|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Environment Resources and Development Court of South Australia Decisions |
Last Updated: 3 December 1999
Decision of Commissioner Hodgson
Respondent ADELAIDE HILLS COUNCIL:
Counsel: MR J. LEVINSON - Solicitors: NORMAN WATERHOUSE
Respondent UPPER STURT TENNIS CLUB:
Counsel: MR S. HENRY - Solicitors: STUART HENRY
ERD-99-470
Judgment No. OE69
4 November 1999
THOMAS HOBSON, ELIZABETH HOBSON and ROBERT GOOCH
v
ADELAIDE HILLS COUNCIL
and
UPPER STURT TENNIS CLUB
ERDC No. 470 of 1999
THE COURT DELIVERED THE FOLLOWING DECISION:
1 This appeal concerns a proposal to install lighting to three existing tennis courts on land at 140 Upper Sturt Road, Upper Sturt. The second respondents applied to the Adelaide Hills Council ("the Council") on 2 September 1999 for consent to the above proposal, the stated purpose of the proposed lighting being to allow the Upper Sturt Tennis Club to participate in, and cater for, night tennis competitions.
2 The Council determined that the proposal was for a Category 3 development within the meaning of Section 38 of the Development Act, 1993, and gave notice of it accordingly. 58 representations were received by Council in response to that notification, 48 in support and 10 opposed to the development proceeding.
3 By decision notification form dated 28 March 1999, the Council advised that it had approved the proposal subject to 12 conditions.
4 Mr Thomas Hobson and Mrs Elizabeth Hobson, and Mr Robert Gooch ("the appellants") who reside respectively at 5 Parkgate Place and 5 Parkgate Court, Upper Sturt, being aggrieved by the decision of the Council, appealed to this Court against it. A conference convened pursuant to Section 16 of the Environment, Resources and Development Court Act 1993 did not produce a compromise or settlement, and accordingly, the matter proceeded to a hearing.
5 At the hearing, the Council was represented by Mr J. Levinson, of counsel, the Tennis Club by Mr S. Henry, of counsel, and the appellants by Mr P. Leadbeter, of counsel. The Court, in the company of the parties, conducted a daytime and a night time view of the subject land and its locality, received a number of exhibits, and heard evidence from Mrs Hobson and Mr Gooch, both of whom reside immediately adjacent the northern boundary of the subject land, Mr D. Crookes and Mr D. Kemp, both experienced consulting engineers specialising in electrical engineering and lighting matters, Mr A. Rumsby, a qualified and experienced town planning consultant, Mr D. Kraehenbuehl, an ecologist, Mr T. Beech, a member of the tennis club, and Mr I. Binney and Mr H. De Roos, respectively the Manager of Works and a Technical Officer (Design) with the respondent Council.
The Subject Land
6 The land the subject of these proceedings is held in trust by the respondent Council for "park land" purposes, having been transferred to the former District Council of Stirling by its then owner conditional upon the land being used for recreational purposes of the District, including the continuing use of the land by the Upper Sturt Tennis Club, which has used the land since its formation in 1926. The land is known as the "Melville Park Reserve".
7 The northern boundary of the land, some 319m in length, flanks residential properties within the abutting Upper Sturt township, while its western boundary, some 72m in length, abuts the Belair National Park. The southern boundary is stepped, apparently following original fence lines, and has a 150m frontage to Upper Sturt Road.
8 The land is more particularly described in Certificate of Title Register Book Volume 4168 Folio 474 as Lot 2 in Deposited Plan 28220, and has a total area of some 2,087ha.
9 On the land are six tennis courts, arranged in two groups of three courts each, separated by a stone building incorporating open shelter areas, storeroom and toilets. A single, divided entry/exit for vehicles is located on Upper Sturt Road near the land's easternmost point, some 40m from the junction of Upper Sturt Road and Parkgate Place. The area between the easternmost group of courts (those proposed to be lit) and the entry/exit point is used as an unformed carparking area, and is studded with mature eucalypts. Beyond the curtilage of the courts and clubrooms the land is heavily vegetated, dominated by mature stringybark gums with limited understorey.
