Newcastle Grammar School v Newcastle City Council [2007] NSWLEC 641

Land and Environment Court of New South Wales

CITATION : Newcastle Grammar School v Newcastle City Council [2007] NSWLEC 641

APPLICANT: PARTIES : Newcastle Grammar School RESPONDENT: Newcastle City Council

FILE NUMBER(S) : 10466 of 2007

CORAM: Watts C at 1

KEY ISSUES: Development Consent :- Excessive noise and noise at unreasonable hours Increased traffic movement and car parking demand on occasions when functions take place at the school.

Newcastle Local Environmental Plan 2003, (NLEP) LEGISLATION CITED: Hunter Regional Environmental Plan 1989, (HREP) Newcastle Development Control Plan 2005, (NDCP) Environmental Planning and Assessment Act 1979, ss 79C and 96(6)

DATES OF HEARING: 26 and 27 September 2007

EX TEMPORE JUDGMENT DATE : 27 September 2007

APPLICANT: Mr M J Neil, RFD, QC, instructed by Mr R P Mallik, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Mallik Rees Lawyers, Cessnock RESPONDENT: Mr T F Robertson, SC, instructed by Ms D E Grant, solicitor SOLICITORS: Sparke Helmore, Newcastle

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

27 September 2007

10466A of 2007 (s96) - Newcastle Grammar School v Newcastle City Council

JUDGMENT

1 This involves an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the decision of the Newcastle City Council (the council) to refuse a modification application (now amended) in respect of a consent to demolish five existing buildings and to erect a new multi-purpose school building at Lot 1 DP 76415, Lots 2 & 3 in DP 198354, Lot 1 in DP 181685, and Lots 2, 4, A & B in DP 175309, being No 62 Newcomen Street and Nos 14 & 16 Tyrrell Street, Newcastle, NSW. 2 The amended modification application includes: · Construction of a new fence to separate Areas 4A and 4B on Level 4 terrace. · An amendment of conditions to restrict to a maximum of 140 persons, the school use of Area 4A between 7.00am and 10.00pm Mondays to Saturdays and 8.00am to 10.00pm Sundays and Public Holidays. · An amendment of conditions to restrict to school use Area 4B between 7.00am and 6.00pm Monday to Fridays. · An amendment of conditions to provide 'soft-fall' surface treatment for Roof Terrace Area 5 only and not Roof Terrace Area 4. 3 I visited the land in company with the parties on the morning of the first day of proceedings. 4 I have concluded that the modification application should succeed and approval granted subject to conditions. The land 5 The land is situated on the northwestern corner of Tyrrell and Newcomen Streets, Newcastle. It is largely rectangular in plan with boundaries of 57.793m x 40.292m and 59.663m x 40.258m, giving an area of some 2,325.1m2. The southeastern corner of Newcastle Grammar School is under separate title and is not included in the land for development. 6 The land slopes down from west to east and also from south to north. It is part of a larger 'L'-shaped land holding that also has frontages to Church Street and Wolfe Street and which constitutes the Newcastle Grammar School grounds. 7 Four of the five original classroom buildings have been demolished under the terms of the consent. The others will be demolished in Stage 2. 8 Nearby development, opposite Tyrrell Street, consists of a mixture of single dwellings and multi-unit residential buildings, with the James Fletcher Hospital opposite in Newcomen Street.