Tappouras v Lake Macquarie City Council

The site and locality 13The site is located approximately 2.2 km east of Morisset between the townships of Morisset and Dora Creek. Surrounding development is characterised by rural residential subdivision with detached dwellings and outbuildings in large open landscapes interspersed with areas of bushland. The north of the site adjoins bushland which forms part of the land on which a sewage treatment plant managed by Hunter Water is located. The closest residential properties are 63 Ironbark Road and 55 Ironbark Road, to the west of the site, and on the other side of Ironbark Road to the east, 82 Ironbark Road and 78 Ironbark Road.

Planning controls 14The site is zoned 1(2) Rural (Living) under the Lake Macquarie Local Environmental Plan 2004 and educational establishments are permissible with consent. The objectives of the 1(2) zone are to: (a) provide for the enjoyment of a rural lifestyle and the operation of small-scale rural and tourism activities, and (b) provide for a range of compatible land uses that maintain the rural environment, and (c) ensure development is carried out in a manner that improves the quality of the environment, and is within the servicing capacity of the area, and (d) retain and enhance the rural character of land, and (e) allow for the appropriate development of land presently within this zone so as to limit the need to rezone any more land to this zone, and (f) avoid land use conflict by restricting or prohibiting development that has the potential to negatively affect the sustainability of existing agriculture, and (g) provide for sustainable water cycle management. 15The properties located to the west and south of the site are also in the 1(2) Rural (Living) zone; the properties on the other side of Ironbark Road to the east are in the 7(5) Environmental (Living) zone. 16The Lake Macquarie Development Control Plan 2004 (the DCP) applies, and requires provision of 14 car spaces for the proposed increased student and staff numbers. 17The State Environmental Planning Policy (Infrastructure) 2007 (the SEPP) applies to the site. Part 3 Div 3 applies to educational establishments, which includes a school. Clause 31A provides: 31A Complying development-existing schools and TAFE establishments (1) Development carried out by or on behalf of any person on land within the boundaries of an existing school or TAFE establishment is complying development if: (a) it consists of the construction of, or alterations or additions to, any of the following: (i) a library or an administration building, (ii) a gym, indoor sporting facility or hall, (iii) a classroom, lecture theatre, laboratory, trade or training facility, (iv) a tuckshop, cafeteria, bookshop or child care facility to provide for students or staff (or both), (v) a hall with an associated covered outdoor learning area or tuck shop, (vi) if the development is not on bush fire prone land or if the educational establishment is not, or does not contain, a heritage item-an outdoor learning or play area and associated awnings or canopies, (vii) a car park, and (b) it complies with this clause and clause 20B (General requirements for complying development). (1A) (Repealed) (2) Development carried out by or on behalf of any person on land within the boundaries of an existing school or TAFE establishment is complying development if: (a) it is an alteration or addition referred to in subclause (1) that is carried out for the purpose of a change of use to another use specified in that subclause, and (b) it complies with this clause and clause 20B (General requirements for complying development). (3) Clause 20B (2) (f) does not apply in relation to development carried out under this clause. (4) The following are the development standards for complying development under this clause: (a) Building height standard. The building height of a building must not exceed 12m. (b) Side and rear setback standard. A building must be located at least 5m from any side or rear boundary of the land. (c) Materials standard. Any new external walls or roof of a building must be constructed of non-reflective material. (d) Noise standard. A building to be used for the purpose of a gym, indoor sporting facility or hall that is located less than 20m from a common boundary with land zoned residential must be designed to meet the acoustic performance elements contained in item 11.05.e of the State government publication School Facilities Standards-Design Standard-Version 1/09/2006. (e) Overshadowing standard. A building must not overshadow any adjoining residential property so that: (i) solar access to any habitable room on the adjoining property is reduced to less than the minimum level (being 2 hours of solar access between 9 am and 3 pm at the winter solstice) or is reduced in any manner (if solar access to any habitable room on the adjoining property is already below the minimum level), or (ii) solar access to the principal private open space of the adjoining property is reduced to less than the minimum level (being 3 hours of solar access to not less than 50% of that principal private open space between 9 am and 3 pm at the winter solstice) or is reduced in any manner (if solar access to the principal private open space of the adjoining property is already below the minimum level).

