Killara Lawn Tennis Club Limited v Ku-ring-gai Council

Telstra Corp Ltd V Hornsby Shire Council [2006] NSWLEC 133 Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 Kremer & Associates v North Sydney Municipal Council [1982] 47 LGRA 209 CASES CITED: Royal Agricultural Society of New South Wales v Sydney City Council [1987] 61 LGRA 305 Mobil Oil Australia v Ku-ring-gai Municipal Council [1990] 70 LGRA 419 Fabcot Pty Ltd v Hawkesbury City Council [1997] 93 KGERA 373 Carden v Willoughby Municipal Council [1985] 56 LGRA 366

DATES OF HEARING: 30 & 31 March 2010, 7 May 2010 & 27 August 2010

APPLICANT Mr N Eastman (barrister) SOLICITOR Tress Cox Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr A. Pickles (barrister) SOLICITOR HWL Ebsworth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10969 of 2009 Killara Lawn Tennis Club Limited v Ku-ring-gai Council

JUDGMENT 1 The applicant in these proceedings, the Killara Lawn Tennis Association, is seeking to install lighting on four of its six tennis courts for the purposes of night tennis, including competition night tennis.

2 By way of background the Killara Lawn Tennis Club formed in 1912 on the site known as 8 Arnold Street Killara. The tennis courts are available for hire by the public (subject to availability) and the premises are operated on a commercial basis. The site accommodates six tennis courts with a club house that has a liquor licence. 3 The subject site is irregular in shape as shown in the zoning extract at figure 1. The site has an extensive frontage to Arnold Street of some 124 metres with a site area of nearly 5,000 square metres. 4 To the immediate west of the site on Arnold Street is a lawn bowling club that also has frontage and a car park to Locksley Avenue. The subject site also shares a common boundary with some four residential properties to the north-west and north-east. Opposite the site in Arnold Street there are single and two storey dwelling houses and a small residential flat building in well established garden settings. St Martins Church is also opposite the site in Arnold Street and is set in large grounds that also forms part of this most pleasant vegetated streetscape. The site and its immediate surrounds are shown on the aerial photograph at figure 2. 5 Killara train station is approximately 300m to the south of the site and train commuters park in the nearby residential streets. 6 The proposal in the Statement of Facts is described as: Lighting of 4 out of the 6 existing tennis courts. 17 x 8 metres high mounting poles are required, located at the edge of each court opposite the service line. 17 x 1000 watt metal halide luminaries to be attached to the mounting poles. The luminaries will be horizontally mounted. Extended hours of operation: The intended hours of lighting will be from approximately sunset to 10.00pm Monday to Saturday inclusive and to 8.30pm on Sundays, extending the existing hours of outdoor play which have to date been restricted to daylight hours only. This increases the hours of operation of the tennis courts in the evenings by approximately 5 hours in mid-winter and approximately 2 hours in mid-summer. Lighting for each court shall be wired on a separate switch, enabling them to be turned on and off separately as required. Only courts that are required to be played on shall have the lights turned on so that not all four courts will be lit at the one time unless required. The court lights shall be turned on in a particular sequence when being used. That means that the courts with the least impact to adjoining properties will be turned on first and so on. The lights for the courts would be turned on as per demand in the following order: Court 1; Court 2; Court 5; and Court 3 Contentions 7 The Council determined the application by the refusal of consent and in summary the following Contentions are raised in these proceedings: Contention 1: Impact on residential amenity Noise Particulars: a) The submitted noise assessment fails to adequately address the impacts of noise on nearby residential properties in Arnold Street… b) The current acoustic assessment has not conducted measurements of tennis court use at the subject site to ascertain noise emission levels that are currently generated by a facility for various types of players. The theoretical assessment is not realistic in the subject circumstances. All noise predictions were based upon the fact that the courts would be used for single-use play only. The applicant has indicated verbally that all four courts would be used for competitions on Monday, Tuesday and Wednesday nights up until 10:00pm. The use of the courts for competitions would intensify the noise emanating from the courts because there would be a larger number of people attending the Club during this period and there level of play can increase the level of noise being emitted from tennis play. The submitted noise assessment fails to address this. c) Tennis noise generated up until 10pm Monday to Saturday and until 8.30pm on Sundays, and vehicle/patron noise after those periods would adversely affect residential amenity and would disrupt the sleeping patterns of surrounding residents. d) The noise assessment and the application fails to address noise created from the use of the club as a licensed venue until 10pm. Traffic Particulars: a) The utilisation of the tennis courts until 10:00pm at night would create additional traffic and parking demands within Arnold Street. The application fails to provide a traffic and parking study prepared by a suitably qualified person which assesses this impact. b) The courts will be used on Monday, Tuesday and Wednesdays for competitions until 10:00pm at night. These competitions would create a greater parking demand as they would involve a larger number of players compared to single-use play and spectators. This analysis was not included in the application. A complete assessment of this issue could not be satisfactorily carried out without a traffic and parking report. There are inconsistencies between the use of the courts as stated in the application (single-use play) and the use stated by the Treasurer (competitions). Lighting Particulars: a) The lighting of four courts with the use of 18x8 metre high mounting poles is unreasonable in a low density residential area of Arnold Street. The glare and intensity of the lights until 10:00pm at night would adversely impact upon the amenity of Arnold Street. b) The proposed lights are each 1000W. One of these lights will have around 30 times the output of a street-light on Arnold St. There are four of these on one court. These courts under the proposed lighting will appear very bright to the neighbours. The courts themselves will be lit to the level of a typical office. It is noted that the lamps used for temporary roadwork lighting are typically around 1000W (for comparison). c) The Applicant's report dismisses complaints about spill lighting because it is below the level required by Australia Standard AS4282 for Obtrusive Lighting. This standard only deals with direct light (that is, light directly from a lamp). It ignores reflected light - not because it cannot be bright but because it is very complex to deal with. The fact that the Standards Australia have not yet released a standard for indirect light is not to be taken as consent to ignore it. d) If the reflectance of the surface is around 30% (whether specular or diffuse) then the light emanating from the surface will appear to be approximately the same as staring at a 300W lamp at the same distance as the 1000W lamps. In the case of the diffuse surface, the light will appear to be 'smeared-out'. e) The Applicant does calculate the combined reflected and direct light levels. He calculates 18Lux but does not advise the surface reflectivity that is being used. Nor does he advise the surface texture of the court surface or the orientation of the vertical plane used for the calculation. f) The calculated combined light level of 18Lux is greater than the allowed direct pre-curfew level of AS4282 of 10Lux. The Applicant argues that, because AS4282 only deals with direct light, he should be allowed to add more light (due to reflections) to this figure of 10Lux. Because the standard ignores reflected light altogether, he has no more right to assume that a standard for all obtrusive light (when it is finally released) will allow more than 10Lux than I have to assume that the total allowed value will remain at 10Lux. Again, one cannot use the fact that AS4282 fails to deal with reflected light as permission to add an extra bit to allow for it. g) The Applicant's report notes that the vertical illuminance of 18Lux only marginally exceeds the levels allowed by AS4282. It is debatable as to whether 80% is marginal. It is close to double. h) By using different textures and reflectance's for the court, we are able to get vertical illuminances that are much larger than 18Lux. Contention 2: Unreasonable intensification Particulars: a) The subject site is zoned Residential 2(c2) in accordance with the provisions of the Ku-ring-gai Planning Scheme Ordinance. The tennis club ('recreational facility') is a prohibited use in the 2(c2) zone. The club has been operating with the benefit of existing use rights since the gazettal of the Ku-ring-gai Planning Scheme Ordinance on 1 October 1971. The intensification of the use of the club is unreasonable within the existing 2(c2) residential zone given the environmental impacts which will result from the increased operating hours until 10:00pm at night. b) The proposed intensification of the use to incorporate night tennis is inconsistent with the existing and likely future character of the area, particularly given the surrounding 2(c2) zoning (which permits apartment conversions) and the 2(d3), zoning (which permits residential flat buildings). The intensification will compound a commercial activity in an area with high residential amenity and where there will be an increased population enjoying that amenity. c) The proposed intensification would effectively allow the Courts to operate "all day", throughout the year, providing no opportunity for respite to the neighbours. The current daytime arrangement provides for late evening and winter respite from the tennis court activities with certainty of privacy and higher amenity during the evenings. Contention 3: The proposal is contrary to Ku-ring-gai Councils Tennis Court Policy Particulars: a) The tennis courts are proposed to be illuminated and are immediately adjoined by residential dwellings on three sides. Significant objection has been expressed by neighbouring residents in relation to additional impact on neighbourhood peace and quiet, visual impact, light spill, privacy and noise levels. The proposal is contrary to the provisions or this policy, given the significant detrimental impacts, associated with the extended use. The impacts will unacceptably detract from the residential amenity of nearby residents. Tennis Court Policy, Section 2.1 Contention 4: The proposal in contrary to the visual character of Arnold Street

a) The height, number and glare from the 18x8 metre high mounting poles will have a detrimental impact upon the streetscape of Arnold Street given that the poles and lights will be visually obtrusive and are out of character with the residential development surrounding the site.

