in a number of proceedings, in particular in the proceedings Brigidine College v Ku-ring-gai Council [2012] NSWLEC 1076 which involved alterations and additions to an existing school and an increase in students and staff. 2. that a noise limit of background plus 5dB would have applied to the previous use of the site as a Bowling Club. 3. as a new school the development should be required to comply with the criterion in Childcare Guidelines to ensure there is no adverse acoustic impact to the adjoining residential properties; 4. that an adverse impact would arise above where noise emitted exceeded background + 10dB(A) for longer than two hours. Any such predicted noise level should be mitigated by additional measures within the application to bring the predicted noise levels to meet the criteria in the Childcare Guidelines; 5. that the failure of the proposed development to comply with the Childcare Guidelines criterion of +10dB(A) at a number of the residential receivers in proximity to the site would be perceivable to the residents. Mr Cooper concludes that this acoustical impact warrants the refusal of the application.

• the July Report provides additional background noise levels, but the methodology utilised in the fieldwork is deficient in the length of logging and the use of weekend data;
• the logger locations utilised are generalised and are not specific to 77 Croydon Street or 79 Croydon Street, and as such the results lack specificity in determining the predicted levels for the adjoining properties at ground, first and second floor.
• notwithstanding this if the additional background noise levels from July are utilised to determine the predicted noise levels at the adjoining residential properties, more residences would exceed the criterion of +10dB(A) above background.

1. Mr Cooper maintains that on the preceding basis his concern about the uncertainty of the acoustic impacts of the development, raised in the joint conferencing process, have not been resolved.

Submissions

1. Mr Cottom, for the Council, argues that the best guideline for the Court to apply in assessing the acceptability of the acoustical impacts of the development is the Childcare Guidelines. He submits that these guidelines should be given significant, but not determinative weight. He emphasises that the application before the Court is for a new noise source, the acceptability of which is the heart of the dispute and the Childcare Guidelines are the best source of guidance for the Court on an appropriate noise level.
2. Mr Cottom asserts that it is clear that the AAAC Guideline for Educational Facilities is not intended to cover outdoor spaces within the school environment. In support of this he refers to Section 1.3 of the document where it states: "Outdoor teaching and learning activities are often likely to occur at educational facilities. This issue is outside the scope of this document; however, some guidelines will be given to provide assistance" (Exhibit L). Therefore he argues that the Childcare Guidelines are relevant to the assessment of the proposed development.
3. Mr Cottom presses the evidence of Mr Cooper that the starting point for acceptability of noise should be the Noise Policy for Industry criterion of the existing background noise level + 5dB(A). He submits that the approach taken in the Childcare Guidelines is to adapt this criterion to reflect the reduced duration of noise arising from outdoor play in a childcare environment, when compared with industrial noise. He argues this approach makes the criterion of background noise level + 10dB(A) an appropriate benchmark for Council to be requiring the development to comply with. Mr Cottom notes that Mr Cooper's approach is supported by the following extract from the Childcare Guidelines: Outdoor Play Area For most centres as the duration of time that children are allowed to play outside is reduced then the overall noise impact reduces. Therefore, it is reasonable to allow a higher level of noise impact for a shorter duration of outdoor play. AAAC members regard that a total time limit of approximately 2 hours outdoor play per day (e.g. 1 hour in the morning and 1 hour in the afternoon) should allow an additional emergence above the background of 5dB. (Exhibit 1)
4. Mr Cottom emphasises that the proposed development is distinguished from previous decisions of the Court broadly on the following grounds: - the proposed development is a new school, rather than an extension, or an application for additional facilities, within an operating school; - the subject site, given its southern and eastern boundaries surrounded by multi-unit residential development, has particular characteristics that are unique. - the location of the outdoor play area is proximate to the adjoining multi-unit residential development; - the zoning and age of the adjoining multi-unit residential development make it likely that they may be redeveloped for more intense residential developing, increasing the potential impacts.
5. In support of his submission that the criterion of background noise level + 10dB(A) should be applied by the Court, Mr Cottom makes the following observations about the Court's previous decisions in similar matters:

• Meriden School v Pedavoli [2009] NSWLEC 183 The Court accepted, at [36] and [40] the use of the criterion of background noise level + 10dB(A). Pain J states: … My conclusion on the appropriate assessment is that the advice of Dr Tonin is to be preferred. It needs to be borne in mind that I cannot assess the school activities in a planning sense. The assessment criteria are one aid to determining what the level of acceptable noise should be, as part of the information relevant to determining whether the noise emitted is offensive. The criteria are not to be applied as a standard the school has to meet where there is no evidence that it is not otherwise complying with its conditions of development consent. …. 40 While it is not critical to the ultimate question that has to be answered, but because a large part of the evidence focussed on this issue, the appropriate assessment criteria should be background +10dB for two hours. Mr Cottom notes that this case involved an existing school, in contrast to the current application. Further he submits that the issue for determination in the Meridan School v Pedavoli case revolved around a different test, namely whether the noise arising from the school was classed as "offensive noise" under the Protection of the Environment Operations Act 1997, rather than a merit assessment (under s 4.15 of the Environmental Planning and Assessment Act ("the Act")) of the reasonableness of acoustic impact arising from a proposed use.
• Best Western Services Pty Limited v Blacktown City Council [2011] NSWLEC 1380 This case involved the development of a new school, consistent with the current application. Mr Cottom submits that whilst the Court accepted that the development would result in an impact to adjoining properties, the impact was limited to part of a dwelling or townhouse not the whole residence as in the current matter. This is confirmed at [25] as follows: … I say at this point that the acoustic impact or exceedence in the ambient background noise level only concerns the upper levels of the town house development to the west, to the east is a single storey residential and there is no impact in terms of that property.
• Lippmann v Burwood Council [2007] NSWLEC126, Brigidine College v Ku-ring-gai Council [2012] NSWLEC 1076 Lippmann v Burwood Council applies a criterion of background noise level + 5dB(A) as the standard for noise emitted from the site. The consent for Brigandine College v Ku ring gai Council includes a condition that "Noise generated is not to exceed 5dB(A) above background noise level during the day, when measured at the nearest boundary and shall not be audible within a habitable room in any residential premises at night" (at paragraph [27]). Mr Cottom argues that this decision supports the Councils position that the +10dB(A) criterion is reasonable and should be applied.
• Mohamad El Dana v Bankstown City Council [2008] NSWLEC 1484 This judgement notes that the experts agreed that a criterion of background plus 10dB(A) is appropriate (at paragraph [21]). Mr Cottom notes that the exceedence of the parameter by the development was not the subject of competing evidence from the experts, and therefore was not a matter required to be determined by the Court.

1. Mr Cottom relies on Mr Cooper's oral evidence that a +5db(A) exceedence in noise level would be perceivable to residents.
2. Finally Mr Cottom argues that, if the July 27 background noise levels were inserted into the most recent analysis prepared by Mr Murray for the applicant, additional residential properties would experience noise levels exceeding the criterion (noting that he argues that the July Report this is the only day that provides reliable results). Mr Cottom submits these additional, or increased levels, above the criterion are:

• 77 Croydon Street, ground floor: +4db(A)
• 77 Croydon Street, first floor: +4db(A)
• 77 Croydon Street, second floor: +6db(A)

