Council of Trinity Grammar School v Ashfield Council

Land and Environment Court (NSW)|2014-12-08|Before: Stein J

Solicitors: HWL Ebsworth Lawyers (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 10399 of 2014

Judgement

The Council of the Trinity Grammar School at Summer Hill (the School) has appealed to the Court, pursuant to section 96 AA (3) of the Environmental Planning and Assessment Act 1979 (the Act), its application for the modification of condition 5 of the development consent granted by the Court on 7 November 2007: Trinity Grammar School v Ashfield Council [2007] NSW LEC 733 (the original consent).

Jurisdiction

The Court's power to modify development consent under s96AA is constrained by the wording of the section. It provides: Modification by consent authorities of consents granted by the Court 96AA Modification by consent authorities of consents granted by the Court (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has notified the application in accordance with: (i) the regulations, if the regulations so require, and (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. (1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application. (1B) Development consent of the kind referred to in section 79B (3), or in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995 , is not to be modified unless: (a) in the case of development referred to in section 79B (3)-the requirements of section 79B (3)-(7) have been complied with in relation to the proposed modification as if the application for the proposed modification were an application for development consent, or (b) in the case of development in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995 -the applicant has made an application for modification of the biobanking statement in relation to the proposal and a new biobanking statement has been issued or the consent authority is satisfied that the modification will have no impact on biodiversity values (within the meaning of that Act). This subsection does not apply to State significant development. (1C) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. (2) After determining an application for modification of a consent under this section, the consent authority must send a notice of its determination to each person who made a submission in respect of the application for modification. (3) The regulations may make provision for or with respect to the following: (a) the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent, (b) the effect of any such deemed determination on the power of a consent authority to determine any such application, (c) the effect of a subsequent determination on the power of a consent authority on any appeal sought under this Act.

The Council's action in respect of the application

It is accepted that s96AA (1) (b), (c) and (d) of the Act are satisfied in this case. The Council notified the application between 13 December 2013 and 22 January 2014 and received 7 submissions. The submissions raised concerns about: unacceptable increases in traffic congestion, exacerbation of on-street parking issues and excessive noise.
Following notification the Council's staff assessed the application and recommended its approval. The Council however, deferred its determination of the matter after which the applicant exercised its right of appeal to the Court.

The Council's position

The Council's primary position is that the Court has no jurisdiction to approve the modification sought under s96AA of the Act.
It contends that condition 5, as originally framed, is a material or essential aspect of the original consent. Therefore, the Court cannot be satisfied, as required by s96 AA (1) (a) that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified ('the before and after').
The Council's submissions on the jurisdictional issue are set out in more detail later in my judgment. However, by way of summary the Council invites the Court to compare the original development and the development after modification from both a qualitative and quantitative perspective consistent with the approach adopted in: Moto Projects v North Sydney Council [1999] NSWLEC 280; 106 LGERA 298; North Sydney v Michael Stanley & Associates Pty Ltd (1998) 43 NSWLR 468; LGERA 433. This includes a comparison of the environmental impacts generated by the original development and development as modified by this application.
In this instance the Council contends that the environmental impacts generated by the proposed increase in students at the campus are relevant to the jurisdictional issue and - in the event that the Court finds it has jurisdiction - to the Court's assessment of the merits of the proposal under s79C(1) as required by s96AA(1A) of the Act.
The first unacceptable impact is noise and the second is traffic. As far as noise is concerned there are two issues. The first is whether the additional vehicle movements will increase noise. The second issue relates to the use of the sports ground and noise from the increase in students. The issue in respect of traffic concerns the increase in the number of vehicles generated by the increase in students and the adverse impacts on the traffic in Victoria Street and the amenity of the local residents.

The School's position

The School maintains that the development remains substantially the same because the proposed modification does not alter the appearance of the school to any street or change any building on the land. In short, there is nothing of a physical nature or an operational nature which will change, other than the imposition of conditions to mitigate impacts.
While the School accepts that there is a qualitative as well as a quantitative dimension to the question it contends on the relevant authorities (to which I refer later) that just because there is significant change in an impact or a structure caused by the modification it doesn't mean that it ceases to be substantially the same development (transcript 9/10/14 p219 at [14] - [22]).
The School submits that whenever there is an increase, whether you call it marginal or whether you call it one that will have impacts in the intensity of the use, without changing the use at all, without making any changes to the development, it is very difficult to say that it doesn't meet the jurisdictional test. Where there are no changes at all to anything other than the intensity of one or another aspect of the development, the development itself remains. It is the same (transcript 9/10/14 p1 [20] and p2 [5]).
The School submits that the test addresses the question whether the development the subject of the consent, that is a written instrument, is substantially the same as a development once that written instrument is modified. Imposing further conditions on it simply doesn't make any difference at all to the development. It means that there will have to be additional mitigation measures, but that is not the question that the jurisdictional test poses. It is submitted that it would be a bit like a coal mine which wishes to increase its production from 100,000 tonnes a year to 150,000 tonnes a year. Where there is no change at all to anything other than the intensity of one or other aspect of the development the development remains the same. It's the same development.

