The Presbyterian Church (New South Wales) Property Trust v Woollahra... [2015] NSWLEC 1245 | Case summary

The Presbyterian Church (New South Wales) Property Trust v Woollahra... [2015] NSWLEC 1245 | Case summary | Zoe

[10]

The 1992 master plan

The School's 1992 master plan is specifically referred to in condition 2 and, is the genesis of the student number of 1120 stated in the condition.
The executive summary states that "the master plan study for The Scots College secondary school site in Bellevue Hill was commissioned in 1990 to provide a framework for the physical development of the school for the next twenty to thirty years "(exhibit 3 at p783).
The student number of 1120 in the master plan is based upon the maximum open air recreation space per student spread across the Victoria Road campus (east and west).
The student number is derived from the following calculation: 44,900m2 divided by 1120 students = 40.089m2 open air recreation space per student as at 1992 (exhibit 3 (vol3) p800).
The break - up of the 1120 is explained in the 1992 master plan. It is the maximum number of boys in year 7-12 at the Victoria Road campus (both east and west) in February 1992 (at p69 of the master plan (Exhibit 3 (vol3) at p815)).
The figure refers to day boys and boarders and includes the 185 year 9 boys who it states spend "a considerable part of the year at the outdoor education centre called "Glengarry and situated in the Kangaroo Valley."
The fact that the 1120 figure was calculated by reference to boys in years 7 to 12 who currently use the east campus does not in my opinion detract from the Council's proposition that the master plan clearly proceeded on the basis that the 1120 student limit was regarded as the student capacity of the Victoria Road campus for both the eastern and western precincts. This is clear from a consideration of the open air recreation space calculations as outlined.
The calculation of the open air recreation space includes the Ginahgulla Road part of the Victoria Road campus or west precinct (exhibit 3 p800). The 1992 master plan states: The brief for the future development of the school was to provide the amount of built space required for the maintenance of high education standards in a way which is consistent with the overall site and surrounding environment. (at p3 exhibit 3 at 740):
The document specifically excludes the junior campus at Mansion Road (exhibit 3 (vol3) at p738) and refers only to the Victoria Road land (east and west). It does not mention the year 5 -6 students at the Victoria Road campus because in 1992 there were none. The master plan mentions the year 7 -12 students (including those in year 9 who are away for 2 terms) because that was the maximum number of students that the land area needed to accommodate for at least part of the year when the year 9 students were not at Glengarry.
In my assessment, the 1992 master plan is clearly in respect of the secondary school site at Victoria Road (both east and west), with an emphasis on the land area capacity to accommodate students (exhibit 3 (vol3) p736). Therefore, the maximum student numbers of 1120 in the 1992 master plan relates to an analysis of the whole of the Victoria Road campus, including the west Ginahgulla Road site.
Accordingly, it seems entirely reasonable to conclude, as the Council submits, that the maximum number of 1120 students for Scots College referred to in condition 2 identifies a total student number for the eastern and western precincts of the Victoria Road campus.

[13]

(DA 545/2005) - General education/business studies building - eastern campus - approved in 2007