1. Mr Cottom submits that, on the evidence of Mr Cooper, this noise exceedence would be discernible by the resident and the noise at +14-16dB(A) above background is a significant impact.
2. It is Mr Cottom's conclusion that the evidence demonstrates that the proposed development will result in a significant exceedence of the acoustical criterion which the Council is seeking the Court to give significant weight to in its assessment of the merits of the application. On this basis Mr Cottom argues the development should be refused.
3. Mr Galasso, for the applicant, submits that the Childcare Guidelines, and their criterion of the existing background noise level + 10dB(A), should be considered by the Court as a "datum" or "yard stick" of acceptability of acoustic impact. It is his submission that the Childcare Guidelines should not be elevated by the Court to a level commensurate with a development control plan or a Council policy.
4. In his submissions Mr Galasso emphasised the description of the child care use in the introduction section of the Childcare Guidelines (reproduced below). He argues that this section acknowledges and clarifies the distinction between the proposed school use and that of a child care centre. The high density usage of small spaces combined with insufficient variety, diversity and play opportunities are a known cause of the breakdown in children's behaviour with an ensuing increase in noise. In addition, the necessity of locating accessible Child Care Centres in residential neighbourhoods, providing generous and unencumbered outdoor spaces for children to enjoy their activities and the rights of neighbours to a reasonable level of noise amenity are potentially at conflict and require a considered approach to planning a Child Care Centre. A Child Care Centre is considered to be a building or place used to provide a Children's Service but excludes Home-Based Children's Services, Mobile Children's Services or Family Day Care Children's Services. (Exhibit 1)
5. In addition to the above distinctions Mr Galasso also argues that: the age of the children; the diversity of play areas; the supervision provided; the duration of outdoor play proposed as well as the reduced duration of the use across the year make it unreasonable to apply the acoustical criterion in the Childcare Guidelines to the proposed primary school.
6. To the extent that the criteria is applied as a 'yard stick' Mr Galasso acknowledges there are, on the evidence of Mr Murray, predicted noise levels that exceed the criterion in the Childcare Guidelines. However he argues: "there are very few non-compliances in an environment in which there are a large number of receivers and to the extent that there are non-compliances they are not of an order of magnitude, on Mr Murray's evidence, … which are such as to warrant concern about the acoustic impact of the subject development" (Transcript 7 August pg.5 [15]).
7. Further Mr Galasso argues that on the evidence of Mr Murray it is inappropriate to transpose the July Report background noise levels to the calculation of predicted noise levels at the residential receivers (as submitted by Mr Cottom). Rather Mr Galasso submits that the conclusion of Mr Murray (at paragraph [41]) demonstrates that: ".. to the extent that there are exceedances they are of both a limited number in terms of location and a limited exceedance in terms of number as to not be sufficient to warrant a refusal on acoustical grounds. By that I mean that the small exceedances in the order of up to 3 decibel, on Mr Murray's evidence, are not significant. He conceded that about 4 decibel one would notice the difference but you will recall his evidence today that you would notice the difference if you turned it on and off between 10 decibels and the 14 decibels but you would not notice the difference one day to the other." (Transcript 7 August pg.7 [15]).

Findings

1. It is uncontested that the planning instruments applicable to the site, and a merit assessment of the proposed development, contain no standards or controls on noise emitted from the site. Equally the acoustical experts agree that the Noise Policy for Industry does not apply to the use (with the exception of some plant and equipment).
2. On this basis I accept the submission of Mr Galasso that the criterion sought to be applied by Council should, at its highest, be considered a 'datum' of acceptability for the consent authority when considering whether acoustical impacts arising from an educational establishment are reasonable in a merit assessment of the application under s 4.15 of the Act.
3. I do not accept the submission of Mr Cottom that the Childcare Guidelines should be given significant weight in the merit assessment of the application for the following reasons: 1. The Childcare Guidelines are drafted "to assess the potential noise impacts from proposed Child Care Centres accurately and fairly" (Exhibit 1). The definitions contained in the guidelines (at page 5) clarify that a child care centre, for the purposes of the guideline, is one that is "used to provide a children's service" (as defined in the Care and Protection Act 1987 No. 54). 2. The Care and Protection Act contains a definition of "children's services". By a reading of that Act's definition of "children's services" and "exempt premises" excludes a registered school. 3. In short I am satisfied that in drafting the Childcare Guidelines, with the specific inclusion of the referenced definition outlined above, the intent was not for them to be directly applied to the assessment of noise from outdoor play at a primary school, such as in this application. 4. LEP 2012 also defines the two uses of: child care centre and education establishment; separately. I am satisfied this supports the submission that they have different characteristics in planning terms. 5. I am not satisfied that the case law referred to by the parties establishes that the Childcare Guidelines have been regularly or consistently applied by the Court in similar applications. 6. I accept the evidence of Mr Murray, at paragraph [37(3)], and the submission of Mr Galasso, that the noise characteristics and the duration of outdoor play are distinguishable between a child care centre and a primary school use.
4. I am satisfied that there is sufficient data and analysis to determine the reasonableness of the potential acoustic impacts on adjoining residential properties. My reasoning is as follows: 1. I accept the evidence of Mr Murray that the appropriate background noise levels to be utilised are those contained in the May Report on the basis that these levels were determined from logging undertaken over a longer duration. I am satisfied they are likely to be more representative of the current acoustic environment. 2. I am satisfied that the applicant has provided sufficient evidence to determine the predicted range of impacts for adjoining properties arising from outdoor play at the proposed school by field testing the relationship of increased height of the adjoining properties to background noise levels. 3. I accept the evidence of Mr Murray that the characteristics of noise arising from outdoor play areas at a primary school are likely to be less intrusive than those arising from a childcare centre for the reasons he gives at paragraph [37(3)] and the submission made by Mr Galasso at paragraph [63]. I note this is broadly consistent with the position of the Court in Best Western Services Pty Ltd v Blacktown City Council at [25] and [29] as well as Meriden School v Pedavoli at [46] and [48].
5. I note that by comparison with the relative levels of the residential buildings on adjoining properties given on the architectural plans (refer paragraph [7]) the monitoring points chosen by the applicant (refer paragraph [39]) are likely to be lower than the actual floor level of the relevant adjoining properties. This has the effect of making the predicted noise levels more conservative.
6. In conclusion I am satisfied that in the absence of a criterion there is sufficient evidence to support an assessment that the acoustical impacts arising from the proposed development are reasonable.

