respondent. The responsible authority’s decision was varied and a permit was directed to be granted subject to the conditions in Appendix A.
Key principles
The Tribunal treated the proposed use by the school and by external sporting groups as not satisfying the Public Use Zone 2 educational-purpose condition, so a planning permit...
The Tribunal considered the proposal supportable under the cited State and local planning policies because those policies encouraged community access to education and recreation...
Although the facility's position near residential properties created potential noise and lighting impacts, the Tribunal considered those impacts capable of being kept within...
The Tribunal concluded that the proposal achieved an acceptable planning outcome subject to modified conditions, and varied the responsible authority's decision by granting a...
Issues before the court
Whether use of the school land by external sporting groups was permissible in Public Use Zone 2 without a permit.
Whether noise and floodlighting would unacceptably affect nearby residential amenity.
Plain English Summary
The Tribunal allowed the sports facility to proceed, but only with a detailed set of permit conditions. It accepted that external sporting use meant the proposal needed a permit in the education zone. It considered that community and education policies supported shared use of the school grounds, and that the possible effects on nearby residents could be managed through controls on lighting, noise, hours, landscaping, access, and patron conduct. The Tribunal's decision does not establish from this text that every similar school sports proposal will be acceptable; its conclusion depended on the proposal and the conditions before it.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,027 words · generated 29/09/2026
What happened
In Repacholi v Campaspe SC [2009] VCAT 2643, the Victorian Civil and Administrative Tribunal considered an objector's review of Campaspe Shire Council's decision to grant a permit for a sports facility within Echuca Secondary College. The proceeding was brought under section 82 of the , as identified in the catchwords and the description of the application.
Whether floodway and land-subject-to-inundation constraints prevented the development.
Whether alternative sites or alleged defects in Council's decision-making should determine the review.
Cited legislation
1 cited instrument linked from this judgment.
Planning and Environment Act 1987
The proposal was for a multi-purpose synthetic pitch accommodating a hockey field and 12 tennis courts. The pitch was approximately 100 metres by 60 metres, recessed about 2 metres below existing ground level and surrounded by a 3.6-metre fence. Floodlighting was proposed. The facility was intended for use by both the school community and other sporting groups. The relevant land was in Public Use Zone 2 (Education), and also subject to a Floodway Overlay and a Land Subject to Inundation Overlay.
The site was part of a 12.4-hectare school property. The proposed facility was on vacant land in the north-east of the College grounds. Four houses directly abutted the school boundary, and the pitch was set back generally 16 metres from the eastern boundary adjoining residential properties. The objector's principal concern was the impact of after-hours use, particularly noise and light spill.
The objector also challenged the external sporting use in an education zone, argued that other sites were available, and criticised aspects of the Council's decision-making. The Tribunal treated the review as a fresh merits assessment. It varied the Council's decision and directed that a permit issue with the conditions in Appendix A. The order's first line contains the apparent wording “is or varied”; however, the reasons expressly conclude that the decision should be varied, and the operative direction grants a permit.
Why the court decided this way
The Tribunal's central task was to decide whether the proposal on this site achieved an acceptable planning outcome. It expressly said it was not deciding whether other sites were available or superior. Nor was it reviewing Council's process as a separate matter of administrative conduct. The Tribunal described the hearing as de novo and said it had to make a fresh decision, effectively standing in the shoes of the responsible authority.
The zoning issue was not treated as a complete prohibition. Because external sporting groups would use the facility, the Tribunal considered that the proposal did not satisfy the educational-purpose condition in Clause 36.01-1. It said that this non-compliance required a planning permit for the use and associated buildings and works. The proposal therefore had to be assessed against the Clause 36.01-4 decision guidelines and relevant planning provisions.
The planning context favoured community access to facilities. The Tribunal referred to Clause 18.07 of the State Planning Policy Framework, concerning educational facilities and their integration with local and regional communities. It also referred to Clause 21.04-1 of the Council's Municipal Strategic Statement, which sought comprehensive health, education, recreation, cultural, and entertainment facilities for residential areas. Department of Education and Training policy documents, as described in the reasons, supported partnerships between schools and communities and shared use of school facilities. The Tribunal considered those documents consistent with the planning scheme policies.
