Ascham School Ltd v Woollahra Municipal Council

[2018] NSWLEC 2

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ascham School Ltd v Woollahra Municipal Council [2018] NSWLEC 2
Hearing dates:	16 and 17 January 2018
Decision date:	17 January 2018
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See directions at [11]
Catchwords:	DEVELOPMENT APPLICATION – proposed new electricity substation – electromagnetic radiation – potential for impact on neighbouring residential flat building – differences between expert witnesses resolved by possible changes to design – proposal to incorporate addition shielding to main switchboard – application to amend design to move main switchboard enclosure away from boundary with neighbouring residential flat building and included additional shielding – application not opposed by Council – leave to amend granted – agreement by electromagnetic radiation experts for proposed additional monitoring conditions – no issues remaining in dispute between experts – development consent to be granted after filing of settled amended plans and settled revised conditions of consent.
Category:	Principal judgment
Parties:	Ascham School Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: Mr P Holland, solicitor (Applicant) Mr P Rigg, solicitor (Respondent)   Solicitors: McCullough Robertson Lawyers (Applicant) Peter R Rigg (Respondent)
File Number(s):	168549 of 2017
Publication restriction:	No

EXTEMPORE JUDGMENT

1. HIS HONOUR: On 28 October 2016, Ascham School (the school) lodged Development Application DA460/2016/1 with Woollahra Council (the Council), seeking development consent for the installation of a new electricity substation in the school's grounds for the purposes of providing appropriate electrical supply to the majority, but not all, of the facilities in the school.

2. The proposed new electricity substation and associated main switchboard are proposed to be located along the western boundary of the school's parking area, toward its boundary with New South Head Road at Edgecliff. The proposed new substation and main switchboard will replace an existing, lower-rated substation and switchboard located further within the school's grounds.

3. On the first day of the hearing, I attended the site and inspected, accompanied by the legal representatives of the parties and those instructing and advising them, the location of the two existing substations that serve the school, including, obviously, that which is proposed to be replaced. I also inspected the various potential locations for the new facility, locations that have not been pursued by the school for reasons that are set out in a document that forms part of the evidence in these proceedings; and which, in its terms, explains what are said to be the defects with each of the proposed possible alternative locations.

4. Consistent with the approach taken by the Court in Class 1 proceedings, I have explored, with Mr Melik and Mr Garrett, the electromagnetic radiation experts engaged respectively by the parties, options for improving the proposed location that is preferred by the school in order to ameliorate further what was said by Mr Garrett to be an unacceptable impact on a residential flat building located, to the west of the boundary of the school, at 170 New South Head Road, Edgecliff.

5. As a result of that exploration of options, Mr Holland, solicitor for the school, tendered this morning a revised plan for Option 1. That plan was admitted as Exhibit G, and the school sought leave to amend the Development Application to rely on Exhibit G in lieu of the original plan for Option 1 for the kiosk location. That application for leave to amend was not opposed by Mr Rigg, solicitor for the Council, and amendment was granted.

6. The effect of the relocation of the main switchboard enclosure away from the western boundary of the school and as close as is permissible in proximity to the existing high voltage electrical easement running through the school's carpark in a generally north-western direction from the entrance to the school, has the effect of significantly ameliorating (and thus resolving) the concerns raised by Mr Garrett on behalf of the Council, with respect to electromagnetic radiation from that structure.

7. Mr Melik, the Applicant's expert, has also proposed that there be additional shielding incorporated in that main switchboard enclosure, a proposal that is embraced by Mr Garrett as desirable, and is agreed to by Mr Holland on behalf of his client.

8. The Exhibit G plan therefore requires to be amended, so as to annotate the requirement for such additional shielding, and the conditions of development consent will also require the incorporation of a condition mandating the installation of that shielding in the fashion proposed by Mr Melik.

9. The electricity substation kiosk is, on the evidence of the experts, to be oriented in a fashion so that the low voltage output end of the substation is in proximity to the main switchboard enclosure, and the plans that are currently Exhibit G are to be further amended to note that that is to be a requirement; and such a requirement is also to be incorporated in the conditions of development consent.

10. That design aspect, when coupled with proposed conditions of consent that have now been settled as a result of further evidence from Mr Melik and Mr Garrett, results in an agreed set of conditions for the granting of development consent, based on the modified version of Exhibit G. As there are no outstanding issues, this means that it is appropriate for me to uphold the school's appeal; and grant development consent on the basis of a revised version of Exhibit G and a revised version of the proposed conditions of development consent.

11. Self-evidently, neither of those documents is immediately available to me. However, it would seem to me that neither of these documents will require an extensive period of time for preparation. As a consequence of that, in order to dispose of these proceedings, I give the following directions:

1. The Applicant is to file a revised version of Exhibit G, settled with Council, by close of business on 23 January 2018;

2. Council is to provide to Moore J’s Associate, as a Word document, revised, settled conditions of consent by close of business on 23 January 2018.

3. The matter is listed for mention on 24 January 2018 at 4.00.pm; and

4. If directions (1) and (2) are complied with, orders will be made in chambers granting development consent and the mention of 24 January 2018 will be vacated.

12. The matter is adjourned until 4.00 pm on 24 January 2018.

NOTE:

Subsequently, settled plans and conditions were provided, pursuant to directions 11(1) and 11(2), and they are reproduced below as Annexures A, B and C. Development consent was granted based on these conditions and revised plans.

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Annexure A - Revised Exhibit G Plans 1 of 2 (696 KB, pdf)

Annexure B - Revised Exhibit G Plans 2 of 2 (787 KB, pdf)

Annexure C - Condition of Consent (562 KB, pdf)

Decision last updated: 31 January 2018