b) The visual impacts are inconsistent with the objectives outlined under Section 4.1 of DCP 38 which seek to provide some guidance as to reasonable amenity outcomes resulting from tennis court development. c) The submitted noise assessment recommended an acoustic barrier as a noise mitigation measure along the Arnold Street boundary. This barrier would need to be a solid structure of at least 1.8m. The height and visual dominance of this barrier would be a detracting element along Arnold Street and would detrimentally impact upon the streetscape. Such a barrier is inconsistent with the character of fencing that would be expected in a residential area. d) Arnold Street is predominantly characterised by a 1920 - 1945 streetscape of larger dwellings with varied architectural styles and treatments with large front setbacks dominated by formal private front gardens and well established street trees. Killara Lawn Tennis Club forms part of the village atmosphere of Arnold Street and its high visual appeal. The proposal for 18x8 metre height mounting poles with lights until 10:00pm introduces a new form of built development that is out of character with the visual amenity of the area and will significantly impact upon this quiet village ambience. Development Control Plan 38, Section 4.1 Contention 5: Inadequate Documentation a) The application does not adequately document the proposal to extend the usage of the Courts and how this intensification will be managed by the club. There is no discussion or proposal to manage the use of the facility by member and non-members of the club and what the actions or consequences of inappropriate behaviour will be. b) There is no indication as to how the extended use of the courts will affect patronage or operations of the club facility. c) The submitted plans do not comply with Schedule A of Practice Note for Class 1 Development Appeals…: 8 In the Statement of contentions the Council provides the following end note: The Ku-ring-gal Planning Scheme Ordinance and Councils Development Control Plans technically do not apply to the site as it operates under existing use rights, however using the plans as guidance A, development of this site are considered appropriate given that the site and its surrounds are zones residential. Statutory Planning Framework 9 In the Statement of Facts the Respondent identifies the planning controls to include: - Environmental Planning and Assessment Act 1979, Section 106 - Existing Use Rights - Protection of the Environment Operations Act 1997 - State Environmental Planning Policy No. 55 - Remediation of land - Regional Environmental Plan (Sydney Harbour Catchment) 2005 - Development Control Plan 38 - The Ku-ring-gai Residential Design Manual - Development Control Plan 40 - Waste Management - Development Control Plan 43 - Car Parking, Section 1.2 - Development Control Plan 56 - Notification - Tennis Court Policy, Section 2.1 - Noise Guide for Local Government 2004, Section 1.2 10 The Ku-ring-gai Planning Scheme Ordinance zones the subject site Residential C2 and development that may be carried out only with development consent includes: apartment conversions; dual occupancy; boarding houses; child-care centers; educational establishments; hospitals; and places of public worship. The site is located within the Killara Urban Conservation area 9 and has been identified as a contributory item. The dwelling house at number 15 Arnold Street is a listed heritage item and councils heritage adviser has raised no objection to the proposal on heritage grounds. 11 There is no dispute between the parties that the tennis court facility on the site has existing use rights under the Environmental Planning and Assessment Act 1979. Relevant sections of the Act include: 106 Definition of "existing use" (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use; and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use; and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. 107 Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work; or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned; or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use; or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b); or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. 108 Regulations respecting existing use (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to: (a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use; and (b) the change of an existing use to another use; and (c) the enlargement or expansion or intensification of an existing use. (d) (Repealed) (2) The provisions (in this section referred to as the incorporated provisions ) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. (4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 89 to a development application for consent to carry out prohibited development.

12 The Regulations to the Act contain the following provisions: 40 The object of this Part is to regulate existing uses under section 108 (1) of the Act. 41 Certain development allowed

(a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or… 42 Development consent required for enlargement, expansion and intensification of existing uses

(1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification:

(a) must be for the existing use and for no other use, and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date. 13 The Ku-ring-gai Residential Design Manual Development Control Plan No. 38 as set out in cl 1.3 states: by providing detailed provisions to be considered when assessing applications for single lot detached residential developments, it should be read in conjunction with all other relevant DCP's and councils policies. This DCP compliments the statutory requirements in Ku-ring-gai's deemed environment and planning instruments known as Ku-ring-gai Planning Scheme Ordnance 1971 as amended.

14 This Development Control Plan for single lot detached residential developments includes a section for ancillary facilities and this is defined in the glossary as follows: "ancillary facilities in the context of the residential dwelling includes but is not limited to such related facilities as a swimming pool, outbuilding, pergola, patio, pathway, driveway and tennis court".

15 This section refers to the council's policy on tennis courts. It is noted that in the residential DCP lighting of tennis courts for night tennis will generally not be permitted. 16 The Car Parking Development Control Plan requires 3 spaces per court plus 1 space per staff. And for cinemas, public halls, places of assembly the minimum parking provision is 1 space per 10 seats for daytime parking and 1 space per 60 seats for Friday - Saturday evening. The recommended level of parking might be reduced at the discretion of councils, if it can be proven that there is adequate parking available in the vicinity of the site on Friday and Saturday evenings. Section 3.2 of this DCP makes provision for the departure from the car parking rates if supported by detailed traffic assessment study.

17 The parking DCP contains provisions for where existing premises are being redeveloped or the use changed and states: * If the proposal does not result in increased floor space, and the use of the building is not changed, then additional parking provision shall generally not be required. * If the proposal results in increased floor space, then additional parking shall be required. * If the use of the building is changed it shall be taken into account in assessing the parking requirements. Generally, where the proposal involves only a change of use parking requirements will be assessed on the difference between that required for the proposed use, and that of the previous approved use.

18 In the councils Policy on Tennis Courts of June 1986 under the heading of amenity, states that in an effort to maintain and improve the existing amenity and environmental character of the area and the relationship and impact upon adjoining development the following must be considered. * Courts shall be a minimum of 3 m from the side or rear boundaries and 5 m from any habitable area of any dwelling on adjoining property * Applicants are to note that the use of tennis courts for any purpose other than normal domestic usage is prohibited by the Ku-ring-gai Planning Scheme Ordinance.

19 The provisions for lighting of private tennis courts notes that council will not approve lighting of a private tennis court for night play.

Evidence and Submissions 20 On behalf of the applicant evidence was given by Mr N Juradowitch consultant town planner; Mr P McLean, lighting consultant; and Mr B Clarke, acoustic engineer. For the respondent council evidence was given by Mr S Cooper, acoustic engineer; Mr B Martin, lighting consultant; Mr C McLaren, traffic engineer; and Mr S Harding, consultant town planner. The Court also had the benefit of joint reports and concurrent evidence at the hearing. 21 The Court met on the site first day of the proceedings and heard from a number of residents who reside in properties in Arnold Street and Locksley Street, Killara. The Respondent also provided copies of the written submissions received in respect of the notification of the development. 22 The concerns of residents include the intensification of the use of the tennis courts 7 days per week by the provision of lighting for tennis to be played at night. The residents are concerned that the site will present as a floodlit stadium, which will intrude into the residential amenity of the area. While they have lived in the vicinity of the tennis court, some for more than 40 years, they accept that the activities of the tennis court during daylight hours is part and parcel of the living environment. However, they are opposed to the installation of lights for night-time tennis. 23 Another issue raised by the residents is that there is no on-site parking for the tennis facility, and that parking in the street, in particular Arnold Street, will create noise when people leave the tennis courts, and this could be between 10 pm and 12 midnight. Associated with parking in Arnold Street, concern was expressed about cars parked in the street using the driveways of the Arnold Street properties to be able turn around.

24 Concern was also expressed about the visual impact on the streetscape and the poles to accommodate the lights being out of character with the residential area and that the 17 poles and with a height of 8 m with light structures would be incongruous in the streetscape.

25 Noise generated by players on the tennis courts and the use of ball machines was also raised as of a concern because of the fact that in the still of the night noise is magnified and this is out of character with the leafy quiet residential area. Concern was also expressed by the residents that the additional numbers of people generated by night-time tennis would lead to many people and lots of noise, and that this would completely destroy the pleasing residential amenity of the area.