The Tribunal did not ignore the residential interface. It accepted that the location created potential amenity effects from both floodlighting and noise. Its conclusion was that the effects could be controlled through permit conditions. This was a site-specific assessment, not an assertion that sport facilities next to houses are generally harmless.
For lighting, the Tribunal considered a report by Dr Dluzniak. It expressly noted that the author had not given evidence and that the report could not be accorded the weight of an expert witness statement. The report had been prepared using earlier plans that placed the facility as close as 2 metres to the abutting boundary. The proposal before the Tribunal had a greater, generally 16-metre setback. The Tribunal considered the private tennis court lighting standard a useful guide, while acknowledging it did not directly apply to this proposal. It relied on the increased setback, required boundary landscaping, limited nights and hours of floodlighting, and the orientation and screening of the abutting houses. The conditions set boundary light levels and required lighting controls.
For noise, the Tribunal did not accept SEPP N1 as the appropriate standard for the particular recreational use. The reasons identify talking, barracking, and general activity by participants and spectators as primary noise sources. Instead, the permit required an acoustic engineer accredited by the Association of Australian Acoustical Consultants to assess noise and recommend measures. Any recommendations were to be implemented before use began, and a noise and amenity plan was required. The Tribunal noted that an acoustic report would ideally have been available earlier, but considered attenuation feasible given the setback.
The flood-related issues were not contested at the hearing. The Tribunal recorded that referral authorities had not objected subject to a condition, which it added after noting its omission from the Council's Notice of Decision.
Before and after state of the law
This decision does not set out a broad change in planning law. The extract supplies no account of a prior rule being displaced or a new general legal test being announced. Its value in this respect is as an example of the Tribunal applying the planning-scheme provisions and policies identified in the judgment to a particular permit application.
Before the Tribunal's review, Council had resolved to issue a Notice of Decision to Grant a Permit, subject to conditions. The objector then invoked the section 82 review process. The Tribunal's reasons characterise the task as a fresh merits decision. That description is important to understanding why the Council's process criticisms were not central: the Tribunal focused on the planning merits rather than simply asking whether Council had acted properly in reaching its decision.
After the review, the permit was granted with an extensive set of conditions. These included a landscaping strip along the eastern boundary, limits on light spill, restrictions on floodlighting nights and hours, a prohibition on public address systems and amplified music or voice, acoustic assessment and implementation of recommended attenuation, a patron management plan, access and parking controls, drainage requirements, and construction controls. The conditions also addressed flood levels, including a prohibition on filling above the 1975 flood level of 94.70 metres AHD.
The decision should therefore be read as showing how this Tribunal considered a particular proposal capable of being made acceptable through conditions. It does not, on the text provided, establish that the same conditions are necessary or sufficient for every sports facility, or that a particular lighting level or noise-management approach is a universal rule.
Key passages with plain-English translation
The Tribunal said: “This is a hearing de novo and I am required to make a fresh decision effectively standing in the shoes of the Responsible Authority.” In plain English, it reconsidered the merits for itself rather than merely checking whether Council's decision-making process was correct.
It also said: “My role in this matter is to assess whether this proposal on this site achieves an acceptable outcome.” This explains why the asserted availability of alternative sites did not determine the case. The Tribunal assessed the application before it, rather than carrying out a comparative site-selection exercise.
On zoning, the Tribunal reasoned that use by external sporting groups meant the proposal did not comply with the educational-purpose condition in Clause 36.01-1. That meant a permit was needed. It did not mean that the proposal automatically had to be refused. The Tribunal then applied the relevant decision guidelines and planning policies.
On amenity, the Tribunal accepted there was a “potential for adverse residential amenity impacts.” It then found those impacts “capable of being contained within acceptable limits” through additional permit conditions. In context, this depended on the facility's setback, lighting design and restrictions, landscaping, acoustic assessment, and management requirements.
The Tribunal's discussion of noise is particularly specific. It said SEPP N1 was “not the appropriate standard to apply to a recreational facility” where a primary source of noise would be human activity by participants and spectators. In plain English, the Tribunal considered the character of the expected noise, rather than applying the cited policy without regard to what would generate the sound.
The decision also records an evidentiary qualification concerning the lighting report: its author was not called to give evidence, so the report could not be treated as an expert witness statement. The Tribunal nevertheless considered it alongside the revised setback and permit controls. This illustrates the distinction the reasons drew between considering material and assigning it the weight of tested expert evidence.