The Locality
10 To the north of the subject land, and to the south, on the southern side of Upper Sturt Road, the land is substantially developed with detached dwellings, generally on allotments between 1500m² and 2000m² in area. The township of Upper Sturt consists of a series of residential enclaves created by subdivision along spur lines separated by steep-sided valleys. Much of the frontage of Upper Sturt Road is flanked by housing, although separated by tracts of open farmland or natural bushland. Upper Sturt Road lies on a spur separating the Sturt River catchment to the south-east, which lies within generally steep, heavily wooded terrain, from the Brownhill Creek catchment to the north-west, which is more sparsely vegetated and includes a number of orchards and grazing properties.
11 Mr Rumsby, the only professional planner to give evidence, defined a locality, for the purposes of his evidence, which was based on:
· neighbouring residential properties potentially affected by light spill;
· near neighbouring residential properties, including those on the southern side of Upper Sturt Road, which might have some view of the proposed lighting installations and, to that extent, might potentially be affected by glare;
· neighbouring and near neighbouring properties potentially affected by the extended recreational use of the subject land with its associated traffic and noise impacts.
12 The locality defined by Mr Rumsby included:
· all dwellings fronting Parkgate Place, to the immediate north of the subject land (including all dwellings in Parkgate Court, which runs off Parkgate Place);
· residential properties north of Parkgate Place near its Upper Sturt Road junction, Wychwood Grove, Elmshead Drive and Upper Sturt Road properties, having a line of sight along the Upper Sturt Road alignment to the subject land, or which are at similar ground levels to the subject land; and
· the abutting Belair National Park.
13 Residential allotments within the locality, particularly north of the subject land, are mature residential properties, occupied by dwellings typically of post 1970's construction, generally of masonry or face brick cladding. Some dwellings are of two storeys, but the majority are single storey. Building setbacks are generous, and gardens well developed, incorporating mature gums and other native vegetation.
The Proposal
14 The lighting plan the subject of the consent issued by the Council was amended subsequent to the issuing of that consent. It was common ground between the parties that the proposal before the Court for the purposes of this appeal comprises:
· ten 12m high galvanised octagonal poles, arranged at intervals of approximately 15.0m around the perimeter of the easternmost group of courts;
· a single "shoebox" lamp located atop each pole, with the exception of the two poles located centrally on the northern flank of the court enclosure, and the two poles in the equivalent position on the southern flank, each of which supports two lights. Lamp fittings on the northern and southern flanks of the enclosure are to be fitted with baffles to shield light overspill.
15 As a further variation of the proposal approved by Council, it is also proposed to formalise the carparking area, with parking spaces being delineated by reflective markers and/or timber strips, and the driveways and parking spaces surfaced with an all-weather metal base.
16 The stated purpose of the proposed lighting, reinforced by the evidence of Mr Beech, was to allow for the playing of night tennis in competitions organised by the Hills Tennis Association. Night tennis competitions are conducted by that Association over the spring, summer and autumn months, from October until May, from 7.00 pm until 10.30 pm on weeknights. The Upper Sturt Tennis Club proposes to field teams in that competition and to make its home courts available in the rostering of competitive matches programmed over those playing seasons.
17 The proposal set out in the Club's application, as varied by the conditions attaching to the Council's consent, provides for the following limitations on the use of the proposed lights:
· restriction of the use of the lights to programmed or scheduled competitive match fixtures and organised club practices;
· restriction of the use of the lights to a maximum of three nights per week during the summer months, two nights per week during spring and autumn, and Saturday nights during winter, if required to allow the completion of a scheduled afternoon match; and
· court lighting to be switched off progressively from no later than 10.30 pm and completed by no later than 10.45 pm.
Relevant Provisions of the Development Plan
18 The subject land is located within the Hills Face Zone, its northern and southern boundaries constituting the boundary between that zone and the adjoining Country Living Zone, within which zone most of the township of Upper Sturt is located. The objectives for the Hills Face Zone are as follows:
Hills Face Zone
"Objective 1: A zone in which the natural character is preserved and enhanced or in which a natural character is re-established in order to:
(a) provide a natural backdrop to the Adelaide Plains and a contrast to the urban area;
(b) preserve and develop native vegetation and fauna habitats close to Metropolitan Adelaide;
(c) provide for passive recreation in an area of natural character close to the metropolitan area;
(d) provide a part of the buffer area between metropolitan districts and prevent the urban area extending into the western slopes of the Mount Lofty Ranges; and
(e) ensure that the community is not required to bear the cost of providing services to land within the zone.