The expert evidence

The parties have relied on expert evidence from the following people: 1. John Coady traffic consultant for the Council and, Kenneth Hollyoak, traffic consultant for the School. Their traffic evidence is contained in (exhibits D, 3, 8 (joint report), 14, N, O (supplementary joint report)). 2. Anthony Betros town planning consultant for the Council and, Christopher Young, town planning consultant for the School. Their town planning evidence is contained in (exhibits F and 5). 3. Renzo Toni acoustic consultant for the Council and, Thomas Taylor acoustic consultant for the School. Their acoustic evidence is contained in exhibits 4, E, G.

The residents' evidence

The Court has also received written and oral evidence from a number of local residents who object to the application. The resident objectors are identified on the plan which is (exhibit H). Their written submissions, photographs and a video prepared by a local group called "Residents against Further Development of Trinity" showing local traffic in the vicinity of the School are before the Court in (exhibits1 and 15).
Put simply, the local residents are concerned about incremental increases in student numbers at the campus exacerbating traffic congestion in Victoria Street and impacting on their already compromised residential amenity. At the hearing the main focus of the residents' oral evidence was a concern about additional vehicles associated with the School using Victoria Street to access the Jubliee Drive in the AM and PM peak and associated 'bad parent/carer' driver behaviour. The weight to be given to these matters is dealt with in due course.
Some residents complained about noise but playground noise issue was not seriously raised as a problem. The focus of the noise complaints was potential noise from the use of the pool and gym facility currently under construction under the CDC. These issues however, do not arise out of this modification application. Therefore, they can only be relevant as part of the general circumstances of the case and the public interest.

Facts

The uncontroversial facts in this case are as follows:
The School site is located at 113 - 119 Prospect Road Summer Hill and Trinity has operated there since 1926 (the site).
The School is listed as a heritage item pursuant to Schedule 5 of the Ashfield Local Environmental Plan 2013 (LEP) which applies. Under the LEP the land is zoned partly R2 low density and partly SP2 infrastructure. The other relevant statutory controls are detailed at [4] of the Council's statement of facts and contentions (exhibit 2).
The site comprises a street block with frontages to Prospect Road, Victoria Street, Seaview Street and Yeo Park to the south. It contains numerous buildings including a gymnasium, a 25 m pool, assembly halls, classrooms, three ovals and carparks.
The main vehicular access to and from the School is via Victoria Street.
A newly constructed car park for 230 cars is located under the oval No 2 which is accessed via a private driveway leading off Victoria Street. It is known as Jubilee Drive car park. A new 50m pool, multipurpose hall and classrooms are currently being constructed on the north -eastern corner of the site.
Residential premises are situated on the opposite side of the roads which border the School in Victoria Street, Seaview Street and Prospect Road. There are also some residential dwellings in Seaview Street which share a common boundary.
The relationship of the School with surrounding development and the local road network can be understood from the above photo (exhibit 1 tab 5 p11of the Gennaoui Consulting Pty Ltd traffic report which accompanied the modification application).
The traffic experts describe the School to be predominately within a residential precinct (exhibit 8p1 at 2.i) (b). I accept that to be the case following my view of the locality.
The School Transport Management Plan acknowledges as much. It states: "The School, established on the site in 1926, sits in the heart of a residential area" and it must operate "to ensure its continuing operations have a minimal impact on our residential neighbours, while maximising the safety of students, staff and all visitors to the School" (exhibit L p5).
Having said that however, it must also be accepted that there are a number of non - residential uses proximate to the School. These include: * Three other schools (Yeo Park Infants School, Summer Hill Public School and St Patricks Catholic school); * A large aged care facility (Cardinal Freeman Village) * A hospital (the Sydney Private Hospital).
The traffic experts agree in their initial joint report (exhibit 8) that the operating characteristics of the existing School and the existing traffic conditions on the road network serving the School are contained in the traffic report prepared by Gennaoui Consulting Pty Ltd (exhibit 1, tab 5). They also agree that the Gennaoui report is the first traffic assessment prepared since the original consent and therefore it is reasonable to rely upon the facts in that report for the purposes of the comparison exercise required by s96AA (exhibit 8 (joint traffic report) p1 2.ii)).
The only obvious limitation with the Gennaoui report is that it assumes the School generally caters for about 1470 students on site and 300 staff (exhibit 1 tab 5 p2 Table 1) rather than the 1500 students nominated in condition 5. Accordingly, in assessing the traffic and environmental impacts generated by the increase in students proposed by this application the report base line starts from 1479 students rather than the 1500 students allowed under condition 5. On that basis the proposed student increase is 234 rather than the 200.

The original consent for the purposes of the jurisdictional test under s96AA

The Councils' statement of facts and contentions describes the original development in the following terms: * the demolition of 11 dwellings, * construction of a new multi-purpose hall and weight training facility , archives store, * amenities and counselling rooms at the Seaview Street frontage , * underground swimming pool with paly area on Prospect Road frontage, * underground car park for 230 cars and building for general purpose learning areas. * a maximum number of students at the Summer Hill campus not exceeding 1500.
While I appreciate that the original consent has been modified by the Council since the 2007 approval and, a different pool and sports facility are under construction having received a complying development certificate (CDC), these matters are not relevant to my determination of the jurisdictional question posed by s96AA of the Act.

