Brigidine College v Ku-ring-gai Council [2012] NSWLEC 1076

Land and Environment Court New South Wales

Medium Neutral Citation: Brigidine College v Ku-ring-gai Council [2012] NSWLEC 1076 Hearing dates: 19 March 2012 Decision date: 29 March 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. By consent, the appeal is upheld. 2. Development Application No. 0817/10 for a staged development proposal for Brigidine College, St Ives is approved, subject to the conditions in Annexure A. 3. The exhibits are returned, with the exception of exhibit 1. Catchwords: DEVELOPMENT APPLICATION: Consent orders; alterations and additions to existing school; staged development; resident objectors. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Texts Cited: Land and Environment Court of NSW Practice Note Class 1 Residential Development Appeals Category: Principal judgment Parties: Brigidine College St Ives (Applicant)

Ku-ring-gai Council (Respondent) Representation: Counsel Mr P Tomasetti SC (Applicant)

Mr M Staunton (Respondent) Solicitors Maddocks (Applicant)

HWL Ebsworth (Respondent) File Number(s): 10372 of 2011

Judgment 1COMMISSIONER: This appeal comes before the Court for consent orders in relation to Development Application No. 0817/10 (the application) for a staged development proposal for alterations and additions to an existing secondary school, Brigidine College, 325 Mona Vale Road, St Ives (the site). 2The application sets out a concept proposal for the development of the site in six stages. The application includes a detailed proposal for Stage 1. Stage 1 works includes a Performing Arts Theatre and a basement car park, adjacent to the northern boundary of the site; a multi purpose court adjacent to the eastern boundary of the site; a garbage area adjacent to Mona Vale Road on the western boundary and associated landscaping. The Stage 1 works include increasing the student numbers to a total of 940 students. 3The appeal was the subject of a conciliation conference on 2 August 2011 under s 34 of the Land and Environment Court Act 1979 (the Court Act). The conference was adjourned to allow the applicant to provide amended plans. The s 34 conference was resumed on 25 August 2011, then adjourned and resumed 8 September 2011, when the parties were given directions to respond to matters raised in an email of 5 September 2011. The conciliation conference was terminated pursuant to s 34(4)(a) on 17 October 2011. 4Prior to the hearing, the parties agreed to enter into consent orders, based on amendments made to the original application. The principle changes were: * Parking: * The proposed on-grade car parking was replaced with a basement carpark, adjacent to the northern boundary, as part of the Stage 1 works; * Tennis courts: * The proposed two tennis courts were deleted and replaced with a single multipurpose court, with an increased setback from the eastern boundary; * Performing Arts Theatre: * The northern façade of the Performing Arts Theatre was modified to address potential acoustic impacts on nearby residents. 5In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 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 the 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; and (iii)the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 6In accordance with the Practice Note, three local residents provided evidence at the consent order hearing. The residents' concerns can be summarised as: * The proposal represents an overdevelopment of the site; * The proposal would have a negative impact on the values of residential properties in the vicinity of the school; * The proposal will impact on the amenity of surrounding residents; * There is insufficient playground area for the proposed student numbers; * The proposed Performing Arts Theatre is out of character with the school and it should only be used for school functions; * The location of the vehicular entry and exit to the site; principally the management of vehicular entry and exits within school hours and after hours and a request that there be no parking adjacent to the northern boundary once the basement parking has been constructed; * Noise from the Performing Arts Theatre; principally the air conditioning unit associated with the Performing Arts Theatre and the multi-purpose court; * Potential damage caused by 6 gum trees proposed for the northern boundary; * Noise and dust during the construction phase.