The School's development application (DA 545/2005) for the general education building , the business studies building at the southern end of the eastern precinct , is described in the SEE prepared by Planning Workshop in August 2005 (exhibit A tab 4 ). It is considered in the Council's assessment report (exhibit 3 (vol3) Tab 7).
The application was lodged with the Council on 5 September 2005. At that time the year 6 boys were located at the western campus Victoria Road. The year 5 boys were not relocated there until 2007.
The Council issued conditional development consent for DA 545/2005 on 12 March 2007.
The consent approved the erection of a new general education building at the Victoria Road campus. As noted earlier DA/545/2005 was modified in 2013 so that the building could be used as a business studies building for senior students.
This building has not been constructed: (at [13] Dr Lambert's affidavit (exhibit C)).
The SEE prepared by Planning Workshop also makes plain the School's commitment that the application does not propose an increase of students to the School. Section 7.3.1.5 of the SEE which deals with Parking and Traffic Pedestrian support this proposition. It states that there are no alterations to access arrangements, parking and no traffic increases or student numbers.
However, the Council's assessment report records under the heading Traffic (at p690 of exhibit 3 (vol3)) "…this development is affected in a similar manner to DA 528/2004 (Science Building) which is deficient in overall parking numbers and drop off and pick up of students " . These issues are highlighted in the Memo dated 18 November 2005 from the Council's Traffic and Transport Planner which states: "A total of 110 additional spaces will be required for the Master Plan to conform to the DCP. Only 92 are proposed which is a deficiency of 18 spaces. There is already significant traffic and parking problems in the vicinity of Scots College therefore proceeding with this proposal without ameliorating traffic congestion is unadvisable. Recommended strategies are the provision of additional parking and reviewing existing arrangement for the drop off and pick up of students in peak times. Resolution of the traffic problems in the area is of primary importance. Therefore it is recommended that the School construct the proposed 92 space car park and review existing arrangements for the drop off and pick up of students in peak times before this development proceeds. Additionally it is recommended that the school modify the proposed car park to contain 110 spaces or provide as additional 18 spaces elsewhere within the College to ensure development complies with the current DCP during the implementation of the Master plan."
The report concludes that "…the development is considered to be satisfactory, subject to conditions, with the exception of the concerns relating to the deficient number of off street car spaces and the lack of strategies for student drop off and pick up arrangements in terms of car parking spaces refer to Part 9.2 -DCP for off street car parking provision and servicing facilities": (p691 (exhibit 3 (vol3)).
The report then discusses the reasons for the imposition of condition 2. It states: In terms of pick up and drop facilities, there are currently no formal pick up and drop off strategies for Scots College. It is conceded that there is intense traffic activity for pick up and drop off around the school between 8- 9am and 3pm -4.30pm. However, subject to condition 2 student numbers will not be increased and therefore not conceivably intensifying traffic activity during these peak times. Further, given that the application relates to the provision of new general educational facilities that will not increase student numbers or the intensity of traffic, the provision of student pick up and drop off facilities is considered to be beyond the scope of this application".
The assessment report deals with the provisions of the Development Control Plan for Schools and College Development (at pp696- 698 exhibit 3 (Vol3)) and it states under the heading Parking and Servicing that: The objectives for Parking and Servicing are to provide on - site parking for staff ,students ,visitors and delivery vehicles which is easily accessible and has regard to pedestrian safety ,to ensure that all parking and servicing requirements generated are on site and to make provision for disabled parking…. The objectives in relation to traffic and pedestrians aim to minimise the conflict between vehicles and pedestrians, ensure adequate provision for vehicular and pedestrian accessibility, to and within the site ad encourage the safe, efficient and co-ordination circulation network within a site.
Again the report states: The proposed General Education building will not substantially alter the existing pedestrian and vehicular access and egress arrangements: Given that the application relates to the provision of new educational facilities that will not increase student numbers or the demand on traffic, the provision of student pick up and drop off facilities is considered to be beyond the scope of this application.
Under the heading Student Numbers the Council's assessment report states: The objective in relation to student numbers aims to encourage schools and colleges to consider their present and projected future enrolments in relation to the provision of adequate facilities and services for students, staff and visitors. The representatives acting on behalf of Scot's College have provided evidence that the student numbers of the college have remained relatively stagnant over the last two decades, with some minor fluctuations as a result of economic conditions of the time. The 1992 master plan stipulates a maximum number of students being 1120 of this some 1030 students will be at the college at one time given that Year 9 are located off site for a large portion of the year. The proposed General Education building represents the third major additional facility since the 1992 Masterplan, the first addition being the Centenary Building with the second addition being the Mathematics and Science Building (DA 528/2004). The population data provided with the application demonstrates that since 1992 the student population has been as low as 871 students in 2000 and as high as 1003 in 1992 with the 2004 numbers at 932 students. Given that the Centenary Building was constructed in 1999, the increased gross floor area and upgraded facilities has done relatively little to vary the student numbers. Having regard to the objectives and requirement of the Plan, Council is within its right to impose a condition on the maximum number of students at the College can accommodate. As such, Condition 2 sets a maximum number of students of 1120. Accordingly, the proposal is considered to be satisfactory with the relevant objectives and requirement of Student numbers. (my emphasis)
Under the heading DCP for off street car parking provision and servicing facilities, the report again concludes that "subject to Condition 2 the status quo will be maintained, negating the need for additional off-street car parking".
The application was recommended for approval subject to the imposition of Condition 2. Again, the limitation of students on the Victoria Road campus or Scots college was fundamental to the approval of the development.

[14]

Colston Budd report 2005

The traffic experts agree that the traffic report prepared by Colson Budd in June 2005 (exhibit 4) which accompanied DA 528/2004 is an appropriate base line for the traffic and parking impacts associated with the student cap of 1120 for the purposes of the s96 applications (Transcript D1 p28).
The report states that in June 2005 the College (both east and west precincts) provides classes from year 7 to year 12. The enrolment was some 1100 students comprising 900 day boys and some 200 boarders, plus 120 staff. However, it does not include a reference to the year 6 students re located to the western precinct in 2001.
The report records that in 2005 there were substantial movements of students between the eastern and western campuses during the day and, that Victoria Road was the major set down and pick up location for students that are driven to school by car. The greatest intensity of traffic and pedestrian activity therefore occurs in Victoria Road generally between Ginahgulla Road and Aston Gardens. However, "on-street activity generated by the College affects other streets in the area to varying degrees. Whilst " there is significant set down and pick up activity in Ginahgulla Road and Cranbook Road, …the main impacts relate to onsite parking and site access (exhibit 4 p3).
The report records that 44 % of students were found to travel to and from school by public transport and 49% and 46% of students travel to and from school by car during the morning and afternoon periods respectively. (P9 exhibit 4). The average car occupancy rate was 1.7% and 81% of staff at that time travelled to the school by car. The College demand for parking for staff and students during the day was about 130 to 140 vehicles generally between 8.30 and 3.30pm weekdays.
The college at that time provided some 98 vehicles spaces.
The surveys undertaken in association with the set down and pick up of students at the College found that some 200 to 250 vehicles set down and pick up students at the start and end of the day (exhibit 4 p10).
The report records that the majority of pick up and drop off occurs in Victoria Road and that there is intense traffic activity for pick up and drop off. At p17 of (exhibit 4 ) commencing at 3.12 it states " no increase in student or staff numbers is proposed in association with the proposed alterations and additions. Therefore, no increase in traffic generation would occur as a result of the proposed modifications. Surrounding intersections continue to operate at good to reasonable level of service during morning and afternoon peak periods."
The acceptability of the development subject to there being no increase in student numbers is emphasised more than once in the report (exhibit 4 pp15, 17 and 21).