Current parking at the School

The School has a total of 320 off street parking spaces within the School grounds in 3 separate car parks (exhibits 8 and, 1 at tab 5, p 5).

Jubilee Drive car park

The Jubilee Drive car park is the underground car park referred to in the original consent. It is accessed off Victoria Street and provides 225 car spaces including 12 spaces for cars with disability permits. The car park currently operates in accordance with the approved Transport Management Plan dated 25 October 2007 referred to in the original conditions of consent (exhibit 11). The internal driveway to this carpark is known as Jubilee Drive and it can hold up to 40 cars.

The staff car park

The School's staff car park is accessed via a separate two lane driveway off Victoria Street on the southern side of the site. It provides secure parking for 91 cars.

The Prospect Road car spaces

There are also 4 additional car spaces adjacent to the Prospect Road entrance to the Site, which I understand are generally used by service vehicles.

The characteristics of Victoria Street

Victoria Street runs along the western boundary of the site. It has two lanes available for traffic movement and an additional lane on each side of the street available for parking. It culminates in a cul de sac south of the site and adjacent to Yeo Park.
Victoria Street operates as a traffic by-pass providing access between Canterbury road (via Harland Street) to the south of the site and Liverpool Road to the north of the site.
Development on the western side of Victoria Street opposite the site comprises large detached dwellings houses and some two storey flat buildings with generous setbacks from the footpath. There are street trees on both sides of the street.
There is a bus strip on the western side of Victoria Street which is used by both the School's private buses and government buses. There are no parking restrictions in Victoria Street, other than the bus zone relating to the bus stop area.

Traffic

During the hearing the traffic experts debated the classification of Victoria Street - whether it operates as a local or collector road class under the RTA Guide to Traffic Generating Development Version 2.2 2002 (the Guidelines (exhibit 12)). As Victoria Road is not a local street in a new residential area I must accept the views expressed by Mr Hollyoak that it is difficult to retrofit /apply road classifications from design guidelines to roads which are constructed particularly when those roads are not only servicing a residential area but have a 40km/h posted speed limit during school operation hours. On that basis it could be argued that the recommended environmental capacity performance standards in Table 4.6 of (exhibit 12) should be adjusted to accommodate a 25% higher capacity given the 40km/h signage or be deemed to have little relevance (exhibit 8 pp 5and 6). However, the document is only a guideline and by its terms acknowledges that there is no particular threshold beyond which problems may emerge (exhibit 12 p4-9). The same could be said for the views expressed in the NSW Road Noise Policy DECCW 2011/236 March 2011 (RNP) (exhibit 13) which use descriptors such as "residential area" to describe the flow, quiet noise environments which the policies seek to maintain. They do not readily apply to Victoria Street.
Despite these difficulties, the experts' evidence has referred to the Guidelines and the RNP and, to the extent that their evidence assists the Court to understand current traffic volumes/ impacts generated by the existing School and the likely traffic volumes/ impacts generated by this application it is useful.
The first question in respect of traffic in this case must be what is the usual traffic situation on Victoria Street during peak hour?
The answer to the question is important because Victoria Street is the main access to the School and the existing level of traffic on Victoria Street (and the surrounding road network generally) must be known before the School's current contribution to the traffic load can be identified.
In order to compare 'the before and after 'as required by s96AA I need to appreciate the School's contribution to the overall traffic under the original consent including the volume of traffic (quantitative) and the environmental impacts (qualitative ) and the traffic impacts generated by this application. The comparison task requires a holistic assessment of the original development and the development after modification including any proposed conditions of consent said to mitigate any environmental impacts generated by the proposed increase in students.
In this case the traffic experts agree that the maximum peak hourly volume on Victoria Street exceeds that of a local road and the environmental goal of a collector road at (300veh/hr.). At p 3 of (exhibit 8) the traffic experts state that the "Existing traffic volumes already exceed the maximum environmental capacity performance standards indicated for local residential streets, particularly at the northern end of the street where the recorded 605 vph during the AM school peak hour is double the maximum recommended level". They also agree that the existing traffic flows in in all residential streets (Harland St, Seaview St and Prospect St ) during the AM school peak hour exceed the maximum environmental capacity performance standard for local residential roads. With respect to Prospect Street (a collector road) they conclude that although the level of traffic activity is less than the maximum traffic volume recommended for collector roads, at all times the existing flows in AM school peak are greater than the environmental goal recommended for collector roads. These conclusions are supported by the Gennaoui report traffic counts of 26 March 2013 which demonstrate high traffic volumes being: an AM peak flow in Victoria Street of 605 vehicles and a PM peak flow of 457 vehicles.
Therefore, based on the traffic evidence it is fair to say that the current volume of traffic on Victoria Street at peak times is high above collector road classification. This conclusion is supported by the residents' evidence of traffic congestion and queuing during AM and PM peak or more particularly at drop off and pick up times for the School.

The next question is how much of the existing traffic is generated by the School under the original consent and, what environmental impacts does this generate?