What fact patterns trigger this precedent
The decision is most relevant as a comparison where a proposal involves recreational facilities on land zoned for an institutional or educational use, and the facility will be shared with external community groups. In this case, the external use meant the education-purpose condition was not met and a permit was required. The judgment does not say that community use by itself determines whether permission should be granted; it proceeded to assess the planning merits.
It may also be useful where an application involves a facility close to homes and anticipated impacts include floodlighting and noise from people using the site. The Tribunal assessed a specific combination of factors: the generally 16-metre setback, recessed playing surface, screening and orientation of the houses, limits on nights and hours, lighting levels, and required noise assessment and management. A different layout, operating pattern, evidence base, or receiving environment may lead to a different assessment.
The decision also provides a comparison for cases where there are flood overlays but flood issues are not contested, and relevant referral authorities have not objected subject to conditions. Here, the Tribunal included the omitted flood-related condition and retained requirements addressing filling, drainage, and construction.
It is less directly informative on the merits of alternative locations. The Tribunal expressly confined its role to whether the proposal on the application site was acceptable. It did not decide whether Victoria Park or another location would be superior.
How later courts have treated it
The provided judgment contains no information about later decisions citing, following, distinguishing, or otherwise treating Repacholi. Its precedent relationships cannot be established from this text alone. Accordingly, no claim about later judicial treatment can be grounded in the material supplied.
The judgment is a VCAT decision by Member Laurie Hewet, not a higher-court decision. The supplied text identifies no appeal, subsequent review, or later case. A proper account of later treatment would require additional legal sources, which are not included here. This limitation matters for legal research: the reasoning can be described as the Tribunal's decision in this matter, but the supplied text does not establish whether later courts or tribunals adopted or limited it.
Still-open questions
The decision's reasoning leaves several matters specific to the case rather than resolving them as general rules. It does not define a universal acceptable level of light spill for a community sports facility. The permit set limits for this site, and the Tribunal treated a private tennis court standard as a useful guide, while expressly acknowledging it did not apply directly.
Nor does the decision provide a numerical noise limit for participant and spectator activity. Instead, it required an accredited acoustic engineer to assess the impacts and recommend measures. The record supplied does not include the later acoustic report or tell us what attenuation was ultimately required.
The reasons do not provide a detailed account of the weight given to each item of evidence beyond the points noted about the lighting report and the absence of an acoustic report. They also do not set out the full submissions, expert evidence, or detailed planning scheme materials beyond the provisions and policies identified in the text.
Finally, the Tribunal's conclusion depended on conditions being implemented and complied with. The supplied judgment records the permit conditions but does not establish how the facility operated after approval or whether any later compliance issues arose.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Judgment (39 paragraphs)
[1]
Repacholi v Campaspe SC [2009] VCAT 2643 (11 December 2009)
[2]
Application under Section 82 of the Planning and Environment Act 1987 (the Act) to review a decision to grant a permit. Public Use Zone 2 (Education). Land Subject to Inundation Overlay. Floodway Overlay. Sports and recreation facility (multi purpose, hockey field and tennis courts). State and Local Planning Policy Framework. Zone Purposes. Back yard amenity.
The decision of the Responsible Authority is or varied
In permit application TPA2008 - 216 a permit is granted and directed to be issued for the land at 20/50 Butcher Street, Echuca in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
use of the land for a minor sport and recreation facility
buildings and works in Public Use Zone 2 (Education)
buildings and works in a Floodway Overlay
buildings and works in a Land Subject to Inundation Overlay.
[5]
It is proposed to construct a multi purpose synthetic pitch accommodating a hockey field and 12 tennis courts. The pitch has dimensions of 100 m x 60 m and is to be recessed approximately 2 m below the existing ground level, with tiered levels to provide for seating. The pitch is setback approximately 16 m from the eastern boundary of the site which abuts the rear of dwellings which have a frontage to Oberin Court.
[6]
The pitch is proposed to be surrounded by a 3.6 m high fence. Floodlighting is also proposed. The facility is proposed to be used by both the school community and other sporting groups.
cl 36.01-1 use for minor sport and recreation facility[1] in PUZ2.
[9]
cl. 43.03-1 buildings and works in Floodway Overlay
[10]
The land forms part of the Echuca Secondary College which has a total area of 12.4 ha.
