Ilim College of Australia Inc v Fairfield City Council

Land and Environment Court (NSW)|2012-12-18

Background 8In the decision of Hussey C in Ilim the consent provides for the establishment of a 75-student school with 10 teachers/support staff, consistent with the development application lodged with the council. At [44] the Commissioner quoted a section from the Statement of Environmental Effects (SEE) that had been lodged as part of the original development application. In that, the proposed development was described as a "modest-sized project.... designed to support a maximum of 75 students with a maximum of 10 teachers and support staff. ....The project has been designed to permit the logical expansion of the school, including access and car parking, should student numbers warrant this. Any future expansion of the school will be the subject of future applications." 9It is clear from the judgment that the council was concerned about the expansion of the school without the need for further development consent having to be obtained from the council to allow assessment of the impacts of any enlargement of the school, particularly in relation to traffic and the sensitive environmental nature of the site. This is due to the provisions of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure). Clause 31A of that policy provides: (1) Development carried out by or on behalf of any person on land within the boundaries of an existing school or TAFE establishment is complying development if: (a) it consists of the construction of, or alterations or additions to, any of the following: (i) a library or an administration building, (ii) a gym, indoor sporting facility or hall, (iii) a classroom, lecture theatre, laboratory, trade or training facility, (iv) a tuckshop, cafeteria, bookshop or child care facility to provide for students or staff (or both), (v) a hall with an associated covered outdoor learning area or tuck shop, (vi) if the development is not on bush fire prone land or if the educational establishment is not, or does not contain, a heritage item-an outdoor learning or play area and associated awnings or canopies, (vii) a car park, and (b) it complies with this clause and clause 20B (General requirements for complying development). (1A) (Repealed) (2) Development carried out by or on behalf of any person on land within the boundaries of an existing school or TAFE establishment is complying development if: (a) it is an alteration or addition referred to in subclause (1) that is carried out for the purpose of a change of use to another use specified in that subclause, and (b) it complies with this clause and clause 20B (General requirements for complying development). (3) Clause 20B (2) (f) does not apply in relation to development carried out under this clause. (4) The following are the development standards for complying development under this clause: (a) Building height standard. The building height of a building must not exceed 12m. (b) Side and rear setback standard. A building must be located at least 5m from any side or rear boundary of the land. (c) Materials standard. Any new external walls or roof of a building must be constructed of non-reflective material. (d) Noise standard. A building to be used for the purpose of a gym, indoor sporting facility or hall that is located less than 20m from a common boundary with land zoned residential must be designed to meet the acoustic performance elements contained in item 11.05.e of the State government publication School Facilities Standards-Design Standard-Version 1/09/2006. (e) Overshadowing standard. A building must not overshadow any adjoining residential property so that: (i) solar access to any habitable room on the adjoining property is reduced to less than the minimum level (being 2 hours of solar access between 9 am and 3 pm at the winter solstice) or is reduced in any manner (if solar access to any habitable room on the adjoining property is already below the minimum level), or (ii) solar access to the principal private open space of the adjoining property is reduced to less than the minimum level (being 3 hours of solar access to not less than 50% of that principal private open space between 9 am and 3 pm at the winter solstice) or is reduced in any manner (if solar access to the principal private open space of the adjoining property is already below the minimum level). 10The effect of that clause is, that once a school is established, provided the controls contained within the clause and the general requirements of clause 20B(2) of SEPP Infrastructure are satisfied, a complying development certificate can be issued by an accredited certifier for the range of additional buildings listed in subclause clause 1(a). As such, the council was concerned the expansion of the school could take place without reference to the council. 11Condition 61 was imposed to address the concerns of the council however, the applicant had argued that the condition was unnecessary because the role of the Court is to assess the merits of the subject application and any future application would be subject to the prevailing controls at the time. Nevertheless, the applicant accepted the condition as proposed by the council. The agreed condition reads as follows: 61. Masterplan for the site A masterplan shall be prepared for the subject site and shall be submitted to and approved by Council prior to any issue of a construction certificate. The extent of all/any future buildings on site shall not encroach on the flowing features of the development which is the subject of this approval: (i) The area on site set aside as the effluent wastewater treatment system, (ii) The approved playing field at the northern portion of the site and the playground at the southern portion of the site. (iii) All landscaped areas and tree plantings approved in the landscape plan as either new trees to be planted or existing trees to be retained; and (iv) The overland flowpath areas identified on the site. The masterplan shall indicate the maximum number of students on site, the additional carparking generated and what additional upgraded traffic measures are generated by the increase of activity on site. Accordingly all future development of the site shall only occur in accordance with and as outlined in the approved masterplan document the subject of this condition. 12At the time of determining the application, the applicant had not decided on the means of treating wastewater from the school. It had been demonstrated that sufficient area was available on site to treat wastewater without impacting on the creeks that cross the site. That proposal relied on the use of the playing field for irrigation of treated water. 13As the site has frontage to a main road, concurrence of the then Roads and Traffic Authority, now Roads and Maritime (RMS) was required. That concurrence was obtained and the requirements are reflected in condition 87. Of particular relevance to this application is the requirement to construct a CHR type intersection (Channelised Right hand turn) at the corner of Duff Road and Elizabeth Drive prior to the issue of the Occupation Certificate. It is subclause (j) of the consent that is the subject of the appeal and this reads as follows: 87. Roads and Traffic Authority's Conditions ...(j) The CHR intersection treatment shall be constructed and operational, prior to issue of any Occupation Certificate.