According to Mr Coady, the environmental capacity of Victoria Street, or the volume of moving vehicles which can be accommodated in the street or area, is substantially influenced in this instance by the operations of the School during AM and PM peak. This is demonstrated, he explains by the results of his traffic survey undertaken during the school term over 5 days from 29 August 2014 and during the school holidays over 5 days from 25 September 2014. His evidence is that during the school holiday Victoria Street had less than the environmental goal for a residential street (220vph) while during school term the recorded traffic flows exceeded the maximum environmental capacity performance for standard local road and even the maximum environmental capacity for a collector road. In Seaview Street, the operation of the School more than doubled the traffic flows during the peak AM student set down and peak PM student pick up periods. His results are detailed in the following Table.
The School's experts did not undertake a traffic survey during school term and school holidays therefore, Mr Coady's survey is useful. It provides an indication of the additional traffic demand on Victoria Street and Seaview Street Summer Hill as a consequence of the operation of the School under the 2007 consent based on an automatic tube count of bidirectional traffic flows in those streets during in school term and school holidays on the dates recorded.
Mr Coady' s conclusion that the School is currently having a very large impact on traffic volumes in Victoria Street during peak times is consistent with what I observed during my view of the locality. It was outside peak times and there was little traffic in Victoria Street. The Gennaoui traffic report lodged with the application also gives an indication of the existing and potential traffic volumes during school peak times (Table 17 at tab 5 p66 exhibit 1). The numbers recorded in Table 17 are not dramatically different to the existing volume figures recorded by Mr Coady.

What impact will the increase in students have on traffic volumes and trips?

According to the Gennaoui report the increase onsite student population of 234 from 1466 (on the day of survey) to 1700 would comprise: * 66 students I the junior school (K to 6); * 168 in the Senior School of which about 75 will be I years 11 as 12; * taking into account part time staff the total number of additional staff onsite is about 20.
On the above split the additional students would generate the following car trips : * 16 cars per day for additional staff (based on 80% driving to school); * 12 cars per day for additional students in years 11 and 12 (driving to school); * 95 cars for students likely to be dropped off during the morning two hour period and 95 cars for the students picked up during the afternoon two hour peak. (This is based on the existing ratio of students being dropped off and the number of recorded cars dropping them off). * Thus some 123 cars would be arriving in the morning 2 hour period, 95 of which would also depart. During the afternoon 2 hour period the reverse would apply. * About 145 and 135 additional trips are estimated to be generated during the morning and afternoon peak hour respectively (table 14 p65 Exhibit 1 tab 5). * Some additional 70 students may use buses to and from school. It is anticipated that the existing buses serving the school would be able to cater for this increase. (p 64 of exhibit 1, tab 50)
Table 17 of the Gennaoui report details that the existing and potential traffic volumes during morning and afternoon peak in Victoria Street are expected to experience an increase in traffic of between 14-18% during the morning peak and between 15 -18 % increase during the afternoon.

