RAYNER & ORS v CITY OF HOLDFAST BAY & ANOR [2011] SAERDC 59 (19 December 2011)

Last Updated: 21 December 2011

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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RAYNER & ORS v CITY OF HOLDFAST BAY & ANOR

[2011] SAERDC 59

Judgment of Her Honour Judge Cole, Commissioner Hamnett and Commissioner Agnew

19 December 2011

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Application for development approval to erect four sports light towers at oval - third party appeal received against the development approval - light spill into neighbouring properties, visual amenity, noise generated during games, car parking by spectators and traffic - proposed development an acceptable development on the land - development plan consent granted with conditions.

Development Act 1993 (SA), referred to.

RAYNER & ORS v CITY OF HOLDFAST BAY & ANOR
[2011] SAERDC 59

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. The Glenelg Football Club (“the Club”) applied, in December 2010, pursuant to the Development Act 1993 (“the Act”), for development approval to erect four sports light towers at the Glenelg Oval (“the oval”). The City of Holdfast Bay processed the application as a category 3 “on merit” application, and representations were received. On 27 January 2011, development plan consent was granted to the application, subject to 15 conditions. A number of the representors appealed against the grant of development plan consent.
2. At the hearing of the matter, the Court took a view of the land with the parties. In the appellants’ case, Mr Millikan, Ms Crannage, Mr Wright and Mr Luker, all of whom are local residents, gave evidence. Mr Rolfe, a town planner, gave evidence in the Council’s case. Mr Nelson, the CEO of the Club, Mr Snewin, a Board member, Mr Johnson, Mr Rumsby, a town planner, and Mr Broad, gave evidence for the Club.

The Land and the Locality

3. The land the subject of the application is Lot 100 in deposited plan 46662, Glenelg East (“the land”). It is roughly rectangular. It is bounded on the western side by Brighton Road, on the northern side by Rugless Avenue, on the eastern side by Williams Avenue and on the southern side by the Glenelg Primary School. The land is 4.393 hectares in area. The Council is the owner of the land. The Club has a lease and licence over portions of the land including the oval until 30 June 2022, with the possibility of further terms.
4. The eastern frontage of the land contains eight synthetic tennis courts, with club rooms and lighting for the southern most four tennis courts.
5. The western frontage contains a bitumen sealed carpark for about 158 vehicles, including 5 bus spaces. The oval lies between the carpark and the tennis courts. The Club’s clubrooms (which include bar facilities) are on the western side of the land between the oval and the carpark. There are three grandstands on the western side of the oval.
6. Presently, there are three lighting towers, each about 18 metres high, on the eastern side of the oval, on the elevated, grassed oval surrounds. There are four lighting fixtures on a grandstand roof on the western side of the oval. These seven lighting fixtures are presently used for evening practice sessions.
7. The land has been used for football training and matches for many decades. The Club was established in 1920. The capacity of the oval surrounds in terms of accommodating spectators is said to be 15,000 people, although the record attendance is 17,171 people on 20 July 1968 for a Glenelg v Sturt match. Prior to 1991, when the Adelaide Crows joined the AFL, 10,000 spectators regularly attended home matches at the oval.
8. The highest attendance at the oval since the Crows and Port Power have been in the AFL was 11,827 for a Glenelg v Sturt match in 2006.[1] The average attendance for an SANFL match at the oval is presently 4,000 people.
9. The two town planners who gave evidence each identified a locality for the purpose of assessing the proposed development. The localities extend a similar distance north and south of the site, but Mr Rumsby’s locality extends further to the east and to the west than Mr Rolfe’s locality. We adopt Mr Rumsby’s locality, with a slight extension to the north, as we consider that the traffic impacts of the proposed development are likely to extend further than Mr Rolfe’s locality. Having regard, in particular, to the traffic impacts of the proposed development, we consider that the locality for the proposal extends along Maxwell Terrace, then west down Jetty Road to Chapel Street, south to Broadway, then east up to Buttrose Street then north back to Maxwell Terrace.
10. The residential area east of the land is the Historic (Conservation) Zone – Residential (Da Costa Park). It is a high quality residential area with high heritage value. The residential area to the north of the land is in a residential Zone, and is also generally of high quality.

The Relevant Authority

11. The Council processed the application, notwithstanding that it is the owner of the land. Presumably it did so pursuant to s 34 of the Act. The Council referred the application to Adelaide Airport Ltd for comment. The response, dated 21 January 2011, advised that Adelaide Airport Ltd had no objection to the proposed development.