Estimated noise generated by children in the external play areas

1. The experts disagree as to the levels of noise that are likely to be generated by children at play in the proposed development. The disagreement centres on the methodology of determining the sound power level of a typical student "at play", and whether ball games are incorporated in that level or additional.
2. Council contends that the acoustical assessment in the July report "does not define what activities constitute 'normal play and outdoor activities in a school playground' that will generate noise". Further the Council argues that the July report "does not identify a prohibition of ball games, e.g. basketball, soccer, netball, hitting tennis balls" (Exhibit 1).
3. In addition Mr Cooper, in Exhibit 5, argues the following areas are deficient in the acoustical assessment: The basis of a sound power level of 79dB(A) per student was an issue raised in the joint expert report. This source level has not been clarified in the Further Acoustic Assessment. There is no identification of what constitutes play at the Al-Sadiq school in Greenacre, or any measurement results showing the noise levels that were generated in the playground, the number of children present, nor the basis of how the sound power was derived. Neither the May 2018 or the Further Acoustical Assessment report identifies the number of children that will occur outside to generate the calculated noise levels and there is still no identification of what constitutes normal play and what is the range of noise levels occurring during such play. (Exhibit 5)
4. Within the February 2017 report Mr Murray makes the following comments about noise levels generated by children playing: It is generally accepted that children playing outdoors will make noise. In this instance, it is inarguable that the noise received at the nearest existing residences surrounding the site will be audible, particularly during the recess and lunch periods. It is virtually impossible to quantify the level of noise received at these residences due to the inevitable variability of the sources and their locations. The noise levels generated during recess and lunch periods will vary according to the following factors: - The number of students in the area - students will be spread around the outdoor play areas; - The level of noise made by each student - this is obviously different from individual to individual, and various factors such as age and personality, mood, activity and countless other factors will play a part; - The louder events are not capable of being sustained over an extended period; and - The location of the students relevant to the residences - as the distance between the source and the receiver increases, the noise level at the receiver will decrease.
5. Mr Murray's method of calculating the noise generated from the external play areas is described in the July report as follows: 1. the sound power level of students at play, 79dB(A), is based on actual measurements of students play at Al-Sadiq School in Greenacre; 2. a number of area noise sources at a height of 1m were modelled to represent children playing in sections of the proposed playgrounds.
6. In oral evidence Mr Murray explained that the measurements of students play at Al-Sadiq School were taken of primary school children, with no ball games present and at a distance of 50m from the children at play.
7. Applying this sound power level to the external play area adjacent the residential receivers results in an assumed noise source level of 97dBA (refer plan extracted at paragraph [29]) (Exhibit G).
8. In oral evidence it was agreed between the experts that formal outdoor sports classes and play are to be located off site in Parry Park and as such is not required to be considered in the acoustical assessment.
9. In the joint report of the acoustical engineers Mr Murray makes the following comments in relation to 'normal play': "Normal play" in the Wilkinson Murray Acoustic report refers to playground activity dictated by the children when given the freedom to play as they desire. Nor organised sport or ball games are proposed on the site, but it is possible that the children may elect to play ball games, particularly on the hard stand area in the south-eastern corner of the site, including kicking a football or using a basketball. The assumption in the Wilkinson Murray report is that such informal ball games will generate no more Laeq noise than normal play. (Exhibit 4)
10. In his oral evidence Mr Murray argued that the sound from the above ball games would be audible, but only within the constant noise level of the outdoor play area.
11. Mr Cooper's evidence is that the description of the methodology utilised by Mr Murray to determine the sound power level (outlined at 3.1 of the July Report) lacks detail to confidently establish the level he has adopted for the noise of children playing. It is Mr Cooper's evidence that this is a fundamental starting point to determine the acoustical impacts of the development. In the joint report Mr Cooper argues that further verification is required as follows: The calculation method for children playing appears acceptable - subject to the provision of a CadnaA printout showing the source and receiver locations, confirmation of the source levels and contour plots that confirm the predicted levels contained in Mr Murray's report. (Exhibit 4)

