Submission from Carole Ferguson LLB (Hons).

Proposal to Install Plastic Grass at Arlington Recreation Reserve (“the Reserve”)

I am writing to express my overwhelming opposition to the proposal to install plastic grass on the Reserve being considered by Council. I have had the benefit of consideration of the following documents:

  • Council generated “Questions and Answers” dated 14 August 2009 (‘the Questions and Answers”)
  • Development Consent dated 5 October 2005 – determination no 2000500298 (“Development Consent”
  • Arlington Oval Conservation Guidelines May 1995- prepared by DM A Taylor Landscape Architects Pty Limited and Rod Howard Heritage Conservation Pty Limited (“the Conservation Guide”)
  • Statement of Environmental Impact – Rod Howard Heritage Conservation Pty Limited -1997 (‘the EIS”)
  • Arlington Reserve Plan of Management- October 2004 ( the Plan of Management”
  1. Use of the oval not consistent with current Development Consent:

The Questions and Answers highlight that the proposed use is consistent with the Development Consent – ie matches to 9.30 pm on weekdays or weekends. This is not correct.

Condition 3 of the Development Consent states that “matches “ (undefined) on the playing field are only permitted to be held during the week until 5 pm and on weekends. The consent goes on in Condition 4 to say that lighting of the field will not be permitted after 9.30 pm daily.

It is difficult to reconcile the current use of the Reserve with these conditions. In fact it is open to conclude that the current usage of the Reserve for training until 9.30 pm is potentially inconsistent with Council’s own development consent given that “matches”, albeit informal, may indeed occur during weekdays.

It is not open to the Council to conclude that any match is permitted to be played on the Reserve in any circumstances after 5.00pm.The ambiguity of the development consent would, following usual legal practice and convention (in particular the contra preferendum rule), be interpreted in the interests of the local residents- as the reason for the condition was to “protect the acoustic amenity of surrounding residents”. It would be an unusual Court that would conclude that it is a protection of acoustic amenity to increase usage of the Reserve until 9.30 pm on weekends.

The apparent ambiguity between the 2 conditions could be concluded that in fact additional time was required for cleaning etc.

It is apparent that this is a significant flaw in the Development Consent. It is not open to the Council in the circumstances to change the existing use conditions without further consultation with local residents regarding the acoustic amenity impacts on surrounding residents given the significance of the change. Such change would be strongly resisted and would lead the Council to review by the NSW Ombudsman, ICAC, Department of Local Government and indeed action in the Land and Environment Court.

  1. Parking issues

The Question and Answers again state that parking issues will be managed and infers no impact on local residents. As has been highlighted in many submissions, the existing parking in the area is significantly impacted by the current use of the Reserve. This is in part because of a complete failure by the Council to adequately enforce existing parking restrictions (eg parking in roundabouts, on footpaths etc). But it also fails to take into account the resident parking needs of the adjacent medium density development. The reality is that most players arrive 1 hour before their game (minimum) and then stay for the game afterwards – meaning that the players are there for a total of approximately 3- 4 hours – ensuring complete overlap between players for at least 3 games.

  1. Noise impact not consistent with Development Consent

Condition 5 of the Development Consent requires that the use of the premises are not to give rise to transmission of unacceptable vibration or increase in noise by more than 3 dB(A). I live in the area of Abergeldie Street closest to Old Canterbury Road. Of any evening and during weekends during the soccer season I can hear clearly the sounds of the Reserve, including the significant swearing by coaches and players alike. I can specifically hear actual sentences such as “F*** off”, “You c##t” etc. In order for this to occur, the noise impact must be greater than 3 dB (A).

Council has not conducted any noise studies through properly accredited acoustic engineers to determine the current impact, and indeed compliance with the Development Consent. Having said that, the proposed usage, which already is causing significant impact on adjacent properties, is likely to increase the noise level, rather than diminish it. Council must therefore require a development consent to be lodged, together with appropriate testing, to ensure compliance, as well as implementing rigorous compliance testing. Any change must be properly canvassed in a new development consent having regard to the fact that a change would have significant impact on local residents.

  1. Failure to conduct traffic study

The proposed use, being inconsistent with the Development Consent, should have required a traffic study to be undertaken to assess impartially and realistically the impact on local residents. This has not occurred and again glib statements are made in the Questions and Answers that there will be no changes to existing parking or traffic issues – completely incorrect.