Objective 2: A zone accommodating low intensity agricultural activities and public/private open space and one where structures are located and designed in such a way as to:
(a) preserve and enhance the natural character or assist in the re-establishment of a natural character in the zone;
(b) limit the visual intrusion of development in the zone, particularly when viewed from roads within the zone or from the Adelaide Plains;
(c) not create, either in themselves, or in association with other developments, a potential demand for the provision of services at a cost to the community; and
(d) prevent the loss of life and property resulting from bushfires."
19 Relevant zone principles are:
"1 Development should not be undertaken unless:
(a) it is associated with a low intensity agricultural activity, a public open space area or a private use of an open character, or is a detached single storey dwelling, including outbuildings and structures normally associated with such dwellings, on a single allotment; and
(b) together with associated native landscaping, it preserves and enhances the natural character of the zone or assists in the re-establishment of a natural character."
"4 Development should not be undertaken if the operation and management of such development are likely to result in:
(a) pollution of watercourses;
(b) unnecessary loss or damage to native vegetation;
(c) denudation of pastures;
(d) erosion;
(e) dust;
(f) noise nuisance; or
(g) introduction of or an increase in the number of pest plants or vermin.
5 Buildings, including structures, should be located in unobtrusive locations and, in particular, should:
(a) be located well below the ridge line;
(b) be located within valleys or behind spurs;
(c) be located in such a way as to not be visible against the skyline when viewed from roads within the zone or from the metropolitan area particularly the Adelaide Plains;
(d) be set well back from public roads, particularly when the allotment is on the high side of the road;
(e) have the roof line below the lowest point of the abutting road when the allotment is on the low side of the road;
(f) be sited on an excavated rather than a filled site in order to reduce the vertical profile of the building;
(g) be located in such a way as to be screened by existing native vegetation when viewed from roads within the zone or from the metropolitan area particularly the Adelaide Plains;
(h) not be located in areas subject to inundation by a 100 year return period flood event nor be sited on land fill which would interfere with the flow of such flood waters;
(i) not have a septic tank drainage field located in such a way as to pollute watercourses; and
(j) be located in such a way as to maximise retention of existing native vegetation and retain watercourses in their natural state.
6 Buildings, including structures, should be designed in such a way and be of such a scale as to be unobtrusive and not detract from the desired natural character of the zone and, in particular:
(a) buildings should be of a single storey;
(b) the profile of buildings should be low and the roof lines should complement the natural form of the land;
(c) the mass of buildings should be minimized by variations in wall and roof lines and by floor plans which complement the contours of the land;
(d) large eaves, verandahs and pergolas should be incorporated into designs so as to create shadowed areas which reduce the bulky appearance of buildings; and
(e) the mass of buildings should be minimized by having separate vehicle storage areas.
7 External materials of buildings should:
(a) have surfaces which are of a low light reflective nature; and
(b) be of dark natural colours such as brown and green so as to be unobtrusive, blend with a natural rural landscape and minimize any visual intrusion.
8 Buildings, including structures, on allotments which abut the Mount Lofty Ranges Scenic Road should be set well back from the Scenic Road."
"23 Development should only be undertaken if it can be located and designed in such a way as to maximise the retention of existing native vegetation and, where possible, increase the extent of native vegetation."
20 The sole objective for the abutting Country Living Zone is:
Country Living Zone
"Objective 1: A zone primarily accommodating single dwellings at low densities."
21 Also of some relevance are Stirling (DC) Objectives 1, 9, 14, and 18 and Principles 1, 2, 3, 15, 66, 67, 69, 85, 86, 89, 94, 97, 98, 99, 102, and 103, and Metropolitan Adelaide Objectives 1, 2, 9, 24, 25, 31, 35, 36, 37, 39, 41, 51, 58 and 59, and Principles 7, 27, 28 and 31.
The Evidence
22 At the commencement of proceedings Mr Leadbeter, for the appellants, sought to tender a statement from a noise expert, Dr Teague. It was common ground between the parties that Dr Teague's statement had been provided to the first and second respondents on the afternoon of Friday 6 August, well outside the five clear working days prior to the hearing which is stipulated in the Court Rules. Mr Levinson and Mr Henry objected to the tendering of Dr Teague's statement on the basis that there had been non-compliance with the Rules and that, as a consequence, they had been unable to address the issues raised in the statement.
23 Mr Leadbeter submitted that the second respondent had amended the plan considered by the Council less than 14 days prior to the hearing, again in breach of the Court Rules, and that the appellants' failure to comply with the Rules should be excused on the basis that it was not until the amended plan, which had been foreshadowed in the course of the Section 16 Conference, was received on 28 July, that it was possible to brief a noise expert.