[11]
That part of the site upon which the proposed facility is to be constructed is located in the north east of the college grounds. This part of the site is currently vacant. The northern part of the site is flood prone and has been developed as a sporting field. Land to the south east of the school grounds has been developed for residential purposes. The rear of four dwellings directly abut the school grounds.
[12]
The Echuca Secondary College applied to the Council for a permit to construct a combined hockey field and tennis courts on vacant land located within the College's grounds.
The Council gave notice of the application and received a number of objections, primarily from residents of the residential area to the east of the review site.
The Council resolved to issues Notice of Decision to Grant a Permit subject to a number of conditions. One of the objectors has applied on behalf of a number of other objectors to the Tribunal for a review of the Council's decision. The grounds of review are:
[13]
1. Impact on the amenity of properties from noise and light spill.
[14]
The number of night time (floodlit field) uses has increased from the original proposal
This is a joint development by the College and the Shire of Campaspe but the applicant is in fact the Shire as they are contributing the majority of the funds. Additionally the majority of the use is by external sporting groups and not the school.
[15]
This was facilitated by one of the Councillors also being president of the School Council.
[16]
The land is zoned PUZ2 ie. Public Use Education, so the land is not zoned correctly for recreation facilities and use by sporting clubs not associated with the school.
All out of hours use is by sporting clubs and not the Education Dept.
There is correctly zoned land and an alternate site available at Victoria Park which was the original site for the hockey field proposal.
The primary issue in this matter concerns the impact of the proposed use on the amenity of abutting residential neighbours. The objector submitted that the proposed facility is poorly located adjacent to a residential area. As a consequence it was submitted that the after hours use of the facility will adversely impact on residential amenity primarily because of noise emanating from the facility and the illumination of the facility by the proposed floodlighting.
There is some merit in the objector's submission. The location of the proposed facility adjacent to the school's residential neighbours does create the potential for adverse residential amenity impacts. On balance however, I have concluded that there is a net community benefit to be gained by the shared use of the school grounds and by the provision of the proposed facilities. I am satisfied that the potential adverse impacts are capable of being contained within acceptable limits.
Issues associated with the land's location in a Floodway Overlay and a Land Subject to Inundation Overlay were not contested at the hearing. I was advised that relevant referral authorities had not raised objections to the application subject to the imposition of a permit condition. I note that the condition was not included in the Notice of Decision to Grant a Permit (I presume by an oversight) but I have included it.
My reasons are set out below.
[17]
The objector raised a number of what could be termed "in principle" objections to this proposal. These objections referred to the use of the proposed facility by groups not associated with the school, an aspect of the proposal which was identified as being in conflict with the zoning of the land for educational purposes. It was also submitted that alternative sites are available within Echuca to accommodate the proposal and that these sites are superior to the school site because they do not have residential interfaces. Aspects of the Council's decision making processes were also criticised.
With respect to these matters I make the following observations;
[18]
Because the site is to be used by both the school and other sporting groups not associated with the school, the proposal does not comply with the condition in the Table to section 1 of Clause 36.01-1 which in effect stipulates that the proposed use must be for educational purposes. The non compliance with this condition has the effect of requiring a planning permit for the proposed use and for buildings and works associated with that use. Before deciding on an application consideration must be given to the decision guidelines at Clause 36.01-4[2] of the planning scheme.
With regard to the submission that alternative sites are available to accommodate the proposal, it is not my role to determine whether alternative sites are available or not, or whether those sites are superior to the site which is subject to the application. My role in this matter is to assess whether this proposal on this site achieves an acceptable outcome.
The Criticisms of the Council's decision making processes are not particularly relevant to my consideration of the merits of the application. This is a hearing de novo and I am required to make a fresh decision effectively standing in the shoes of the Responsible Authority. In making that decision I am required to determine whether the proposal achieves an acceptable outcome having regard to all the relevant planning scheme policies and provisions. The conduct of the Council in arriving at the decision it made, is rarely relevant to the decision which I am required to make.