Findings

1. I am satisfied that the approach of Mr Murray in taking actual measurements of primary school students at "play" in the playground with the methodology detailed at paragraph [79] is appropriate. I am not persuaded that the additional verifications sought by Mr Cooper are required in the context of the assessment of this proposal, and my findings at paragraph [74].
2. Further I am not satisfied that the potential noise from ball games is required to be considered independently from the measured level of children "at play" taken by Mr Murray. In reaching this conclusion I have given weight to the provisions of the School Management Plan (Exhibit F) which notes that formal physical education classes will be conducted off site.
3. I find that the acoustical assessment is sufficient to determine the projected impacts arising from the outdoor play areas and their reasonableness.

Certainty of projected impacts

1. Council contends that the acoustical assessment in the July report "fails to provide any calculations to substantiate the predicted levels" (Exhibit 1).
2. A number of the particulars of this contention by the Council are discussed in the preceding. The remaining issues are the noise from: the proposed music room; from increased traffic in Croydon Street, and the from vehicles entering and exiting the proposed car parking. Noise from the proposed music room
3. The uses, and the instruments proposed for the music room, are detailed in the School Management Plan. The applicant proposed 8mm fixed glazing to the proposed music room to mitigate the noise generated from its use.
4. The difference of opinion between the experts is whether the use of bongo's and hand drums should be excluded from use in the music room.
5. Mr Cooper recommends the removal of bongo and hand drums "unless there is a further qualification that identifies the capacity of those items and that they are not sitting on stands or similar that can generate structure borne noise" (Exhibit 5).
6. In the alternative Mr Murray's oral evidence was that whilst drums may generate some level of structure borne noise, it was his opinion that: the location of the music room more than ten metres from the nearest residential receiver; and the 8mm fixed glazing; would mean any structural borne noise would not exceed the level of 80dB(A) already assessed for the music room. Mr Murray emphasises that his acoustic assessment demonstrates that the 80dB(A) level, with the mitigation of the fixed glazing, results in a predicted noise level of 13dB(A) at the boundary, significantly less than the existing background noise.
7. The Council proposes the following condition be applied to any consent. It is opposed by the applicant: 87 The music room shall be used for only light music, such as individual flute playing, with no amplified music. The windows to the music room shall have fixed glazing with a minimum thickness of 8mm. (Exhibit K)

