Mohamad El Dana v Bankstown City Council

Applicant: LEGAL REPRESENTATIVES: Mr J Ayling SC and Mr M Staunton, barrister instructed by Ms D le Breton, solicitor of HWL Ebworth Mr A Seton, solicitor of Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10697 of 2008 Mohamad El Dana v Bankstown City Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Bankstown City Council (the council) of a development application to build a Islamic private school for 1,200 pupils on lot 2 DP 505662 and lease lot 1 DP 117245, known as 98 Johnston Road, Bass Hill.

The site 2 The site is on the northern side of Johnston Road, between Keegan Road and Arundle Road. It is 3 ha in area and its frontage to Johnston Road is 100m. To the east it adjoins the Bass High School, which is on a site of 6ha. Further to the east is a former drive-in cinema site, which is likely to be developed as medium density housing. Beyond that is the shopping centre called Bass Hill Plaza. To the west, the site adjoins the rear yards of houses along Seven Oaks Crescent and Farrell Road. To the north the site adjoins a nursery, which fronts to the Hume Highway, and is included in the application under lease arrangements. 3 Except for two sheds, the site is vacant. It is mainly covered by grass, except for the Johnston Road end, where there are some trees that remain from the original Cumberland Plain Woodland that once covered the site. 4 Apart from the adjoining school, the shopping centre and the future medium density housing, most of the development around the site is low-density housing.

The proposal and its history 5 The applicant proposes to demolish the existing sheds on the site and to construct a private Islamic school catering for 600 primary and 600 secondary pupils. The proposal includes a childcare centre for 30 children, a caretaker's dwelling and a School Hall. An acoustic wall, 3.3m high is proposed to be erected along the eastern boundary; however, the applicant is willing to move the wall from the boundary and create a landscaped strip between the wall and adjoining properties, thus reducing the visual impact on those properties. 6 The site had been a sports ground and later a school farm for the adjoining Bass High School. The State Government declared it surplus to needs, successfully pursued a change of zoning from Special Uses to Residential and sold it in 2006. The applicant lodged the application in June 2007. Following notification, the council received 1800 letters of objection and 600 letters of support. The council refused the application in December 2007. The applicant filed the appeal in July 2008. The Court granted the applicant leave to rely on amended plans, which were notified in September 2008, eliciting 1400 letters of objection and 600 in support. The majority of submissions of both kinds were form letters.

Relevant planning controls 7 Bankstown Local Environmental Plan 2001 (the LEP) zones the site Residential 2(a). The zone permits educational establishments with consent. The objectives of the zone are: · to complement the single dwelling suburban character of the residential areas of Bankstown City, and · to enable dual occupancy, rowhouse and villa development that is otherwise consistent with the objectives of the zone, and · to ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features, and · to ensure that development is of a height and scale which complements existing buildings and streetscapes (noting the 2 storey dwellings may occur throughout residential areas), and · to allow for some non-residential use that would not adversely affect the living environment or amenity of the area, and · to encourage energy efficiency and resource conservation measures in the design, construction and occupation of residential buildings, and other buildings permitted in this zone, and · to ensure adequate public and private open space is available to residents, and · to require satisfactory drainage, and · to require landscaping of development sites. 8 Development Control Plan 2005 (the DCP), which contains detailed planning controls, applies. 9 Biodiversity Strategy - a Bankstown Initiative is a council publication in 2002, relevantly proposing a biodiversity corridor along Johnston Road.

Matters in contention 10 The council's Statement of Contentions lists 15 matters. At the commencement of the hearing the council's advocate, Mr A Seton, listed the outstanding issues as follows: · Traffic and parking; · Noise; · Ecology; · Character, scale and design; · The site is too small; · Social impact; · Excessive impervious areas; · Excessive cut and fill.