[19]
In terms of policy considerations relevant to this proposal, the primary influences are those which give encouragement to social and community infrastructure, entertainment and recreational uses to be located where they are accessible to the community which they serve, and enjoy high levels of accessibility to the community. In particular Clause 18.07 of the State Planning Policy Framework (SPPF) relates to Educational Facilities and it has as an objective the integration of education facilities with local and regional communities. The implementation of the objective requires authorities to consider a range of matters including demographic trends, the existing and future demand requirements and the integration of facilities into communities. Clause 21.04-1 of the Council's Municipal Strategic Statement seeks to, among other matters, ensure that residential areas are provided with a comprehensive range of health, education, recreation, cultural and entertainment facilities and services that meet the needs of all age and gender groups.
Mr Horsfall referred me to Department of Education and Training policy documents which reflect a desire to encourage schools and communities to develop partnerships and to encourage the shared use of school facilities. These policies are consistent with those contained in the planning scheme I have referred to above, and reinforce my view that the provision of the proposed facilities as part of the school site is supported by the policy framework of the planning scheme and contributes to a net community benefit.
The location of the proposed facility on that part of the site where it has an interface with residential properties does create the potential for adverse residential amenity impacts. These potential impacts take the form of noise and illumination from the proposed flood lights.
I am satisfied however that, subject to the imposition of additional permit conditions, these impacts are capable of being contained within acceptable limits.
With respect to the issue of the flood lights, I was advised that these have been designed and located in accordance with the relevant Australian Standard (AS 4282 - 1997 Control of the Obtrusive Effects of Outdoor Lighting). I was referred to a report prepared by Dr Dluzniak[3] which addressed the issue of the impact of the flood lights. The report concluded that the lights have been designed and located to contain light spill and glare, and that the anticipated light spill in residential properties will be limited to an average of 10 lux with a maximum of 13 lux. Ms de Witt submitted that this level of light spill is within the acceptable range for a private tennis court. Dr Dluzniak's report was prepared on the basis of the original application plans which located the facility as close as 2.0 m from the boundary of the abutting dwellings. The amended proposal has relocated the facility so that it is setback generally 16 m from that boundary.
[20]
It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be varied and a permit be granted.
The permit will include the conditions contained in the notice of decision to grant a Permit issued by the responsible authority with modifications which have regard to the submissions of the parties and the matters which arise from these reasons.
[21]
Conditions to be included on Permit TPA2008 - 216
[22]
Prior to the commencement of the development, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority, When approved, the plans will be endorsed and will then form part of the permit. The plans n3ust be drawn to scale with dimensions and a minimum of three copies must be provided. Such plans must be generally in accordance with the plan submitted but modified to show:
(a) a) A landscape plan showing an area 2 metres wide to be located along the eastern boundary of the allotment for the entire distance of the mar fences for the residential properties facing Oberin Court, planted with a permanent screen of native trees and shrubs with a minimum of two rows using a mixture of local trees and understorey species. All trees must be a minimum of 2m in height at planting. All trees must be watered regularly during establishment phase and all dead or diseased trees must be replaced within the first 2 years.
(b) b) Playing field elevations and site plan, drainage, cut and fill areas, revised batter lines and lighting,
The operation of the courts must be regulated by the management of the sporting clubs through using the northern courts before southern courts to reduce light spill from floodlighting onto the adjacent houses,
External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the Responsible Authority. The light level at the boundary of the residential properties is not to exceed a level of 12 lux and an average level of 10 lux.
When the courts are in use, the floodlights must only operate up to a maximum of four nights per week.
During summer seasons the floodlights may be used for competition on two nights per week and training two nights per week. The flood lights must be turned off at 10.30 pm on competition nights and 10.00 pm on training nights.
During winter seasons the floodlights may be used for competition on one night per week and training three nights per week. The flood lights must be turned off at 9.30 pm. on competition nights and 9.00 pm on training nights.
The lighting system must be suitably controlled with timers and cut off switches to ensure no usage beyond the hours of operation specified above.
[23]
(a) staffing and other measures which are designed to ensure the orderly arrival and departure of patrons;
(b) signage to be used to encourage responsible off-site patron behaviour;
(c) measures to control noise emissions from the premises;
(d) the management of after hours access of site.
[24]
Prior to the commencement of the development a lockable, removable bollard, security gate, barrier or similar device controlling vehicle access to the walkway in Oberin Court (Reserve 1 on TP 219307) must be located on the road boundary. This barrier must be designed to allow foot traffic to continue on the footpath and occasional emergency or service access.
The Luth Street access gate must be locked after school hours.