Evidence 18In accordance with s 96(8) of the Act the Council notified the modification application as required by s 96(2)(c), and the Council's bundle (exhibit 2) includes letters of objection (tab 5), and letters in support (tab 6). 19The hearing commenced on site with a view. Evidence was given on site by six objectors, residents in Ironbark Road and Inglewood Road, who raised concerns as to impacts on the rural setting, lifestyle, and amenity; safety issues for students travelling to school by bicycles or skateboards; that the site is too small for the number of students, and that as numbers increase, social conditions in the school will change; impacts on other schools in the area; reliance on the applicant's assurance that the number of students would remain below 100 for 10-15 years; that it is not appropriate for children to play on the irrigation area; bushfire concerns; protection of the wildlife corridor; increased runoff; and use of demountables. Notes of that evidence are exhibit 3. 20The applicant provided with the s 96(8) application to the Court a statement by Mr Paul McLean, planner, annexing three reports: a Traffic Assessment including a traffic survey undertaken in August 2013 by Mr Sean Morgan, traffic engineer; a Noise Assessment by Mr Graham Atkins, acoustic engineer, dated September 2013; and an Onsite Effluent Disposal Assessment dated 24 September 2013 by Mr Shann Mitchell, Whitehead & Associates (exhibit B). A statement addressing the requested amendment to condition 47 included a Noise Impact Assessment by Mr Atkins dated October 2010, prepared as part of the earlier proceedings (exhibit C). Additional evidence tendered at the hearing included further reports relating to wastewater disposal, prepared by Mr Joseph Whitehead (exhibit D); traffic and parking, prepared by Mr Sean Morgan (exhibit F); and bushfire safety, prepared by Mr Wayne Tucker (exhibit J). The applicant provided an updated Bushfire Evacuation Plan and Noise Management Plan; an as built plan of car parking and bus parking to facilitate 14 car spaces and 3 buses; a plan of school buildings showing seating for 200 students; and copies of various school policies including a Traffic Plan of Management and Landscape plans (exhibit E). Also in evidence was a Traffic Impact Statement dated April 2008 prepared as part of the initial development application (exhibit G). 21A Special Report of the Director City Strategy to the Council meeting held on 24 February 2014 is, with the consent of both parties and with agreed redactions, in evidence (exhibit 5). That report notes that during the course of the s34 conciliation process, the applicant had provided additional traffic, bushfire and acoustic management information, and Council staff were now satisfied that the merit issues (acoustic, traffic, bushfire and wastewater) had been resolved.

Consideration 22Section 96(2) of the Act requires that the consent authority be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified; that relevant Ministers or public authorities be consulted; that the application is properly notified; and that any submissions made are considered. Section 96(3) provides that in determining an application for modification of a consent, the consent authority must take into consideration such of the matters referred to in s 79C (1) of the Act as are of relevance to the development the subject of the application. The matters to be taken into account in determining the modification application are defined by the matters raised for consideration by the application: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [51]. 23The Council initially contended that the proposed increase in student numbers would give rise to bush fire safety issues, wastewater management, traffic impacts, and acoustic impacts. Those matters were also raised in the oral and written objections. The Council's position at the hearing is that it accepts that the merit issues raised by the objectors are not supported by the expert evidence, which is considered in detail below; however the Council still supports the concerns expressed by the objectors as to loss of rural amenity and rural setting. 24Considering first the traffic impacts, the evidence is that the increase in student numbers from 100 to 200 would require an additional two staff members (exhibit B). Applying the provisions of the DCP, the increase in student and staff numbers would require provision of 14 car parking spaces instead of the currently required 10. Mr Morgan provided an updated survey of traffic movements (5-11 February 2014) in his Statement of Evidence (exhibit F). Mr Morgan noted that the majority of the 100 extra students would access the site using buses. The applicant proposes two additional bus runs, to carry 64 students; increasing the existing three buses that are under-utilised to full capacity, to carry 19 additional students; and increasing the number of children transported by the Tin Lids bus. Mr Morgan concluded that overall there is an expected vehicle increase of 7 inbound trips in the morning and 7 outbound vehicle movements in the afternoon periods for students, and an additional two inbound and outbound vehicle movements for the increase in staff. Overall the proposed increase to 200 students would increase traffic movements in both the morning drop off period and the afternoon pick up period by 16 (9 inbound and 7 outbound and reverse in the afternoon) (exhibit B). In Mr Morgan's opinion there will be a minimal impact on the existing operation of the local road network in the vicinity of the college. The total two-way traffic flow on Ironbark Road, with the additional traffic movements associated with the extension to 200 students will be some 70 vehicles per hour during peak periods, which compares favourably with the desirable environmental limit of 200 vehicles per hour for a local road such as Ironbark Road. 25The Special Report to the Council (exhibit 5) noted that pending submission of a revised traffic management plan, the Council staff "are generally satisfied that the proposal will not adversely affect the amenity of the locality and the site can cater for additional car parking that results from the proposed additional students". The applicant has provided a Traffic Plan of Management for parking associated with functions at the school (exhibit E, Annexure G (i)). A plan provided by Mr Morgan shows the 14 required car parking spaces and three bus parking spaces (exhibit E Annexure C). 