24 The amended plan, which was tendered in evidence, indicates a lighting layout different to that considered by the Council and identifies specific locations for carparking spaces within an area which, hitherto, had been used for parking in a more informal manner. In all other respects the plan does no more than indicate what already exists on the subject land. Accordingly, while I was prepared to excuse the appellants' non-compliance with the Court Rules in respect of the lighting changes, on the basis that the lighting expert called by them was unable to assess the consequences of the revised lighting layout until receipt of the amended plan, I was not persuaded that assessment of the proposal's noise impacts was dependent upon the receipt of the revised plan. There was no suggestion that the amended plan was intended to do other than reflect the proposal considered by the Council as varied by a revised lighting scheme. The sources of potential noise, namely the courts and the carpark, were rendered no more or less likely to generate noise by the lighting changes and the formalisation of the carparking layout. Having regard to these considerations, I ruled inadmissible Dr Teague's statement of evidence.
25 The evidence of Mrs Hobson and Mr Gooch was that they and their families had moved to Upper Sturt because they were attracted by its semi-rural nature, the extensive native vegetation, the quietness, and the wildlife. A feature of the locality which they both valued was its darkness, there being substantial spacing between houses and no street lights, the effect of this being to reinforce a feeling of isolation and also to enhance the appearance of the sky on cloud-free nights. Approval of the proposal, in their view, would result in significant adverse impacts on their amenity, occasioned by light spill and noise, and would represent the "thin end of the wedge" in terms of further intensification of the Tennis Club's activities and structures on the subject land. Mr Gooch also expressed some concern regarding the potential impact of the lighting on native fauna within the reserve, and on its natural character, a character which, in his view, the Hills Face Zone provisions of the Development Plan sought to protect.
26 Evidence on the extent of light spill from the amended lighting proposal was given by two qualified and experienced electrical engineers, Mr D. Crookes and Mr D. Kemp. There being no standards for light spill established by the Development Plan, both made reference to an Australian Standard, "Control of the obtrusive effects of outdoor lighting" (AS 4282-1997) as the basis for their respective assessments of the likely impact of light spill on nearby residences. In the absence of specific light spill standards in the Development Plan, and having regard to the widespread acceptance of Australian Standards within the relevant professional communities and to previous decisions of this Court concerning the relevance of guidelines, standards and codes of practice to the interpretation of the Development Plan (see, for example, Cameron-Smith v Marion City Council ERDC Judgment OE426 delivered 23 December 1997; Meyer v Northern Areas Council [1998] EDLR 182), I am satisfied that the standard referred to constitutes an appropriate basis upon which to assess the potential impact of light spill from the subject proposal.
27 Table 2.1 of the Standard relevantly sets out two measurement parameters for light spill:
(a) illuminance in vertical plane;
(b) luminous intensity emitted by luminaires,
and establishes maximum values for each parameter for what are described in the Standard as "Pre-curfew" and "curfewed" hours, the latter being referred to in the Standard as the hours between 11.00 pm and 6.00 am. It was common ground between Mr Crookes and Mr Kemp that the relevant values were those applicable to residential areas with dark surrounds, there being no street lighting and extensive vegetation within the locality. The recommended values for illuminance in vertical plane for such areas was 10 lux (pre-curfew) and 1 lux (curfewed). The pre-curfew value is measured at the relevant boundaries of nearby residential properties, the curfewed value at the plane of the windows of habitable rooms of dwellings on nearby residential properties. The recommended luminous intensity values were 7500cd (pre-curfew) and 500cd (curfewed).
28 Mr Henry, for the second respondent, tendered in evidence calculations undertaken by the suppliers of the proposed lighting predicting illuminance in vertical plane along the northern boundary of the subject land and at the rear walls of dwellings to the north of that boundary, which dwellings potentially would be affected by light spill. Those calculations showed light values ranging from 0 lux to 3 lux at the rear facades of the dwellings referred to above. The same calculations showed light values ranging from 0 lux to 25 lux along the northern boundary of the subject land.
29 The evidence of Mr Crookes was that the maximum values established by the Standard for curfewed hours should be applied from dusk rather than from the curfew hour of 11.00 pm referred to in the Standard. His reasoning for this approach was as follows:
(1) he had been given to understand that occupants of several of the potentially-affected dwellings were shift workers, whose sleep would be disturbed by pre-curfew levels of lighting;
(2) similarly, were any of the occupants to experience extended illness, they would be disturbed by pre-curfew lighting levels; and
(3) Table 2.1 of the Standard indicated that, at the discretion of the lighting designer, the limits and method of assessment associated with curfewed hours may be applied in pre-curfew hours.