[15]

Traffic evidence of Ms Edward-Davis and Mr Morse

After much debate the experts ultimately agreed that the proposed increase in students would generate an additional 290 cars based on an agreed occupancy rate of 1.62 per car (transcript D3 p143).
A significantly higher number than the 48 student increase initially suggested by Mr Morse based on the 2014 figures (Exhibit 5 at [12]).
Mr Morses' analysis is fundamentally flawed. He proceeded on the misconception that the traffic assessment undertaken for the s96 applications should be based on current road conditions with the year 5 and 6 students in place on the western precinct rather than a comparison between the Colston Budd 2005 report base line and the proposal in order to determine the jurisdictional question I have earlier identified and the impacts from the increased student numbers.
Ms Edward-Davis' analysis proceeds on the correct basis. She has assessed the increase in the permissible maximum number of students at the Victoria Road campus of 350 students against the base line in 2005 and determined that the additional students will generate a significant increase in traffic movements associated with the operation of the campus. She is critical of the inadequate information provided in the applications and Mr Morse' analysis, particularly, the lack of analysis of the localised traffic and parking impacts associated with the modification applications (exhibit 5 at [4] p9 and pp21-22).
Her evidence is that from 2005 to 2013 there was an increase in traffic generation of 214 vehicles associated with the Victoria Road campus (east and west). This is a 60% increase. The School proposes an increase of 237 vehicles above the 2005 levels which is a significant increase of 66.6%.
Ms Edward Davis is of the opinion that such significant increases in traffic impacts are not acceptable in circumstances where these additional movements have not been sufficiently analysed or addressed by the s96 applications. According to Council's expert's analysis, the same numbers of bus services are operating to the School in 2013 as were operating in 2005. In her assessment there is insufficient analysis of the impacts of these buses on the resident amenity, including noise, congestion and any management of queuing (exhibit 5 p9).
With respect to parking in 2005, the School provided 98 car spaces on site which represented a shortfall of 44 car spaces. The short fall was expected to result in parking on the streets. Based on the 2013 master plan and assuming the same model split as in 2005 and using the staff numbers from the My School Website, Ms Edward-Davis told the Court that the staff create a demand for 188 car spaces (232 x 0.81). This together with the student drivers creates a demand for 234 car parking spaces. The 2013 master plan says that there are now 108 spaces provided on the Victoria Road campus (east and west). This represents a shortfall of 126 car spaces and one can only assume that the shortfall must park on the street.
According to Ms Edward-Davis from 2005 to 2013 there has been an increase of demand for on street parking by 82 cars. The difference between the 2005 and proposed student numbers will create an increase in demand for 92 on street parking spaces.
The site, (east and west precinct) has an area of 27,809m2. Applying the minimum car parking generation rate in Table 2.1 of the Council's Parking DCP, some 278 car spaces are required. The site currently provides 113 on site spaces accordingly there is a short fall of 165 car spaces.
Even allowing for 80 on street car parking spaces along the frontages of Victoria Road, Ashton Gardens, Ginahgulla Road and Cranbrook Lane, which do not result in parking directly in front of residential properties, there is still a shortfall of approximately 85 car parking spaces required to be provided onsite.
The Council submits that these significant increases in on street parking demand are not acceptable because they have not been sufficiently analysed in the applications in respect of three key traffic impacts associated with the School identified and discussed in Ms Edward- Davis' supplementary report to the joint report (exhibit 6): :

the environmental capacity of the road network and the impact on resident amenity;
localised congestion near the School; and
the inadequacy of the existing on street pick - up and drop - offs (exhibit 6).

Furthermore, Ms Edward Davis believes that the modification applications fail to provide onsite pick up and drop off point as required by Control 5 of s2.6 of the Council's Educational Establishments DCP 2012, resulting in adverse impacts on the safety of pedestrians and road users. The failure to provide an onsite pick up and drop off facility is inconsistent with the objectives of the Educational Establishment DCP (exhibit 5 p 16). While Mr Morse is of the opinion that the proposal does not meet the threshold of "major development" and the 2013 master plan identifies areas where parking could be improved in the future.
The current drop-off area is on Victoria Road in front of the Chapel when not in use (which is often the case according to the School). Mr Morse's written evidence is that this existing arrangement "has proven to operate with (sic) causing detrimental impact on the travel times recorded along Victoria Road". While he said that "there are periods when the demand at the drop off area exceeds its capacity. So you may have a car that waiting to enter the drop off for a short period" (transcript D3 p191 at [30]) his final position was that this situation was acceptable from a traffic and safety perspective if managed.
He offered no analysis of how any increased student numbers at the drop-off /pick-up will be accommodated in this existing arrangement particularly if the students are years 5 and 6, who, it is accepted, are driven more often than older students. At best he suggested that the drop off /pick up area could be improved with better signage and length but had not carried out the analysis necessary to support such an application to the local traffic committee. He elected to rely on the 2013 master plan which he said sought to identify areas where additional zones could be provided, subject to approval through the Local traffic committee (Andrew Morse Supplementary report filed 29 October 2014 p5 at [24]).
Ms Edward -Davis' evidence (following her queuing analysis of the pick-up and drop-off facility, based on limited data available) said "that it showed that there's basically a 100% failure of those pick up and drop off locations "(transcript D3 at p193 at [20]). Although she corrected her position to 98% during her oral evidence (exhibit 6 at [21]), she said this accorded with her observations of vehicles queued into the travel lanes (transcript D3 p196 at [23]). In her opinion the School's drop off area (even with Mr Morse's additional signage) is inappropriate and it should be onsite (transcript D3 p195 at [25]).