The objectors' concerns 11 During the view of the site the Court heard the evidence of 15 objectors. Mr R Dunbrell, who lives at 9 Wynyard Avenue, Bass Hill, said that the proposed buildings are too large, the site is too small; and the traffic generation is too high and would bring chaos to the area, particularly to Arundle Street. Mrs R Deane, who lives at 22 Wendy Avenue, Georges Hall and is a teacher, said that students will come from far away, the access roads to the site are inadequate, there is no public transport to the area, and the existing bad traffic situation will become worse. Mr M Smith, who lives at 114 Johnston Road, said that the proposed internal road would not allow safe turning. Two schools adjoining each other will lead to conflict. Ms J Winder, who lives at 5 Sevenoaks Crescent and the rear of whose property adjoins the site, said that she has a child who is sensitive to noise and the acoustic wall on her rear fence will look terrible. The trees on the site provide a biodiversity corridor and should be retained. (The trees within 15m of Johnston Road are retained.) The traffic report prepared by Mr C Hallam is flawed, as there will be fewer pupils walking than Mr Hallam assumed. School buses finish at 4pm and will not be able to service the site. The height of the buildings exceeds the heights specified in the DCP. 12 Ms C Tomkinson, who lives at 34 Yingoburra Street, Villawood and is the President of the Parents and Citizens Association for Bass High School, said that she was concerned for the safety of walking children. She foresaw conflict between the two schools and believes that there should be a buffer between them. The proposed buildings will overshadow the school farm. Mr V Falconer, who lives at 16 Carey Street and is a member of the Resident Action Group, said that there are enough schools in Bankstown, the proposed school is not providing for local demand, it is "exclusive", and there should be a distance between different schools. In his view, the application fails every conceivable test. 13 Mr C Hatty, who lives and 1 Belinda Street across the road from the site, said that he would be forced to move from his home if the application for the school receives consent, Many other residents will sell their houses and move. The social impact of building an "exclusive" school next to an "inclusive" one has not been assessed. The site for Badgerys Creek airport would be a suitable alternative for this school. Mrs M Zito, who lives at 2 Belinda Street, said that her main concern is with traffic. Mr G Webber, who lives at 15 Wendy Avenue, said that the proposed entrance is in the wrong spot. He fears illegal parking and illegal turns in his street. The existing bus service is inadequate. He also fears additional noise. Ms K Hanrahan, who lives at 2 Bateman Crescent, said that the area is quiet, and the development is too big for the site. She has had personal experience of traffic problems that persuade her that the proposal will make the traffic situation in the area unacceptable. Mr T Tarmo, who lives at 130 Lucinda Avenue, said that the site would not be able to cope with the excessive number of classrooms. The traffic will be a danger to children. Mr C Babu, who lives at 112 Johnston Road, also said that the traffic problem is insoluble. He objected to the fact that the school did not cater for the local area. Mr S Serban, who lives at 155 Johnston Road opposite the school, said that his main concern was traffic. Ms J Ryan, who lives at 21 Yvonne Crescent, Georges Hall, said that her main concern is traffic and fear of accidents. Mr J Abdilla, who lives at 161 Johnston Road, said that he is concerned about the traffic chaos that the development will bring to Johnston Road. Mr M Gili, who is a retired teacher and lives at 39 Jacaranda Drive, Georges Hall, said that he is concerned about the safety of the Bass Hill pupils. Both sets of children are likely to congregate at Bass Hill Plaza, will fight each other making the shopping centre a battleground, with the result that the shops will close. In addition he feared that he would not be able to exit to the Hume Highway because of the increased traffic to the area. 14 With three exceptions, all the objectors' concerns are reflected in the council's contentions and are discussed below. The three exceptions are the overshadowing of the school farm, the lack of need for schools in Bankstown, and the non-local nature of the proposed school. 15 With regard to the first concern, it is common ground between the parties that the proposal will not overshadow the school farm of Bass High School. With regard to the second, the Court cannot take "need" into account, even if it were possible to determine the need for a school that draws its pupils from across the region. There is no requirement, either in planning legislation or in wider society, that schools serve local populations. These days even government schools accept enrolments from far away. Non-government schools have always drawn their populations from across the metropolitan area. This may have some disadvantages (for example, excessive travel for children) but it is accepted for schools of other denominations, so it must be accepted for this school as well.