Findings

1. I am satisfied on the evidence of Mr Murray that even if structural borne sound was generated by the use of drums in the proposed music room it would not be sufficient to generate a new, and unacceptable, acoustical impact on adjoining residences. On this basis I find that the imposition of condition 87 is unwarranted. Traffic noise
2. Council argues that the applicant has failed to undertake the required assessment of traffic noise generated by the proposed development.
3. In the joint report Mr Cooper enumerates the following areas of deficiency: - the cumulative impact of the traffic associated with the proposed school and the existing Holy Spirit College needs to be addressed. - the effect of vehicles entering and departing from the proposed car park (acceleration and deceleration) needs to be quantified as it cannot be determined as a 10 log the additional number of vehicles. - there is no material in terms of noise measurements or data for calculation to permit any evaluation of the suggested negligible impact. (Exhibit 4)
4. In the July Report Mr Murray details the following additional assessment undertaken to respond to Mr Cooper's concerns: Further measurements have been carried out to determine the difference between noise levels of cars passing along Croydon Street and cars entering and leaving the proposed carpark. In fact, the measurements were carried out using the driveway to 65-69 Croydon Street whilst measurements were made across Croydon Street. The distance from the entrance to the measurement location was equivalent to the distance from the proposed carpark entrance to the nearest residential receiver. The following car movements were measured: • Cars passing along Croydon Street at 50km/h; • Car entering and leaving the driveway on the basis of free-flowing traffic in Croydon Street at 50km/h • Cars entering and leaving the driveway on the basis of heavy traffic in Croydon Street at less than 10km/h (simulating existing traffic during drop off and pick up time for the existing school). (Exhibit G)
5. On the basis of this additional field work Mr Murray concludes: 1. that cars entering the proposed car park would generate less noise than cars passing the site, irrespective of the speed of traffic in Croydon Street. 2. that the noise of cars existing the car park would be higher or equal to passing cars when traffic speeds in Croydon Street are at a typical speed of 50km/hr. 3. that at peak drop off and pick up times, when traffic speed in Croydon Street is low, the additional noise would be "low in level and not increase the impact of traffic noise compared with passing cars assumed in the analysis reported in the May 2018 report" (Exhibit G)
6. The conclusion of Mr Murray acoustical assessment is that the benchmark level of 51dB(A) is not exceeded by either the additional traffic generated by the development, or the movement of vehicles into and out of the car park.
7. Mr Cooper maintains that the additional modelling and assessment undertaken by Mr Murray is insufficient. He argues that "the material in the Further Acoustical Assessment is devoid of any time trace graphs to identify results claimed to occur in Table 4-11 or to place such results in context" (Exhibit 5). Further he argues: there are no traffic counts to determine the relevance of the additional traffic; and there are no calculations to identify the resultant noise levels from the additional traffic.
8. On the preceding basis Mr Cooper argues that the conclusion reached by Mr Murray, that noise generated by the traffic movements would be 'barely noticeable', is not justified.
9. Mr Cottom submits that the traffic report (Exhibit H) does not include justification of the type relied on by Mr Murray in his acoustic evidence.

Findings:

1. By reference to Exhibit D the relevant criterion for noise from the car park is the background level + 5dB(A) (Noise Policy for Industry). That level is calculated by Mr Murray as 51dB(A). This benchmark level is not contested by Mr Cooper.
2. Mr Murray relies on the traffic report prepared by Transport and Traffic Planning Associates which states: during the busiest peak there is likely to be some 70 set down movements; and the use will generate 140 vehicle trips per hour in the AM peak, and 105 vehicle trips per hour in the PM peak (Exhibit H).
3. I am not persuaded that this traffic analysis is not a sufficient basis to determine the acoustical impacts arising from the use of the car park and the additional traffic movements generated by the proposed use.
4. Equally I am satisfied that the projected increase in noise levels from the car park at 63 Croydon Street, determined in the May Report as 41dB(A), is sufficiently below the criterion of 51dB(A) to make the additional assessment requested by Mr Cooper superfluous.