No vehicle access is permitted to the area of the courts and vehicles must utilise the existing car parking to the west of the existing sports stadium.
Before the use starts, a traffic and parking management plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. Traffic and parking operations on and adjacent to the site must conform to this endorsed plan. Three copies of the plan must be submitted. The plan must be generally in accordance with the plans submitted but must include:
(a) the location of all areas on- and/or off-site to be used for staff and patron parking
(b) the means by which the direction of traffic and pedestrian flows to and from car parking areas will be controlled both on- and off-site
(c) measures to discourage patron car parking in Luth Street, Oberin Court and land adjacent to the hockey pitch
(d) staffing and other measures to ensure the orderiy departure and anival of patrons especially any large groups departing at closing time
Soil erosion control measures must be employed throughout the construction stage of the development to the satisfaction of the Responsible Authority.
Any filling of the site must not exceed the 1975 flood level of 94.70 metres AHD.
Before the development starts, a construction management plan shall be submitted to and approved by the Responsible Authority. The plan must outline how issues such as mud on roads, dust generation and erosion and sediment control will be managed, on site, during the construction phase. Details of a contact person/site manger must also be provided, so that this person can be easily contacted should any issues arise.
Appropriate measures must be implemented throughout the construction stage of the development to rectify and/or minimise mud, crushed rock or other debris being carried onto public roads or footpaths from the subject land, to the satisfaction of the Responsible Authority.
[25]
(a) how the land will be drained
(b) underground pipe drains conveying stormwater to the legal point of discharge
(c) measures to enhance stormwater discharge quality from the site and protect downstream waterways
(d) a maximum discharge rate from the site
(e) documentation demonstrating approval from the relevant authority for the legal point of discharge.
[26]
Before the use begins all works constructed or carried out must be In accordance with those plans to the satisfaction of the Responsible Authority.
[27]
Before the use begins, the drainage detailed in the approved Drainage Discharge Plan must be constructed to the satisfaction of the Responsible Authority.
Before the use begins access routes, parking, roads, buffers, drainage, irrigation, dams, lighting, and landscaping must be completed to the satisfaction of the Responsible Authority
Before any road, drainage or landscaping works associated with the development or subdivision start, detailed construction plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must Include:
(a) Fully sealed pavement with kerb and channel
(b) Concrete footpaths
(c) Underground drains
[28]
All works constructed or carried out must be in accordance with those plans.
[29]
Before the use commences, the applicant or developer shall submit to the satisfaction of the relevant authority an 'as constructed information plan to the satisfaction of the responsible authority.
The use must not start until a footpath is constructed to the satisfaction of the responsible authority from the applicant's nominated car park.
Before the development starts, the owner or developer must submit to the Responsible Authority a written report and photos of any prior damage to public infrastructure. Listed in the report must be the condition of Kerb & Channel, Footpath, seal, street lights, signs and other public infrastructure fronting the property and abutting at least two properties either side of the development. Unless identified with the written report, any damage to Infrastructure post construction will be attributed to the development. The owner or developer of the subject land must pay for any damage caused to the Councils assets and/or public Infrastructure caused as a result of the development or use permitted by this permit.
This permit will expire if the development permitted by this permit is not commenced within two (2) years or not completed within five (5) years from the date hereof. The times within which the development must be commenced and completed may on written request made before or within three (3) months after the expiry of this permit be extended by the Responsible Authority.
[30]
[1] Defined at Clause of the Planning Scheme as "Land used for leisure, recreation, or sport, without substan-tial provision for spectators, and which is usually open to non-paying spectators".
[31]
Before deciding on an application to use or subdivide land, construct a building or construct
[32]
or carry out works, in addition to the decision guidelines in Clause 65, the responsible
[33]
The State Planning Policy Framework and the Local Planning Policy Framework,
[34]
including the Municipal Strategic Statement and local planning policies.
[35]
The comments of any Minister or public land manager having responsibility for the care
[36]
Whether the development is appropriately located and designed, including in accordance
[37]
with any relevant use, design or siting guidelines.
[38]
[3] Dr Dluzniak was not called to give evidence in this matter and his report cannot be accorded the weight of an expert witness statement.
[39]
[4] The Private Tennis Court Development Code of Practice - Revision 1, March 1999, is an incorporated document in Clause 81.01 of the planning scheme.