[17]

Public interest - the issue of safety

The issue of the 'safety of persons residing in the vicinity of the site' was raised by the local residents in their written submissions to the Council and repeated by some of those objectors at the Court's view. Generally, the residents who object on this ground submit that the pick-up and drop-off behaviour of the parents of the students is often dangerous and illegal and this in turn endangers the safety of persons who reside in the vicinity of the site (exhibit 7 and the submissions in the Council's bundle).
The School's principal, Dr Lambert, was asked some questions about this matter because he is responsible for all students at the School and their behaviour travelling to and from School. He resides opposite the western precinct of the School campus and said his home provided a vantage point from which to observe such matters and that he regularly crossed the street during the working day. Dr Lambert said that there has been no recorded student injury at the School or complaint from the Council or Police about the way students are dropped off and picked up. He said that the School had introduced allocated marked zones for drop off and pick up which are managed by staff and barriers. While he conceded that on the odd occasion he has witnessed parents' parking outside the wedding zone or in the no stopping zone, he said his staff were instructed to speak to drivers to move these cars on. Generally, Dr Lambert believed that the safety concerns raised by the residents were being addressed by the School.
The weight to be given to lay evidence about matters of pedestrian and student safety was most recently discussed by this Court in The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2014] NSWLEC 1218.
However, the facts of the earlier decision about the junior school case were different.
In this case I accept that the residents' evidence demonstrates an existing level of traffic congestion and traffic problems which adversely impact on their amenity. Furthermore, it evidences a bench mark against which one could assume that the adverse impacts will increase with a cap of 1470 students which generates more vehicles during peak times.
In saying that it is clear that the residents who addressed the Court clearly do not want any further expansion of the School or increase in student numbers at the School. They want onsite pick-up and drop-off provisions to free up parking spaces which they say are in short supply during peak times.
Although I did not observe any students crossing the road outside the pedestrian crossing at the view, I can accept the evidence of the objectors about such matters along with incidents of illegal parking to drop students off outside the nominated areas. In fact, Dr Lambert said he had observed such behaviour on two or three occasions despite the processes he had put in place in an attempt to address such unacceptable student and parent driver behaviour.
I do not doubt the School's efforts to address these issues and it seems that it has had some success because I have no evidence of complaints to the Council or police about parking or safety issues.
However, this does not address the real issue of how the School will deal with additional cars and students without exacerbating the existing problems experienced by the residents as outlined in the evidence.

[18]

The Council's interpretation of condition 2 and the consent

The Council contends that Condition 2 of the Consents says what it means. It prescribes the maximum number of students enrolled to attend the School at the Victoria Road Campus which straddles both sides of Victoria Road. The maximum student number refers to both the eastern and western precincts.
The maximum number of students is not to exceed 1120, irrespective of whether they are in years 7-12 or not. The purpose of the condition, as reflected in the second sentence, is to ensure that the maximum number of total students at the site will not be exceeded, to avoid increasing demand for on and off street parking and the intensification of traffic for the School.
The Council contends that it would defeat the clear purpose of the condition for the School to be permitted to accommodate the additional students in years 5 and 6 on the Victoria School campus; in addition to the 1120 student number restriction in condition 2. In short, it submits that the modifications which are sought to be justified on the basis that they merely 'regularise' or 'clarify' or remove "ambiguity" in the existing consents and therefore satisfy the "substantially the same development " requirement in s96(2) of the EPA Act, are, in fact, applications to validate retrospectively previous increases in student numbers .
In order to approve the modification applications the Court must be satisfied that the developments to which the consent as modified relates - which is to increase the maximum permissible student numbers at the Victoria Road Campus to 1470 - is substantially the same development as the development for which the consent was originally granted, which permitted a maximum 1120 students at the Victoria Road campus. It submits that the Court cannot be so satisfied on the evidence.
The Council contends that the Court should conclude that when compared with the position in 2005 (under the cap of 1120) a cap of 1470 would represent a total traffic generation of 290 vehicles which is about a 26% increase (or about additional 60 cars per day). The short fall in parking spaces was in 2005 was 44 spaces but would be 136 under a cap of 1470.
There is a numerical increase of 350 students or just over 30%. The applicant has provided no explanation about the nature of the evaluative task that the Court has to undertake under s96 (2) of the EPA Act. It has not clearly articulated the "development for which consent was originally granted "which must be the starting point for the comparison that is required by s96(2) of the EPA Act. This is highlighted by Mr Morse' evidence which compared the existing situation to the proposed rather than the original development approved (exhibit 5 p4) and the basis of his evidence that the developments were substantially the same.
On that basis the Court has no jurisdiction to make the modifications and the applications must be dismissed.