26Considering wastewater management, the evidence is that the expansion of the school numbers will require an upgrading of the wastewater treatment plant to support the additional daily wastewater load, including the addition of one AX20pod (bringing the total to three) and a second reticulation pump; an increase in the required irrigation area so that the revised irrigation area requires use of the whole of the 3,840 sq m sports fields plus 468 sq m of area to be installed to the east of the existing primary irrigation area, in an area just west of existing trees and without disturbing the trees (exhibit B, exhibit D p 14). Plans for the wastewater treatment plant and the wastewater irrigation hydraulics have been provided (exhibit D, pp 19, 20, 25). Mr Whitehead's evidence is that the wastewater treatment system currently treats and disinfects wastewater to a standard appropriate for land application by pressurised sub-surface drip irrigation beneath the school sports field; the system has been installed and operated in a manner compliant with Council requirements, and it is appropriate for children to play on the sports field (exhibit D, p 2). The Council's Principal Environmental Officer - Public Health considered the proposed changes, and in a report to the Council for its meeting on 24 February 2014 it was noted that subject to conditions of consent "the site is considered suitable to cater for the proposed additional students and teaching and support staff" (exhibit 5, p 7). 27Mr Tucker addressed bush fire safety issues, and in his Statement of Evidence (exhibit J), he noted that the development has been designed to incorporate adequate Asset Protection Zones (APZ) and provides structures built in accordance with AS3959-2009 and therefore designed and constructed to withstand the passage of a bushfire. At times of imminent bushfire impact the lockdown and take refuge in the buildings built to code should be followed. Mr Tucker prepared an updated Bushfire Evacuation Plan (exhibit J, Annexure A), which he states is consistent with the NSW Rural Fire Services document A Guide to Developing a Bushfire Evacuation Plan and which, in his opinion, includes sufficient detail for scenarios which require occupants to seek refuge onsite. The Special Report to Council (exhibit 5) noted that Council staff were initially concerned that an additional 100 students on site may affect the ability of the ability of the site to respond to bushfire emergencies and successfully evacuate the site, and that following the provision of additional information Council staff were now satisfied that the site can be safely evacuated should the need arise. 28Mr Atkins' noise assessment prepared in September 2013 (exhibit B) assessed classroom noise, playground noise, and off-site road traffic noise. He concluded that noise from classroom activities was generally not audible at the site boundaries and satisfied the LAeq, 15min 45dBA criterion, and that noise from classroom activities with the additional students was not expected to noticeably change or increase. Noise levels during outdoor free play activities measured behind the Library building was generally less than 40-42dBA, while at the rear boundary of 63 Ironbark Road, with appropriate management controls, noise could be controlled and satisfy the LAeq, 15min 45dBA criterion; noise levels from free play activities referenced to 55 ironbark Road, 78-82 Ironbark Road and 1 Boonal Road were less than LAeq, 15min 45dBA. Mr Atkins concluded that considering the observed spread of students during free play, resultant noise levels at the residential properties are unlikely to increase by more than 1-2dB. Increased vehicle movements resulting from the additional student numbers would be less than 1dBA and satisfy the criterion for local roads. 29Mr Atkins noted (p 10) that with respect to condition 47 and noise from outdoor free play activities, there is an inconsistency with respect to its application and the expert evidence provided in the proceedings 10770 of 2010. Mr Atkins recommended amendment of the condition to accord with the Association of Australian Acoustic Consultants (AAAC) guideline Technical Guideline, Child Care Centre Noise Assessment, which recommends that with a qualification of restricting outdoor free play to two hours a day, noise from outdoor play activities should not exceed 10dBA above background level when assessed at residential properties, and for activities outside the two hour period, that noise levels not exceed 5dBA above the background level. 