30 The evidence of Mr Kemp was that the exercise of the discretion referred to might be appropriate in a situation where, for example, a nursing home was in close proximity to a proposed lighting installation, or where commercial considerations, such as a desire to have extended trading hours, were paramount. In the present instance, however, Mr Kemp was of the view that exercise of the discretion in the manner suggested by Mr Crookes would render meaningless the Standard's distinction between pre-curfew and curfewed hours.
31 Mr Kemp acknowledged that at some points along the northern boundary of the subject land, the pre-curfew value of 10 lux was exceeded. His assessment, however, was that the proposed installation would not result in unreasonable light spill onto adjoining residential properties, having regard to the following considerations:
(1) the standard was designed to apply in a range of situations, including typical suburban settings wherein a dwelling on an allotment abutting a private tennis court might be as close as 1-1.5m to their common boundary. Accordingly, the 10 lux limit on the boundary represented a very conservative figure, and one which should be considered against the fact that, in the subject instance, dwellings potentially affected by the proposed installation were located at distances varying from 16m to 38m from the northern boundary of the subject land. The resultant light attenuation, Mr Kemp observed, met the curfewed vertical illuminance value at the rear facade of one of the five potentially affected dwellings and approached that value for the other four, being between 1 and 3 lux;
(2) the substantial vegetation existing on the subject land, and additional screen planting required by conditions, would have the effect of further attenuating light spill;
(3) in the event that any of the occupants of the potentially affected dwellings were shift workers, the type of curtaining required to produce light levels conducive to sleep during daylight hours would serve just as effectively to block out light from the proposed installation;
(4) use of outdoor areas at night during warmer months would typically involve some form of outside lighting, which lighting would further serve to minimise the effect of any light spill from the proposed installation.
32 In all the circumstances, Mr Kemp was satisfied that the proposal would not cause unreasonable light spill onto adjoining residential properties, albeit that he was also at pains to emphasise that application of the standard did not obviate the possibility of some people being annoyed by the light levels predicted, human responses to changes in light levels not being uniform.
33 With reference to luminous intensity, it was common ground between Mr Kemp and Mr Crookes that the proposed installation would produce a value of 4289 candela, well below the pre-curfew value of 7500 candela.
34 The only expert planning evidence was given by Mr Rumsby, who advised the Court that, in reaching the view that the proposal complied, or substantially complied, with the relevant provisions of the Development Plan, he had placed significant weight on the long-standing use of the subject land by the Tennis Club, and to its dedication for parkland purposes. Mr Rumsby acknowledged that one of the primary purposes of the Hills Face Zone was the maintenance of passive open space as a backdrop to the Adelaide Plains and as a buffer between metropolitan districts. To the extent that the proposal was associated with active rather than passive recreation, this purpose was not met by the proposal. However, the subject land had a long history of use by the Tennis Club, and the proposed lighting further supported that use, rather than establishing a new use. In his view, the proposal "suitably enhances the recreational use made of a public asset, without material impact on the strategic and functional requirements of the zone".
35 More specifically, Mr Rumsby was of the view that:
(1) the proposed pole structures, being set among mature trees ranging in height from 8m to 23m, while visible from some vantage points, would not unreasonably erode the land's open and natural character;
(2) the proposal would not result in the loss of any native vegetation;
(3) the all-weather surfacing of the carparking area would reduce the potential for the creation of dust;
(4) the use of the lights being restricted to organised competitive tennis and organised club practices, the levels of noise typically associated with social tennis would not be experienced, and noise levels emanating from the courts and the carparking area, while audible on some adjoining residential properties, would not be excessive or unreasonable;
(5) the Hills Face Zone provisions of the Development Plan were directed almost exclusively to residential use of allotments and major public infrastructure, and did not really speak to the subject proposal;
(6) there was an inconsistency between those Hills Face Zone provisions which were directed towards the design of buildings and structures, and Objective 1 for the zone, which sought the preservation, enhancement or re-establishment of the zone's natural character. In a strict sense, no development could be said to do this;
(7) the subject land, being within the Hills Face Zone, also fell within the designated Metropolitan Open Space System within the area of the former District Council of Stirling, one of the objectives for which was "The development of public land ... for active and passive recreation, sporting facilities and conservation ...";
(8) the proposal would maintain the natural, vegetated character of the subject land while supplementing the substantial public investment represented by existing facilities thereon.