Findings - Traffic

In my assessment of the evidence the proposed increase in the number of student numbers at the campus will have a significant environmental impact on traffic volumes particularly in Victoria Street.
The 13% increase in students is expected to generate an additional 95 vehicle in the AM and 65 in the PM. According to the School's traffic evidence this is about 145 and 135 additional trips generated during the morning and afternoon peak hour respectively (table 14 p65 Exhibit 1 tab 5).
From a quantitative perspective I am of the opinion that the increase in vehicles generated by an additional 200 students at the campus is significant
As the expert and resident evidence stands I am of the opinion that Victoria Street is not presently coping with the current traffic generated by the School under the original consent. It seems this is in part due the operational problems identified with the flow of traffic in the existing Jubilee Drive car park. In that circumstance it logically follows that any increase in traffic generated by more students to the campus will exacerbate the existing traffic problems on Victoria Street which is the only access to the Jubilee Drive and this translates into further unacceptable environment impacts for the residents namely: traffic congestion in Victoria Street caused by queues into and out of the car park, bad driver behaviour such as setting children down on the road or double parking rather than entering a congested car park.
Both traffic experts agree that the Jubilee car park does not presently flow as it should in the PM peak and, according to Mr Coady there are similar problems in the AM peak. In short, there are operational issues which inhibit the flow of the car park and this adversely impacts on parking availability /traffic flow in Victoria Street and the surrounding residential streets such as Hopwood Street (exhibit O).
That being the case, it seems me that the residents' evidence about queuing in Victoria Street, cars double parking and general bad driver behaviour associated with the School is both reliable and accurate. They did not say it was every single day that they experienced queuing into the car park but said on many occasions. In my assessment the residents' evidence is not only consistent with the evidence of Mr Coady but is conceded by Mr Hollyoak in the supplementary joint report (at para (c) p1 exhibit O) wherein he agrees with most of the PM operational characteristics described by Mr Coady in his statement (exhibit 3) as summarised at p2 of the supplementary joint report. Mr Coady states: " The operational problems I observed during the PM pick up period involved "…cars driven by parents/carers were queued in the car park aisles back from the student drop off/pick up zones such that vehicles driven by persons wishing to depart the car park were unable to do so. I became stuck at the back of that queue for over 10 minutes until queued cars ahead of me picked up their student/s and depart….. This is symptomatic of a problem of traffic congestion within the car park. "
The Court gave the School an opportunity to address these operational issues at the hearing. In response the School now relies on an amended Jubilee Drive car park layout (exhibit N) and a revised Traffic Management Plan (exhibits Q). Mr Hollyoak prepared the revised layout and Mr Coady assessed the changes with Mr Hollyoak in a supplementary joint report.
Mr Hollyoak believes that the amended layout "will improve the efficiency and operation of the car park and will reduce congestion within the car park". Coupled with the amended traffic management plan he is of the opinion that the revised car park layout will satisfactorily accommodate that existing demand (d) p3 exhibit O). The main changes to the layout include: * the elimination of 3 parking space in the north- eastern corner of the car park to facilitate vehicular circulation; * line marking and associated signage to allow two lanes of traffic to circulate around the corner of the car park circulation aisle in the north- eastern corner of the carpark to enable circulating vehicles to pass queued vehicles ; * relocation of 22 parking spaces in the centre of the car park to accommodate drop -off/pickup activity. Use of these parking spaces would be subject to 5miute time limit; * reduction in the number of accessible parking spaces in the car park from the existing 12 to 6 spaces; * reassignment of 45 staff vehicles currently in the Jubilee car park to the staff car park.
Mr Coady is critical of the amended layout and believes that it is "…counterproductive to the safe and efficient operation of the student drop off/pick up activities in the Jubilee car park". In his assessment the changes do not address problems with the AM or the PM student drop off activities. In fact he is of the opinion that the AM delays to vehicles existing the car park may be exacerbated by the proposed changes .At p 2 of (exhibit O) he states: " the car park was designed for optimum safety and efficiency by providing kerbside parallel parking spaces to accommodate student drop off and pick up on peripheral one way traffic aisles. This arrangement minimises vehicle/vehicle and importantly pedestrian/vehicle conflict providing the optimum arrangements in terms of traffic safety and efficacy. The problem is that the student enrolment at Trinity Grammar has outgrown the capacity of the student drop off/pick up arrangement that were initially designed
I do not accept that the proposed changes to the car park layout as suggested by Mr Hollyoak (exhibit N) satisfactorily address the problems identified by the evidence of Mr Coady particularly in the Am when people cannot get out of the car park after dropping off their children. The drop off in the morning is quicker than the pick up because you are not waiting for children to arrive they are getting out of the car. As Mr Coady states "…Putting additional parking spaces for the drop off ,pickup activities or specifically for drop of activities doesn't help because that means that more cars drive into the car park and adds to the number trying to get out" (transcript 8/12/14 p262 at [50] .
I also share Mr Coady's concern about children travelling from the set down bays proposed to be located in the centre of the car park across moving circulating traffic lanes to access the School entry point. Of the additional students proposed in the application it is agreed that 66 will be junior school students. Furthermore, it is accepted that junior school students are more likely to travel by car rather than bus and if this proves the fact then junior students will be traversing a car park which Mr Coady describes as unsafe. I accept Mr Coady's evidence that the replacing of staff spaces with parking spaces subject to 5 minute drop off/pick up is only likely to add to the congestion. The School staff who park in the Jubilee car park presently enter the car park and generally do no leave until the end of the day. Therefore, they are not currently contributing to congestion out of the car park in the AM peak or for that matter the PM peak. If you assume the 22 staff spaces are instead used as 5 minute drop off pick up periods then that is 12 five minute periods in an hour which equates to 264 more cars coming in and 264 more cars going out which Mr Coady describes as "impossible" . Not to mention the additional pedestrian movements associated with 264 cars - it is not unreasonable to assume some of the additional cars will carry parents who will choose to walk their children to the School entry. Mr Coady believes the car park layout proposed in (exhibit N) is counterproductive to safety and efficiency. In short, the car park needs another exist to address the problem of getting out and onto Victoria Street (transcript 8/12/14 p263 at [45]) and, the amended layout does not solve the existing problems within the car park (at [4] p5 exhibit O). Mr Coady is critical of the SIDRA analysis undertaken by the Gennaoui report dated October 2013 accompanying the application (exhibit 1) and prefers to rely on his observations at the site.
Mr Hollyoak told me that he was retained by the School in September 2014 and has attended the School three times in the morning and three times in the afternoon(transcripts 8/12/14 p261 at [25] and, he has not seen queuing. Mr Coady has visited the site more frequently and observed queuing. His evidence is consistent with that given by the residents. Therefore, I prefer Mr Coady's traffic evidence in this case.
Furthermore, I do not accept that Mr Young's observation of one U turn in Victoria Street during his inspections of the site is representative of diver behaviour in the area or typical of traffic movements within a cl de sac. The evidence of the Council on this issue seems more probable and again it is supported by the residents' evidence.