Traffic and parking 16 The applicant's traffic expert was Mr C Hallam, while the council's was Mr T Rogers. Mr Rogers criticised the internal arrangements for parking and the picking up of children. Mr Hallam amended the layout of parking and pick-up bays to one with which Mr Rogers was satisfied. The two experts agreed that the proposal's impact on traffic was acceptable. 17 In most cases an agreement between the experts retained by opposing parties means that the matters on which agreement is reached are resolved. In this case, however, the council did not accept the evidence of its own expert. The council's advocate, Mr A Seton, submitted that there were two fatal flaws in the traffic evidence. 18 In Mr Seton's submission, the first flaw is the use of an Islamic school in Liverpool as a basis for calculating traffic generation per pupil. Mr Seton submits that that school is in a denser area and a higher proportion of pupils walk to it than will walk to the subject site. Mr Rogers, who originally thought that the example was poorly chosen, changed his mind and agreed with Mr Hallam that it as an appropriate example. While Mr Rogers was not asked why he had changed his mind, the fact is that he agreed with Mr Hallam; I have no basis on which to reject the evidence of these two experts. I am strengthened in this conclusion by a reference in a letter to the council by the Sydney Regional Development Advisory Committee, dated 4 September 2007, which states: Concerns are expressed as to why the traffic surveys were done of Anglican schools when there are existing Islamic schools at Chullora, Bankstown and Liverpool. It would be more appropriate if studies were done of these schools. It appears that the Committee specifically recommended the Islamic school at Liverpool for study by the applicant. Yet when the applicant selects the recommended school, it is criticised for not selecting some other school. 19 In Mr Seton's submission, the second flaw is the agreement between Mr Hallam and Mr Rogers that "the cumulative assessment has been undertaken and traffic effects found to be satisfactory". This is despite the fact that, in one section of Johnston Road, the environmental capacity (agreed to be 500 vehicles/hour) would be exceeded during the peak hour. Again, I have no basis on which to reject the joint opinion of Mr Hallam and Mr Rogers. My understanding of the reason for their agreement is that the exceedence of the environmental capacity is minor, for a short period only and over a short section of the road. I conclude that the traffic impact of the proposal does not justify refusal.

Noise 20 The applicant's acoustic expert was Mr G Atkins, while the council's was Mr S Gauld. The experts agreed that a 3.3m high noise barrier would be needed on the western boundary where the site adjoins the rear of properties facing Seven Oaks Crescent and Farrell Road. They also agreed that a sound barrier was required along the covered way in the centre of the site. 21 The background noise level is accepted as 39dBA. The experts agreed that a criterion of background plus 10dBA is appropriate. With the noise barrier, and subject to managing outdoor activities, that criterion is met at the ground floor of the adjoining properties, but it is exceeded on the upper floors by 3-4dBA. Mr Atkins argued that this is acceptable, since the noise occurs for about two hours per day on weekdays only, and it affects only the upper floor of two-storey houses where people are less likely to spend time during the day than on the ground floor. Mr Gauld appeared less satisfied with this result than Mr Atkins, though he did not say it was unacceptable. 22 The experts did not agree on the increase in noise level caused by the additional traffic. Mr Gauld estimated it to be 3dBA higher than Mr Atkins. I do not understand Mr Gauld to be saying that this is unacceptable. The noise impact of the proposal therefore does not justify refusal. 23 The experts agreed that the sound barrier can be made of transparent material and can be 5m away from the western boundary.

Ecology and setback from Johnston Road 24 As mentioned above, the Biodiversity Strategy proposes a habitat corridor along Johnston Road. In the council's submission, the existence (at least on paper) of this corridor justifies the proposal being set back 15m from the street alignment. It is common ground that the increase in setback would not save any trees. 25 I cannot see how it is possible to justify a 15m setback on the basis of biodiversity, given that the setback of existing houses in Johnston Road is only about 7.5m. In addition, the planting of the front yards is not conducive to a corridor for wildlife habitat. Despite this, in my opinion, the School Hall should be set back 15m from the road, not for the sake of biodiversity, but because it is a relatively large building and a 15m strip of dense landscaping would screen it from the other side of Johnston Road, from where the objectors would probably prefer not to see the building. 26 As concerns the caretaker's dwelling in front of the childcare centre, in my opinion, setting it further back on the site would draw attention to it. This is because the building looks like a house and it should have the same setback as the other houses in the street.