[19]

The School's interpretation of condition 2 and the consent

The School submits that the consents must be interpreted (if condition 2 is to be valid - which is assumed for the purposes of these appeals) to refer to the students in years 7-12 on the eastern side of Victoria Road or the east precinct of the Scots College campus . The modifications and the original development consents are in respect of 29-53 Victoria Road, Bellevue Hill, which has been described as the eastern precinct of the Scots College. The eastern precinct has been used by Scots as a School since 1895.
The original consents granted consent to erect buildings on the eastern precinct of the Victoria Road Campus. 1. Consent DA 528/04 granted on 22 May 2006 was for the demolition of existing buildings and "the construction of a new four storey building housing mathematics ,science rooms , PDHPE rooms pus a covered north south pedestrian access way and associated landscaping " (Exhibit 1 p19.)This building is at the northern end of the eastern precinct. 2. Consent DA 545/05 granted on 12 March 2007 was for "the construction of a two storey general education building with a pitched roof on land at 29 - 53 Victoria Road, Bellevue Hill (Scots College)."(Exhibit 1 p115). The statement of environmental effects (SEE) (exhibit A Tab 4) at figures 2, 5, 6 and 7 is even more precise in identifying the land as Lot 1 in DP 929570.
The School does not accept that condition 2 of the consents operates as a cap on the maximum number of students for the entire Scots Victoria Road campus - both eastern and western precincts.
The School submits that since the eastern precinct has been used for a School for more that a century no development consent is or was required to use the land on which the buildings are to be erected as a school. The School relies upon existing use rights to use the development for educational purposes. Therefore, the development applications were only for the erection of buildings (Exhibit A tab 1and 3).
Section 81A (1) of the Act had, and has, no application. The development application form for the 2006 consent identifies the type of development as: "A. Building or structures "and "B. Demolition: (exhibit A Tab 1 p2).Similarly, the development application form for the 2007 consent identifies the type of development as: "A. Building or structure" :( Exhibit A Tab 3). Both development applications forms also describe the proposed use of the building and the present use of the land as being the same that is for educational purposes.
If the School's construction of condition 2 of the Consents is correct, and the development applications are only for the erection of two buildings on part of the land which is used for a school, then the conditions that might be imposed as conditions of consent pursuant to s80A (1) of the Act are dictated by the terms of the application. The School submits that after having regard to the second and third test of invalidity of a condition explained in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004)221 CLR 30 at [57], condition 2 was opportunistically imposed by the Council and it does not reasonable relate to the to the development sought and approved.
The School contends that a condition to ensure that the buildings would not generate an additional population would be the only condition concerning student population that might lawfully be imposed. The Council imposed condition 2 on each consent with the following explanation "this condition has been imposed to ensure the proposed development does not alter the student numbers , which in turn , will alter the demand for on and off street car parking and the intensification of traffic for Scots College" (Exhibit 1 p23.115).
As there was nothing before the Council in 2006 and 2007 when it considered the applications, or before this Court now, which would support a conclusion that the erection of the buildings would generate an increase in students numbers, the condition cannot be construed in the way the Council contends. These improved specialist facilities for the students of themselves do not generate more students and will have no impact on traffic and parking. The imposition of condition 2 is unreasonable. It is all the more unreasonable because it imposes a condition on development not the subject of the development application.
At the request of the Council the School prepared a 2013 Master plan (exhibit B). It sets forward the College's plans for future development for the entire school including the preparatory school in Mansion Road /Kambala Rd.
It also shows the School traffic management plans. The School submits that future development applications can be assessed against the 2013 master plan. The proposed modification of condition 2 in each consent is to give effect to that master plan. As master plans change then it may be necessary to make further modification applications.
At the end of the day the School submits that the proposed modification of the conditions will have the following benefits. Firstly, it will update the condition to refer to the most relevant 2013 master plan rather than the 1992 master plan referred to in condition 2. (Even at the time of the 2006 and 2007 consents the 2004 master plan review had rendered much of the 1992 master plan inapplicable).
The modified condition is drafted in clearer language and this overcomes the uncertainty of condition which attends the present condition 2. It overcomes the doubts that the validity of present condition 2. Council's construction, if correct, would render the condition invalid.
It submits that I have the power to modify the development consent by deleting an invalid condition: MLC Properties & Anor v Camden Council (1997)96 LGERA 52 atp60-611; King & Ors v Bathurst Regional Council (2006) 150LGERA 362 at [109].
It is submitted that by offering the new modified condition the problems associated with the existing condition is resolved.
According to the School, the modified condition clarifies what is meant by student numbers. The proposed condition relates to enrolments. The existing condition must be interpreted to mean students in attendance. Traffic and parking is referable to the number of students in attendance while enrolment numbers are unequivocally determined. These are provided to the Department of Education and Communities.
As the development consents were in respect of the secondary school and only in relation to the eastern precinct, the School contends that condition 2 presently does not take into account the student numbers for the primary school year 5 and 6 boys of the preparatory school which is on the western precinct. The proposed Condition incorporates all elements of the east and west precincts that are the subject of the 2013 master plan / this includes years 5 and 6. (The School concedes that at the time of the grant of the two development consent in 2006 and 2007, year 6 students in the preparatory school had their class rooms in the western precinct, where they were taught. Year 6 had moved from the Mansion Road campus in 2001. The two building the subject of the development consents were solely for the secondary school students and were of course, on the eastern campus. Year 5 students moved to the western precinct in March 2007).
Despite the School's position that the imposition of condition 2 on each consent was invalid for the reasons outlined earlier it accepts, for the purposes only of these proceedings (the two development appeals), that it may be assumed that condition 2 was imposed for a valid purpose if it was "to ensure that the proposed development does not alter the student numbers , which in turn will alter the demand for on and off street car parking and the intensification of traffic for Scots College" (words of condition 2 emphasis added).
However, a condition that goes beyond this and seeks to impose a restriction generally on the student population for the entire School (not the junior school) is invalid.
It is against this background, the School submits, that the Court must determine the modification applications. Condition 2 states the purpose for which the condition was imposed is "to ensure the proposed development does not alter student numbers". The school contends the proposed modifications achieve this purpose. The modification applications are within a narrow compass and if the modification is consistent with or indeed achieves the stated purpose of condition 2, there is no reason to refuse the modification, particularly given the difficulties with the present text of the conditions.
The School contends that the evidence on traffic and parking is irrelevant to the modification applications when viewed in this light.
The Council's argument that the modification application is seeking to increase the cap on numbers for the east and west precincts (including years 5 and 6 in the preparatory school) proceeds upon an erroneous construction of the condition and an erroneous assumption that the Council was entitled to impose a cap on both the east and west precinct when the development application was simply for the erection of two buildings on the eastern precinct.

