Mosman Church of England Preparatory School v Warringah Council

Mosman Church of England Preparatory School v Warringah Council - [2009] NSWLEC 1190 - NSWLEC 2009 case summary — Zoe

[17]

10 Sub-clauses 12(2)(b) and 12(3)(b) of the LEP detail the matters that are required to be considered before consent is granted. In particular the consent authority must be satisfied that the development is consistent with any relevantly applicable general principles and state policies and that it complies with relevant requirements including development standards set out in the "Locality Statement". In addition, being a "Category Three" land use the consent authority needs to be satisfied that the development is "consistent with the desired future character" as described in the locality statement. The desired future character for the Booralie Road locality is as follows: "The Booralie Road locality will remain a non-urban area consisting of detached style housing in distinctly non-urban settings and occasionally low intensity, low impact business or community uses that are compatible with non-urban nature of the locality and predominant scale of existing development. The impact of new development on views from the adjacent National Park will be minimised by the use of articulated building forms, generous landscaped spaces around buildings and building materials that blend in with the colours and textures of the natural landscape. Emphasis will be given to protecting and where possible enhancing the natural landscape, including landforms and vegetation. The increased planting of indigenous canopy trees will be strongly encouraged." 11 In this context my attention was drawn to the note in cl 12 of the LEP that, explains: "To assist with understanding: Category One development is development that is generally consistent with the desired future character of the locality, Category Two development is development that may be consistent with the desired future character of the locality, and Category Three development is development that is generally inconsistent with the desired future character of the locality." (Emphasis added.) 12 Hence, the proposed recreation facility can, prima facie, be considered to be "generally inconsistent" with the desired future character of the locality. However, importantly, cl 12(3)(b) provides that nothing in a description on the desired future character creates a prohibition on the carrying out of development. Hence, even though it is generally inconsistent the proposal is nevertheless permissible. It is therefore plain that care needs to be taken to ensure, as required by cl 12 that the development is "consistent with the desired future character" as described in the locality statement.

[19]

15 Clause 72 deals with traffic access and safety and requires that vehicle access points are to be located in such a way as to minimise: traffic hazards; vehicles queuing on public roads; the number of crossings to the street; traffic and pedestrian conflict; and interference with public transport facilities. Where practical, vehicle access is to be obtained from minor streets and lanes. Having reviewed the evidence in relation to the requirements of cl 72, I am satisfied that no issue in this regard arises other than the question of the safety of horses and their riders. Advertising 16 The application was advertised and a total of 15 submissions were received (from 11 parties) who expressed general concerns that the proposal would not comply with the various requirements of the LEP. In addition concerns were expressed in relation to: o Insufficient on-site car parking and excessive traffic generation on saturdays resulting in adverse amenity impacts on this quiet rural-residential locality. o Increased traffic will also adversely affect horse-riding safety especially considering the individual characteristics of different horses and levels of ability of riders. o Removal of trees and adverse impacts associated with groundwater disturbance, stormwater run-off and effluent disposal. o Noise impacts associated with both traffic and the intensity of the proposed land use on Saturdays on especially neighbouring equestrian properties. Council officer' s report 17 The applicant submitted that the council officer's Development Application and Assessment Report should be taken into account. This report recommended that the development application be approved subject to certain conditions of consent. That report considered the requirements of the planning controls, including the "Desired Future Character Statement" for the Booralie Road Locality, particularly in relation to the requirement that development is to be "low intensity, low impact business or community uses that are compatible with [the] non urban nature of the locality".

[20]