26 The impact of night-time noise on health and the lack of sleep, in particular for shift workers, was also raised and the proximity of the tennis courts and club facility to the rear boundaries of the properties that have frontage to Locksley Street. Exhibit 2 contains copies of objection letters received by the council against the proposal including a petition in favour of the proposal. The objectors consider the proposal is inconsistent with the council's policy for the lighting of tennis courts.

27 Tennis courts numbered 3, 4 and 6 adjoin the rear boundaries of numbers at 11, 15, 19 and 21 Locksley Street. The dwelling house at number 19 Locksley is set back approximately 3.5 m from court 4; number 15 is set back approximately 12 m from court 6; and number 11 approximately 20 m from court 4. Traffic Issue 28 The council raised the issue of traffic and parking that would result from the use of the tennis courts until 10 pm at night, and the fact that a traffic and parking study had not been prepared. Mr Juradowitch and Mr McLaren conferred on this issue and agreed that the impacts of the parking should be calculated on the basis of the council's code that requires 3 spaces per court and that this equates to 12 cars in the street generated by the use of the tennis courts of an evening. They agreed that at 5 pm that approximately 50% of the vehicles generated can be accommodated along that the frontage of the tennis courts with Arnold Street and 90% could be accommodated within 123 m of the frontage.

29 The experts commented on the other activities that may be conducted within the clubhouse. That is, the bridge club attracts approximately 15 people and trivia nights 30 to 35 people and parties and other functions 45 to 50 people with a maximum of 60 persons in the clubhouse at any one time. Mr McLaren states that activities that attract more than 30 people in the clubhouse should not occur concurrently there is night tennis on more than 12 occasions per year. 30 The night-time competition is proposed for 3 nights a week until 10 pm and the competition is structured in such a way that the matches start at 7 pm and finish at 10 pm with 4 players per court with the same players rotating between courts. It was submitted that normal competition play does not attract spectators, that is non-playing visitors and any such spectators/visitors would be travelling in the car of a competition player. For social tennis of an evening this would generate on average 4 to 6 players per court with a parking demand for 14 cars.

31 Mr McLaren undertook a parking survey along the Arnold Street frontage and the result is a capacity of 17 cars. However, between 6.30 pm and 7:30 pm only 8 spaces are available. He notes that traffic conditions along Arnold Street are best described as light during the survey with a total of 21 cars recorded over 2 x 15 minute periods after 7:45 pm.

32 Mr Juradowitch is of the opinion that the maximum parking demand and traffic flows occur in Arnold Street during the morning Monday to Friday peak hours, and that Arnold Street and adjoining streets cope adequately with these traffic flows and parking demand. He is of the opinion that traffic flows in Arnold Street are lower than the morning peak hours at the time that tennis players would be arriving for night-time play, generally after 5:30 - 6 pm. In his opinion there would also be increased parking availability at these times due to commuters beginning to leave the area after 4:30 pm and hence adequate on street parking to accommodate cars associated with the proposed use of four courts for night-time tennis.

33 Mr Juradowitch notes that the parking survey provided with the development application indicated that in the evening after 7 pm at least 30 on-street car spaces are available in Arnold Street, unless there is an evening activity at the nearby church or bowling club. He is of the opinion that commuters will have departed by the time players arrive for the night tennis, and there would be no difficulty for players locating a parking space on street within a reasonable walking distance of the courts.

34 Based on his experience as a traffic engineer and car parking demand for on-street parking, Mr McLaren suggested provisions be incorporated in the plan of management. That is 30 as the maximum number of persons associated with the night tennis and it is also reasonable in his opinion to restrict concurrent activities and functions in the club-house to 12 per year when they attract 30 persons or more if night tennis is also taking place. He also recommended provisions for people leaving the area in a quiet manner. Findings On Traffic And Parking 35 I have assessed the impacts of the night tennis, and the traffic and parking demands generated, in particular in Arnold Street. From the evidence of the experts, I am satisfied that the parking demand generated by the night tennis of 12 to 14 vehicles can be accommodated in reasonable proximity of the site given that the peak parking demand of commuter parking during the daytime does not coincide with that of the night-time tennis. Although I recognize that there may be a certain degree of overlap from time to time but from the expert evidence the demand for commuter parking generally does not coincide with the night tennis demand. 36 I accept Mr McLaren's recommendations for the plan of management to maintain the residential amenity of the area, including maximum numbers of people and for players leave the area in a quiet manner. I also accept his opinion that a condition be imposed to limit the number to 12 occasions per year in the clubhouse when numbers exceed 30 when these coincide with the use of the courts for night tennis. 37 In my assessment the proposal is an intensification of the use and there is a clear nexus for appropriate conditions to have regard to and limit the activities on site while ever the courts are in use after sunset. In this regard the night tennis must be assessed in the context of the overall operation and functions of the club for other activities if and when these coincide with the night tennis. 38 Development applications for an extension or intensification of existing uses must be assessed against the whole operation of the site to have regard to any potential cumulative environmental impacts on adjoining properties, and not assessed on a piecemeal basis. In my assessment, this does not unreasonably limit the existing use rights enjoyed by the club and there is a clear nexus between the night use of the courts and a limit on the total number of people that can use the club facilities at the one time. Noise 39 Mr Cooper and Mr Clarke provided statements of evidence and a joint report, as well as providing concurrent evidence to the Court. 40 The acoustic engineers agree that a review of the predictions of tennis noise at the rear upper windows of residences in close proximity indicate compliance with established noise criteria. From Mr Clarke's attachment C the results indicate compliance with a background +15 dB sleep disturbance criterion in the evening period. 41 The acoustic engineers also agree that as a consequence of the intrusive criterion established it is considered that group tennis lessons or the use of ball machines should not be permitted after 6 pm in the evening.

42 The experts agreed that the average background level of noise is marginally higher in the evening than the daytime, and this is attributed to the noise associated with the Pacific Highway. It was agreed that measurement of evening competition tennis conducted at the Naremburn Club, which is the same surface as the Killara tennis courts, is appropriate because there is no evening competition at Killara. The noise levels from Naremburn includes noise from tennis play and people noise on the court, based on 4 persons playing competition tennis on each court. 43 Mr Clarke conducted noise measurements of tennis play on courts with the same surface courts at Naremburn. The measurements of continuous tennis noise levels were measured, in addition, maximum noise levels associated with tennis play were measured. The total noise generated by tennis play is a function of noise from a number of sources which were observed to consist of: * ball/ratchet noise; * ball/net noise; * balls/court noise * foot noise; and * player conversation and exclamation noise. 44 The experts generally agree the proposal meets the acoustic criteria of background plus 5dB with the exception of a small incursion into the front gardens of two residences in Arnold Street. The difference between the experts, however, was revealed in the concurrent evidence for the first time where Mr Cooper considers that there should be an adjustment for an impulsive noise factor of the ball hitting the racket. Mr Clarke, however, states that the maximum noise would be from the exclamation of players and that there should be no impulsiveness factor applied for sporting activities and the standards do not require a factor for impulsive noise. The experts agreed that the DECCW noise guide for local government does not identify how a correction factor for impulsive noise is to be allocated but provides a maximum correction of 5dB, if the noise is found to be impulsive. 45 Mr Cooper considers that people calling out will not fit impulsive noise but the hitting of the tennis ball is the impulsive component. Mr Clarke considers the hitting of the ball against a tennis racket is not like either industrial noise or the hitting of a ball against a wall and no correction for impulsive noise is required.

46 The noise guide for local government, in part 2 defines offensive noise as depending on the type of noise under consideration and that noise can be considered as offensive in 3 ways: according to its audibility; duration; and inherently offensive characteristics. Offensive noise is defined in the dictionary of the Protection of the Environment Operations Act 1997 (POEO Act) as noise: a. that by reason of its level, nature, character or quality, or the time at which it is made, or at any other circumstances (i) Is harmful to or is likely to be harmful to a person who is outside the premises from which it is admitted; or (ii) Interferes unreasonably with or is likely to interfere unreasonably with the comfort of repose of a person who is outside the premises from which it is admitted; or b. that is of a level, nature, character or quality prescribed by the regulations or that is made at time, or in other circumstances, prescribed by the regulations.

47 Appendix 2 to the guide is reproduced from the New South Wales Industrial Noise Policy with minor modifications. This states that: "where a noise source contains certain characteristics, such as tonality, impulsiveness, intermittency, irregularity or dominant low frequency content there is evidence to suggest that it can cause greater annoyance than other noise at the same noise level. ... This section outlines the correction factors to be applied to the source noise level at the receiver before comparison with the intrusiveness criteria to account for the additional annoyance caused by these modifying factors".