[20]

The Council's response to the invalidity issue

The Council submits that the School's invalidly point is an irrelevant distraction which the Court need not, and should not determine.
The present proceedings relate to an application to modify condition 2 not an application to delete an invalid condition and accept an "offer" to put something in its place. Nowhere in the documents submitted by the School is there an application to delete the condition 2 (exhibit 3 p3,13, 93 and 103). In any event an offer to accept a condition is impermissible if there is no power to impose the condition in the first place as was the factual context in the case of : Australia International Academy of Education Inc. v The Hills Shire Council [2013] NSWLEC 1 at [69]-[70], [98]-[110]).
The two kinds of applications are different.
The jurisdictional requirements are different as are the merit considerations. In the case of a modification application the Court is comparing a cap of 1120 students with a cap of 1470 students. In the case of an application for deletion of the condition, the comparison is between cap of 1120 and no cap at all.
It follows that the proposed deletion of condition 2 is no part of these applications currently before the Court and the Court does not have jurisdiction to consider it. In any event there has been no formal application to amend - it is all too late.
In any event (contrary to the Council's submission) if condition 2 is invalid then so too must the proposed modified condition 2 for the same reasons. If the condition 2 does not fairly and reasonably relate to the proposed development or is unreasonable because the consent does not relate to the use of the buildings or if the proposed development could not give rise to any increase in students numbers then the proposed condition 2 suffers from exactly the same problems .
Furthermore, the School's reliance on existing use rights and assertion that s81A has no work to do cannot be seriously maintained when it has not been properly pleaded or proved and the Council has not been given an opportunity to respond. There has been no specification of the "use" which is said to have been established prior to the commencement of the 1995 LEP and to have continued ever since. In this case the construction of two buildings represents an intensification of the use of the school site. Whether there has been intensification is a question of degree and fact and this has not been properly addressed by the School.
According to the evidence, the Council submits that the students from years 7-12 are now primarily on the east precinct of the campus (Bundle p59) however, they have always used (or at least since 1992) the western campus. The year 5 and 6 boys were moved to the Victoria Road campus in 2001(year 6) and 2007 (year 5) having previously been on another campus. Students from year 9 spend part of the year at the School's Glengarry campus in Shoalhaven (Bundle p59).

[21]

Jurisdiction to deal with the applications

The Court's jurisdiction to determine these appeals is founded upon the Council's determination to refuse consent to the applications: s97AA of the EPA Act. However, the modification applications must be assessed against the provisions in s96 (2) of the Act. Section 96(2) provides: 96 Modification of consents-generally … (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is 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 (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification.
Therefore, the School's various submissions concerning the validity of the conditions are as the Council asserts "an irrelevant distraction, which the Court need not, and should not determine" (Respondent's Supplementary Submissions dated1 December 2014 (RSS).
Quite clearly I have no jurisdiction in these Class 1 appeals to declare condition 2 of the Consents to be invalid. Moreover, even if it were determined that the conditions were invalid any modification of an invalid condition must also result in an invalid condition and an ultimate dismissal of the appeals.
Nor do I consider that it is lawful in the circumstances to delete condition 2 from the Consents and substitute that condition with another condition offered by the applicant. While I accept that the Court has power in Class 1 proceedings to modify a development consent by the deletion of a condition: Australian International Academy of Education Inc. v The Hills Shire Council [2013] NSWLEC 1 at [98]-[110]; an offer to accept a condition is impermissible if there is no power to impose the condition in the first place: Australian International Academy at [69]-[70]. In any event there has been no formal application to the Court for the deletion of the conditions or any evidence submitted on behalf of the School to support such an application (Ex 3, p3; 13; 93; 103).
The deletion of a condition and the modification of a condition are entirely separate applications. The jurisdictional requirements are different as are the merit considerations. In the case of a modification application, the Court is comparing a cap of 1120 students with a cap of 1470 students. In the case of an application for the deletion of a condition the comparison is between cap of 1120 and no cap at all.
The determination of these appeals turns upon the proper construction of the development consents as assessed against s96 of the EPA Act.