Noise

The noise evidence is that the 55dB(A) LA eq is exceeded presently, when assessed in the absence of the school. The noise assessment, according to Dr Tonin, without the School is 58 dB (A), and with the School 60 dB (A) (table 2 at p16 exhibit 7). Mr Taylor says this is to be expected as almost any school will generate more than 77 traffic movement per hour and thereby exceed the 55dB(A). On Dr Tonin's reasoning, for any school which already generates 77 movements, any further increase must be rejected as it will exacerbate an already non-compliant noise level. The appropriate bench mark level must therefore include the School. Then the question posed in Randall Pty Ltd v Leichardt Council [2004] NSWLEC 277 can be asked: First, is the impact of the operation of the existing use on residential amenity acceptable? If the answer is no , then an extension of intensification would be unacceptable unless there is no overall increase in impact "
Mr Taylor's evidence is that the increase in noise generated by the additional students is only an imperceptibly small increase in noise generated by the School - in the order of 1dB (A) compared to the existing operation. And, a 1 dB (A) increase would not typically be perceptible. If there is no perceptible change in noise level, there can be no adverse impact on acoustic amenity and therefore, the contention cannot be sustained (exhibit 7 p4 at [18]). Similarly, in respect of traffic Mr Taylor's evidence is that the worst case traffic noise model predicts an increase of approx. 22% compared to existing traffic conditions (refer to table 17 Gennaoui August 2013). The proposed 22% is again 1dB (a) and is not typically perceptible (exhibit 7 p9).
In his statement of evidence he suggests "… that there will be a planning constraint that prevents indefinite small increases in noise level generated by the school. At some point, there will be either an increase of more than 2dB (A) above the 2007 noise levels (which conditioned 1500 students) or there will be a discrete increase in the number of classes /activities. Either of these outcomes would justify refusal of some future application (exhibit 7 pp, 6 at [2.1.1 -h]).
Dr Tonin disagrees with Mr Taylor about oval and traffic noise impacts from 200 additional students. While he accepts that the level of noise on the oval No 2 nearest the closest residence is not "offensive noise" (as defined under the POE Act because the existing noise level is compliant with a consent) he believes it contributes to the "environmental noise load" and, is nevertheless likely to constitute a source of unacceptable noise impacts to nearby residents (exhibit 7 p7 at 2.2.1 31) and this is relevant under s79C (1) of the EPA Act. Although the Council concedes that the application should not be refused on the basis of noise emanating from the School (transcript 9/10/14 at p25 at [40]), in terms of traffic noise the position according to the Council is somewhat different.
With respect to traffic noise Dr Tonin is of the opinion that the proposed Trinity expansion will increase existing noise levels by an average of 3.1dB (A) up to 6.0dB (A). This represents a significant noise impact (exhibit 7 Table 2 p16). He explains his reasoning at (p14 of the exhibit 7). In summary, his position is that in accepting the criterion of a level of 55 LA eq (1 hour) if the existing traffic noise exceeds that level then (in accordance with the guideline in the RNP) an increase in the total noise level of up to 2dB(A) attributable to the development is considered an acceptable impact. In table 2 of his report the existing traffic level is 60.5 62 LA eq (1 hour) which exceeds the 55 LA eq (1 hour). He then poses the question "Does the addition of the Trinity traffic increase the existing traffic noise level (in the absence of trinity) by more than 2dB(A)? His answer is that it increases the existing LA eq (1 hour) noise levels by an average of 2.7dB (A) up to a maximum of 5.3dB (A) and this represents a significant noise impact. Therefore, he is of the opinion that the operation of the existing use on residential amenity is not acceptable.
He then analyses the proposed Trinity expansion and concludes that the expansion will increase existing noise levels by an average of 3.1dB (A) up to a maximum of 6.0dB (A). Again he is of the opinion that this represents a significant increase.
Dr Tomin then asks what exceedance above 2dB (A) would be acceptable. The question of sensitivity of changes arises and Dr Tonin refers to the reasoning of the Court in the decision of FKP Funds Management Pty Ltd v Mosman Council [2011] NSWLEC 1000. Accepting that the intention of the RNP is to prevent cumulative increases where existing noise impacts are already high Dr Tonin believes the exceedance - which is well above 2dB(A) -resulting from an intensification of the use will generate an overall increase in noise impacts that are unacceptable in this case.

Findings - Noise

I prefer Dr Tonin's noise analysis because it seeks to address incremental cumulative impacts where the existing noise impacts are already over 55dB (A).
However, noise impacts are not the determinative issue. The real concern relates to the traffic impacts generated by this application.