The proposal 14The application proposes modification of condition 61 through the removal of subclauses (i) and (ii) and the change to the timing of the works detailed in condition 87(j) so that it would provide for the following: The CHR intersection treatment shall be substantially constructed prior to the issue of any occupation certificate and shall be constructed and operational prior to the issue of any final occupation certificate. 15In accordance with the provisions of condition 61, the applicant lodged a masterplan with the council on 8 August 2011. That masterplan was revised following a meeting with council officers and the final masterplan was lodged on 14 November 2011. The masterplan envisaged the establishment of a school with a maximum future capacity accommodating a two-stream school with up to 280 students and included a diagram that indicated how carparking could be provided and a provision that addressed future roadworks in the event that the school student population reached 150 students. That provision reads as follows: In the event that the school student population reaches 150 students, the school will write to the RMS and seek its advice on roadworks required at the Duff Road and the Elizabeth Drive intersection and abide by its requirements. 16The council's subsequent approval of the masterplan provided for the increase in students to only 160, 10 more than the above "trigger". It was not until 23 February that the masterplan was formally approved by the council. The council did not provide reasons for the reduction in number of students. The report that was considered by the council (Exhibit 11), of which three paragraphs have been redacted, suggests that it is because the council considers it is unable to assess the impact of the future works. 17The council approved an application under s68 of the Local Government Act 1993 (LGAAct) for the installation of a pump-out septic system at the site. As this system does away with the need to manage sewage treatment on site, the requirement to reserve the playing field for the disposal of effluent is redundant. The applicant seeks to modify condition 88 to delete the range of options available to manage wastewater and endorse the s68 approval conditions. 18The applicant is also seeking endorsement of a masterplan, dated August 2012, that would provide for a maximum student population of 370 with up to 40 full time equivalent staff and seeks to modify condition 61 to allow the development of the playing field for future school structures and play areas. 19Due to the delays in obtaining approval for the roadworks, the applicant is concerned that the intersection treatment required by the RMS may not be completed in time for the opening of the school at the end of January 2013 and is seeking to modify condition 87(j) to allow occupation of the school when the intersection is substantially completed.