The Proposed Development

12. The proposed development has undergone minor changes from time to time since the development application was lodged. The final proposal for the purpose of this appeal was shown in the plans tendered,[2] and described in the statements tendered in the Club’s case.
13. In summary, the Club proposes to remove the three existing light poles and the four roof mounted lights presently fixed to the western grandstand. The new lights which are proposed are intended for use at evening games, as well as during training sessions.
14. Four light grey poles are to be erected, one at each “corner” of the oval. The pole at the south western “corner” will be 30 metres high. The other 3 poles will be 25m high. The heights are measured from existing ground level at the centre of the playing surface. On top of each of the poles there will be mounted a bank of lights 5m wide x 2m high, containing 15 lights in two rows.
15. The Club is proposing to use the lights for up to 5 SANFL football games per season, (which runs from April to early October each year) all of which will be held on a Friday or Saturday night or on the evening of a public holiday. Every evening game will finish no later than 9.50pm. The Club is also proposing to use the lights for training sessions five nights per week. The SANFL League and Reserves teams train on Monday, Wednesday and Friday and under-age players train on Tuesday and Thursday. The lights are capable of being used in four different “Modes”, up to Mode 4 which is the brightest. Games are to be played with the lights on Mode 3 and a lower setting will be used for training.
16. All bars on the land are to be closed prior to the final siren of the game.

The Development Plan

17. The Development Plan applicable to the assessment of the proposed development is the Development Plan for Holdfast Bay (City) consolidated on 11 December 2008.
18. The land is within the Glenelg Oval and Environs Zone (“the GOE Zone”). The Glenelg Primary School, which is adjacent to the land on its southern side is also in the GOE Zone. The Zone is shown on Maps HoB/5 and 6.
19. The sole objective for the GOE Zone is:

Objective 1: A zone containing primarily public and private recreational activities and open space.

20. The GOE Zone principles of development control (PDC) are:
    1. The development of the Glenelg Oval facilities should be for football, cricket, tennis, lawn bowls and croquet.
    2. Future development of the site of the Glenelg Primary School should include educational and recreational uses and/or dwellings of one and two-storeys combined with open space which maintains linkages through, and association between, the site and the Glenelg Oval complex.
21. The development of the oval facilities is specifically contemplated in PDC 1. Both of the planners who gave evidence in the matter, Mr Rumsby and Mr Rolfe, expressed the opinion that the proposed lights are an appropriate kind of development in the GOE Zone. We agree. Mr Rolfe considered the question of whether the removal of the lights from the western grandstand would offend any of the provisions of the Development Plan with respect to heritage conservation. He concluded that the lights did not enhance the heritage value of the grandstand, and that their removal would not be contrary to the heritage conservation provisions. We accept his evidence on this issue.
22. The principal basis for the appellants’ objection to the proposed development concerned the potential impact of the lights on residential amenity, particularly with respect to nuisance and traffic and to a much lesser extent, light spill.

Light Spill

23. Thorn Lighting Pty Ltd (“Thorn”) was engaged by the Club to undertake modelling and calculations with respect to the proposed lighting generally and the issue of light spill. Mr Johnson, an electrical engineer, then prepared a report based partly upon Thorn’s work.[3]
24. The relevant standards are Australian Standard 2560.2.3 “Lighting of Football (all codes)” and Australian Standard 4282-1997 “Obtrusive effects of outdoor lighting”.
25. Thorn’s modelling showed that the proposed lights would be compliant with the Australian Standards when used in Modes 1 and 2. The modelling indicated that in Modes 1 and 2, that is, in relation to training and under age games, light spill from the new lights would be less than it is from the existing lights. In relation to Mode 3, Thorn’s modelling showed that the lighting would comply with AS 2560.2.3, but that it would not be fully compliant with AS 4282-1997. However, the modelling was undertaken without taking into account the effect of any buildings, trees or structures between the lights and the test locations for the modelling. The modelling showed that the locations most likely to be affected by light spill are on Rugless Terrace, between Fortrose Street and Malcolm Street, on Williams Avenue opposite the middle two tennis courts, and in the backyard of the house immediately adjacent to the land on Williams Avenue. Mr Johnson gave the only expert engineering evidence in relation to light spill. His opinion was that, in view of the buildings, trees and structures between the lights and the locations of concern, together with the ability to adjust the angle of the lights once they are installed to address any unacceptable light spill, the lights could be brought into compliance with AS 4282-1997. We accept Mr Johnson’s evidence, which was not contradicted.
26. Compliance with the applicable Australian Standard is not the end of the planning assessment with respect to light spill. It is necessary also to consider the effect of the lights on the amenity of the residents, particularly in Rugless Terrace and Williams Avenue. The Development Plan, in Council wide Objective 16 and PDC 12 says that the creation of nuisance by the emission of light should be avoided. We accept the uncontradicted evidence that there will be a positive impact with respect to light spill relative to the existing situation during training sessions and under-age games from Monday to Thursday. However, during the evening SANFL games, houses along the northern side of Rugless Terrace and the eastern side of Williams Avenue will experience greater light spill. It will affect mostly front yards.
27. In view of the limited number of evening SANFL games (5 games, or about 20 hours), and the curfew time of 9.50pm, Mr Rolfe and Mr Rumsby assessed the potential for nuisance from light spill to be acceptable. We agree in relation to the houses on the northern side of Rugless Terrace and the eastern side of Williams Avenue. We are, however, concerned about the houses on the western side of Williams Avenue immediately adjacent to the land (1 and 1A Williams Avenue). Discussions should take place between the owner of this house and the Club to put in place measures to mitigate the impact of light spill into this property.