Assessment
36 In essence, the issues in this matter are fourfold:
(1) whether the extent of light spill occasioned by the proposal will be such as to impair the residential amenity of the area, contrary to Stirling (DC) Principles 15 and 17 and Metropolitan Adelaide Objective 9 and Principle 7;
(2) whether the installation of the proposed lights would be in conflict with those Development Plan provisions directed towards retention of the natural character of the Hills Face Zone in particular, and the Mount Lofty Ranges more generally, for example, Hills Face Zone Objectives 1 and 2 and Principles 1, 5 and 6 and Stirling (DC) Objectives 14 and 18 and Principles 85 and 89;
(3) whether the proposal, by facilitating night tennis, would result in unreasonable levels of noise for nearby residents, contrary to Stirling (DC) Principle 17 and Metropolitan Adelaide Principle 17; and
(4) whether the proposal would create a precedent whereby further intensification of the use of the subject land would become more likely.
Light Spill
37 Conditions imposed by the Council on the use of the lights (which conditions, on the evidence of Mr Beech, are acceptable to the Tennis Club) require that use to be restricted to a maximum of three nights in summer, two in spring and autumn, and one in winter (where required to complete afternoon competition matches). The same conditions require the lights to be extinguished progressively from 10.30, with all lights extinguished by 10.45, which time is within the pre-curfew period suggested in Australian Standard AS 4282-1997. It was common ground between the parties that predicted pre-curfew vertical plane illuminance values were above those recommended by the Standard along portions of the northern boundary of the subject land. The corresponding predicted values for the rear of potentially affected dwellings, however, approached or met that recommended for curfewed hours (i.e. from 11.00 pm to 6.00 am). Having regard to the evidence of Mr Kemp that:
(a) predicted values would be further attenuated by existing vegetation on the subject land and by further screening vegetation required by condition; and
(b) a difference in vertical plane illuminance of 1 lux would not be discernible to the human eye,
and also having regard to the limitations on the frequency of use of the lights imposed by condition, I am satisfied that the extent of the light spill occasioned by the proposal would not be such as to impair the residential amenity of the area, and therefore that it is generally consistent with Stirling (DC) Principles 15 and 17 and Metropolitan Adelaide Objective 9 and Principle 7.
Natural Character
38 Taken together, the Hills Face Zone provisions of the Development Plan clearly envisage, in addition to low-intensity agriculture and public/private open space, the continuing development of single detached dwellings and associated structures within that zone, albeit subject to stringent design and siting parameters. That being the case, there is an inconsistency between those provisions directed towards the development of dwellings (e.g. Principles 1, 5, 6, 7 and 8) and the Zone objectives, which seek to "preserve and enhance the natural character or assist in the re-establishment of a natural character in the zone". As Mr Rumsby observed, in evidence, it is difficult to see now any development would preserve, enhance or re-establish the natural character of the Hills Face Zone.
39 The subject land presently has an open character, and there is extensive vegetation around the tennis courts and clubhouse building. As a reserve, it will continue to be used for recreational purposes, and, while its use is primarily for active rather than passive recreation, it is a use which, on my reading of the Hills Face Zone provisions, is far more consistent with those provisions than would be its use for a dwelling or dwellings. The proposed light towers will not be of a colour and height which would render them prominent when viewed from outside the subject land. When lit, they would, no doubt, be visible from some distance away. However, by comparison with dwellings and other structures envisaged in the Hills Face Zone, they represent, in my view, a relatively modest intrusion on the natural character of that zone, and one which, in terms of its primary impact, namely light emission, is ephemeral.
40 Having regard to the above considerations, I am satisfied that the proposal will be generally consistent with those Development Plan provisions seeking to retain the natural character of the Hills Face Zone and the Mount Lofty Ranges.
Noise
41 While no expert evidence was led on noise, I had the opportunity to observe, in the course of a night view, the noise of conversation and simulated play occurring in the vicinity of the courts, from a position at the rear of the nearest dwelling. Those observations did not suggest that noise was likely to be of a level sufficient to cause annoyance to occupants of nearby dwellings.
