Land and Environment Court of New South Wales CITATION : Lippman v Burwood Council [2007] NSWLEC 836 APPLICANT Ed Lippman PARTIES : RESPONDENT Burwood Council FILE NUMBER(S) : 10768 of 2006 CORAM: Hussey C KEY ISSUES: Section 96 Modification :- Excavation of undercroft of play area, noise LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Burwood Planning Scheme Ordinance 1979 DATES OF HEARING: 20/12/2007 DATE OF JUDGMENT: 20 December 2007 APPLICANT Mr M. Seymour, barrister Instructed by M. Peatman of Hunt and Hunt LEGAL REPRESENTATIVES: RESPONDENT Ms C. Rose, solicitor of Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 20 December 2007 10768 of 2006 Ed Lippman v Burwood Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 This is a s96 application to modify a consent granted by the Court on the 19th of March 2007 concerning the relocation of the MLC Junior School at Burwood. The modification involves: i) Excavation of the approved Play Area 1 to the level of the adjacent netball court; ii) Use of the ground floor level storage and shaded undercroft area; iii) Construction of a suspended concrete slab covered with soil and re-established vegetation to recreate Play Area 1. 2 For the assessment of this application, I am satisfied that: i) This modification relates to the same development; ii) The modification application has been notified and there are no objections; iii) The application merits consent on the following basis. 3 There is a corresponding Statement of Environmental Effects, which shows that there should be no adverse effects from this proposal. There is also a statement from Mr S. Cooper - acoustic expert who has addressed any potential acoustic impacts and on the basis of his assessment, he says that the acoustic barrier adjacent to the northern boundary has been designed for Play Area 1 and the adjacent netball court would provide a greater degree of acoustic shielding for the undercroft area than the current approval provides. As there is no increase in the number of children at the school, the proposed undercroft area has the potential to reduce noise and emissions from the school, he supports this proposal. 4 The Council made no submissions against this modification application. 5 Accordingly in the absence of any challenge, I am satisfied that the modification merits consent Orders 1. The appeal is upheld. 2. The section 96 application to the undercroft of Play Area 1 is approved subject to the modified condition B1. Condition B1 is modified to read: The development shall be in accordance with the following modified plans: Architectural Drawings a. 04010/L&EC – 001 Revision E – Site Plan b. 04010/L&EC – 002 Revision E – Lower Floor Plan; b(i). 0110/L&EC – 003 Revision C – Sections; b(ii). 0410/L&EC – 004 Revision K – Sections Sheet 1 c. DA – 1001 D Mid Floor Plan d. DA 1002 B – Upper Floor Plan e. DA – 0200 B – Elevations f. DA – 0300 B – Sections g. DA – 0200 B – Shadow Diagrams h. Sketch 02 E – Alternative Basement & Brittannia Avenue Carparking Site Plan i. DA 0101 B – Site Analysis Plan j. Sketch 03 A – Detailed Driveway Drawings k. LD – DD – 05 Planting Plan l. DAH – 01 P4 – Existing Service Hydraulic Drawings m. DAH-00/P3 – Cover Sheet n. DAH-01/P4 – Site Plan – Exiting Service o. DAH-02/P3 – Lower Level Plan p. DAH-03/P3 – Mid Level Plan q. DAH-04/P3 – Upper Level Plan r. DAH-05/P3 – Roof Plan s. DAH-06/P3 – Section Detail Landscape Architects Drawings t. LD-DD – 05/I – Planting Plan (North) u. 04010/DA-4000 Revision – 23.03.07 Amendment A Survey Drawings v. 70109.09 D 01 – Amendment C – Detail Survey w. 70109.09 D 02 – Amendment C – Detail Survey Management Plans x. Operational Management Plan, annexed and marked "A" y. Traffic and Parking management Plan prepared by John Coady Consulting Pty Ltd, dated 28 March 2007, annexed and marked "B" 3. The exhibits be retained on file. ___________________ R Hussey Commissioner of the Court Ljr/cc DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.