The issues 20The application proposes the following modifications: Condition 61 to read as follows: 61. Masterplan for the site Future development of the site shall only occur in accordance with and as outlined in the School Amended Master Plan prepared by Outline Planning Consultants Pty Ltd and dated August 2012. Future buildings on site shall not encroach on: (i) The playground at the southern portion of the site. (ii) All landscaped areas and tree planting approved in the landscape plan as either new trees to be planted or existing tres to be retained; and (iii) The overland flow path areas identified on the site. The Master Plan may be amended by the applicant from time to time with approval of the Council's Director of Planning Services. Condition 87(j) to read as follows: (j) The CHR intersection treatment shall be substantially constructed prior to the issue of any occupation certificate and shall be constructed and operational prior to the issue of any final occupation certificate. 21In addition, modification of the conditions relating to wastewater management is sought so that the condition refers to the s68 approval and design drawings and reports accompanying that approval. 22The primary difference between the parties is whether it is appropriate to allow the use of the playing field for additional buildings to allow expansion of the school to 370 students. The masterplan as approved by the council provided for the retention of the playing field as a "constrained area" and the masterplan for which the applicant seeks approval, provides for this area to be the subject of future development. 23Council opposes the modifications sought by the applicant on the basis that to approve the masterplan would be to allow a development that is not substantially the same development as approved by the Court; to require the amendment of any masterplan to be approved by the Council's Planning Services Director, is contrary to the delegation provisions under the LGAAct; the masterplan does not indicate building envelopes so does not provide for location of buildings having regard to the constraints of the site; inadequate assessment of acoustic, traffic and parking considerations as it is premature to assess these impacts and the application is not in the public interest. 24The council did not press acoustic issues.

The evidence 25The hearing commenced on site and evidence was heard from a number of objectors to the proposal. The issues raised by the objectors are summarised as follows:

Contrary to rural character of the area;
Traffic, parking and safety issues, particularly in relation to the intersection of Elizabeth Drive and Duff Road but also along Duff Road;
Original application was for a small school of 75 children and now a large 370 student school is proposed; 26Expert planning evidence was heard from Mr K Kerzinger and Mr G Peacock with traffic evidence from Mr G Kennedy and Mr C Hallam. 27Mr Kerzinger says that it is inappropriate to allow the modification as the masterplan seeks to free up for development significantly greater areas than contemplated by the consent and approved masterplan; the proposed increase in student numbers from 75 to 370 is significant, the masterplan, linked to the consent in terms of being the ultimate control on student numbers is the means by which the objective of creating an open park like school within a rural setting is able to be achieved, quoting various sections from the SEE to support his view. 28He says the northern playing field was seen in the original application as being a part of the setback area from the neighbouring greenhouses/plant nursery complex to the north and any reduction in this setback will adversely affect rural character. He says that identifying the playing field as an unconstrained area is a significant departure from the original design concept of creating a small school within a park like setting and limiting expansion in an easterly direction, that retention of the field is important from a visual impact viewpoint in that it creates a sense of openness and, whilst not required to meet any standard, is provided as open space adjoining school buildings. 29Mr Peacock says that the council confuses the masterplan with the issued development consent and that no change will occur under the modification sought as any future expansion of the school will require the obtaining of relevant approvals in accordance with the regulatory approvals regime applicable at the time. He says the masterplan prepared complies with the relevant requirements of condition 61 as the condition does not set a maximum number of students, or parking required but does identify those parts of the site that are constrained. The modification seeks to remove a constrained areas (i.e. playing field) no longer required for the purposes of the spraying of treated effluent. He says the field was so designed because it was proposed for this purpose and as it is no longer required, the need for it to be designated as a constrained area is redundant. Further, he says no standards require the provision of a playing field for independent primary schools. 30Mr Peacock says that the school site is surrounded by generous landscaped buffers or setbacks with street tree planting, boundary plantings and trees within the site, more than adequate in terms of ability to screen the development from Duff Road and neighbouring properties with more than sufficient buffers provided from those properties. He provided photographs of dwellings to the north-west of the site, (Exhibit L) which he says indicate the intense form of development in the area and says that the masterplan would provide for a similar form of development. The majority of those dwellings were in Rigney Close, outside the visual catchment of the site and, according to Mr Kerzinger, in a small lot subdivision and not typical of the character of the rural area in the vicinity of the site. 31Both planning experts agree that there are no standards that apply relevant to the provision of a playing field and that the closest field is some 5km from the school site. Mr Kerzinger says that it is therefore desirable that such a facility is provided as part of the school and that it is part of the character of the approved development. Mr Peacock says that, should the school desire, it can provide an area for play in addition to that provided with a playground/sports court, however, to reach the desired student population of 370, approximately half of the playing field area would be required to accommodate the additional classrooms, canteen, library, multi-purpose hall and staff accommodation. 32The traffic experts agree that it is not appropriate to establish through the masterplan, ultimate numbers for carparking and traffic conditions but it is appropriate to set parameters on which these are to be based in assessing future applications. 33The RMS has provided advice in correspondence dated 28 August 2012 that it had assessed a traffic report prepared by Mr Hallam and "raises no objection to the proposed increase in enrolment to 370 students, subject to the recommendations in the submitted report, which are as follows:

Traffic signals at this intersection on Elizabeth Drive are not warranted.
A Type CHR intersection is adequate and appropriate for the initial operation of the school. The Type CHR intersection treatment shall be designed and constructed in accordance with Austroads and RMS supplements. The development will be required to enter into a Work Authorisation Deed (WAD) for the proposed intersection treatment and shall be at no cost to RMS.
A revised traffic analysis report shall be submitted to RMS for review and approval when student numbers increase above 150. This revised traffic analysis will determine whether there are significant delays (LOS-F) and safety issues for the right turn movement out of Duff Road to warrant a Channelised seagull treatment to enable this right turn movement to be undertaken in two stages." 34In relation to the timing of completion of the works, the RMS has provided Mr Peacock with an email sent on 20 November 2012 (Exhibit O) that states: "Provided that the roadworks are substantially commenced (i.e. almost complete), prior to the commencement of the school term, RMS would raise no objection to a temporary Occupation Certificate being released to enable enrolled students to commence the school term in February 2012 (sic). Traffic Control Plans and Traffic Management Plans shall be implemented in accordance with the WAD at all times to ensure that road safety is not compromised during construction of the roadworks. However, if the roadworks are not completed in a timely manner and in accordance with RMS standards, RMS reserves the right under the executed WAD to call upon the bond and complete the roadworks." 35A ghant chart of the project management timeframe for intersection roadworks was tendered as Exhibit H and indicates, subject to favourable weather conditions, that all works apart from the line marking would be completed by 27 January 2013. The traffic experts agree that it would be appropriate to allow the school to open if this stage is reached and consider that because of the traffic management controls in place, there would be no adverse safety risks.