Extent of impervious surfaces

1. As a minor issue in the proceedings the Council also sought to amend the application by introduction of more pervious surfaces in the front playground of the proposed development.
2. In support of this position Council relies on cll. 6.6.6(i) and 6.6.13(vi) of DCP 2012. These clauses state: 6.6.6 Visual impact and Visibility (i) soften the visual and physical impact of sealed areas such as carparking, loading and unloading areas, and building mass with landscaping that is appropriate in scale. … 6.6.13 Environment (vi) Limit impervious surfaces - reduce hard paved areas of driveways, paved outdoor areas and patios - to reduce runoff and increase stormwater absorption on site.
3. To effect this amendment Council proposes the following condition: 64(4): The front playground area consists of artificial turf and rubber soft fall area with no natural surfaces. Replace the artificial surfaces with a pathway from the gates to the front entry with the rest as natural surfaces such as real turf and barkchip soft fall. (Exhibit K)
4. The applicant objects to the condition on the basis that:

• in its current state the site is occupied almost entirely by hard surfaces;
• the proposed landscaping will increase soft landscaping and water infiltration
• in the location identified by the Council in condition 64(4) the surfaces proposed by the applicant are more weather tolerant and practical for the proposed school use.

1. The applicant seeks the deletion of condition 64(4).

Findings:

1. This matter was not the subject of joint conferencing of the planning experts and was only the subject of submissions.
2. By reference to the proposed landscape and architectural plans, and with the benefit of the site view I am satisfied that the proposed development meets the development control in cl. 6.6.6 (i) of softening the visual and physical impact of the proposed sealed areas in a manner that is appropriate given the proposed use of the site.
3. Further I am satisfied that the intent of cl. 6.6.13 has been considered by the applicant and I accept Mr Galasso's submission that the surfaces proposed by the applicant are more weather tolerant and practical for the proposed school use.
4. I find that on my assessment of the proposal and a review of the planning controls and their objectives, condition 64(4) should not be imposed.

Conditions

1. Given the findings in the body of the judgement, a number of changes are warranted to the draft conditions proposed by the Respondent.
2. The respondent seeks to impose a number of operational conditions on any consent for the development in relation to the potential acoustic impacts of the development. Those conditions are: 74. An acoustical investigation of the proposal is to be undertaken by a suitably qualified acoustical consultant describing and assessing the impact of noise emissions from the proposal. The proposal must be submitted to the Principal Certifying Authority with the application for the Construction Certificate. The investigation must include: (a) The identification of sensitive noise receivers potentially impacted by the proposal. (b) The quantification of the existing acoustic environment at the receiver locations (measurement techniques and assessment period should be fully justified and in accordance with Australian Standard 1055-1997 Acoustic Description and Measurement of Environmental Noise and Environment Protection Authority Noise Control Manual). (c) The formulation of a suitable assessment criteria having regard to the guidelines contained in the NSW Environment Protection Authority Environmental Noise Control Manual or the NSW Environment Protection Authority Industrial Noise Policy. (d) The identification of operational noise producing facets of the development and the subsequent prediction of resultant noise at the identified sensitive receiver locations from the operation of the premises. Where appropriate the prediction procedures shall be justified and include an evaluation of prevailing atmospheric conditions that may promote noise propagation. (e) A statement indicating that the development is capable of complying with the criteria together with details of acoustic control measures that will be incorporated into the development. NOTE: control measures that alter the built form of the proposal require incorporation into the development plans and statement of environmental effects. … 84. The development must not cause offensive noise as defined by the Protection of the Environment Operation Act 1997 (NSW) Following occupation, should complaints of a noise nuisance be received and substantiated by an authorised officer, an acoustic assessment shall be conducted by a qualified acoustic consultant and the resulting report shall be provided to Council for approval. Following approval the owner/occupier shall then implement all recommendations contained in the assessment report within a timeframe set by Council, to the satisfaction of Council and in compliance with any additional direction given by Council. … 86. The source noise level must be measured as a LAeq 15 minute. The LAeq 15 minute noise level emitted from the use must not exceed 10dB above the background (L90) noise level as a result of outdoor play at the school where such play does not exceed 2 hours per day, and 5dB above the background (L90) noise level where such play is greater than 2.0 hours duration per day. The source noise should be assessed at the boundary of any affected receiver. The background noise level must be measured in the absence of noise emitted from the use in accordance with Australian Standard AS1055. 87. The music room shall be used for only light music, such as individual flute playing, with no amplified music. The windows to the music room must have fixed glazing with a minimum thickness of 8mm. (Exhibit K)
3. Mr Galasso objects to the imposition of proposed condition 74 and 86 on the grounds that: the conditions seek to repeat the acoustical assessment already undertaken by the applicant and assessed by the Court in determining the application. Further he argues the conditions should not be imposed as: they lack certainty given there is no applicable criteria; and condition 86 is tantamount to the refusal of the application as, on the evidence, the development is unable to achieve the acoustical benchmark required by the condition. Further he argues condition 84 is unnecessary as it is a repetition of the requirements of the provisions of the Protection of the Environment Operation Act 1997.
4. In the alternative Mr Cottom submits that if the Court accepts the evidence of Mr Cooper, condition 74 and 86 should be imposed. He relies on the evidence of Mr Cooper that prior to Construction Certificate additional detail of plat, equipment and barrier construction details are required. In relation to condition 84 Mr Cottom argues it is not entirely repetitive of the provisions of the legislation and it is appropriate and desirable for it to be retained.
5. I note in submissions Mr Cottom accepted the deletion of draft condition 79 and 85.