Visual amenity

28. Several provisions of the Development Plan emphasise the importance of ensuring that the amenity of localities is not impaired by the appearance of buildings and structures.[4]
29. There was some objection to the appearance of the light towers in the representations, though it was not a dominant issue.
30. In Mr Rolfe and Mr Rumsby’s assessment, which we accept, the slimline grey poles minimise the potential visual impact of the poles to the greatest extent possible. Given that the Zone provisions specifically encourage the development of the oval, we consider that light poles are an appropriate form of development in the Zone.

Noise

31. Many of the representors expressed a concern about the potential for the proposed development to generate noise which may be a nuisance. The concern about noise related to two activities; the noise generated in the course of a game and the noise of people leaving a game and walking either to their cars, to Jetty Road or to the hotel on the south western corner of Brighton Road and Pier Street. We will deal with noise in the second context below when we consider spectator behaviour. The Development Plan seeks to have development take place in a manner which is not liable to cause a nuisance by the emission of noise.[5]
32. The evening games will not be additional to the SANFL games customarily played on the oval. Up to five games played in the 2011 season during the afternoon will move to an evening slot. Mr Wright, a resident in Williams Avenue, made the valid point that the noise made by spectators during a game is likely to be more noticeable at night because of the reduced background traffic noise. During games, residents notice the noise of the siren, the noise of announcements over the public address system, the noise of spectators beating on the metal hoardings around the oval and general crowd noise. Several of the residents reasonably conceded that not all of the noise generated during a game is annoying, but some of it clearly can be.
33. All of the residents who gave evidence readily conceded that they had chosen to live near the oval and therefore accept a level of impact by way of noise. In Mr Rumsby and Mr Rolfe’s assessment, noise from the evening games is not likely to be an unacceptable interference with residential amenity in view of the zoning of the land. We accept the planners’ assessment on this issue, noting, however, that it was formed in relation to the specific basis upon which the proposed development has been applied for. We detected that much of the concern expressed by the residents in relation to noise was underpinned by an anxiety that the presence of the lights may lead to the use of the oval at night more often than the five occasions specified for the current application, and for uses removed from football, such as concerts. In short, there is a concern about the incremental increases to the use of the land in the evening.
34. We acknowledge that the residents will experience greater impact upon their residential amenity by way of noise from evening games. This is acceptable in planning terms for five occasions per year. Any further increase would require careful assessment. Whilst the zoning of the land supports the use of the oval for sporting purposes, the Development Plan makes it clear that the preservation of residential amenity is important throughout the Council area.