Conclusion and findings 36It is apparent from the evidence provided that Hussey C did consider that at some time the school would expand beyond 75 students. This is clear from the SEE lodged with the application and from the judgment in Ilim. The application currently before the Court involves three matters; these are the masterplan, the timing of occupation of the initial school and the method of wastewater management. The applicant seeks to modify three consent conditions that relate to those issues. 37In accordance with the provisions of s96 of the Environmental Planning and Assessment Act 1979 (EPAAct), the Court must be satisfied that the proposed modification is of minimal environmental impact and 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). 38Mr Robertson, for the applicant, submits that the development is substantially the same as, allowing the modifications sought do not provide for any works or development of the site. Mr Seton, for the council, argues that the development is not substantially the same, as, by approving the masterplan, the area set aside for the playing field would no longer be available for that purpose and, would no longer have the same essence or be materially the same because that area could now be used to accommodate built form, contrary to the original intention of the consent. He says the playing field is an essential element of the development approved by the consent. 39This matter has been the subject of deliberation by this Court on many occasions and is relevantly considered by Bignold J in Moto Projects No. 2 v North Sydney Council [1999] NSWLEC 280 where, at [54-56] his honour states: 54. The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development. 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially"" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently 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 (including the circumstances in which the development consent was granted). 40Whilst I accept Mr Robertson's submission that the modification of condition 61 is not an application to expand the school, the adoption of the applicant's proposed condition by approving the masterplan for 370 students does have the effect of changing the nature of the development on both a qualitative and quantitative basis. There is no doubt that the playing field is no longer required for irrigation purposes however, the playing field also forms part of the open surrounds of the "modest" school that was considered by Hussey C. 41In assessing whether the development was consistent with the zone objectives, the Commissioner had concluded at the time that it was. It is necessary to assess the application against the original consent and in this regard, I consider that the use of that area for purposes other than open space would be a material change to an essential physical element of the approved development. The use of that area, or at least half of it as built area, would not result in attractive, high quality development which is sympathetic to the rural environment and it therefore not consistent with zone objective b. 42I do not accept the evidence of Mr Peacock that the adjacent plant nursery is the form of development that defines the locality. This development is A-typical of the area, the majority of development, as evidenced from the site view and the aerial photographs tendered as Exhibit 3, including that in Rigney Close, contains small building envelopes, though large dwellings, in open settings. Accordingly, whilst it is appropriate to modify condition 61 through the deletion of subclause (i), it is not appropriate to delete the requirement to retain the playing field as a "constrained" area. The constraint is one that is required to achieve the zone objectives rather than an environmental consideration such as flooding that impact other parts of the site. 43It is also not appropriate to substitute the alternate conditions proposed by the applicant as detailed in [20]. That is because there are aspects of the school's expansion that require further analysis, as evidenced from the advice from RMS. It is not appropriate to modify the consent in such a way that fetters the discretion of future decisions. For that reason, I do not propose to endorse the maximum number of students at the site as proposed by the applicant. Rather, in the case of an application to modify the consent, it is only appropriate to identify areas that are "constrained". 44Similarly, I do not consider that it is necessary to modify the condition that relates to wastewater management. That condition is worded to address the range of options that were assessed as suiting the site conditions. The council has issued an approval under the LGAct and that approval should be independent of any consent condition and, in the event that it is necessary to amend the approval for any reason, to adopt the applicant's condition, would also require further modification of the consent. This is unnecessary. 45The traffic experts agree that the intersection of Duff Road and Elizabeth Drive will operate in a safe manner if the school were to open at the beginning of Term 1 2013. Mr Seton submits that the council maintains its opposition to the opening of the school prior to all roadworks being completed however, there is no evidence to support his submission that there will be any adverse safety issues if the line marking is not undertaken by opening day. I also note that the RMS has supported the applicant's position. Accordingly, it is appropriate to modify condition 87(j) to allow the issue of an interim occupation certificate when the roadworks have been completed other than the line marking undertaken, provided all other aspects of the consent have been satisfied. 46The Orders of the Court are: (1)The appeal is upheld in part. (2)Development consent DA No 401.1/2010 is modified by: (a) Modifying condition 61 by the deletion of item (i) (b) Deleting condition 87(j) and substituting in its place the following conditions: 87(j) The CHR intersection treatment shall be constructed and substantially completed, other than line marking, prior to the issue of any occupation certificate. (3)The exhibits, other than exhibits A, B, H and 1, are returned.

Sue Morris 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: 04 January 2013

Judgment 1Ilim College of Australia Inc. was granted consent by this Court to establish an infants/primary school for 75 children at 2089-2109 Elizabeth Drive, Cecil Park: Ilim College of Australia Inc. v Fairfield City Council [2011] NSWLEC 1216. The building works are nearing completion and Ilim College is seeking approval to modify three consent conditions to allow occupation of the school for the start of the 2013 school year at the end of January. Those conditions are No. 61, 87(j) and 88 and relate to a requirement to obtain approval of a masterplan for the site indicating th extent of all/any future buildings from Fairfield Council; to complete roadworks prior to the issue of an occupation certificate and the alternate means of addressing wastewater management because the site does not have access to sewer. 2The council has approved a masterplan, other than in accordance with the manner in which Ilim seek to expand the school and, due to delays in obtaining the necessary approvals from Roads and Maritime Services (RMS), the roadworks are unlikely to be completed in time for the scheduled opening of the school. Ilim is dissatisfied with the council's determination of the masterplan and is seeking modification of the condition to allow use of additional site area. It is also seeking approval to open the school before all of the roadworks required as conditions of consent are completed. 3The council opposes the modification of conditions 61 and 87 and accepts the pumpout system has been approved by the council and is appropriate.

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