  1. Illegal use of adjacent recreation areas

Council is aware of the illegal use of both Laxton and Johnson parks for training on Saturdays for the soccer teams. These parks are important passive recreation areas for the local community – birthday parties, kids with a ball, dog walking, playgrounds etc. The current use by the soccer players is illegal and offensive – again (as highlighted above) the language is appalling- a recent visit by myself with my 3 year old niece to Laxton whilst the players were warming up resulted in her asking “What’s a c##t? “having heard the word at least 20 times during our 15 minute visit to the playground. Additionally I saw the players using local gates and fences as “targets” for their balls and not heeding at all a local’s objections. Council does not police at all this illegality – which is a source of considerable angst for the local community.

  1. Funding sources

The Community has been advised that the funding for the proposal will be from borrowed funds (>$850, 000) and s 94 contributions. Given that the proposed usage is not authorized by the Development Consent, can Council confirm that the financial model for the plastic grass is still viable – or does it provide significant financial reductions to projected revenue from its use. Council must clearly indicate to residents and other community users the expected revenue raising potential from the installation of plastic grass – taking into account the significant potential environmental risks litigation.

  1. Failure of Questions and Answers to provide complete information regarding environmental issues

The Questions and Answers purports to provide reasons for the positive environmental impacts of the plastic grass proposals including reduced water, herbicides, or fertilizers needs etc. This information is incomplete and fails completely to address the increased needs for industrial grade disinfectants, bleaches and other agents to address the sanitation requirements for a high use facility.

My understanding is that daily ( including evening) use requires a synthetic field to be sanitized on a weekly basis to ensure that there are no impacts for players from blood borne infections, as the surface traps such bacteria and viruses in the “grass” – which must be removed to reduce player impacts. The necessary agents to undertake this sanitation process are necessarily more dangerous on local residents and, if not undertaken, on players.

Additionally, the plans fail to take into account the Council’s obligations under the Protection of the Environment Operations Act. As you are aware, there appear to be no storm water sequestration proposals for the Reserve. Sanitation processes will require significant storm water sequestration to ensure that sanitation products do not enter the Hawthorn Canal (which abuts the Reserve precinct). If such an event was to occur, then the Council is in breach of s 120 of that Act. As you are also aware, the penalties for infringements are extremely high (up to $1 million for a corporation). It is therefore critical that the Council has addressed its ongoing obligations in regard to storm water abatement.

A further issue is that the Council has failed to consider in environmental impacts is the impact of reduction of groundwater on local residences. Given the nature of the clay sub- soil in this precinct, changes in groundwater

(Diminution particularly) have a significant deleterious impact on brick housing- causing cracking etc. Council again has failed completely to assess through appropriate engineering and hydrological studies the impact on the abutting residences (including the Williams Parade residences) from a significant change to groundwater and sub- soil water density. The plastic grass proposal is to provide an impermeable membrane as a base to the “grass”. This will ensure that all usual sources of groundwater and sub- soil moisture are eliminated. The consequences will be manifold on the local residents and will lead the Council to, again, potential litigation from locals as they seek to ensure that the person who has created the hazard is brought to account – similarly with any developer who fails to address the deleterious impacts of their development.

Council has also failed to address the potential impacts of the removal of a natural grass surface on the endangered long nose bandicoot population. The Scientific Committee, of the NSW Department of the Environment, Water and Conservation, established by the Threatened Species Conservation Act, has made a Final Determination to list a population of the Long-nosed Bandicoot Perameles nasuta Geoffroy, 1804 in inner western Sydney as an ENDANGERED POPULATION in Part 2 of Schedule 1 of the Act. The bandicoots have been found in areas in the railway cutting /New Canterbury Road and associated parklands at Dulwich Hill. Visual sightings of the bandicoots have been made by local residents.

Contrary to the views of certain Councillors that these are “rats”, a listing of an endangered population is difficult to achieve and entails detailed trapping, observation and other studies.

It is incumbent on the Council, having regard to the significant penalties under the Threatened Species Conservation Act to work closely with National Parks and Wildlife to ensure that any proposals for the Reserve do not have a deleterious impact on the long nosed bandicoot. Again a failure to do so can result in significant penalties, regulatory impacts and reviews by the NSW Ombudsman and ICAC. Additionally s36A of the Local Government Act (“the Act”) requires that the Plan of Management be amended so as to take into account the impact of the threatened species – this has again not occurred and therefore is a breach of the Act.

  1. Failure to address significant historical impacts

Arlington is identified in the Plan of Management as a park with high historical and visual impact environmental qualities.

