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

Killara Lawn Tennis Club Limited v Ku-ring-gai Council - [2010] NSWLEC 1183 - NSWLEC 2010 case summary — Zoe

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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Decision date

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Judgment (110 paragraphs)

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Cases Cited (2)