48 The table says that impulsive noise is applied "if difference in a weighted maximum noise levels between fast response and impulse response is greater than 2dB(A). The correction is to apply the difference in measured levels as the correction up to a maximum of 5dB and this is characterised by a short rise time of 35 milliseconds and decay time of 1.5 seconds".

49 Impulsive noise is defined as "having a high peak of short duration or a sequence of such peaks". POEO Act and the Protection of the Environment Operations (Noise Control) Regulation 2000 provide the legal framework and basis for managing unacceptable noise. 50 The guide provides a checklist of considerations for an offensive noise test. The experts carried out the questionnaire and agreed that: the noise is not loud (question 1); it occurs often (question 5); and a number of persons are affected (question 6). In response to question 2 on characteristics Mr Cooper says fluctuations in levels will make it irritating whereas Mr Clarke said this may be perceived by some as irritating. On question 3 "Does it occur at times people expect to enjoy peace and quiet?" Mr Cooper responds yes and Mr Clarke comments "yes, it will occur in the evening however it has been determined that sleep should not be disturbed". Mr Cooper also considers the noise is atypical of the area and Mr Clarke responds to this question 4 in the negative.

51 Mr Clarke observed that the player activities typically generated the maximum noise levels associated with tennis. Therefore, based on these observations he concluded total noise from tennis is not impulsive. In addition, he noted that the noise from tennis play does not exhibit the characteristic of impulsive noise as defined above. Therefore, Mr Clarke considers that an impulsive correction is not applicable. The residents in their evidence are generally concerned about the increased noise of players and this is consistent with the noise measurements of Mr Clarke at Naremburn where the exclamation of players was noted.

52 Mr Cooper agreed that follow up testing after the night tennis has commenced could be imposed by a condition to require independent acoustic testing with a report to council to ascertain compliance with conditions 22 and 23, and in the event of non-compliance recommendations from the acoustic engineer to address such non-compliance with further testing required. He assisted the Court by drafting such a condition. Findings on acoustic issues 53 The main area of disagreement between the experts is whether an impulsive noise factor should be added. From the evidence above, on this occasion, I am persuaded by the evidence of Mr Clarke that it is not a requirement and it is inappropriate for an impulsive noise factor to be added for night tennis and this is confirmed by his measurements carried out for the Naremburn night tennis where the activity does not have the characteristics of impulsive noise as defined above. 54 I am therefore satisfied in my overall assessment that the proposal generally complies with the relevant acoustic criteria and subject to acoustic conditions to maintain residential amenity this contention would not warrant refusal of the application. The conditions require compliance with the standard relevant noise criteria and an additional condition for post development monitoring is also imposed. Lighting 55 The lighting experts to the proceedings, Mr Barry Martin engaged by the council and Mr Peter McLean for the applicant prepared statements of evidence and a joint report and further assisted the Court by providing a joint report on the level of indirect light on the adjoining residential properties in both Arnold and Locksley Streets with different screening and without light barriers/screens.

56 The lighting experts agreed that the Australian Standard 2560.2.1 is the appropriate standard to be applied for the installation of lighting for outdoor tennis courts. They also agreed that the level of lighting as detailed in the development application that is the Spectra Tennis Ace lights are appropriate for club and competition tennis. I note that this is the specification of lights that has been used in the modeling results.

57 The Australian Standard AS4282-1997, it was also agreed should be fully complied with. This relates to the control of the obtrusive effects of outdoor lighting, and is the only Australian Standard that covers spill lighting.

58 Both experts agreed that the only conceivable method of retaining the necessary level of lighting on the court for night tennis and further reducing the impact of the lighting at night would be the introduction of screening. As such further modelling was undertaken during the proceedings and the results are provided below.

59 The Spectra Tennis Ace fittings use 1000 watt metal halide lamps.

60 A number of terms used by the experts were defined in Mr McLean's report and relevantly include: Illuminance - is a measure of the amount of light that falls onto a surface. It is the total flux falling on an area divided by the area. The larger the area that the flux is spread the lower the illuminance. Illuminance is measured in Lux (lumens per sq m) when the physical size of the light source is small with respect to the viewing distance then the illumination level reduces proportional to the square of the distance. This is called the inverse square law. This means that if the distance from the source is doubled, the illuminance is reduced to a quarter.

Illuminace is the parameter that is usually measured with a light meter. Luminance is the light that leaves a surface. The luminance of the surface will depend on the illuminance is on the surface and the reflection characteristics of the surface.

The two extremes of surface reflection characteristics are specular and diffuse. A specular surface is mirrorlike in that the light is reflected only at the opposite angle to the incident light. A diffuse surface on the other hand absorbs the light, irrespective of the direction of the incident light and then you emits the light equally in all directions.

Light that falls onto a surface is either reflected or absorbed. For a diffuse surface, the colour of the surface will determine the proportion of reflected light. If a surface has a reflectance factor of 20%, then 20% of the incident is reflected and 80% is absorbed.

61 Australian Standard -- AS4282-1997 control of the obtrusive affects of outdoor lighting sets different limits for the different ambient lighting conditions at different times of day. The Standard identifies 3 ambient lighting conditions: * Commercial areas or at boundary of commercial and residential areas. * Residential areas - light surrounds * Residential areas - dark surrounds. 62 The difference between the two residential classifications is based on the level of street lighting abutting the property. Residential streets are classified as dark surrounds while arterial and sub arterial roads are classified as light surrounds.

63 In addition, there are pre-curfew and curfew conditions. The curfew limits apply to lighting installations that are operating after 11 pm at night. The curfew limits are lower levels and are applied at the windows of habitable rooms, whereas the pre-curfew limits are applied at the residential property boundary.

64 There is a provision in the standard that if the installation complies with the curfew limits then it is deemed to comply with the pre-curfew limits.

65 Based on the street lighting in the area Mr McLean considered that the dark surrounds is the appropriate ambient conditions, and this is the most stringent requirement and takes into account that Arnold Street is a minor residential street. He considers that the pre-curfew category is the appropriate timeframe given that the lights will not operate after 10 pm. This sets the maximum vertical direct illuminance standard measured on the property boundary at 10 Lux.

66 In Mr McLean's statement, to which Mr Martin agrees, the Australian Standard AS4282 was written specifically with this type of application in mind. The Standard is the best tool available for measuring what is reasonable with respect to spill light. The Standard has been adopted with a few minor amendments as International Standard on the limitation of the effects of obtrusive light for outdoor installations.

67 There are two components in any lighting installation as explained by Mr McLean: the direct component of the light that is emitted directly from the light to the measurement point; and the indirect or reflected component, which is the light that is reflected off the other things in the field of view

68 The standard acknowledges that the only direct component is being considered and has therefore set the limits in proportion to the direct component, rather than the combined direct and reflected light component. Mr McLean states there is an awareness in the standard of the presence of reflected light, but confines the compliance to the direct illumination to have a system that was definitive and could therefore be enforced.

69 Nonetheless Mr McLean measured the combined reflected and direct light levels, because the council specifically requested same. The reflectance factor used in the calculations was 35% and the surface was assumed to be diffuse. 70 Mr McLean is of the opinion that it is not our role to predict whether a future edition of AS4282 will or will not include reflected illuminance or whether the limits will be increased to compensate. If reflected light was included there would be an effective reduction in the limit if the numerical value was to remain the same in his opinion. He states that if you use the numerical values in the Standard, but redefine the parameter and the method of calculation then you are not asking for compliance with the Standard but with a specific standard developed for this assessment. On that basis, he says that there is no established criteria of acceptability for reflected light and comments that: "light can reach the eye of an observer either directly from a lamp or indirectly by reflection of surfaces. It is usually quite a simple task to effectively and comprehensibly eliminate the direct lighting component. A well-designed fitting will cut-off the light almost completely beyond a specific angle. Reflected light, however is much more difficult to eliminate". 71 Mr Martin states: that the Australian Standard, is a first attempt at limiting the obtrusive and annoying effects of lighting. This Standard considers only the direct lighting component and ignores the reflected component. It does so not because the latter is unimportant, but because reflected light is a much more difficult item to quantify. The Standard recognises in its forward that a standard for the obtrusive effects of reflected light needs to be developed. Unfortunately, 13 years later the proposed standard is still not available because of the difficulty of the task. The absence of a standard however should not be mistaken for consent to ignore the reflected light. It is unlikely that the recommended maximum values for obtrusive light will remain the same as for AS4282 when reflections are finally included. This maximum value was chosen because of the annoyance generated. The human threshold of annoyance is not likely to change and it is an incorrect assumption that once the standards committee has determined best how to deal with reflection calculations the threshold should be increased to allow incorporation of this added illumination. A more reasonable assumption would be that the two combined sources should still fall below the level deemed to annoy people.