42 My observations in this regard are reinforced by the evidence of Mr Rumsby, who told the Court that he had attended a number of hills competition tennis events, at one of which he made specific observations of the nature and level of noise created. His assessment was that the most intrusive noise heard was that of balls hitting the tape on the net cord, and that noise associated with competition play would be barely audible within or immediately outside nearby dwellings. Some noise would be created by cars leaving the subject land following completion of play, but such noise, while perhaps audible from nearby dwellings, would not be of a level such as to cause annoyance to occupants of those dwellings.
Precedent
43 Mr Leadbeter, for the appellants, submitted that approval of the lights would render more likely the approval of subsequent applications by the Tennis Club for expansion of its facilities, on the basis that, there being an established use of the subject land for night tennis, further lighting installations should be acceptable. In support of this submission he referred to the decision of Wells J in State Planning Authority v Tanczos and Others (1979) 20 SASR 210.
44 The appeals in Tanczos were brought by the then State Planning Authority against a decision by the then Planning Appeal Board to overturn decisions by the Authority to refuse three separate applications for development of allotments within the River Murray flood plain. In reversing the decision of the Board, Wells J took the view that:
"... the granting of consent in any one of the three cases before [the Board], a fortiori the granting of all three consents, would be likely to encourage others ... to pursue similar applications; that further consents would be likely to be granted; and that with the granting of every consent the difficulty of refusing subsequent applications would mount."
That being the case, His Honour held that the precedent which would be created by approval of an application or applications to develop vacant allotments in circumstances where the existence of similar vacant allotments nearby was likely to lead to a spate of similar applications, was a consideration relevant to the decision to be taken by the relevant authority on the original applications.
45 That is not the situation here. Any future development proposal by the Tennis Club will be a proposal concerning the same land the subject of these proceedings. That being the case, the question for the relevant authority will not be one of precedent, but of the cumulative impact of further development on the same land. That is not to say that approval of the subject proposal has exhausted the development potential of the subject land - that is a matter for the relevant authority to decide when and if further proposals are submitted to it - but merely to say that any such approval cannot be used as a basis for subsequent approvals any more than approval of a dwelling on an allotment can be used as a basis for approval of an additional dwelling or dwellings on that same allotment.
46 Having regard to the above, I am not persuaded that approval of the subject proposal would establish a precedent for further intensification of the Tennis Club's activities on the subject land.
Conclusion
47 Having regard to all of the above, to all that was put before me, to my own observations on the view, and to the relevant provisions of the Development Plan, I have concluded that, subject to minor amendment and appropriate conditions, the subject proposal is generally consistent with the relevant provisions of the Development Plan and warrants provisional development plan consent. The minor amendment concerns a variation to the carparking layout, canvassed in the course of the hearing, which would allow cars to move around the carparking area in an anti-clockwise direction thereby minimising the possibility of car lights shining into the rear gardens of adjoining residential properties as cars leave the subject land. Details of the screen planting required by condition 2 of the conditions attaching to the consent issued by the Council should also be provided.
48 By memorandum circulated to the parties and dated 27 August 1999, I advised them of my conclusion above and the reasons for it. I invited them to consider the question of conditions and to make written submissions to the Court thereon.
49 Responses provided to the Court by the parties indicated that, based on an amended carparking layout and landscaping scheme prepared by the second respondent, there was agreement between the appellants and the second respondent concerning the majority of some 13 draft conditions proposed by the appellants. However, there remained disagreement concerning a few. The first respondent indicated it was prepared to abide any conditions imposed by the Court.
50 The appellant and the second respondent came before me on 25 October 1999 to make further submissions concerning proposed conditions, and are now agreed as to the wording of all but two. The latter concern two separate issues:
(a) the colour of the proposed light poles;
(b) whether, until such time as the carparking area is surfaced, dust suppression measures should be required by condition, at least in respect of carpark use associated with night tennis.
51 The only expert evidence in relation to the colour of the light poles was that of Mr Rumsby, whose view was that a natural galvanized finish to the light poles would be satisfactory, particularly once it was weathered, albeit that he was of the view that a black colorbond finish would be preferable. Mr Leadbeter, for the appellants, expressed a preference for a dark green colorbond finish, but no expert evidence was led to support this view. In the circumstances I am satisfied that a natural galvanised finish would be satisfactory.