Spectator behaviour, Traffic and Parking

35. The behaviour of spectators when leaving SANFL matches at the oval was, together with traffic and parking, the greatest concern of the representors and the residents who gave evidence at the hearing.
36. Mr Millikan, who lives west of Brighton Road, gave evidence in the appellants’ case. Mr Millikan already experiences problems with the full use of on-street parking in his street associated partly with football games on the oval and partly with the hotel on the corner of Brighton Road and Pier Street (the Holdfast Hotel). His main concern was with the disruptive and inconsiderate behaviour he experiences from people returning to their cars who are affected by alcohol. He experiences disruptive noise and has had broken glass thrown over his front fence. Mr Millikan is apprehensive that such incidents may increase with the introduction of night games, especially since he anticipates that some of the people who attend a night game will move on to the Holdfast Hotel, will continue drinking and may then be disruptive later in the night.
37. Ms Crannage gave evidence in the appellants’ case. Ms Crannage lived in Rugless Terrace for seven years and moved to Malcolm Street three years ago. In Rugless Terrace, Ms Crannage was inconvenienced by cars parking across her driveway every time there was a SANFL match at the oval. This has not happened to her in Malcolm Street, though that street is clearly congested during every game. Ms Crannage’s principal concern about evening games was that inconsiderate behaviour by spectators returning to their cars may be worse at night, as the consumption of alcohol may be greater than during the day. She was also concerned that people might, after an evening game, go on to other licensed premises, perhaps on Jetty Road, and be disruptive upon returning to their cars, possibly quite late at night. Ms Crannage was very concerned that this application would be the precursor to further applications for other activities at the oval using the lights.
38. Mr Wright has lived in Williams Avenue for 32 years. We have referred to his evidence above. Mr Wright was concerned about noise impacts. He also mentioned that Williams Avenue can be difficult to negotiate when cars are parked on both sides as they are during football games.
39. Mr Luker lives in Fortrose Street. He gave evidence of his serious concern regarding traffic safety in his street on days when SANFL matches are played at the oval. Cars are parked over driveways from time to time. Even when they are not, they are often parked so close to his driveway that reversing out is dangerous. Mr Luker experienced adverse effects from vandalism and disruptive behaviour when the club was conducting a disco on weekends at the land. He is concerned that evening games might lead to similar behaviour. He is also concerned about new activities using the lights being proposed in the future.
40. We have referred to the provisions of the Development Plan relating to nuisance above. Council wide Objective 23 seeks:

A compatible arrangement between land uses and the transport system which will:
(a) ensure minimal noise and air pollution;
(b) protect amenity of existing and future land uses;
(c) provide adequate access; and
(d) ensure maximum safety.

41. The five or fewer games which are to be played on the oval at night will be games which would otherwise be played during the day. The number of spectators may increase[6], but not to the level experienced in previous years. The impact upon the streets close to the oval is likely to be similar in terms of traffic numbers. Those streets are already fully utilised for on-street parking. In planning terms, the parking and traffic situation will remain very close to the same, except that the peak demand period will move, on up to five occasions per year, from the afternoon to the night.
42. We understand the concerns of the residents in relation to spectator behaviour. However, we do not consider, having regard to the existing use of the land and the zoning of the land, that these concerns are a sufficient basis for the refusal of the development application. It seems to us that much could be done by means of the strategic deployment of parking inspectors to alleviate the existing parking issues. Co-operation between the Club, the residents and SAPOL may assist to diminish incidents of vandalism and other objectionable behaviour.

Summary and Conclusion

43. The proposal lights for use for up to five SANFL matches per year are an acceptable development on the land, having regard to the relevant provisions of the Development Plan and, in particular, the GOE Zone.
44. The principal concerns raised in the appellants’ case related to light spill, noise generated during the games, noise and behaviour of spectators after the game, car parking by spectators and traffic generally. We accept the evidence of Mr Johnson that the lights can conform with the applicable Australian Standards. We accept the evidence of the planners, Mr Rolfe and Mr Rumsby, that the visual impact of the lights upon residential amenity, both in terms of light spill and appearance, for the level of use proposed by this development application, will be acceptable in planning terms. The change to the peak for car parking and traffic from the afternoon to the night on five occasions per year should not diminish safety or residential amenity to the point that the proposed development warrants refusal. Similarly, the increased potential for disruptive behaviour by spectators on five nights per year, in planning terms, having regard to the relevant provisions of the Development Plan, does not justify the refusal of this application.
45. The development plan consent appealed from had conditions attached to it. These required the preparation of a security management plan[7], a traffic management plan[8], and a litter management plan[9], and a version of these has been prepared. They require further consideration to take into account the amendment to the application, and to take into account the specific concerns of the residents put forward during the hearing of this matter.
46. A memorandum of the reasons set out above was provided to the parties. We then heard submissions from the parties in relation to the conditions to be imposed upon the development plan consent. Draft conditions were provided to us by Ms Bouchee and by the Club and we have considered both sets of conditions and the submissions made in relation to them on behalf of all parties.
47. There will be an order in the following terms:-

Development plan consent is granted to development application no. 110/01120/10 for the erection of four light towers with lights mounted on top at Lot 100 in Deposited Plan 46662 Glenelg East, subject to the following conditions:-

1. The design and siting of the light poles and fittings shall be as detailed in the revised report of Robin Johnson Engineering Pty Ltd dated 16 May 2001 being Exhibit D in ERD 40/2011 and the proposal plans being Exhibit A.
   