72 Mr Martin and Mr McLean jointly inspected the site after the hearing commenced to do a further analysis of reflected light. At this time they measured the average reflectance to be 32%, which is consistent with the reflectance of 35% used in Mr McLean's previous modelling submitted to the Court on reflected illumination.

73 The experts together in exhibit 16 carried out an analysis of various options for screening to provide light barriers. The lighting models were modified to investigate the effect of providing screening on the court fences. The analysis was not carried out to the case for direct light only as the screening will have negligible effect. The illumination plane for comparison, was taken as the plane of the windows of the various residences.

74 With no screens in place and only the existing fences, the maximum vertical illuminance values on some of the facades are as high as 7 lux as shown below. 11 Arnold St 4.8 lux 15 Arnold St 4.9 lux 21 Arnold St 3.6 lux 11 Locksley St 5.0 lux 15 Locksley St 7.0 lux 19 Locksley St 3.6 lux 21 Locksley St 4.6 lux

75 The experts also modelled the scenario of full-screening on the north and western sides and intermediate screening between the courts and a 1.5 m screen above the retaining wall facing Arnold Street (approximately 2.5 m above the court surface) the maximum vertical illuminance values are significantly reduced so that all residents on Arnold Street are at 1.2 lux or below whereasthe Locksley residents that are affected are No. 11 - 2.5 lux; No. - 15 2.8 lux; No. 19 - 1.4 lux; and No. 21 - 1.3 lux.

76 They further investigated, what screens would have a minor effect in the amelioration of the spill light and recommended deletion of unnecessary screening.

77 With the screen to Arnold Street reduced to 1 m above the retaining wall (2 m about the court surface) and screens 1c 4a 4b and 4c removed the maximum vertical illumination values rise as shown in the table 2 below, and as can be seen the effect of the removal of these screens is minor. 11 Arnold St 2.1 lux 15 Arnold St 2.2 lux 11 Locksley St 2.45 lux 15 Locksley St 2.9 lux 19 Locksley St 1.4 lux 21 Locksley St 1.4 lux

78 If the screens are changed from an opaque material to 50% transmission material then there is some further increase in the vertical illumination values, though relatively small compared to the no screens, unobstructed view. In addition, the height of the screens 4 and 5 have been reduced to 1.5 m. Based on these alterations, the maximum vertical luminance values rise as shown in the table below. 11 Arnold St 2.7 lux 15 Arnold St 2.8 lux 21 Arnold St 1.9 lux 11 Locksley St 3.5 lux 15 Locksley St 3.5 lux 19 Locksley St 2.6 lux 21 Locksley St 2.2 lux

79 For the use of a screen with a transmission factor of 50% selected and the type of fabric shade cloth described in the appendix, they agreed that it should be a relatively dark colour as this will assist the vision through the screen while reducing the illumination effects. 80 All of the calculations do not include any allowance for the influence of existing trees, which would reduce the actual vertical illuminance in some locations. 81 The Australian Standard notes, under assessment of compliance, that when evaluating a proposed lighting installation for compliance consideration should be given to the existing obtrusive light, and if there is already a significant obtrusive light the designer of the installation should endeavour to achieve values of light technical parameters that are well within the recommended limits. It is agreed that the site is located in what is regarded as dark surrounds. The Standard further states that "if there is likely to be a significant addition to the vertical luminance as a consequence of reflected light the designer should endeavour to achieve values that are well below the recommended maximum". The assessment procedure in the Standard also directs one to look at the hours of operation up to a preset or curfew time and switch off no later than 11 pm. The recommended maximum values of light technical parameters to the control of obtrusive light is set out in table 2.1 of the Standard. The pre-curfew standard for residential areas with dark surrounds at the boundary is 10 lux and the values given after the direct component of luminance. 82 The Australian Standard contains a note headed review of Australian Standards: "to keep abreast of progress in industry Australian Standards are subject to periodic review and are kept up to date by the issue of amendments or new additions as necessary. It is important therefore that standards users ensure that they are in possession of the latest edition and any amendments thereto ...

Suggestions for improvements to AS are welcomed. Notification of any inaccuracy or ambiguity found in an Australian Standard should be made without delay in order that the matter may be investigated and appropriate action taken."

83 Mr Martin is of the opinion that the Australian Standard for control the obtrusive effects of outdoor lighting was made in 1997 and at that time, reflected light was more difficult to measure. However, the Australian Standard has not been updated and I am not persuaded that an arbitrary number should be factored in as a subtraction and an addition to the Standard. At the same time the evidence of the experts is that there should be a component for reflective light, and I am satisfied that the proposal is still satisfactory having regard to an element of reflected light. At the same time as indicated above, the provision of screening means the proposed lighting can operate well within the maximum lux of the Standard with an additional allowance for 35% reflectivity.

Assessment Of Lighting Contention. 84 The installation of the proposed Spectra lights as described in the development application has been comprehensively assessed by the experts and they also assisted the Court by carrying out further modelling. I appreciate that residents may not always embrace change and the installation of the lights will create a change in the night-time environment for the residents, in particular those that reside in Arnold Street and Locksley Street. The question for the Court is whether this change is reasonable or not. 85 In assessing the development application before the Court I am guided by the judgment of Preston CJ in Telstra Corp Ltd V Hornsby Shire Council [2006] NSWLEC 133. This judgment was in respect to the Australian Standard for the emission of radio frequency electromagnetic energy, and the effect on public health and safety. His Honour states: 98 It is not appropriate for a court to set aside or disregard such an authoritative and scientifically credible standard as the Australian Standard RPS3. 99, nor is it appropriate for a court to pioneer standards of its own. The creation of new standards is the responsibility of other authorities with special expertise ... 101, the Australian Standard RPS3 embraces a precautionary approach. The exposure limits set are conservative relative to the scientific evidence on biological effects of exposure to RF fields. There are margins for safety in the basic restrictions and associated reference levels. The reference levels are based on worst case assumptions. 197, the concerns expressed by the residents in that particular case on RFEME emitted from the proposed base station do not relate to intangible matters. Rather, the concerns relate to matters which are capable of measurement and testing against established standards to see whether the concerns are justified. Testing against the relevant Australian Standard RPS3 proves that concerns are not justified. 198, in these circumstances little, if any, weight can be given to the residents' perceptions. This has been the consistent conclusion of other courts and tribunals which have determined other cases involving unsubstantiated community perceptions of adverse effects on amenity from exposure to RFEME from a proposed development. 199, there is a broader policy reason for the court making its determination on the basis of reason and substantiated evidence. As Galligan notes, "A basic aspect of rational action is that facts on which decisions are founded should be supported by good evidence. Unless there is a substratum of objective evidence for the reasons and policies acted on, discretionary decisions are liable to the charge of arbitrariness." 86 From the above authority the Australian Standard is the central focus for my assessment of the application. However, the experts differed in their interpretation and application. The numeric values in the Standard must also be considered in the context of the discussion provided in the document. The description of what is included in the numeric standard is that this relates to direct light, however, it also refers to an element of reflected light. 87 From the evidence there is no issue that the numeric standard for the post-curfew that is after 11 pm is complied with, as the proposed hours of operation are until 10 pm. The experts differed however and did not agree on whether one should factor in for an allowance for more reflective indirect light or whether the absolute numbers should be increased, or the lux value attributed at the windows or the boundary of the properties was also discussed.

88 It was submitted on behalf of the applicant "the respondent was trying to have its cake and eat it too". That is impose a double standard of measurement at the boundary when in fact, the proposal complies with the numeric standards for pre-curfew and that the curfew values should be at the face of the building and not on the boundary. 89 With the benefit of the additional modelling undertaken by the experts and the provision of a screening fabric at various heights I have determined that while the standard is complied with in the absence of any screening at the same time it would not be an onerous requirement on the applicant to provide screens. According to the expert evidence, this would significantly ameliorate the reflected light from the surface of the tennis courts. The last table above shows that this can be achieved with 50% transmission fabric and there is a considerable improvement in reducing the amount of reflected light received by the residential properties on the opposite side of the road in Arnold Street, and also for the properties in Locksley Street. 90 On balance I have decided that this contention would not be a reason to refuse the application. However at the same time the ameliorative effect of the screens on reducing the reflected light is appropriate in the circumstances of this case. While the applicant's preferred position is for no screens I also note the respondent's position that in the event the Court is minded to approve the application then some form of screens would be preferred, although the respondent expressed concern about the details. Based on the joint evidence in Exhibit 16 in my determination it is not unreasonable to require screening in circumstances where this is not a burden on the applicant and given the ameliorative effects.