30The AAAC guideline recommendations have been incorporated in the proposed amended condition 47. An updated Noise Management Plan has been provided (exhibit E, Annexure C), limiting outdoor free play to two hours a day, and providing noise criteria consistent with the AAAC recommendations. The Special Report to Council (exhibit 5) notes that an assessment by an acoustic expert of likely acoustic impacts of the proposed changes including the likely impacts of an additional 100 students on site found that the proposed changes are unlikely to adversely impact on the receiving environment, and that the change in noise levels specified in condition 47 was considered to be acceptable. Council staff considered that the proposed changes to the acoustic conditions are acceptable, and while noting that there was objection to the proposed changes from objectors concerned that the additional student population would introduce additional adverse cumulative acoustic impacts, based on the expert advice provided to the Council, staff did not consider this to be likely. The Special Report noted that "the worst affected adjoining residence west of the development, has not reported to Council staff any objections to the existing development regarding noise impacts" (exhibit 5, pp 5-6). 31The expert evidence as to bushfire safety, wastewater, traffic and parking and noise was not contested by the Council, and Council staff agreed with the assessment of likely impacts and were satisfied that these merit issues had been resolved (exhibit 5, p 4). I accept the expert evidence. While the objectors expressed concerns as to likely impacts in relation to those matters, I am satisfied that the expert evidence supports the conclusion that the increase in student numbers would not give rise to unacceptable adverse impacts. 32The Council initially contended that the proposed amended development would be of a scale that is inconsistent with the intent of the original development consent, and would be inconsistent with the zone objectives for the locality. The objectors in oral and written submissions raised concerns as to impact on the rural lifestyle and ambience of the locality, which are matters included in objectives (a), (b), (c) and (d) for the 1(2) Rural (Living) zone. Consistency with the zone objectives was addressed in the decision to grant development consent, Tuor C finding that the school buildings would have an acceptable visual impact, that associated changes would not be an unreasonable intrusion into the rural context of the site, and that the school, including the buildings and other structures within a landscaped setting, would be consistent with the existing rural character of the locality, and concluding that that proposal was consistent with the zone objectives (Tappouras v Lake Macquarie City Council [2011] NSWLEC 1209 at [62]-[65]). The Council withdrew contention 4, and the evidence before me does not suggest it would be appropriate to depart from the conclusion reached by Tuor C on the zone objectives. 33The central concern of the Council is expressed in its Contention 2, that the ultimate impact of the proposed amendment to the development consent is not known, and the condition limiting the number of students is the only control that a consent authority has on this issue. The Council's position is that if the increase in student numbers is approved, the likely impact is that there will be an undermining or loss of rural amenity. 34The Council, and the objectors, rely on the statement in the Statement of Environmental Effects (SEE) submitted with the original development application that based on the number of children presently enrolled in the infants section, "the number of children being taught at the school will remain below 100 for the next 10-15 years" (exhibit 4, p 15). I agree with the applicant that a statement made in December 2008 as to expected future numbers over a 10-15 year period could not act as a barrier to a s 96 application to modify the consent granted for 100 students, or an application for a further development consent. 35It was common ground that cl 31A of the SEPP would enable the School to construct, or make alterations or additions to, the buildings or facilities identified in cl 31A(1)(a) with a complying development certificate, rather than requiring a development consent from the Council. Any such work could only be complying development if it met the development standards specified in cl 31A(4), including height, location on the site, and noise. However, the present modification application is made on the basis that the School can accommodate the additional students and staff without requiring any additional buildings or facilities. 36The applicant relies on the plan provided in exhibit E (Annexure F) which shows that there is capacity for 25 students in each of the infants' GLA, the three primary GLAs, the senior GLA, the senior food tech and science rooms, and in the GLA used as a computer room, and a further 11 students in a senior GLA in the Library building. Mr McLean's evidence was that this plan confirms that no additional structures are required to support the additional students. This is supported by the Special Report to the Council (exhibit 5) in which it is noted (at p 7) that the additional information provided by the applicant has demonstrated that the increase in student population can be catered for on-site without the construction of additional buildings. It was apparent on the view that there is available space in each of the classrooms observed. Based on this evidence I am satisfied that the proposed additional 100 students can be accommodated on the site in the existing facilities. 37The Council presses for the inclusion in any amended condition 10 of the following: Other than those buildings shown on the approved plans referenced in condition 3 "Approved Documentation", no additional buildings shall be constructed on Lot 1211 Deposited Plan 1001980, within the water treatment zone or the existing building line setbacks. 