Parties
Applicant/Plaintiff:
Repacholi
Respondent/Defendant:
Campaspe SC [2009] VCAT 2643
Legislation Cited (1)
Environment Act 1987
AI Analysis
Outcomerespondent
Disposition:
The responsible authority’s decision was varied and a permit was directed to be granted subject to the conditions in Appendix A.
While I acknowledge that the standard for private tennis courts is not applicable to this proposal, it nevertheless provides a useful guide for determining a uniformly acceptable standard for light spill from flood lights.
Having regard to the increased setback distance and the requirement for the applicant to undertake landscaping along the site's eastern boundary, I am satisfied that the impact of the flood lights on the amenity of the abutting residents will not be unacceptable. In arriving at this conclusion I have also been influenced by the following:
The frequency of night time use has been limited to 4 nights (2 for training and 2 for competition) and the hours limited to 10.30 pm for summer season and 9.30 pm for winter season.
The main living areas of the abutting dwellings are oriented toward Oberin Court with their interface with the school characterised by high back fences, outbuildings and vegetation.
With respect to noise impacts, it was submitted by the Council and the applicant that the nature of the use, the limitation on the hours of use, the nature of the interface with the dwellings, the setback of the facility from the boundary with the residential area, and the excavation which will have the facility constructed some 2.0 m below natural ground level, is sufficient to ensure that noise impacts will not be excessive. The Council has imposed a condition requiring the use to comply with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N1.
I agree with these submissions to the extent that I am satisfied that the noise impacts are capable of being controlled, but SEPP N1 is not the appropriate standard to apply to a recreational facility, where one of the primary noise sources will be from talking, barracking and general human activity generated by spectators and participants.
I have therefore imposed a condition requiring noise attenuation to be provided in accordance with the recommendations of a suitably qualified acoustic consultant. Ideally such a condition would not be necessary because I would expect an acoustic report to have been prepared either as part of the application material or presented to the Tribunal. This has not been done in this case. I am confident however that because the facility is setback 16 m from the boundary of the residential area, any noise attenuation which needs to be carried out is capable of being implemented.
No public address system or other amplified source of music or voice may be installed as part of this development.
The use and development must be managed so that the amenity of the area is not detrimentally affected, through the:
(a) transport of materials, goods or commodities to or from the land
(b) appearance of any building, works or materials
Prior to the commencement of the use hereby permitted, an Acoustic Engineer accredited by the Association of Australian Acoustical Consultants must assess the impact of noise sources emanating from the minor sport and recreation facility at all hours and recommend any acoustic or noise attenuation measures considered necessary to ensure that the emission of noise does not detrimentally affect the amenity of the abutting residential area. A report detailing the findings of the consultant must be submitted to and approved by the responsible authority.
Any recommendations contained in the report by the acoustic consultant must be implemented to the satisfaction of the responsible authority, prior to the commencement of the use.
Before the use starts, a noise and amenity plan/patron management plan to the satisfaction of the responsible authority must be submitted to and approved by the authority. When approved, the plan will be endorsed and will then form part of the permit. All activities forming part of the use must comply with the endorsed plan.
The applicant must ensure that dust suppression is undertaken in the form of constant water spraying or other natural based proprietary dust suppressant to ensure that dust caused by vehicles moving along the access roads or within the site does not cause a nuisance to surrounding properties to the satisfaction of the Responsible Authority.
(a) The development shall not have an adverse impact on existing or future air quality.
(b) Deliveries shall be between 8am - 5pm and outside school class times. Access shall be from the unsealed section of Anstruther Street (west of Campaspe Esplanade). No access shall be from Campaspe Esplanade.
(c) All roads/storage areas/external stockpiles/vacant or grazed areas must be covered and/or maintained to avoid dust and grit nuisance to any residential area to the satisfaction of the responsible authority.
Before the use begins and/or the building(s) is/are are occupied all stormwater and surface water discharging from the site, buildings and works must be conveyed to the legal point of discharge by underground pipe drains the satisfaction of the responsible Authority. No effluent or polluted water of any type may be allowed to enter the Council's stormwater drainage system.
Before any of the development starts, a properly prepared drainage discharge plan with computations to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and a minimum of three copies must be provided. The information submitted must show the details listed in the council's infrastructure Design Manual.