91 As such, I have determined that the details of the screening is to be submitted to the council for its approval on the basis of the specifications provided by the lighting experts as set out in the supplementary report of Exhibit 16, the last table above. That is a 50% maximum transmission fabric of a relatively dark colour equivalent or similar to that shown in exhibit 16. This is to be a deferred commencement condition and on the satisfaction of this condition the consent may then operate. Town Planning evidence 92 Mr Juradowitch and Mr Harding provided a joint report. They agree that the fundamental difference in their positions is, what are the acceptable amenity impacts. One measure is the technical expert evidence that relates to the lighting, acoustic and traffic and parking. The other measure is the extension or intensification of the use and whether or not the club operation should be extended from daylight facility to a night and day facility. 93 Mr Harding says it should be assessed against the character of the area and the level of amenity currently enjoyed outside the current operations and that the change to full-time night and day operation is unacceptable, irrespective of whether there are periods when the operation would meet technical levels of acceptability. In contrast, Mr Juradowitch says that technical measurements of noise and light impacts inform the amenity assessment process and where Australian Standards apply can provide standards that are deemed acceptable. Where technical compliance is achieved in his view it would be unreasonable to argue that in such circumstances an unreasonable amenity impact occurs.

94 Mr Harding is concerned that lighting up the environment results in unacceptable changes to the level of amenity and changes to the character of the area and that fundamental change from a seasonal operation limited to daylight hours to an all round facility. Mr Juradowitch notes that the existing use of the tennis courts is a year-round activity with the only seasonal influence being that play finishes later in the summer compared to winter. He does not accept that the proposal is a fundamental change but rather an extension of hours representing less than 25% increase in the amount of tennis court hours played over 12 month period.

95 Mr Harding states that there would be a significant increase in associated impacts such as increased traffic and increased parking issues, whereas Mr Juradowitch is of the opinion that the increasing traffic and parking is not significant and is well within the capacity of Arnold Street. As at the time night use of the tennis courts commences existing commuter parkers in Arnold Street are departing, and by 5.30pm there is ample on-street parking available near the tennis courts. 96 Mr Harding considers that changes to the lighting of the area at night will have impacts on amenity and character beyond that which is acceptable, and similarly he considers that whether or not resulting in significant acoustic impacts as measured technically it is an undesirable increase in exposure from the court day and night usage. Mr Juradowitch on the other hand considers that the adequacy of the acoustic assessments should be a matter of the acoustic experts. He further considers that the current use of the tennis courts over the last almost 100 years does not represent an unreasonable residential amenity impact and that the additional hours of use will not result in unreasonable extension of existing impacts on the basis that play on the courts does not occur in the noise sensitive hours of 10 pm to 7 am, when sleep disturbance may be an issue. He comments there are many tennis courts in residential areas that operate satisfactorily and for example, the council approved lights at the Roseville Tennis Club adjoining residential properties.

97 Mr Harding in considering council's Tennis Court Policy that the proposal is more significant than a backyard court and the potential impacts resulting from the proposed night use would be exacerbated. Mr Juradowitch on the other hand considers councils Tennis Court Policy is not applicable, but rather applies to backyard courts used in conjunction with dwelling houses and that the courts proposed for lights do not extend alongside and close to neighbouring dwellings as is the case with typical backyard courts.

98 Mr Harding considers that the immediate area has a well-defined residential character with associate high levels of amenity and that this is particularly the case after sunset when the 2 non-residential uses are no longer operating outdoors. Mr Juradowitch considers the streetscape of Arnold Street is of a mixed character being predominantly residential on the southern and south-east side and predominantly non-residential on the north and north-west side and that 60% of the street frontage on the tennis courts side of Arnold Street comprises non-residential development. In his opinion the proposal is not contrary to the visual character of Arnold Street west of Karranga Avenue.

99 Mr Harding considers that the light poles of 8 m in height will be prominent in the visual catchment and result in unacceptable visual impacts when lit. Mr Juradowitch acknowledges the light poles will be visible but given the current use of the site as tennis courts, it is not incongruous or unacceptable that a tennis court complex contains lighting poles of the type and height proposed. The tennis courts along the Arnold Street frontage are lower than the footpath level which assists in mitigating the perceived height and just as electricity poles and streetlights in the locality may be considered to detract from visual amenity these facilities become subsumed into the streetscape and character of the area. Similarly, the court lighting poles will also.

100 On the supplementary lighting report concerning screening Mr Juradowitch comments that a dark colour cloth screening with a 50% transmission level would allow good views of the courts during the day from surrounding residences and this would be preferable to an opaque style cloth. He also notes that the tree canopy in Arnold Street would assist in reducing light and he considers the screens to Arnold Street be limited to a height of not more than 1 or 1.2 m about the footpath, typical of front fences in the locality. 101 Mr Harding considers that the proposed screen should take on the appearance of a more permanent structure that complements or reflects the quality of construction fencing in the area. He does not agree with 50% open shade cloth which would make courts in his opinion look like a fence for a construction site. He states that in the absence of details demonstrating how the fencing might work he has concerns about the overall appearance and the ongoing maintenance of shade cloth type fencing and his concerns about the light levels remain with this form of screening.

102 Mr Harding is of the opinion that the provision of lighting to facilitate night-time tennis would effectively allow a commercial operation to intrude into the residential amenity of the surrounding area. Mr Juradowitch states that the extent and location of mature trees within Arnold Street, combined with the lower level of the tennis courts means that the light poles in Arnold Street will not be readily seen, and from the majority of locations there will be minimal to no visual impact to residents. He further comments that from outside of the site, the poles are viewed against the backdrop of the foliage of trees. 103 On the question of reflective nights, Mr Juradowitch states "virtually any night-time use of sporting facilities and fields would be prevented if reflective light is given significant weight in terms of residential amenity. Council has approved floodlights and the like of the more visible nature on sporting fields located in residential precincts".

Findings 104 Based on the evidence I have found that the proposal should be approved subject to conditions. I accept that the Australian Standard is relevant and must be complied with. The proposal complies with the Standard, and this is agreed to by both parties experts. The area of disagreement is with respect to reflected light and while there is no separate standard for reflected light at the same time the Standard includes a proportion of reflected light. The role of the Court is to assess whether the impacts from the lighting are reasonable or unreasonable. 105 The Respondent acknowledges in its Statement of facts that the Tennis Court Policy and other controls are a guide only because the use has the benefit of existing use rights. While the site enjoys existing use rights, at the same time, the proposal is an intensification of the use, by virtue of the longer hours and the impacts on the surrounding residential area must be considered and assessed on its merits under s79C of the EP&A Act.

106 The supplementary report of the lighting experts and the amelioration of the screen option clearly demonstrates that screening of 1 m above the retaining wall on Arnold Street and full screening for courts 4 and 6, that share a common boundary with the Locksley Street properties, will significantly reduce the reflected light. In my assessment the screening is not an unreasonable requirement to minimise the impact on the surrounding residential properties. Conditions are often imposed even where impacts may not warrant refusal but where the ameliorative measures can demonstrate an increased level of amenity for the surrounding area. 107 It was submitted on the half of the Council that the proposed conditions 11 to 14 do not provide sufficient detail, and Mr Harding expressed concern about the appearance of shade cloth type fencing and the ongoing maintenance of same. The Council does not in principle oppose a deferred commencement conditioned in lieu of conditions 11 to 14, however It was further submitted that in the absence of some appropriate specificity, the condition would be unacceptable and uncertain. 108 The respondent further submitted that as a matter of principle there is no reason why in lieu of conditions 11 to 14 these could not become deferred thereby allowing the applicant to submit a careful proposal for shade cloth to the council for its consent before the consent could operate. The applicant was invited to draft a deferred commencement condition, however, this has not been forthcoming, but on the basis of the submission made for the respondent I have used conditions 11 through to 14 as a basis for the deferred commencement conditions in Part A. I am satisfied that this provides for certainty in the planning process and a plan to detail the screens with appropriate elevations is to be provided to the Council for the approval of the Council's Director of Planning and these details and plans are to be generally in accordance with that provided by the applicant during the proceedings, which also nominates the quality of the shade fabric to be utilised. 109 I do not agree with Mr Harding that the tennis court complex will look like a construction site with the shade cloth. For greater certainty in terms of the maintenance and repair of the screening, a condition in the operational conditions to this effect has also been imposed such that the applicant must maintain the screening in a good state of repair to ensure that the visual amenity and character of the area is not adversely impacted. Shade fabric is not an unusual feature for sporting facilities and venues, in particular for tennis courts and its visual impact would not warrant refusal of the application. 110 During the proceedings, since the development application was submitted to the Council, there have been a number of changes and additional information provided. This includes: the number of nights to 10pm has been reduced to four, Monday to Thursday, with the other nights to 8.30pm, the activities; and the parking requirements generated by the overall operation of the tennis court and club facilities combined have also now been assessed. 111 It was submitted for the applicant that conditions should not be imposed on other activities currently carried out in the clubhouse, because they enjoy existing use rights. In my assessment, it is appropriate, where there is intensification proposed that the Court have regard to the functioning of the whole of the operation. In this regard, I accept the conditions proposed by the council that the functions/ activities in the clubhouse be limited while night time tennis is in progress. 112 From Mr McLaren's evidence on-street parking is available for night time tennis, but clearly where this coincides with large functions, in my assessment, it may create amenity impacts for the adjoining residential properties in Arnold Street. For example, it would be futile to impose a maximum number of people that attend night tennis and then to ignore other activities in the clubhouse that may coincide or that are concurrently operated with the night tennis. Therefore I have imposed as a condition of consent, as well as in the Plan of Management, for a maximum of 12 functions a year with 30 or more people when these occur concurrently with the night tennis.