Character, scale and design 27 The council's design expert was Mr M Berke, an architect, while the applicant's was Mr G Shiels, a planner and urban designer. Mr K Kurzinger, a planner with the council, gave evidence in the council's case. 28 Part D11 of the DCP deals with educational establishments. Clause 3.5 provides that School buildings must not exceed a wall height of 6 metres. On larger sites council may consider a variation to this standard, subject to the provision of additional satisfactory setbacks and compliance with the objectives of Part D11 of this DCP. 29 The site can undoubtedly be described as large. Since the floor-to-floor heights are 4m, the wall heights all exceed 6m,. According to the applicant, this could be reduced to 3.7m. This would be a worthwhile change, as it would reduce the height of the classroom buildings by 300mm. With this reduction, the height of buildings is in my opinion, acceptable. 30 I turn to the issue of scale. The zone objectives quoted in paragraph 7 include ensuring that development is of a height and scale that complements existing buildings and streetscapes. In Mr Kerzinger's opinion, the buildings are too large for a residential zone. I agree that the buildings do not look like houses; indeed they look like school buildings. However, they are a long distance from the existing buildings in the street and to the west with which an observer may make a comparison of scale. They are also screened from Johnston Road by dense landscaping. The objective of complementing existing buildings is achieved. 31 The council also criticises what it considers the three-storey appearance of long buildings from the Bass High site. I agree that the buildings appear long but I do not think that they have a three-storey appearance. As for the length, this would be seen only from the High School and then from a considerable distance. 32 A further design criticism is that the play areas are near the rear yards of the residential properties to the east. However, this also results in the school buildings being as far away as possible from those houses. On balance, the decision to locate the buildings near the common boundary with Bass High School is the right decision. 33 Section 7.3 of the DCP states: Parking areas should be located towards the front of the site, so that they are visible from the street and readily accessible. The parking in this proposal is not in the front of the site and is not visible from the street. If it were visible, it would not be feasible to have a dense landscaped strip in the front based on species that are part of the Cumberland Plain Woodland Ecological Community including understorey planting. According to the traffic experts, the functioning of the picking-up and dropping-off arrangements does not require visibility from the street. Moreover, most parking areas tend to be the least attractive parts of a development. I do not understand why the DCP suggests that parking areas should be exhibited to view from the street. 34 The council objects to the 8m width of the driveway, saying that it is too wide. I note that the DCP requires a minimum width of 6.5m. I do not think that the additional 1.5m-width makes much difference. 35 In my opinion, there is no basis for refusing the application on the ground of bulk, scale or design.

The site is too small 36 Section 3.1 of Part D11 of the DCP states: "a minimum site area is not specified". In the council's submission, the 3ha site is too small for 1,200 pupils. The Department of Education has standards relating to site area, which apply to government schools and which suggest that a school of this size should be on a site of 9ha. 37 There was no information before the Court relating to the actual size of government schools. My understanding is that schools that are built on "greenfield" sites within Sydney's new areas meet this standard, while most of those in established areas do not. Be that as it may, this is not a government school and the Department of Education's standards do not apply to it. 38 The applicant supplied data on the size of several private schools together with its pupil numbers. This information shows that the density of the proposed school is similar to that of many existing private schools. Of course, this says little about how well those schools function. However, since they continue to function, one assumes that they provide a good enough environment to attract parents and children.