Findings:

1. I accept the submission of Mr Galasso that condition 74 seeks to repeat the acoustical assessment of the development and lacks certainty, or clear criteria, as the basis of a performance based condition. This is contrary to the requirement at s 4.17(4) of the Act that states: (4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed.
2. Given my findings at paragraph [74] I am satisfied that condition 86 is inappropriate for the following reasons: 1. It is inconsistent with the provisions of s 4.17(4) of the Act; 2. I am satisfied there is no specific criteria that the noise generation from the external play areas is required to meet at the relevant residential receivers (refer paragraph [x]); 3. the condition is uncertain (Kindimindi Investments Pty Ltd v Lane Cove Council [2006] 143 LGERA 277 at [24]); and 4. the condition seeks to defer determination of a central issue in the assessment of the merits of the application, where that issue was in contest between the parties (Weal v Bathurst City Council & Anor [2000] NSWCA 88 at [91])
3. I am satisfied that condition 84 is infected by the same uncertainty and ambiguity and should not be imposed. I am satisfied that any additional matters, beyond the legislative references, are adequately addressed by the School Management Plan which forms part of the consent.
4. Following a review of the draft conditions I have deleted the proposed condition 17 as it duplicates the requirements of 29, and made other changes as agreed between the parties during the proceedings.

Conclusion of merit assessment:

1. At paragraph [8] I summarised the concerns of members of the public with the proposed development. Some of those concerns overlap with issues determined in the preceding. In relation to the remaining issues I am satisfied that they have either been addressed or mitigated to an accepted level by the proposed conditions or do not warrant the refusal of the application.
2. I find that cl. 7 of SEPP 55 has been adequately satisfied by the submission of the Remedial Action Plan, prepared by Envirotech Pty Ltd which concludes that: "the site can be made suitable for the intended land use through remedial action as part of the redevelopment works in accordance with State Environmental Planning Policy 55 Managing Land Contamination: Planning Guidelines SEPP 55" (Exhibit J). The draft conditions require remediation of the site and the conduct of an audit prior to use.
3. When the conditions of consent are read with the amended plans I am satisfied that the development is acceptable on its merits, and that the concerns of the objectors have been adequately addressed.

Orders:

1. The Court orders that: 1. The appeal is upheld 2. Consent is granted to DA/140/2016 for: alterations and additions to the existing building at 69 Croydon Street, demolition of two existing dwellings and associated structures at 65 and 67 Croydon Street, change of use to an Educational Establishment (Primary School) and associated site works and fencing; subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of Exhibits 1,2 and A. ……………. D M Dickson Commissioner of the Court Annexure A (277 KB, pdf) 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: 04 September 2018