Usage of the proposed tennis courts shall cease at 10:00pm Monday to Saturday inclusive and 9.00pm Sunday and no night lighting of the tennis courts to occur between 10:00pm and 7:00am.

The Responsible Authority is directed to issue an amended permit as directed in this order under s.85(1)(b)(ii) of the Planning and Environment Act 1987.

1. This review against the condition relates to an amendment to a permit P2587/93 presumably made under s.72 of the Planning and Environment Act 1987. The condition to be reviewed is Condition 2 that states:

Night time usage of the tennis courts be restricted to only when all other courts are being utilised. Usage of the proposed tennis courts cease at 10pm and no night lighting of the tennis courts to occur between 10pm and 7am.

1. The amendment sought was to delete the first sentence that is "Night time usage of the tennis courts be restricted to only when all other courts are being utilised".
2. As a background to this application the permit No. P93/2587 was issued for the construction of two tennis courts, as an addition to an existing complex of 8 courts for the Rye Tennis Club, on a municipal reserve that are separated by the tennis club house from the existing court complex.
3. The tennis club, after being advised by the responsible authority that it was not prepared to delete the first part of the condition because its aim is to maintain residential amenity of nearby properties, submitted optional wording for the condition. This wording read:

Night time usage of the tennis courts be restricted to only when all other courts are being utilised or unplayable with the exception of junior coaching with the appointed club coach two nights a week only until 9pm. Usage of the proposed tennis courts cease at 10pm and no night lighting of the tennis courts to occur between 10pm and 7am.

1. In its determination the responsible authority deleted the suggested wording about the tennis coaching and granted an amended permit with condition 2 reading:

Night time usage of the tennis courts be restricted to only when all other courts are being utilised, including courts that are unplayable to the satisfaction of the responsible authority. Usage of the proposed tennis courts cease at 10pm and no night lighting of the tennis courts to occur between 10pm and 7am.

1. Therefore the amendment to condition 2 is the insertion of the words:

including courts that are unplayable to the satisfaction of the responsible authority.

1. The site is situated on the west side of Recreation Drive, Rye. It is part of the Rye Reserve and is a larger recreation complex containing a skate park, netball courts, football oval, tennis courts and associated buildings. The subject courts are set back 4 metres from Recreation Road and 4.5 metres from the adjoining residential properties to the north. There has been some landscaping planted between the tennis court and the residential properties as well as black shade cloth. There is also an informal parking area to the north of the existing tennis courts and east of the club house. To the north and east of the subject courts are residential properties.
2. The proposal is to amend the permit condition as stated.
3. The objector, Ms. Morris, owns a property immediately north of the subject site No. 30 Recreation Road. She uses this for her residence as well as operating a studio gym for women only. This operates Monday to Thursday between 7am and 9pm; Friday 7am to 8pm; and Saturday and Sunday, the usage ends at 2pm.

1. The land is zoned Public Park and Recreation. The land to the north and east is zoned Residential 1. The application was advertised and resulted in four objections and one petition being received by the responsible authority. The grounds of objection included:
   • The generation of noise and foul language.
   • Glow of lighting affecting amenity.
   • Waste of energy.
   • Infringement of residences' rights to privacy and amenity.
2. The residents have agreed to the council's condition but are concerned about the determination of the word unplayable.
3. In the petition suggestions were made that the use of the two courts must cease at 9pm because of the invasion of privacy by lighting and noise levels.
4. The responsible authority held a consultation meeting between the parties and was unable to resolve the matter. The responsible authority determined to amend the permit with the condition as listed by the insertion of the words "including courts that are unplayable to the satisfaction of the responsible authority".

1. This is an issue where there has obviously been a long history of concern expressed by the respondent objector about the manner in which the tennis club fulfilled its obligations under the permit issued for the two courts. Ms. Morris expressed her concern that she had no confidence whatsoever in the tennis club meeting the intent and wording of this condition because of its previous history of taking an abnormally long period to fulfil its responsibilities under the existing permit. She said that, in relation to landscaping, she had initiated landscaping the buffer area between the courts and her residence by planting trees and shrubs herself. The tennis club indicated it had followed on and itself planted a number of species after being unable to get the council to do so within a reasonable time.
2. It was during this type of discussion that I stated that it is the council's responsibility as a responsible authority under the Planning and Environment Act 1987 to ensure that conditions of permit are met. Other parties and the permit holders themselves have every right to be confident that a responsible authority will do so. If they are not satisfied then they can bring enforcement proceedings before the Tribunal themselves.
3. In relation to the existing condition I agree with the tennis club representative, Mrs.Redman, that the wording of the condition is unclear and subject to an ad hoc interpretation of when the other courts are in use. The tennis club was of the opinion that if courts 9 and 10 were being played on because the others were full and some of the other courts became vacant, then play should be moved from courts 9 and 10 to those. That, in my view, is ridiculous. Also, as Ms. Morris rightly pointed out, how does the Club determine whether the courts are unplayable or not, whether it may be because of flooding, hazards, lights out of action or other reasons?
4. There is no doubt there have been complaints received by the council in relation to the use of courts 9 and 10 and there is no doubt that the responsible authority has found it difficult to ascertain whether a breach of the condition has occurred or not.
5. In my view, there needs to be a concisely worded condition that is unambiguous and that allows a proper use of these tennis courts within reasonable times by the club and others who may hire or visit courts for the purpose of playing tennis.
6. While I understand Ms. Morris' concerns and have some sympathy for her, nevertheless she is living adjacent to a large sporting complex that includes the tennis courts and also runs a recreational type activity herself.
7. If there is offensive language or noise then it is incumbent upon the tennis club executive to firmly suppress such in the interest of its ongoing relationship with its neighbours. This is whether or not it has competition or just casual tennis occurring on courts 9 and 10. It means that there needs to be a person or persons in authority at the courts whenever they are being fully used, or at least have a phone number available for people who wish to complain during the hours of operation.
8. The tennis court code that controls the lighting of private tennis courts particularly has a cut-off time of 10:00pm on every night of the week. 10pm was chosen by the state Government as a reasonable time for use to cease. Therefore it seems to me to be irrational and illogical to reduce hours of operation on public tennis courts in comparison to those allowed under the tennis court code. I know the Council is between a rock and a hard place in trying to please every party but people are entitled to certainty.
9. In relation to the coaching of children on the courts, then the coach is the person in whom the responsibility must be placed to ensure that the children behave themselves and keep their noise down. This is in spite of the natural exuberance of children when they are playing sport, however, coaching is a serious business and it is incumbent upon the coach to ensure that the amenity of the neighbours is not duly affected.
10. While I toyed with placing a blanket 9pm restriction on the usage of courts 9 and 10, I think it is reasonable to assume that the 10 courts are going to be in usage most times and that 10:00pm is not an unreasonable hour to allow them to operate. I do, however think it is reasonable to reduce this by an hour on Sundays.
11. It is my intention therefore to delete Condition 2 of permit No. P93/2587 as amended on 21 March 2007 and replace it with wording that reflects my reasoning above.
12. The residents have a number of options to ensure that their amenity is protected in relation to noise emanating from the courts under the EPA's SEPP, the Police and the responsible authority's enforcement and local law officers. The responsible authority is expected to police the permit conditions in accordance with its responsibilities under the Planning and Environment Act 1987.