18 The report notes that the predominant scale of existing development is characterised by rural residential land uses with generally large homes on acreage commonly with sheds and stables for horse keeping. The dominance of equestrian based development in the locality was noted. There is also a range of other horticultural or non agricultural land uses dispersed across the locality, including nurseries, schools, golf course, animal boarding, tennis and sports centre, Waratah Wildlife Park and the NSW Gun Club. In this context the report asserts that the "much larger scale existing development" should not be disregarded in describing the existing character of the locality and, in this regard "the proposal is considered to be compatible with the scale of existing development". Warringah Development Assessment Panel 19 On 27 August 2008 the Warringah Development Assessment Panel considered the recommendation of Council's Manager Development Assessment that the application be approved but decided that: "The panel does not concur with the recommendation of the Manager Development Assessment for approval at this stage. In this regard, the Panel does not feel that the applicant has satisfactorily provided information that shows that the proposed use is consistent with the low intensity, low impact use provisions of the Desired Future Character Statement for the A2 Booralie Road Locality. Accordingly the Panel recommends that the applicant be advised that the conclusions drawn above are matters that need to be overcome in the application in order for the proposed development to satisfy the provisions of the Desired Future Character in the locality statement". Council's decision 20 The application was refused by notice of determination dated 8 September 2008 for reasons mainly comprising: failure to comply with the low intensity and low impact Desired Future Character of the A2 Booralie Road Locality; and failure to comply with the general principles in the LEP in relation to noise, traffic access and safety. Contentions 21 The Statement of Facts and Contentions extends over four pages but essentially involves: o The proposed front and side setbacks of the development are inadequate and do not comply with the requirements of the LEP. As a consequence there are adverse impacts on the streetscape and the character of the area. o The additional traffic generated by the proposal will adversely affect the safety of horses and their riders. This being an area where equestrian activities are common especially on weekends. o The proposal's failure to be consistent with the desired future character statement for the A2 Booralie Road Locality that development be consistent with that of occasionally low intensity, low impact community uses that are compatible with the non-urban nature of the locality and the predominant scale of existing development, particularly in relation to the physical features of the development the number of people and vehicles generated by it and the associated amenity impacts. 22 In addition concerns were expressed that the applicant has not provided sufficient information especially in relation to traffic to enable the proper assessment of the proposal. This matter is no longer of concern given that the traffic experts have now been able to provide appropriate evidence to enable me to deal with the traffic aspects of the above issues. Landscaping and inadequate front and side setbacks? 23 The Built Form provisions of the desired future character statement as described above require front building setbacks of 20 m and side building setbacks of 10 m. The setbacks off Tooronga Road and Kallaroo Road for the basketball courts now meet the 20 m requirement. The proposed new building significantly exceeds the requirement. The existing house (proposed administration building) is set back about 16.5 m from Tooronga Road and about 9.5 m from the side boundary.

[49]

56 In Vigor Master Pty Ltd v Warringah Shire Council [2008] NSWLEC 1128 an appeal involving land subject to the desired future character statement for Locality C8 - Belrose, Hussey C (at 17-29) acknowledged the approach of the council town planning witness in relation to the terms "intensity" and "impact": "Intensity - is commonly used to identify the nature of the proposal in terms of its size and scale and the extent of the activities associated with the proposal. Therefore "low intensity" would constitute a development which has a low level of activities associated with it Impact - is commonly used in planning assessment to identify the likely future consequences of proposed development in terms of its surroundings and can relate to visual, noise, traffic, vegetation, streetscape privacy, solar access etc. Therefore ' low impact' would constitute a magnitude of impacts such that was minimal, minor or negligible level and unlikely to significantly change the amenity of the locality." 57 The likely highest-level intensity of this development, taking into account the extent of activities described above will undoubtedly occur on Saturdays. This intensity manifests itself in two ways: the number of people and vehicles on the site; and the amount of traffic in the locality. Plainly, taking into account the nature of surrounding development, being predominantly rural-residential, what is proposed on Saturdays is not low intensity. The impacts associated with these activities will variously impact on the surrounding area. I have already referred to the satisfactory landscaping proposal and the extent to which on-site activities will be screened from the public domain and from neighbouring properties and have no concerns in this regard. Also relevant here is the fact that the acoustic experts have agreed that there will be no external noise impacts. I have also described the traffic that will be generated by this development on Saturdays and this traffic (which according to the respondent the number of vehicle trips could be as many as 240) will be apparent and will undoubtedly affect the amenity of the locality as well as (as discussed below) affecting the use of some local roads by riders of horses. These impacts are certainly not minor or negligible and the respondent submits that these impacts are unacceptable and are not consistent with the desired future character of the Booralie Road Locality.

