Acre Woods Child Care - Roseville v Ku-ring-gai Council [2005] NSWLEC 301

Land and Environment Court of New South Wales

CITATION : Acre Woods Child Care - Roseville v Ku-ring-gai Council [2005] NSWLEC 301

APPLICANT: Acre Woods Child Care - Roseville PARTIES : RESPONDENT: Ku-ring-gai Council

FILE NUMBER(S) : 10072 of 2005

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Traffic and heritage

LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance 1971, (KPSO)

DATES OF HEARING: 30/05/2005, 31/05/2005 and 1/06/2005

DATE OF JUDGMENT: 06/09/2005

APPLICANT: Mr I Hemmings, barrister, instructed by Mr J Hones, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Hones Lawyers

RESPONDENT: Mr A Hudson, solicitor for the respondent SOLICITORS: Wilshire Webb

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

9 June 2005

10072 of 2005 - Acre Woods Child Care – Roseville v Ku-ring-gai Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of a development application to alter and add to an existing heritage-listed dwelling and to operate as a ninety place, long-day care childcare centre at Lots 23, 24 and 28 of DP 9475, being No 81 Clanville Road, Roseville. The council under delegated authority on 11 March 2005 has formally refused the development application. 2 I visited the land in company with the parties on the morning of the first day of the hearing. Around eighty residents attended the site inspection and some gave evidence. Notes of this evidence were recorded and became Exhibits 1 and 2 . 3 I have concluded that the application should succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979. The site 4 The site is situated on the southern corner of the intersection of Clanville and Archbold Roads. The site is largely rectangular in plan with a northeastern boundary to Archbold Road of 62.31 metres; a south-eastern boundary with No 40 Archbold Road of 57 metres and the common boundary with No 79 Clanville Road and No 16 Cranbrook Avenue of 76 metres and an area of 2,991m2. The site is largely level but has a gentle fall to the eastern corner. 5 For convenience the parties agreed to nominate, as north, the Clanville Road frontage of the site. This is reflected in the architectural plans. 6 Erected on the site is an interwar brick and tile dwelling with a detached garage. The site including house, garden, specimen trees and the front fence is listed as a local heritage item. 7 Large single-storey and two-storey dwellings of a mix of architectural styles and designs are found in the vicinity of the site. The area has a strong landscape character due to the large size of the residential sites. 8 To the west, at No 79 Clanville Road there is a single-storey dwelling setback around 10.0 metres to its northern front boundary. The setback to its eastern boundary abutting the subject site is around 1.6 metres. 9 Abutting the south of the site at No 40 Archbold Road is a single-storey dwelling. No 16 Cranbrook Avenue abuts the southern boundary of the site. 10 The heritage-listed garden comprises an open grassed area studded with mature specimen trees and surrounded by a mixed shrub border along the boundaries. The existing trees include two (2) Phoenix canariensis (Date Palms), two (2) Syragus romanzoffianum (Cocos Palms) and a Magnolia grandiflora (Bull-bay Magnolia) all of which are considered by the council to be significant in the streetscape and the heritage value of the site. It is estimated that the palms and specimen trees are 70 to 80 years old. No indigenous tree species are present. Relevant planning controls Ku-ring-gai Planning Scheme Ordinance 1971, (KPSO) 11 Under the provisions of the KPSO (as amended) the site is zoned Residential 2(a), and the proposal is permissible with consent. 12 Other relevant planning controls applying to the site: DCP 38 - Residential Design Manual DCP 43 - Car Parking DCP 40 - Construction and Demolition Waste Management DCP 47 - Water Management - Ku-ring-gai Council Policy on Child Care Centres - Draft Development Control Plan - Child Care Centres