2. The light pole to be erected near the south western corner of the Glenelg Oval will be 30 metres high and the other three light poles will be 25 metres high. The height of the poles is to be measured from the existing ground level at the centre of the Oval. The bank of lights mounted on top of each pole will be 5 metres wide and 2 metres high, and will contain no more than 13 lights in two rows.
   
3. The light poles must be light grey in colour.
   
4. Construction shall take place only between 7:00am and 7:00pm Monday to Saturday and shall not take place on Sundays or public holidays. All construction work shall be undertaken in a manner such that nuisance or annoyance to the occupiers of buildings within the locality is avoided to the satisfaction of the Council.
   
5. The back up generator for the lights must be enclosed in acoustic housing for the purpose of suppressing noise emissions to meet the requirements of the Environment Protection (Noise) Policy 2007. The specifications for the acoustic housing must be provided to the Council for assessment prior to the issue of development approval for this application.
   
6. A Certificate of Compliance with Australian Standards 2560.2.3 and 4284, from a relevantly qualified and experienced engineer, must be provided to the Council prior to the operation of the lights.
   
7. The Club must engage in discussions with the occupiers of 1 and 1A Williams Avenue Glenelg East and use its best endeavours to undertake all reasonably practicable measures to mitigate the impact of light spill and glare into those properties.
   
8. The light poles and lights must be maintained, kept tidy and free of graffiti and in good repair and condition to the reasonable satisfaction of the Council at all times.
   
9. No advertisements or signs are to be displayed on the light poles and lights.
   
10. All existing light poles, flood lights and associated fixtures on the grand stands must be removed prior to the operation of the lights the subject of this approval.
    
11. The lights must be operated in mode 1 when used for training sessions.
    
12. Training sessions using the lights may only occur on weeknights.
    
13. The lights must not be operated in a mode higher than mode 3 when used for football games.
    
14. The lights may be used for no more than five football games per calendar year, and such games may be played only on a Friday night, a Saturday night or the night before a public holiday.
    
15. The lights may not be used in mode 3 on two or more consecutive nights.
    
16. Football matches played with the use of the lights must conclude no later than 9.50pm.
    
17. After a night football match, the lights must be turned down to their lowest level, before 10pm, to enable patrons to leave the land, and must be turned off by 10.20pm.
    
18. Training sessions making use of the lights must conclude no later than 9.50pm. The lights must then be turned off by 10pm.
    
19. On any night on which a football match is played using the lights, all bars on the land must be closed prior to the final siren of the game.
    
20. The use of the public address system and the use of all speakers broadcasting outdoors on the land must cease no later than ten minutes after the final siren of any game played using the lights.
    
21. The Glenelg Football Club shall use its best endeavours to minimise the noise nuisance to residential properties in the locality from the use of the public address system and speakers broadcasting outdoors on the land.
    
22. The strategies and procedures for maintaining spectator and public safety within the land and the locality, which are set out in the Security Management Plan forming annexure A to these conditions, must be complied with in association with football matches where the lights are used.
    
23. The strategies and procedures relating to traffic management and the maintenance of vehicular access to private properties within the locality of the land, which are set out in the Traffic Management Plan forming annexure B to these conditions, must be complied with in association with football matches where the lights are used.
    
24. The strategies and procedures for the maintenance of cleanliness within the land and the locality, which are set out in the Litter Management Plan forming annexure C to these conditions must be complied with in association with football matches where the lights are used.

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[1] Statement of Robert Nelson

[2] Exhibit A

[3] Annexed to Exhibit D - Affidavit of Robin Johnson

[4] Council wide Objective 84.

PDC 259, 260, 261 and 265.

[5] Council wide Objective 16, PDC 12.

[6] Possibly to 5,000 - 6,000. See Ex C Affidavit of Robert Nelson.

[7] Condition 12

[8] Condition 13

[9] Condition 14