38The Council submits that without such a provision there is potential for conflict between this development consent and any complying development certificate issued by a certifier under s 85A of the Act. This condition would protect the community by making it clear that there are to be no new buildings. In the Council's submission, it is reasonable to expect that the effect of an increase in student numbers would be that there are buildings in a rural environment, including on the drainage area and in the APZ, on a sensitive site because of the odour implications of the Hunter Water sewage treatment plant and because of noise parameters, in a rural setting. The Council submits that there is a reasonable and real likelihood that additional buildings will be required, when regard is had to the history of the growth of the School, and the limited space and need to share classrooms. 39There is power to impose conditions when determining an application for modification: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685. It is not clear how a condition purporting to restrict the operation of cl 31A of the SEPP, or to constrain future development on the site, could properly be imposed; however, it is not necessary to reach a concluded view on that issue, as I am not persuaded that the additional wording should be included in condition 10, for two reasons. First, any proposed building or facility as identified in cl 31A(1) of the SEPP would need to comply with the development standards imposed by cl 31A(4) before a complying development certificate could be issued; and if it were to be approved by a complying development certificate, the conditions imposed under the 2011 development consent would still apply and need to be complied with. Those conditions relating to the operation of the School impose constraints relating in particular to noise, vehicle parking, wastewater disposal, and maintenance of the APZ, and would continue to operate independently of any approval of additional structures. It is not apparent how any inconsistency might arise. Secondly, I am not persuaded that there is a sufficient nexus between the development that would be authorised by the consent as sought to be modified in these proceedings and the proposed restriction on the construction of additional buildings. The present application is for the accommodation of additional students in existing buildings and facilities, with some additional parking and increase in capacity for wastewater disposal which would not affect any play areas or trees. The evidence before the Court establishes that the School can accommodate the additional 100 students with its present buildings and facilities. I regard the possibility that additional buildings might be required at some future date, or that if required and approved under a complying development certificate any such additional buildings or facilities might give rise to the adverse impacts as submitted by the Council, as being too speculative and remote from the present application, so that I could not be satisfied that the additional restriction in condition 10 would reasonably and fairly relate to the development the subject of this application. 40While the Council withdrew its first contention, the consent authority (which includes the Court under s 96(8)) is required, under s 96(2)(a), to be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before the consent as originally granted was modified, for there to be power to modify the consent. While the matter was not argued, I am satisfied on the evidence before me that in circumstances where the consent as modified would permit the School to accommodate 100 additional students in the existing buildings and facilities, with some increase in capacity for wastewater disposal and additional parking, on the qualitative and quantitative comparison required by the authorities the development is substantially the same as that for which the consent was originally granted (Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468).

Conclusion 41Section 96(2)(a) is satisfied, and the notification requirements imposed under s 96(2)(c) have been satisfied. The submissions made in response to the notification, both in opposition and in support, are in evidence. While the objectors raised in their oral and written submissions a number of concerns as to unacceptable impacts of the proposed modification, where those concerns are addressed in the expert evidence, I am satisfied based on that evidence that there are no likely adverse impacts relating to bushfire safety, traffic and parking, wastewater disposal, or noise, from the subject application. Some of the concerns raised in the oral and written submissions relate to matters addressed and determined in the original grant of development consent, rather than matters properly arising for consideration in the subject application. In particular, I note that the present application does not include any change to vegetation or impact on existing trees. The evidence before the Court establishes that the School can accommodate the increased number of students in its existing buildings and facilities. Having regard to the matters under s 79C(1) of the Act relevant to the aspects of the development to which the modification application relates, I am satisfied that it is appropriate to approve the application to modify the development consent. Condition 3 is to be amended to include references to the updated carpark and wastewater plans; condition 10 to change the number of students to 200; condition 17 to require provision of 14 car parking spaces; condition 47 to reflect Mr Atkins' recommendations as to noise levels; condition 62 to correct a typographical error; and condition 63 is to be inserted to require the applicant to obtain an approval under s 68 of the Local Government Act 1993 for the modification of the waste treatment system. 42The parties are directed to provide electronically, by 21 March 2014, a consolidated set of conditions incorporating the amendments to the conditions, following which final orders will be made in chambers. Linda Pearson Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2014