113 The other additional condition relates to the one recommended by councils expert on noise that is for a follow-up compliance acoustic testing and this is imposed as condition No. 26. 114 I have also considered that it is appropriate to insert in the Plan of Management the requirement for a register of complaints, such that the club is responsible for maintaining same and the action taken to address concerns of residents. The register is also to be available for council inspection. This will also provide a basis and mechanism for the applicant to seek amendments to the Plan of Management as may be required from time to time in response to the concerns of the residents. 115 Accordingly, based on my assessment above the Court orders are: 1. The appeal in respect of the property known as the Killara Lawn Tennis Association, No. 8 Arnold Street, Killara is upheld. 2. The development application submitted to Ku-ring-gai Municipal Council for the installation of lights on 4 of the 6 tennis courts is determined by the granting of approval subject to a deferred commencement and the other conditions in Annexure "A". 3. The exhibits are returned to the parties with the exception of: A, J, K, M, 1, 13, 15, 16 and 18.

                  J S Murrell
                  Commissioner of the Court
                  ljr/ajl

Installation of lights for night tennis on courts 1, 2, 3, and 5.

Site : Arnold Street, Killara Applicant: Killara Lawn Tennis Club DA No. 0492 of 2009 PART A In accordance with Section 80(3) of the Environmental Planning and Assessment Act 1979 a 'deferred commencement' consent is granted and on the applicant complying with the conditions in this Part the consent may then operate in accordance with Part B. SCREEN BARRIERS FOR LIGHTS 1. To reduce the impact of reflected light on residents the applicant is to provide plans and elevations to show details of the design of screen barriers to be erected as generally described in exhibit 16 for the option of 50% transmission. The design is to have regard to the appearance as viewed from the adjoining residences, wind factors and the need to be well maintained. 2. The screens are to be of a shade cloth fabric to a transmission standard of Abshade commercial 50% as manufactured by Shade Australia, equivalent or similar. 3. The height and location of the screening is to be as follows: (a) The screening on the Locksley Street side of the courts is to be provided on the northern and western sides of the court fencing for courts 4 and 6, and the height of screens 4 and 5 is to be 1.5 metres. (b) The screening for the Arnold Street boundary is to extend along the full eastern side of courts 1, 2 and 3 to a height of 1 metre on the boundary above the existing level of the grass footpath. This is to achieve a height of some 2 metres above the surface level of the courts. 4. The above plans and details together with a colours and materials board are to be submitted to the Council for the approval of the Director of Planning, or equivalent officer, within three months from the date of the Orders of the Court. On the above conditions being satisfied the consent may then operate in accordance with Part B below.

The following conditions are applied to satisfy the provisions of section 79C of the Environmental Planning and Assessment Act 1979 and to maintain reasonable levels of environmental amenity:

1. The development must be implemented substantially in accordance with: the plan approved in Part A for the screens: the plans being Sheet 1 "Proposed Site Plan", numbered "Job No: 2", dated 30/3/2004 and received by Council on 4 August 2009 and Sheet 2 being elevations and sections (not dated or numbered) and received by Council on 19 August 2009, the application form; and any supporting information received with the application including the associated statement of environmental effects, acoustic reports and the lighting reports, except as may be amended by the following conditions: 2. Courts 4 and 6 are not to be used for any purpose after sunset when any other court is lit. 3. For the purpose of ensuring compliance with the terms of the approval, an approved copy of the plan and the Court Approval and the Construction Certificate shall be kept onsite at the club at all times. 4. The maximum number of persons, including players and others, for night tennis after sunset is limited to 30 persons on any one night. This does not include persons associated with existing separate night time use of the club house for functions and activities. However, other night time activities and functions with more than 30 persons in attendance are limited to a maximum of 12 per year if night tennis is also operating. 5. Tennis play is permitted up until 10pm every night except Friday, Saturday and Sundays. On Fridays, Saturdays and Sundays tennis play is permitted up until 8.30pm. The tennis court lighting shall be fitted and controlled by a timing device which prevents lighting of the tennis court after 10pm on all days except Friday, Saturday and Sundays when lighting must be turned off by 8.30pm. 6. For night time tennis matches the court lighting shall only be switched on, on an as needs basis, in the following order of priority:­ (a) Court 1; (b) Court 2; (c) Court 3; and (d) Court 5. Courts not required for tennis play shall not be lit. 7. To maintain residential amenity, all electrical services to the court are to be provided underground and must not disturb the root system of any trees. A licensed electrician must issue a certificate of electrical safety in relation to these electrical services at the completion of the works.

To maintain residential amenity and reduce the spectator parking space demand, night tennis spectator events are not to be advertised in anyway.

In respect of parking and to ensure residential amenity, night tennis patrons including players, support staff (coaches, umpires, ball boys/girls) and tennis spectators shall adhere to the provisions of the Plan of Management.

The overall height of the 17 lighting pole structures must not exceed 8 m above existing ground level and details of compliance are to be provided in the construction certificate plans.

In accordance with the Spectra lights specification in the development application for the life of this consent the illumination of the courts shall be no greater than as defined by AS2560.1 (Lighting for Outdoor Tennis).

The screen barriers approved in part A are to be provided in accordance with the plans and details and must be maintained in good order for the life of this consent.

The following conditions are applied to ensure that the development satisfies the provisions of the Environmental Planning and Assessment Act 1979 and Regulations:

13 The requirements and provisions of the Environmental Planning & Assessment Act 1979 and Environmental Planning & Assessment Regulation 2000, must be fully complied with at all times.

Failure to comply with these legislative requirements is an offence and may result in the commencement of legal proceedings, issuing of 'on-the-spot' penalty infringements or service of a notice and order by Council.

14. In accordance with section 80 A (11) of the Environmental Planning & Assessment Act 1979 and clause 98 of the Environmental Planning & Assessment Regulation 2000, it is a prescribed condition that all building work must be carried out in accordance with the provisions of the Building Code of Australia (BCA). 15. Prior to the commencement of any building works, the following requirements must be complied with:

a) A Construction Certificate must be obtained from the Council or an accredited certifier, in accordance with the provisions of the Environmental Planning &Assessment Act 1979. A copy of the construction certificate, the approved development consent plans and consent conditions must be kept on the site at all times and be made available to the Council officers and all building contractors for assessment. b) A Principal Certifying Authority (PCA) must be appointed to carry out the necessary building inspections. ; and

c) At least two days notice must be given to the Council, in writing, prior to commencing building works. 16. The building works must be inspected by the Principal Certifying Authority (or another certifying authority if the Principal Certifying Authority agrees), in accordance with sections 109 E (3) of the Environmental Planning & Assessment Act 1979 and clause 162A of the Environmental Planning & Assessment Regulation 2000, to monitor compliance with the relevant standards of construction, Council's development consent and the construction certificate. 17. The Principal Certifying Authority must specify the relevant stages of construction to be inspected and a satisfactory inspection must be carried out, to the satisfaction of the Principal Certifying Authority, prior to proceeding to the subsequent stages of construction or finalisation of the works (as applicable). 18. A sign must be erected and maintained in a prominent position on the site for the duration of the works, which contains the following details: * name, address, contractor licence number and telephone number of the principal contractor, including a telephone number at which the person may be contacted outside working hours, or owner-builder permit details (as applicable); * name, address and telephone number of the Principal Certifying Authority; and * a statement stating that "unauthorised entry to the work site is prohibited".