Jurisdiction - the Council's submissions

As indicated at the outset of the judgment the Council submits that condition 5 was clearly important in the grant of consent by its terms and inclusion and central to the acceptable operation of the school. Therefore, it contends that the addition of 200 students to the campus will result in a substantial change to the essence of the original development. It submits on the evidence that from a quantitatively perspective the traffic volumes to and from the School will significantly increase and from a qualitative perspective this will generate unacceptable environmental impacts for the residents (i.e. further traffic congestion/parking problems and to a lesser extent noise impacts).
In order to appreciate the importance of the imposition of condition 5 in the original consent the Council refers me to various parts of the judgment. At [53] of the judgment it states "…the court has not only the power but obligation to impose a condition limiting student numbers, though the reason is not related to either of the above submissions, but arises out of the facts of the case. On page 5 of the statement of environmental effects accompanying the application, is the following statement: There will be no increase in student numbers and only a small increase in staff numbers. (9/10/14 page 33, 35 to 50)
The Council submits the School's application gave an assurance that there would be no increase in student numbers and the Court after a consideration of the evidence responded to that application with the imposition of condition 5. No issue was taken by the School at the time. The Council's position is that such an assurance was relevant to the Court's determination and an essential part of the approval. It is referred to in the judgment.
At the time of the original development approval there was no restriction on student numbers at the campus. And, in circumstances where the traffic experts agree that the Jubilee Drive car park is either at or close to capacity it is open to the Court to find that the environmental impacts occasioned by an increase in student numbers by 200 materially changes the original development. (This fact goes both to the merits issue as well as to jurisdiction).
The Council contends that based on Mr Coady's evidence there is nothing proposed by way of change in the conditions or the revised transport management plan which will effectively alters the unacceptable environmental impacts currently generated by the originally approved development which in his assessment will be exacerbated by the proposed modification. While he conceded orally in Court that there will be an improvement by removing some of the disabled spaces and opening up the staff car park to a few vehicles he did not believe that there will be a substantial improvement which would then justify an additional 200 students and the adverse traffic impacts from a quantitative and qualitative perspective.
Relying on the decisions of Moto Projects v North Sydney Council [1999] NSWLEC 280; 106 LGERA 298; North Sydney v Michael Stanley & Associates Pty Ltd (1998) 43 NSWLR 468; LGERA 433; and Vacik Pty Ltd v Penrith City Council (unreported, Land and Environment Court of New South Wales, Stein J 24 February 1992 it seems to me that the Court must accept that the word "substantially" when used in the s 96AA means "essentially or materially or having the same essence".
Therefore, in assessing whether the development after modification is substantially the same development as originally approved I need to compare the essence of the before and after development including the environmental impacts.
The ramp was essential feature of the redevelopment in Moto and the Court thought it was appropriate to focus on such a critical element in order to determine whether the development originally approved was substantially the same after modification: The Satellite Group (Ultimo Pty Ltd v Sydney City Council [1998] NSWLEC 244.
The Council submits that the 2007 judgment of the Court makes clear the importance of the imposition of condition 5 and the limitation of students at the campus to the issue of the original consent. The 2007 judgment lists the contentions at paragraphs [10] and [11] which include the impacts on traffic and parking and intensification of the use. These concerns are also raised in the residents' evidence which is discussed in detail at paragraphs [12] - [20] of the judgment.
The judgment then deals with the traffic evidence from Mr Ogle and Mr Reisch. The Council submits that when one reads that evidence (exhibit 1 tab 22 at pp 493 -495, 502) it is clear that the traffic analysis by both experts was in respect of 1400 students. In fact the judgment records in bold that their evidence was based on a student population of 1400 and "no increase student numbers". This fact is reiterated later in the judgment at [60]. Similarly, the acoustic report (exhibit 1 tab 19) which accompanied the application in 2007 at p381 records a likely increase in traffic in Victoria Street in the order of 185% to 188% as a result of the construction of the car park which will funnel more traffic into Victoria.
The judgment concludes at [58]:"The consent therefore requires a condition limiting the number of students. Moreover, a consent that limits the number of students to the existing reflects the applicant's own statement in the Statement of Environmental Effects accompanying the application".
The Council then refers me to the discussion in the judgment about the appropriate student numbers. At [58] it states …There was no agreed position before the Court on traffic impacts if the number of students increases. (Even Mr Reisch's last minute analysis justifies a limit, though the limit is higher than the existing numbers" at paragraphs [55] - [58]. The Court settled on a number that reflected the current student enrolments for 2008 rounded up to 1500. A generous limitation the Council submits [transcript 9/10/14 at p36 at [5]).
For these reasons the Council submits the imposition of condition 5 in the grant of the 2007 consent, limiting the number of students to 1500 was central to the operation of the school and that is the way the Senior Commissioner found it.