52 With reference to dust suppression, the only evidence of a potential dust problem was a reference by Mr Gooch to a concern regarding the possibility of excessive dust and noise emanating from the carpark. Neither Mr Gooch nor Mrs Hobson made any reference, in evidence, to dust problems being created by use of the existing carparking area, and there is nothing in the evidence to suggest that the revised carparking layout will change this situation. After reviewing the evidence, I have concluded that there is nothing before me which would justify the imposition of a condition, urged on me by Mr Leadbeter, which would have the effect of requiring dust suppression measures until such time as the surfacing of the carparking area had been completed.
53 The order of the Court is that:
A. This appeal is dismissed.
B. Provisional Development Plan consent is granted for the subject proposed development, being the installation of lighting to three existing tennis courts on land at 140 Upper Sturt Road, Upper Sturt (Development No: 473/855/98), subject to the following conditions:
1. The development hereby approved shall be carried out in accordance with the amended plan dated 30.9.99, Drawing No. 43/A, marked "Exhibit H".
2. Landscaping shall be established on the subject land for the purposes of screening the tennis courts from the adjoining residential properties to the north and to minimise the spill of light from the tennis courts onto those adjoining residential properties. Such landscaping shall be established in accordance with the following requirements:
2.1 A dense screen of trees and shrubs shall be planted along the northern and southern boundaries of Melville Park Reserve adjacent to residential properties and extending to the Upper Sturt Road, as shown on Drawing 43/A, to supplement existing trees and shrubs present on site.
2.2 Vegetation shall be planted to ensure that upon reaching maturity the vegetation collectively forms a dense screen with a height of up to ten (10) metres.
2.3 The landscaping shall be maintained in good health and order with any diseased or damaged plants being replaced by a healthy specimen of the same or a similar species to the plant replaced.
2.4 The landscaping plants shall be chosen from species indigenous to the area and shall include a mixture of the following species:
Trees
Eucalyptus obliqua;
Acacia melanoxylon.
Tall shrubs / small trees
Exocarpus cupressiformis;
Banksia marginata;
Acacia pycnantha;
Acacia verniciflua.
Small to medium shrubs
Pultenaea daphnoides;
Acacia myrtifolia.
Ground covers
Kennedia prostrata;
Hardenbergia violacea;
Microlaena stipoides.
3. No existing native vegetation on the subject land shall be removed.
4. The landscaping works and planting of species required by these conditions shall be undertaken as soon as is reasonably practical at the onset of the rains in the next autumn growing season, and in any event within 9 months from the date of this consent.
5. The property shall be managed in such a manner as to prevent denudation of the vegetation, erosion of the soil or pollution of the environment.
6. The use of the lights hereby approved shall be confined to the occasions when tennis games or matches have been programmed or scheduled by the Hills Tennis Association or for organised club practices on the said courts and in accordance with the limitations specified in condition No. 7.
7. The use of the tennis court lights shall be limited to a maximum of three nights per week during summer months, two nights per week during spring and autumn months and on Saturdays during winter months, only where required to complete afternoon tennis competition matches.
8. The switching off of lights shall commence from no later than 10.30 pm and be completed no later than 10.45 pm with the courts to be vacated generally by 11.00 pm unless an emergency arises.
9. The courts shall not be hired out for use with lights.
10. Any trenching of electrical wires for the light poles shall be undertaken in a manner which avoids damage to the roots of existing trees.
11. The carparking area and access road within the carparking area shall be completed in accordance with the amended plan numbered 43/A and marked "Exhibit H" and:
11.1 Driveways, vehicle manoeuvring areas and parking spaces shall be constructed of compacted rubble.
11.2 Each parking space shall measure not less than 2.5 metres wide x 5.5 metres long. Such carparking spaces shall be clearly marked along the whole of each side of each carparking space and delineated in a distinctive manner (including split pine logs) and shall be maintained in good order at all times. Barriers shall be erected at the front of each carparking space to prevent vehicles exiting the carparking space in a forward direction.
11.3 Water run off from the car park shall be directed towards the Upper Sturt Road and not neighbouring residential properties.
11.4 Any lighting constructed within the carparking area shall be shielded away from neighbouring properties and motorists using Upper Sturt Road.
11.5 The carpark area shall be:
(i) signposted and delineated only insofar as is required to give practical effect to the amended layout and to afford physical protection to any additional planting prior to use being made of the tennis court lighting approved herein; and
(ii) substantially completed, including surfaced, lit and delineated within three years of the date of this consent.
12. The tennis court lights shall be installed strictly in accordance with the specifications of the lighting manufacturer (Sylvania) such that illumination levels and light spill is strictly within the range of predictions therein.
2
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/sa/SAERDC/1999/69.html