[22]

The construction of the development consents

Notwithstanding, the parties' agreement that the Court may modify a development consent if it is first satisfied that "the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before the consent as originally granted was modified" : s96 EPA Act ; Moto Projects No 2 Pty Limited v North Sydney (1999) 106 LGERA 208 BignoldJ at [56]; Vacik Pty Limited v Penrith City Council [2992] NSWLEC 8 (24 February 1992) Stein J at [8]-[9], I am unable to carry out the comparative exercise under s96(2) until I determine what the original consent approved. And this obviously requires the construction of condition 2.
In order to approve the modification applications I must be satisfied that the development to which the consent as modified relates - which is to increase the maximum number permissible student numbers at the Victoria Road campus to 1470 - is substantially the same development as the development for which the consent was originally granted, which permitted a maximum of 1120 students for Scots College.
In my assessment the phrase "for Scots College" in condition 2 is a reference to the School campus on both sides of Victoria Road. The consequence of this interpretation is that the limitation on the maximum student number of 1120 must logically relate to the east and west precincts of the Victoria Road campus.
I do not accept the School's submission that because the Consents approved development on land within the eastern precinct of the Victoria Road Campus the words "for Scots College" in condition 2 refer only to that precinct with the consequence that the student limit of 1120 applies only to the eastern precinct.
This School's interpretation is not supported by my reading of the evidence. For example, the School's 1992 master plan (identified in condition 2) uses the phrase 'Scots College" as shorthand to describe collectively the east and west precincts of the Victoria Road campus. The executive summary states "The master plan study for the Scots College secondary school site in Bellevue Hill was commissioned in 1990 to provide a framework for the future physical development of the school for the next twenty years". It is hard to imagine that the study would only be concerned with one side of the street when the plans referred to in the study (exhibit 3 (vol3) p742) depict both sides of Victoria Road and the open space calculation for each student references land on both sides of Victoria Road to achieve a maximum student capacity of 1120 students (exhibit 3 (vol3) p800).
If the term "for Scots College" did not mean the whole school then why did the master plan need to expressly exclude the preparatory school in Mansion Road (exhibit 3(3) p738)?
I do not accept that the conditions which were imposed in 2006 and 2007 on the Consents and the reference to the 1992 master plan could be interpreted to limit the maximum number of students at 1120 on only the eastern precinct of the Victoria Road campus. Such an interpretation of the Consents is not common sense. The principles in relation to the construction of development consents are well established. Development consents are practical instruments to be construed in a practical way on the basis that they are working documents and not unusually prepared by lawyers or with the precision expected of parliamentary counsel who draft legislation or statutory instruments : Westfield Management Ltd V Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36];Coffs Harbour City Council v The Minister For Planning and Infrastructure [2013 ]NSW CA 44 at [68]; Anglican Retirement Villages Diocese of Sydney v Wollongong City Council (No2) [2013 ] NSWLEC 50 at [46].
References may be made to documents other than the consent itself for the purpose of construing a consent or of resolving ambiguity or by necessary implication: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSW CA 103 (2013) 195 LGERA 182 at [24],[43] and [154]-[163]. A document expressly referred to in the consent for the purpose of identifying or describing something dealt with in a consent will be expressly incorporated in it : Allendale at [45].Evidence may also be lead to identify a place referred to in the consent: Allandale at [44].
Applying those principles as the Council invites me to do, I cannot accept the School's claim that the cap only relates to student numbers in relation to boys in years 7 to 12. The 1120 figure appears to be based on the maximum number of boys in years 7 to 12 as set out on p69 of the 1992 master plan. However, the figure is clearly calculated as a student number limit regarding the capacity of the Victoria Road campus (both east and west) - open air recreation space per student (exhibit 3 (vol 3) p800).
The purpose of the condition 2, as reflected in the second sentence, is to ensure that the maximum student numbers at the site will not be exceeded so as to avoid increasing demand for on and off street parking and the intensification of traffic of the School. It would defeat the clear purpose of the condition for the School to be permitted to accommodate the additional students in years 5 and 6 on the Victoria Road Campus in addition to the 1120 student number restriction in condition 2.
The limiting of the condition to those students in years 7 to 12 would involve reading into the condition words that are not found in it nor contemplated in the assessment report which preceded both consents . The conditions were imposed on the express basis that students numbers at the Victoria Road campus were not to increase (exhibit 3 p607-8, 619,623,685,691,699). The traffic, parking and other impacts were also assessed on the basis of a total student number of 1120 at Victoria Road campus eat and west. were the traffic and parking impacts
I must accept the Council's submission that the School's construction of the condition results in a peculiar situation where there is no cap on students in years 5-6 even though the year 6 boys were transferred to the Victoria road campus in 2001.
Furthermore, the evidence supports a finding that the condition incorporates the 1992 master plan and it is clear from that plan that the 1120 student number was based on an analysis of the whole of the Victoria Road campus. The traffic assessment by the Council shows that the student cap in condition 2 was based on a consideration of the traffic conditions and parking requirements for the whole school site both east and west precincts (exhibit 3 p594) and the existing available parking including off street spaces provided on the Ginahgulla Road site - west precinct (exhibit 3pp622-623).
The Council quite properly was entitled to impose a condition on student numbers relating to the whole of the Victoria Road site even though the relevant buildings were to be erected on the eastern precinct. The operation of the Victoria Road campus as a whole was clearly considered by the Council in assessing the DAs, particularly in relation to traffic and parking. The Council relied on the Colston Budd report which considered traffic and parking issue in relation to the whole Victoria Road campus: Planning Commission (WA) v Temwood Holding Pty Ltd (2004) 221 CLR 30,per McHugh J at [72]; Botany Bay Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171 at [9].I reject the narrow approach to the interpretation of the consents proposed by the School in circumstances where the consideration of traffic and parking impacts by the Council in 2006 and 2007 related to the whole of the site (east and west) and the whole of the site was occupied by students in years 7-12. Although the buildings were sited on 29-53 Victoria Road this does not mean that it was intended that condition 2 be so limited.
Needless to say s81A operates to approve the use of the buildings the subject of the Consents.