Objective 1 of the Plan of Management is to “maintain the heritage significance of the Grandstand and Entry Pavilion within the Park”. It is also interesting, having regard to the significant work that the Council did in commissioning the EIS and the Conservation Guide that the plastic grass proposals were not considered in the light of these impacts – or indeed that a further historical EIS was undertaken to ensure that the proposals supported the heritage significance of the Reserve. This is particularly interesting in the light of the fact that an updated EIS undertaken for the lights – which arguably could be considered to have a lesser impact on the heritage aspects of the Reserve than the proposals to replace the historically naturally grassed surface with a plastic grass solution.

The Conservation guidelines focused (section 4.2.6) on the needs for appropriate vegetation for the grandstand and entry pavilion areas. The Council has addressed some of these concerns with tree and shrub planting to develop the visual curtilage of the grandstand area.

However the proposals for plastic grass will in fact reduce the visual curtilage. Synthetic alternatives to natural grass are not consistent with either historical or appropriate visual curtilage solutions for historical grounds. As an example, any proposal to provide plastic grass to the SCG, Mosman Oval or even Petersham Oval would be dealt with the derision that those proposals deserve.

Yet Council, which publicly states its adherence to strong conservation values for its historic artifacts, fails in the case of the Reserve to either value the  historical nature of the oval ( the home of the Women Empire games, on grass, in 1935) or the visual impact of the introduction of plastic grass – which will require removal of trees ( tree leaves are the enemy of plastic grass surfaces as they assist the rapid degrading of the plastic) and cause the curtilage to look “false” – ie with a surface that is recognizably out of character for the historic grandstand.

Council should address this issue by immediately commissioning a further EIS and determining, in conjunction with relevant historic authorities, the impact of the proposals. Indeed, in line with its obligations to preserve the historic nature of the grandstand, Council should move to immediately seek historic listing of the grandstand, consistent with the remainder of the Abergeldie Estate. A failure to at least properly assess the historical impacts on the grandstand’s curtilage could lead to review by ICAC, the Department of Local Government and the NSW Ombudsman.

Plan of Management non – compliance:

The Plan of Management details certain outcomes that were to be achieved for the Reserve. The Council, including in approving the plastic grass proposal, has infringed and would infringe the following:

  1. Failure to ensure that the Reserve was available to other sports other than soccer :

The Plan of Management contemplates that the Reserve would be used for non- soccer based sports including dog training. The installation of plastic grass would not be consistent with this outcome as the surface for soccer, is not consistent with that required for other sports. Cricket and dog training in fact would be specifically excluded from the oval as the surface would be unsuitable for these activities.

  1. Failure to address parking issues existing as at 2004:

As indicated above no attempts have been made by Council to improve the parking issues identified as key in the Plan of Management in 2004. In the five years that have elapsed it is indeed arguable to suggest that the position has deteriorated further. Yet despite this Council denies the existence of parking problems – even though a required outcome from the Plan of Management.

  1. Failure to reduce noise to acceptable limits as highlighted in 2004:

Again as indicate above, no steps have been taken to enforce the requirements to reduce noise impacts to 3 dB (A).

  1. Failure to permit ongoing access to the Reserve:

The strategy highlighted in the Plan of Management is to provide permanent public access to the Reserve (page 20). The plastic grass proposals would deny local residents access to the surface of the Reserve as such surfaces are generally regarded as being targets for vandalism etc. However, even wearing incorrect footwear can result in degradation. Any proposals to restrict resident access to the Reserve surface would be inconsistent with the Plan of Management.

  1. Failure to permit non structured access to Arlington Recreation Reserve or non sporting events:

Objective 2 of the Plan of Management highlights the need for the Park to be used for community events such as bands, markets, cultural events etc. As indicated above the installation of the plastic grass would render the surface unsuitable for these events as such materials are not appropriate for sitting on, erection of market stalls etc. Again, the installation would not permit non- structured access and is therefore inconsistent with the Plan of Management.

  1. Failure to undertake appropriate maintenance of the ground:

Objective 4 of the Plan of Management requires the Council to maintain the Park to an appropriate standard. It is apparent that the surface of the Reserve has been allowed to deteriorate. Urgent re-surfacing was required over 12 months ago – and no such remedial work has been undertaken. It is indefensible for the Council to point to the degraded surface and state that it needs now replacement with a highly expensive and dubiously appropriate material, when proper maintenance, appropriate choice of hard wearing grass, and installation of appropriate irrigation etc would have resulted in the surface being maintained.

Again – this points to the failure by the Council to meet its obligations under the Plan of Management.