19. For the purpose of residential amenity, noise generating work carried out in connection with the installation of the court lighting and power supply operation, including deliveries of building materials and equipment, is restricted to the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and PublicHolidays: Not Permitted. The use of the following items of plant on the site is also restricted to the abovementioned hours: compressors, bulldozers, power operated woodworking machines, excavators and loaders, jackhammers, Ramset guns, concrete mixers and concrete delivery wagons, hoists, winches, welding and riveting plant.

20. Whilst work on Saturdays may be performed until 5.30pm, such work or any associated activities shall not involve the use of any noise generating processes or equipment.

NOISE EMISSION CONDITIONS: The following conditions have been applied to ensure that noise emissions from the development satisfy legislative requirements and maintain reasonable levels of amenity to the area:

21. The attached Plan of Management at Annexure B shall be complied with at all times while playing tennis after sunset utilising the lights. This details the measures to be implemented to: - ensure compliance with the relevant conditions of approval; - minimise the potential impact of the operation of the tennis play after sunset upon nearby residents; - effectively minimise and manage anti-social behaviour; - minimise noise emissions and associated nuisances including management of patrons leaving the premises associated with tennis play after sunset; - effectively manage and respond to resident complaints. This management plan shall endeavour to ensure that surrounding residents maintain their existing amenity. 22. The use of the tennis courts for tennis play after sunset, including the operation of all plant and equipment shall not give rise to an `offensive noise' as defined in the Protection of the Environment Operations Act 1997 and Regulations.

In this regard, the use of the premises and tennis courts for tennis play after sunset, the plant and equipment shall not give rise to a sound pressure level at any point on any affected premises that exceeds the background (L A90 , 15 min ) noise level, measured in the absence of the noise source/s under consideration by more than 5dB(A). The source noise level shall be assessed as an L Aeq , 15 min , 15 min and adjusted in accordance with the NSW Environmental Protection Authority's Industrial Noise Policy 2000.

23. The use of the tennis courts for tennis play after sunset shall not give rise to a maximum sound pressure level of Lmax or an L 1 , 1min .exceeding 15dB(A) above the background noise level when measured outside any bedroom window between 8pm and 7am.

24. Within 90 days of an Occupation Certificate being issued and evening competition tennis commences at full or near full capacity, an acoustic compliance test shall be undertaken at residential properties to ascertain compliance with Conditions 19 and 20. A compliance report shall be submitted to council within 10 working days of the test. The compliance testing is to be at the expense of the applicant and shall be carried out by an accredited acoustical engineer/consultant who is independent of any acoustical firms involved in the development application.

If the compliance test reveals non-compliance the recommendations of the engineer/consultant to address such non-compliance shall be carried out within 14 days and then a further compliance test shall be conducted. 25. The use of the premises for the purposes of group tennis lessons and the use of automated ball machines is prohibited after sunset.

                  J S Murrell
                  Commissioner of the Court
                  ajl

PLAN OF MANAGEMENT Evening Use of Courts under Lights

KILLARA LAWN TENNIS CLUB 8 Arnold St, Killara

Aim of Plan of Management The aim and objective of this Plan of Management is to manage the use of the tennis courts in the evening under lights to minimise potential impacts on the residential amenity of the neighbourhood, particularly in relation to the control of noise emitted from the operation of the Killara Lawn Tennis Club (KLTC) as well as manage other potential nuisances in order to reduce impacts on the amenity of the neighbourhood. KLTC wishes to continue to be a Community based Recreational Facility that lives in harmony with and respects the amenity of its neighbours, local residents and for that matter its members who are also from the above categories. 1. Implementation 1.1 Manage Noise, Traffic and Parking Signage (of appropriate dimensions) shall be erected in appropriate places within the premises to advise ' all players and spectators' that when tennis is being played after sunset under lights, the following must be adhered to:

(a) Converse quietly when out of doors; (b) Players or spectators shall not call out loudly during play in the form of exclamations, calling of scores or expressing their frustration; (c) Tennis court gates are not to be slammed; (d) The club is to provide and maintain automatic closes with rubber isolators or similar on the gates to protect disturbance from slamming of gates. (e) The upstairs balcony of the tennis club is not to be used after 8 pm when the tennis court lights are in use. (f) Park in a quiet manner and take care to open and close their vehicle doors quietly; (g) Make every effort to park their vehicles along the KLTC boundary where possible prior to parking either on the other side of the road or in front of other residences; (h) Avoid turning around into driveways of adjoining residences in a forwardly direction but rather either continue to drive around the block to exit the premises or reverse into the driveway in such a manner as to ensure that the headlights from your vehicle only face the club house facility.

A sign will also be located at the entrance to the premises requesting that visitors consider our neighbours and minimise noise when dropping off and picking up players or spectators. A sign containing the contact number of a person suitably authorised by KLTC shall be prominently displayed at the entrance to the Courts to enable residents to communicate any concerns allowing the KLTC Committee to address or respond to. 1.2 Notification of Plan of Management to Members, Staff & Visitors All KLTC Members, Staff & Visitors shall be instructed on the importance of being good neighbours and in controlling the level of noise emissions from tennis play during the evenings and the associated arrival and departure activities as well as other factors that may impact on the amenity of neighbours. This direction shall be communicated to all the Members, Staff and Visitors where possible by the following means; (i) This Plan of Management shall be emailed to all Members and Staff annually. (ii) This Plan of Management shall be contained within the KLTC's new Website for all to view. (iii) A reminder to Members shall be contained within each Newsletter issued to Members to reinforce the Plan of Management on a continual basis. (iv) The Plan of Management shall be reinforced verbally by Committee Members whenever possible; A copy of the Plan of Management will also be displayed and available at the KLTC Club house at all times. 1.3 Day-to-Day Management. The maximum number of persons for night tennis is restricted to 30 persons. (a) Tennis Play after sunset when being played under lights shall be supervised at all times by an authorised representative of KLTC. (b) Furthermore, Staff will be directed & authorised to; (i) Approach Players, Spectators & Visitors if they make loud noises or call out either during play or whilst spectating and request that they keep their voices down. (ii) Ask children if using the courts for either lessons or social play to also observe the requirements of keeping the noise levels at a low level and respecting the amenity of the neighbours. (iii) Remind all players, Spectators & Visitors to leave the premises quietly and promptly after leaving the club house in order to minimise noise disturbance to adjoining residents. 1.4 Tennis Court Lighting Hours of Operation The hours of operation of the Lighting and tennis play for the tennis Courts numbered as Court 1, 2, 3 & 5 shall be as follows; (i) Lighting to all courts shall be switched off automatically at no later than 10.00 pm on Mondays, Tuesdays, Wednesdays & Thursdays (ii) Lighting to all courts shall be switched off automatically at no later than 8.30 pm on Fridays, Saturdays, & Sundays; (iii) Tennis play will cease at 10 pm on Mondays, Tuesdays, Wednesdays and Thursdays and at 8:30 pm on Fridays, Saturdays and Sundays. Tennis court lighting shall be controlled automatically with override timer switching to ensure that they will be turned off no later than the hours denoted above. Notwithstanding the curfew times denoted above for lighting to be switched off automatically, the turning on of the court lighting shall be manually operated to ensure that they are only turned on when required for use within the approved times and not turned on when not required. For the purposes of further minimising any impact from the lighting of the courts, the court lighting shall be turned on in the following order to ensure that on occasions when a lesser number of courts are required for use, then the courts with the least impact on adjoining residents will always be those used: (i) Court 1, followed by; (ii) Court 2, followed by; (iii) Court 3, followed by; (iv) Court 5. 1.5 Concurrence with Major Functions The committee of KLTC shall ensure that no more than 12 major social functions per calendar year consisting of those which attract more than 30 persons shall be held on days when tennis is being played on the courts after sunset. 1.6 Behaviour Appropriate action that should be considered by the Committee of KLTC when moderating excessively noisy behaviour of Members, Spectators & Visitors during evening tennis play under the use of lights include (but are not limited to): a) Curtailing or Moderating behaviour associated with particularly noisy sets.; b) Restricting louder discussion to the confines of the Club House; c) Restricting the rights of persons engaging in unacceptable behaviour to participate in evening play when lights are required. 2. Register of Complaints The Killara Lawn Tennis Club shall keep a register of complaints received from residents and detail the action taken to address their concerns. This register shall be made available for inspection by council when required. 3. Variation of Plan of Management This "Plan of Management" is required by a condition of consent of Development Application number 0492/09 and can only be varied with the approval of Council. 19 November 2010

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.