Finding - Jurisdiction

The scope of the statutory power and the meaning of the words "substantially the same" now found in s96AA (1)(a) of the Act is discussed by the Court of Appeal in North Sydney Council v Michael Stanley & Associates Pty Ltd (1998) 43NSWLR 468; 97LGERA 433 and, it seems that the reasoning of the Court in Moto remains correct at law.
In determining whether the proposed modification meets the jurisdictional test I am mindful of the caution expressed by Stein J in Vacik. Namely, not carrying out "…an over generalised description or analysis of the relevant development (to be compared )… " or falling into "…the trap of saying that the development was for a certain use - extractive industry - and, as amended; it will be for precisely the same use and accordingly is substantially the same development."
I accept that a development must be assumed to include the way in which the development is to be carried out. "The comparative exercise does not merely involve a comparison of the physical features or components of the development as originally approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts: Moto at [56].
The School submits that there is nothing of a physical nature and nothing of an operational nature which will change, other than the imposition of conditions to mitigate impacts, and these mitigation measures are not relevant to the threshold test.
I cannot accept that submission because the condition sought to be modified was by its imposition clearly and unambiguously fundamental to the acceptable operation of the original development and its ultimate approval by the Court. The condition is expressed in terms that provide a maximum student number for the campus.
The jurisdictional test under s96AA requires both a quantitative and qualitative comparison of the original development with the development as modified by this application.
The original development includes the Jubilee Drive car park which is currently congested and at near capacity, according to the traffic experts. The School is within a residential precinct albeit, with a number of other non-residential uses. The residents' evidence is that there is an existing overflow of cars into the street at drop off and pick up times during the school week. The parents and carers of the students drop off /pick up students in Victoria Street in dangerous locations outside the locations nominated under the management plan (Exhibit 11). They also block residents driveways and double park in the road way. The survey results of Mr Coady suggest the School operating under the original consent currently causes adverse environmental impacts both traffic and amenity impacts for the residents.
If the modification is approved the evidence is that there will be 13% or 200 increase in students at the existing campus which is 234 more students based on the assessed student number of 1466 in the original consent .
It is accepted by the traffic experts that the increase of 200 students will generate an increase in traffic and to a lesser extent noise impacts. Furthermore, they agree (based on the analysis in the Gennoui report accompanying the application) that the traffic flow numbers on Victoria Street are likely to rise from 605 in the AM peak per hour - to 703 and in the PM peak hour from 457 to 538 (joint report p3).
There will be an additional 123 cars over a two hour period in the AM peak (exhibit D p9) and an increase of 146 trips in the AM and 135 trips in the PM (exhibit 8 (traffic joint report) p2). The increase in traffic impacts is not quite double the increase in cars generated by the move of the 95 junior students brought to the campus in 2013. That move according to the residents caused observable impacts. Their evidence seems reliable because it is generally accepted that 78% of junior students are driven to school. The breakup of the 200 additional students proposed by this application is set out in the joint report (exhibit 8 at p 2). It includes 66 junior students most of whom one can assume are also likely to be driven to and from the School.
According to the evidence Victoria Street already operates at a level during school term above collector road level of 300 under the Guideline (exhibit 12). The survey taken when the school was on holidays demonstrates a significant reduction in cars on Victoria Street which suggests much of the school term traffic is associated with the School use.
The Court in 2007 issued development consent for a school with a maximum number of students at the summer Hill campus. While the Council invites me to scrutinise the judgment in order to appreciate that the number of students was important in the circumstances in which the consent was granted I do not need to do that. I accept having regard to the terms of the Court consent which includes condition 5 that a maximum limitation on the number of students at the campus at 1500 was essential to the acceptable operation of the school and the issue of the original consent. It was an essential aspect of the development consent:Vacik.
While each case must be decided on its own facts the scope of the statutory power of modification in s 96AA is not made out on the facts of this case as I see them. I do not wish to fall into the trap of saying that the development was for a certain use - a school and as amended will be precisely the same use and accordingly the same development as originally approved. What is important is that a development, particularly a school must be assumed to include the way the school operates. An additional 200 students at the Summer Hill campus will generate adverse environmental impacts and implications which in my assessment of the evidence from a quantitative and qualitative perspective render the modified proposal to be not substantially the same as the development approved by the Court.
In that circumstance, I believe that an increase of 200 students at the campus will constitute a material change to the original development. Therefore, I am not satisfied on the evidence that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified. Accordingly, s96AA (1) (a) of the Act precludes the Court from modifying the original consent as proposed in this application.
The opportunity to increase the student numbers at the campus is available to the School through the development application process under the Act. Section 96AA cannot and should not be used to allow incremental changes to a development where the essential nature of the original development is changed.

Findings - Merits

In the event that I am wrong in respect of the jurisdictional question I wish to make clear my assessment that the proposal is unacceptable on its merits after a consideration of the relevant matters in s79C (1) of the Act.
I am satisfied on the evidence of Mr Coady and Mr Betros that the School is currently generating unacceptable traffic impacts in terms of traffic congestion and queuing at peak times in Victoria Street. These unacceptable traffic impacts are in part due to the operational problems identified with the Jubilee Drive car park. For the reasons stated earlier in this judgment Mr Coady is of the opinion that the operational problems are not satisfactorily addressed by the revised car park layout proposed by Mr Hollyoak. Having regard to the evidence about the current operation of the School I accept Mr Coady's expert opinion that an increase in the number of students by 200 at the campus is likely to exacerbate the existing traffic problems experienced by the residents.
While there may be an opportunity to further revise the Jubilee Drive car park layout and, address the operational problems identified by the traffic experts, I am not satisfied that the revised plan and revised transport management plan provided during the final stages of the hearing satisfactorily addresses these issues. In short, I agree with Mr Coady's assessment that the revised documents tend to raise more problems (including student safety) than they resolve.
Therefore, I have decided that it is not in the public interest to approve the modification sought given the likely adverse traffic impacts in Victoria Street and the Jubilee Drive car park and adverse amenity impacts for the local residents : s79C(1) (b) and (e) of the Act.
Accordingly, for the reasons stated I have decided to refuse consent to the application. The Court makes the following orders: 1. The appeal is dismissed. 2. The Modification application lodged on 22 November 2013 to modify condition 5 of development consent No:10.2006.039 to increase student numbers from 1500 to 1700 is refused . 3. The exhibits are returned to the parties except for exhibits B, C and 2. Susan Dixon 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: 08 April 2015

At a glance

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Judgment (25 paragraphs)

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Cases Cited (5)

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