  1. Failure to undertake appropriate diversity/variety to the open space/recreation experience:

Objective 5(i) requires that the Council will undertake this program and conduct community and user surveys to determine satisfaction with diversity of use. The current proposals will in fact entrench a single use of the Reserve for soccer, not for alternate sporting or cultural activities.

The Council has, since 2004, not undertaken any surveys of the use of the Reserve with local residents – a breach of its obligations under the Plan of Management.

The combined impact of these matters leads to a failure by the Council to meet its obligations under the Plan of Management.

  1. Failure to ensure compliance with the requirements of the Development consent:

Objective 5(iii) requires the Council to undertake annual audit of the compliance of lessees or licensees with the plan of management. It is abundantly apparent, having regard to regular input from local Police and residents, and a plethora of complaints, that the licensees/lessees have consistently failed in meeting the requirements of the Development Consent- from noise, to parking, to use of the lights out of hours.

The failure by the Council to undertake this audit of compliance is an extremely serious issue and leads to a failure under the Plan of Management.

  1. Failure to manage Arlington in consultation with community and users:

Objective 6 requires the Council to undertake annual surveys of community and users in relation to satisfaction with the Plan of Management of the Park. Such surveys of local residents have not been undertaken since 2004. Again this is a serious issue. Had the Council been in possession of reliable, independently obtained, information from local residents about the impacts of the current use by the soccer clubs, the proposals for the increase ( albeit illegal) of use would not have been suggested.

This significant failure is a failure by the Council of its obligations under the Plan of Management.

  1. Failure under s 36(4) of the Act to ensure that the use of the Reserve does not cause adverse impacts on nearby residents:

The aim of the surveys etc detailed above is to permit the Council to objectively satisfy its obligations under s 36(4). The current use, and any change to the surface, will ensure that the use of the Reserve continues to cause adverse impacts on nearby residents.

Much lip-service has been given to the needs of the soccer clubs for all weather surfaces. But scant regard has been had to the Council’s actual statutory obligations. Such failures not only are failures under the Plan of Management but can also lead to review (and indeed dismissal given the gravity of the failures outlined above) by the Department of Local Government. Preliminary discussions with officers of that Department have indicated a serious interest in the failure by councils to maintain community assets in such a way as to cause adverse impacts on nearby residents.

Any increase in use, the locking up of the surface, destruction of the heritage nature of the grounds and increase in environmental hazards are adverse impacts from this proposal.

Council must therefore be able to objectively adduce evidence to satisfy its obligations under the Act, a fact that it is not in a position to do having regard to its failures to meet its obligations under either the Plan of Management or the Act.

  1. Failure to meet Council’s obligations under s 36(3) of the Act.

The above enumerated failures indicate that the Council has not met its obligations under s 36(3) of the Act. That section requires that the Plan of Management allows the Council to demonstrate the means by which the Council proposes to achieve the plan’s objectives and performance targets and the manner in which the Council proposes to assess its performance with respect to the Plan of Management’s objectives and performance targets.

Here the Council has put in such measures and performance assessment but has completely failed to meet its obligations under the Plan of Management. Interestingly section 672 of the Act states that the Council has liability, (including pursuant to section 731 personal liability for Councillors) for “a breach of this Act” which means:

“(i) a contravention of or failure to comply with this Act,

(ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act.”

The above failures to correctly implement its obligations under the Plan of Management are breaches of the Act and therefore leave the Council open to action (again including dismissal) for the manifest inadequacies detailed in its failures to implement correctly the Plan of Management.

  1. Failure of the Council to meet is obligations under s 36C of the Act:

The Council in the Plan of Management has indicated that the Reserve has both historical and visual issues that differentiate it from other parks in the LGA. As such it is pursuant to s 36(1) a known feature that is considered by the council to warrant protection or special management considerations. The implementation of these proposals will impact on the Reserve. As such, despite its identification as a critical issue in the Plan of Management, the Plan of Management generated by Council fails in its obligations to allow the Reserve to be managed to ensure that its historical and visual qualities are preserved.

I urge the Council therefore to avoid the potential for litigation, dismissal, personal action and further public ridicule by urgently reconsidering the plastic grass alternative and instead replacing the debilitated surface with appropriate hard wearing natural grass. In addition Council should undertake immediately a proper legal review of its obligations, including implementing the Plan of Management and Local Government Act requirements. If any further use is still contemplated, then Council must in the light of the above, undertake a fresh development consent which has regard to the potential severely deleterious environmental and heritage impacts of the ill-conceived proposals.

Yours faithfully

Carole Ferguson LLB (Hons).

Solicitor

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