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60 In this same context it is important to remember that the Booralie Road Locality contains a number of other non-residential traffic generating developments some of which operate over much longer periods of time. This is one element of the existing character that is relevant to the assessment of compatibility. Moreover as already recognized the Booralie Road Locality Statement anticipates by reference to compatible business or community uses and listing a number of non-residential land uses that are permissible with development consent, some change can be anticipated. Whilst the future character will consist of houses in a non-urban setting, that setting does and will continue to include such non-residential land uses. Conclusion 61 Whilst the proposed recreation facilities will undoubtedly have some impacts I am satisfied that the requirements of the LEP are met. In particular I have been persuaded that the development is relevantly consistent with the Booralie Road character statement. Similarly, having reviewed the application more generally I am also satisfied that on its merits the proposal warrants approval. I have therefore decided to uphold the appeal and grant conditional development consent. Conditions 62 Following the hearing the court was provided with a revised set of conditions and operation management plan. The conditions are annotated so as to indicate those conditions in dispute together with each party's explanations for the disagreement. 63 Deferred commencement condition 2a requires a 12 month trial period for the entire use on the basis of an uncertainty as to the impact of the development. I have decided not to impose this condition because I agree with the applicant that it would not be financially viable to do so but more importantly I have decided, taking into account likely impacts, that consent should be granted. Despite this I have decided that the component of the condition that requires a complaints register should be retained on an ongoing basis and this is to be incorporated into the operation management plan.

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(a) Seasonal and maximum intensity of use of the Site in accordance with the proposal; (b) Restriction on usage of the Site; (c) Limitation of usage of the Site for social events, school functions, sports carnivals, private functions and parties; (d) Crowd control for noise management; (e) Site security; (f) Traffic and parking control for daily usage and peak parking periods; and (g) Annual review process of the operaional management plan. 3 Document Control The School will distribute controlled versions of this OMP within the School and to Warringah Council ('Council'), when it is revised in accordance with Section 5 Review of Management Plan. As a minimum the OMP is to be distributed to: i) Warringah Council ii) The school administrators iii) The Headmaster iv) The facilities manager (2 copies) 4 Administration of Management Plan This OMP will be administered on a day-to-day basis by an employee of the School (Facility Manager) who will live on the Site to fulfill the functions of a caretaker. This OMP will be administered under the overall supervision of the Headmaster of the School (Headmaster). 5 Review of Management Plan This OMP will be formally reviewed by the School at least every six months from the date of implementation. Issues identified in the Complaints Register (described later in this OMP) and any feedback from Council and residents of neighboring properties will be considered and addressed in future revisions. The OMP shall not be amended without the written approval of the Director of Planning and Development Services at Warringah Council except as outlined below. Amendments involving correction of typographical or grammatical errors, changes to names of staff members or staff members' roles or responsibilities or any other amendment consistent with the conditions of consent can be made without the prior approval of the Director of Planning and Development Services at Warringah Council 6 General Arrangement of Facility The Facility consists of: o Carpark o Overflow Carpark o On-site Facility Manager's Accommodation o Indoor Recreational Building o Basketball Court/Tennis Court o Sports Field

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13 Noise Management Plan During the course of the Development Application the school commissioned Wilkinson Murray, acoustic consultants, to undertake an acoustic review and analysis of the Facility and make recommendations in relation to noise. This Noise Management Plan is a response to Wilkinson Murray's review. Refer to Appendix A - Noise Management Plan. 14 Horse Awareness PLAN During the course of the Development Application the school commissioned Nevada Jack, a highly experienced equine expert, to undertake a review and analysis of the Facility and make recommendations in relation to horse and rider safety. The Horse Awareness Plan is a response to this review. Refer to Appendix B - Horse Awareness Plan Refer to Appendix C - Horse Awareness Information Brochure The School will use its best endeavors to ensure that Horse Awareness Information Brochure is provided/communicated to all persons likely to drive motor vehicles to the facility. 15 Property Maintenance Property maintenance will be managed by the Facility Manager who will reside on Site. The School will develop and implement a Property Maintenance Plan which will address fencing, landscaping, rubbish removal, rabbit control, wastewater management system, on-site stormwater detention, and the dam, set-up and pack-up for sports and recreational activities, amongst other things. 16 SECURITY MANAGEMENT Security will be managed by the Facility Manager who will reside on the Site. The School will develop and implement a Security Management Plan which will control access control to the approved hours and general Site security, amongst other things. 17 Neighbour Relations A notice board in the Central Carpark of the Facility will advertise telephone numbers of the Facility Manager and the School. Complaints will be recorded by the School in a Complaints Register that will be maintained in the School Office. The Complaints Register will record the source of the complaint, the date and time of the complaint, the corrective action to close out the complaint. The Complaints Register will be available for Council viewing as and when requested, during normal School Office hours. Refer to Appendix D - Complaints Register Complaints will be followed up by the School as soon as practicable after receiving a complaint. This OMP will be reviewed in consideration of the complaints in an effort to avoid further incidents and maintain good neighbour relations.

At a glance

Court

Decision date

Before

Source

Judgment (284 paragraphs)

Parties

Cases Cited (2)

Cited By (1)