[23]

Substantially the same - finding

Having regard to the construction of condition 2 advanced by the Council, which I accept, the modification applications propose to increase the cap of student numbers at Victoria Road campus from 1120 to 1470. Numerically this is an increase of 350 students or about 30 %.
Applying the law in respect of the determination of whether the developments modified are substantially the same as that originally approve; the fact that the use is the same is not the test (Vacik). A comparison between the original development and the development as modified involves a qualitative as well as a quantitative comparison in their proper context, including the circumstances in which the consents were granted (Moto).
The School bears the onus of demonstrating that the developments as modified will be substantially the same as those originally approved in order for the Court to have jurisdiction to deal with the applications.
I do not accept that the School has discharged that onus in this case. I have been given no explanation about the nature of the evaluative task that I am required to undertake under s96 (2) of the EPA Act. The School has not articulated the development for which consent was originally granted which is the starting point. The applicant has offered another condition in substitution for the originally approved condition. Mr Morse has undertaken the wrong comparison exercise in respect of traffic.
It is entirely unclear how I can undertake the task properly if the School presses the invalidity point.
In the circumstances, irrespective of how condition 2 is to be interpreted the task of the Court must involve an evaluation of the development comprising the school at the Victoria Road campus with a maximum of 1120 students as approved under the Consents with the proposed development which would allow for the maximum of 1470 students at the Victoria Road campus.
I accept the evidence of Ms Edward - Davis in respect of traffic and parking which proceeds on a basis that what is involved in the modification applications is an increase in the permissible maximum number of students at the Victoria Road campus by 350. That increase will in turn generate a significant increase in traffic movements associated with the operation of the campus and, exacerbate the existing shortfall in car parking experienced by the residents. The drop-off and pick-up area for the School, which Mr Morse concedes could be improved, is also likely to generate more queuing.
In my assessment the School has not undertaken an adequate analysis of the localised traffic and parking impacts associated with the modification applications (Exhibit 5 p9 and pp21-22). The evidence of Mr Morse that traffic in Victoria Road and the streets around the College are operating at an acceptable level of service is contrary to the experience of the objectors who complain about traffic delays and congestion.
Mr Morse's travel time surveys over the entire 2.1km stretch of road between New South Head Road and Birriga Rd, is simply not appropriate when attempting to ascertain the traffic impacts of the School. Ms Edward -Davis said that Victoria Road, being a collector street has a maximum environmental capacity of 300/hr and an absolute maximum of 500/hr, (according to the current DMS guidelines). Intersection modelling showing more than 900 vehicles an hour in the morning peak is way beyond capacity.
For the reasons outlined in this judgment I cannot be satisfied that the developments after modification are substantially the same as originally approved.
Even if I did have jurisdiction, based on the traffic and parking evidence before me, I am unable to be satisfied that the proposed increase in student numbers would not have unacceptable adverse impacts on traffic and parking in the vicinity of the School. No further car parking spaces are proposed and the modification sought would not achieve compliance with the minimum car parking spaces calculated in accordance with Table 2.1 of the Woollahra Parking DCP.
The Council's evidence is that the traffic and parking generated by the School currently is problematic, particularly in relation to the drop -off and pick -up arrangements and the existing short fall in onsite parking. The residents' evidence of double parking and students crossing the road and alighting from cars whilst waiting at the traffic lights is not unreasonable given the shortfall in car spaces onsite as identified in the evidence. The amenity impacts of any increase in traffic and parking problems caused by additional students has not been satisfactorily addressed by the School in the current applications. Having regard to the submissions received by the Council, the oral evidence taken at the view and a consideration of the relevant matters in s79C, I could not find the applications acceptable on their merits.

The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council

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Judgment (25 paragraphs)

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Cases Cited (7)