Social impact 39 The applicant's expert on social impact was Ms R Ryan, a social planner. Ms Ryan prepared a Social Impact Statement (SIS). The council sought the comments of Dr J Stubbs, a sociologist, on Ms Ryan's work. Dr Stubbs is an expert on the assessment of social impacts. Mr Seton cross-examined Ms Ryan on the basis of Dr Stubbs' criticisms of her work. Dr Stubbs was available for evidence over the phone from the glaciers of New Zealand, though the applicant's advocate, Mr J Ayling, did not cross-examine her. 40 I note Mr Seton's submission that it is up to the applicant to establish that there will not be an adverse social impact. I do not think this is entirely correct. A Social Impact Statement is required only of a minority of development applications. There should be a valid reason for assuming that there may be an adverse social impact before a SIS is required. 41 The Statement of Contentions particularises under the heading of social impact that the siting of two secondary schools next to each will give rise to disputes over territory. In the correspondence and reports tendered in evidence it is suggested that the principal of Bass High School does not want the proposed school next door. However, when Ms Ryan sought an interview with the staff of Bass High School, this was refused. No representative of the Department of Education was willing to assist the Court by giving evidence. 42 In her conclusion, Ms Ryan states: The successful delivery of the College will rest largely on its ability to ensure that it has a strong relationship with Bass High School and that both institutions develop a shared set of understandings around student behaviour and cooperation. 43 I note that an objector, Mr Gili, suggested that the students from the two schools would physically fight each other. Even if this were true (and I sincerely hope that it is not) it would not justify the refusal of the application. Is it not better to conclude on an optimistic note, as Ms Ryan had done, and assume that the proximity of a government school in which a sizable proportion of the pupils are of the Islamic faith, to a fully Islamic school will engender an understanding and tolerance between the two groups?

Excessive impervious areas; 44 While Mr Seton identified this as an issue, the matter was not pursued during the hearing. To the extent that the impervious areas are connected with the width of the driveway, the matter is dealt with above. I canno find any areas in the proposal that are unnecessarily paved.

Excessive cut and fill 45 According to Mr Kerzinger, there is too much excavation of the site. Mr Shiels points out that the site has been filled and much of the excavation merely removes the fill. The part of the site where there will be excavation adjoins the High School and allows for the access way and parking to be hidden. In my opinion, the cut and fill hides the cars and parking; and for that reason is a positive aspect of the proposal.

Conclusions: the "elephant" in the courtroom 46 Throughout the hearing there was an unacknowledged presence in the courtroom: a topic of which, I suspect, everyone was aware, but which was not discussed because the discussion would have been too uncomfortable. That topic was whether the council would have raised quite as many contentions as it did if the application had been for an Anglican school? Would, for example, a social impact statement have been required? 47 The three major impacts of the proposed school are independent of the faith to which it belongs. The impacts are: · increased traffic, particularly in Johnston Road; · increased noise, particularly towards houses to the west; and · two-storey buildings of non-domestic scale where there is now a vacant field. 48 As regards the increased traffic, the Court had the benefit of two traffic consultants, who agreed that the impact on Johnston Road, while material, was acceptable. As regards increased noise, the acoustic barrier will achieve an acceptable noise level at the ground floor of all houses, though there will be a minor exceedence of the noise criterion at the first floor. The acoustic barrier will be 5m away from the rear fences and the intervening corridor will be densely planted. 49 As concerns the presence of large buildings on a hitherto vacant site, the designer has minimised the visual impact. The buildings are located near the common boundary with the High School and the distance from the housing to the west is maximised. The driveways and parking are also towards this side, thus ensuring that the residents to the west are not disturbed by car noise. The Hall is 15m from Johnston Road and this large setback is to be densely landscaped. The buildings will not be highly visible from the street. 50 The other criticisms of this proposal (for example, that this is not a local school) cannot be substantiated without applying criteria that are not applied to other schools. For these reasons the appeal is upheld.

Conditions in dispute 51 The parties agreed on all conditions with the exception of two. Draft Condition 16 requires a footpath in Johnston Road as recommended by the council's traffic expert, Mr Rogers. I have accepted Mr Rogers' recommendation. Draft Conditions 99 sets out the hours of use for the Hall. I have accepted the council's requirement of closing at 8pm on the basis that this time is consistent with the application.

Orders

1. The appeal is upheld.
2. Development application to build an Islamic private school for 1,200 pupils on lot 2 DP 505662 and lease lot 1 DP 117245, known as 98 Johnston Road, Bass Hill, is determined by the grant of consent subject to the conditions in Annexure A.
3. The exhibits are returned except for Exhibits 11, D and M.

      Dr John Roseth
      Senior Commissioner

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