Trinity Grammar School v Ashfield Council - [2007] NSWLEC 733

Land and Environment Court

of New South Wales

CITATION: Trinity Grammar School v Ashfield Council [2007] NSWLEC 733
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
Applicant:
Council of Trinity Grammar School
Respondent:
Ashfield Municipal Council

FILE NUMBER(S): 10192 of 2007

CORAM: Roseth SC

KEY ISSUES: Development Application - Swimming Pools :- heritage impact, parking, power to impose conditions

LEGISLATION CITED: Ashfield Local Environmental Plan 1985

CASES CITED: Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46;
PYX Granite Company Ltd v Ministry of Housing and Local Government and Another [1958] 1QB 554;
Newbury District Council v Secretary of State for the Environment [1981] AC 578;
Building Owners and Managers Association of Australia Ltd v Sydney City Council [1984] 53 LGRA 54;
Parramatta City Council v Peterson [1987] LGRA 61;
Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] 20 LGRA 208;
Waverley Municipal Council v P E Bakers Pty Ltd [1985] 54 LGRA 309;
Toadolla Co Pty Ltd v Dumaresq Shire Council [1992] 78 LGRA 261;
Mison v Randwick Council [1991] 23 NSWLR 734;
Carr v Minister for Land and Water Conservation [1998] 109 LGERA 175;
Mirvac Projects v Sydney City Council [2003] 131 LGERA 363;
Caringbah Investments Pty Ltd v Sutherland Shire Council [1970] 20 LGRA 377;
George Brand Real Estate Pty Ltd v Gosford City Council [1995] NSWLEC 230;
Hill v Blacktown City Council [2007] NSWLEC 401.

DATES OF HEARING: 19/10/2007, 22/10/2007, 23/10/2007, 24/10/2007, 25/10/2007, 26/10/2007, 30/10/2007, 01/11/2007

DATE OF JUDGMENT:
7 November 2007

LEGAL REPRESENTATIVES: Applicant:
Mr P McEwen SC, Dr S Berveling barrister instructed by Mr M Winram, solicitor of Emil Ford & Co
Respondent:
Mr P Jackson, solicitor of Pike Pike & Fenwick solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

7 November 2007

10192 of 2007 The Council of Trinity Grammar School v Ashfield Municipal Council
JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Ashfield Municipal Council (the council) of a development application to erect a swimming pool, a multi-purpose hall, a building containing classrooms and an underground parking station on lots 20, 21 and 22 DP 15765 (113-117 Prospect Road), lot 100 DP 1049869 (119 Prospect Road), and lots 10, 11, 12, 13, 14 and 15 DP 15765 (32, 34, 36, 38, 40, 40A, 42 and 44 Seaview Street) Ashfield.

The site

2 The site comprises a street block, with frontages: to Prospect Road. Victoria Street and Seaview Street and the fourth boundary adjoining Yeo Park. Twenty-two dwellings surround the northeast corner of the school, of which the School owns all but five. The 17 houses owned by the School are used for teachers’ accommodation.

3 The site contains the existing Trinity Grammar School with numerous buildings including a gymnasium, a 25-metre swimming pool, assembly hall, classrooms and an oval. The Headmaster’s Cottage and the Chapel are heritage items.

4 Several heritage…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 733
Decision Date: 7 November 2007

CaseChat Overview and Summary

Trinity Grammar School sought to build a swimming pool, a multi-purpose hall, a building containing classrooms, and an underground parking station on various lots in Ashfield. The council refused consent, leading the school to appeal to the Land and Environment Court. The appeal involved the interpretation of relevant planning laws, including the Environmental Planning and Assessment Act, and the applicability of the council's development control plan. The primary issue was whether the proposed development was consistent with the local planning policies and whether it would cause undue harm to the area.

The court examined the council's development control plan, which outlined the criteria for assessing development applications. It considered the school's argument that the proposed development was necessary to enhance educational facilities and would not harm the character of the area. The court found that the development would not adversely affect the surrounding properties or the local environment. It also concluded that the proposed buildings were consistent with the objectives of the planning scheme, which included supporting educational institutions.

Based on these findings, the court upheld the appeal and granted the development application. The court ruled that the proposed development was consistent with the planning policies and would not cause undue harm. It noted that the school had demonstrated a clear need for the additional facilities and had taken steps to mitigate any potential negative impacts. The exhibits were returned, except for four specific documents which were to be retained for further proceedings.

Orders

Orders of the court

1 The appeal is upheld.

2 Development application to erect a swimming pool, a multi-purpose hall, a building containing classrooms and an underground parking station on lots 20, 21 and 22 DP 15765 (113-117 Prospect Road), lot 100 DP 1049869 (119 Prospect Road), and lots 10, 11, 12, 13, 14 and 15 DP 15765 (32, 34, 36, 38, 40, 40A, 42 and 44 Seaview Street) Ashfield is determined by the grant of consent subject to the conditions in Annexure A.

3 The exhibits are returned except Exhibits A, B, FF and 15.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Trinity Grammar School v Ashfield Council [2007] NSWLEC 733 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	Applicant: Council of Trinity Grammar School Respondent: Ashfield Municipal Council
FILE NUMBER(S):	10192 of 2007
CORAM:	Roseth SC
KEY ISSUES:	Development Application - Swimming Pools :- heritage impact, parking, power to impose conditions
LEGISLATION CITED:	Ashfield Local Environmental Plan 1985
CASES CITED:	Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; PYX Granite Company Ltd v Ministry of Housing and Local Government and Another [1958] 1QB 554; Newbury District Council v Secretary of State for the Environment [1981] AC 578; Building Owners and Managers Association of Australia Ltd v Sydney City Council [1984] 53 LGRA 54; Parramatta City Council v Peterson [1987] LGRA 61; Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] 20 LGRA 208; Waverley Municipal Council v P E Bakers Pty Ltd [1985] 54 LGRA 309; Toadolla Co Pty Ltd v Dumaresq Shire Council [1992] 78 LGRA 261; Mison v Randwick Council [1991] 23 NSWLR 734; Carr v Minister for Land and Water Conservation [1998] 109 LGERA 175; Mirvac Projects v Sydney City Council [2003] 131 LGERA 363; Caringbah Investments Pty Ltd v Sutherland Shire Council [1970] 20 LGRA 377; George Brand Real Estate Pty Ltd v Gosford City Council [1995] NSWLEC 230; Hill v Blacktown City Council [2007] NSWLEC 401.
DATES OF HEARING:	19/10/2007, 22/10/2007, 23/10/2007, 24/10/2007, 25/10/2007, 26/10/2007, 30/10/2007, 01/11/2007
DATE OF JUDGMENT:	7 November 2007
LEGAL REPRESENTATIVES:	Applicant: Mr P McEwen SC, Dr S Berveling barrister instructed by Mr M Winram, solicitor of Emil Ford & Co Respondent: Mr P Jackson, solicitor of Pike Pike & Fenwick solicitors