Lippman v Burwood Council

[2008] NSWLEC 1289

Land and Environment Court

of New South Wales

CITATION:	Lippman v Burwood Council [2008] NSWLEC 1289
PARTIES:	Applicant: Ed Lippman Respondent: Burwood Council
FILE NUMBER(S):	10768 of 2006
CORAM:	Roseth SC
KEY ISSUES:	Section 96 Application :-
DATES OF HEARING:	11 July 2008
EX TEMPORE JUDGMENT DATE:	11 July 2008
LEGAL REPRESENTATIVES:	Applicant: Mr I Hemmings, barrister instructed by Ms M Peatman, solicitor of Hunt & Hunt Respondent: Ms C Rose, solicitor of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

11 July 2008

10768 of 2006 Ed Lippman v Burwood Council

JUDGMENT

1 Senior Commissioner: This is an application under s96(2) of the Environmental Planning and Assessment Act 1979 to modify a consent issued by the Court on 19 March 2007 in respect of the relocation of the Junior School of MLC Burwood.

The site

2 The relocated Junior School is at 12-26 Park Road. The approved access to the underground car park is at 33 Britannia Avenue. The properties 31 and 35 Britannia Avenue are in the school’s ownership. The council has consented to the demolition of the houses on them and their replacement by netball courts. The property at No 31 is a rectangular parcel with a 12.2m frontage and an area of 385m2. To the rear it adjoins the playing fields. To the north it adjoins No 29, which is in private ownership.

The proposal and its history

3 The applicant seeks to

· demolish the existing dwelling at 31 Britannia Avenue;

· relocate the approved driveway from 33 to 31 Britannia Avenue;

· construct an enclosed vehicular access at existing grade that connects to the basement car park; and

· construct a two-storey building over the driveway to be used as a staff room and observation room.

4 The Court approved the original development application in March 2007 and a first modification application (unopposed by the council) in December 2007. The applicant lodged the second modification application in March 2008. Following notification, the council received an objection from the neighbouring property, 29 Britannia Avenue.

Relevant planning controls and policies

5 The Burwood Planning Ordinance zones the site 2(a), a zone in which educational establishments are permissible. Since the zone is a single dwelling zone, the council’s Single Dwelling House Code has some relevance, though it does not apply to educational establishments.

Matters in contention

6 The council submitted its Statement of Contentions containing three matters:

· the visual impact on the neighbouring 29 Britannia Avenue is unacceptable;

· the proposal does not comply with the Single Dwelling House Code; and

· the roller grille will look at out of place in the residential street.

The objector’s concerns

7 The Court heard the evidence of the owner of No 29, Mr Nasser Mouawed, given in his place by his daughter. Mr Mouawed objects to the moving of the proposed entrance to the car park from No 33 to No 31, as he expected No 31 to remain a buffer between his property and the school.

The Court-appointed expert’s evidence

8 The Court appointed Mr Gary Shiels as the planning expert in the case. In Mr Shiels’ opinion, the visual effect of the proposal on No 29, once the landscaping is established, will be better than the existing. As regards compliance with the Single Dwelling House Code, Mr Shiels suggests that the Code does not apply to an educational establishment, however, since the Code controls everything else in the street, its controls should have some influence on the proposal. Mr Shiels believes that the proposal complies sufficiently with the Code to satisfy this criterion. Regarding the roller grille, Mr Shiels made design suggestions to the applicant, which the applicant accepted.

9 In summary, Mr Shiels is satisfied that the proposal is acceptable and that it meets the council’s contentions. The council did not bring additional evidence to the hearing, and its advocate, Ms Cecilia Rose, did not cross-examine Mr Shiels. Since Mr Shiels’ evidence appears eminently sensible and is the only one before the Court, I accept it and uphold the appeal.

Orders

1. The appeal is upheld.

2. The application under s96(2) of the Environmental Planning and Assessment Act 1979 to modify the consent issued by this Court on 19 March 2007 by moving the entrance to the basement car park from 33 to 31 Britannia Road is approved, subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 3 and A.

__________________
Dr John Roseth
Senior Commissioner