The Presbyterian Church (NSW) Property Trust v Woollahra Municipal Council

[2013] NSWLEC 1191

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Presbyterian Church (NSW) Property Trust v Woollahra Municipal Council [2013] NSWLEC 1191

Hearing dates:

16 September 2013

Decision date:

16 September 2013

Jurisdiction:

Class 1

Before:

Brown C

Decision:

By consent;

1. The appeal be upheld.

2. Pursuant to s96 of the Environmental Planning and Assessment Act 1979, Development Consent DA No 545/2005 granted 12 March 2007, is modified in accordance with Annexure "A".

3. No order as to costs.

4. The exhibits are returned with the exception of exhibits 3 and A.

Catchwords:

CONSENT ORDERS: modification of approval for the construction of a two-storey general education building for internal and external fire protection works, the deletion of the entry gate and stairs and the deletion of the lift lobby and porte cochere - resident objections to insufficient parking and traffic congestion

Legislation Cited:

Environmental Planning and Assessment Act 1979
Practice Note - Class 1 Development Appeals

Cases Cited:

North Sydney Council v Michael Standley & Assocs Pty Ltd (1998) 43 NSWLR 468

Category:

Principal judgment

Parties:

The Presbyterian Church (NSW) Property Trust (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Mr T Hale SC (Applicant)
Mr C Campbell, solicitor (Respondent)
Solicitors
The Presbyterian Church (NSW) Property Trust (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s):

10409 of 2013

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of an application to modify DA545/2005 that granted approval for the demolition of the existing "Annex" structure, the construction of a two-storey general education building and construction of a new access stair and gate for Scots College at 29-53 Victoria Road, Bellevue Hill.

1. The modification application seeks what can be generally described as minor modifications to the approved plan that include:

1. internal and external fire protection works,

2. the deletion of the entry gate and stairs off Cranbrook Road, and

3. the deletion of the lift lobby and porte cochere in the twostorey general education building.

1. The proposed modifications increase the building footprint by 225 sq m, increase the gross floor area by around 200 sq m, but only increase the teaching space by around 26 sq m. A full list of modifications is contained in the report to the council Development Control Committee on 3 June 2013 (Exhibit 1, p 64).

1. Prior to the hearing, the council decided to enter into consent orders. In this regard, the Court's Practice Note - Class 1 Development Appeals (the Practice Note), relevantly provides, at par 36,

36. Any application for consent final orders in development appeals will be listed before the court for determination. The parties will be required to present such evidence as is necessary to allow the court to determine whether it is lawful and appropriate to grant consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders, including the proposed conditions of consent,

(ii) the date of the hearing by the court to consider making the proposed consent orders,

(iii) the opportunity for any such person to be heard or that, in the circumstances of the case, notification is not necessary.

1. In summary, the Practice Note requires evidence, by the parties, to show whether:

• approval is lawful and appropriate, including whether any statutory provisions have been complied with and the conditions of approval,
• any objection has properly been taken into account, and
• reasonable notice has been given to all persons who objected to the proposal and the opportunity to be heard.

1. On the site inspection, five local residents provided evidence and opposed the making of consent orders. Their concerns all addressed the inadequate parking provided for the school and the absence of any drop off/ pickup facilities. Their concerns were based on the alleged non-compliance with condition 2 of DA545/2005 (and previous approvals) that limited students to 1,120. In their opinion, this figure has been exceeded by the school and is the source of the traffic and parking problems that currently occur around the school.

1. In terms of the matters raised in the Practice Note, a number of residents submitted to the Court that the modification was not "lawful or appropriate" given the alleged breach of condition 2. I respectfully disagree for a number of reasons. First, and while I do not dispute the documents provided by the residents to support their position, natural justice dictates that the parties should be given the opportunity to refute the claims expressed by the local residents. A Consent Order hearing does not provide the proper opportunity to do so.

1. Second, the modification does not raise the question of car parking beyond the additional teaching area of some 26 sq m. Given the size of the school, the additional teaching area is reasonably insignificant, and I agree with the comments in the report to the council Development Control Committee on 3 June 2013 (Exhibit 1, p 66) that the modification "does not represent the potential to facilitate any significant increase in traffic generators, off-street car parking, drop off/pickup demand, noise and pedestrian safety impacts".

1. Third, and while the decision in North Sydney Council v Michael Standley & Assocs Pty Ltd (1998) 43 NSWLR 468 effectively finds that a modification application must be considered against the original approval, the question of proportionality is relevant, in this case. I do not accept that the minor modifications, that do not affect parking and do not involve any stated increase in student numbers, should be used to review the overall parking situation at the school.

1. Fourth, and if the school is exceeding the number of students set out by condition 2 of DA545/2005 (and previous approvals), then a breach can be remedied through the provisions of Division 2A of the Environmental Planning and Assessment Act 1979 or through Class 4 proceedings in this Court.

1. For these reasons I am satisfied that approval is lawful and appropriate, and that the objectors concerns have been taken into account. Of the other matter in the Practice Note, no concerns were raised in relation to reasonable notice to those persons who objected to the proposal and the opportunity to be heard.

1. On this basis there are no reasons why the Consent Orders should not be made in the following terms:

1. The appeal be upheld.

2. Pursuant to s96 of the Environmental Planning and Assessment Act 1979, Development Consent DA No 545/2005 granted 12 March 2007, is modified in accordance with Annexure "A".

3. No order as to costs.

4. The exhibits are returned with the exception of exhibits 3 and A.

_____________

G T Brown

Commissioner of the Court

Decision last updated: 14 October 2013