J W Hepburn Pty Limited v Hornsby Shire Council (No 2) [2007] NSWLEC 206

Land and Environment Court of New South Wales

CITATION : J W Hepburn Pty Limited v Hornsby Shire Council (No 2) [2007] NSWLEC 206

APPLICANT J W Hepburn Pty Limited PARTIES : RESPONDENT Hornsby Shire Council

FILE NUMBER(S) : 10030 of 2006

CORAM: Tuor C

KEY ISSUES: Development Application :- Child care centre conditions of consent

DATES OF HEARING: Plan of Management and submissions on conditions filed on 26 March 2007.

DATE OF JUDGMENT: 13 April 2007

APPLICANT Mr G. Newport, barrister instructed by Ms J. Napoli of Robert Napoli & Co LEGAL REPRESENTATIVES:

RESPONDENT Mr I. Woodward, solicitor of Storey and Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

13 April 2007

10030 of 2006 J W Hepburn Pty Limited v Hornsby Shire Council (No 2)

JUDGMENT 1 On 12 March 2007, I handed down a preliminary judgement on this appeal (JW Hepburn Pty Limited v Hornsby Shire Council [2007] NSWLEC 169) and issued the following directions: 1. The Applicant is to serve a Plan of Management by 15 March 2007. 2. The Respondent is to provide any comments on the Plan of Management and draft conditions by 22 March 2007. The Draft conditions are to include monitoring of noise levels once the centre is operational to ensure the noise criteria are met. 3. Agreed Plan of management and conditions are to be filed by 26 March 2006. 2 Upon satisfactory completion of Directions 1-3, I would issue final orders in Chambers. Parties response to Directions 3 The Plan of Management and draft conditions were filed on 26 March 2006. Council did not provide any comments on the Plan of Management. The following conditions were in dispute: 4 Condition 16 and 17. Council proposes that the conditions refer to the noise criteria agreed to by the noise experts, being background plus 10dB(A) for a maximum period of 1.5 hours and background plus 5dB(A) at other times. Council's submission is that the background levels should be confirmed once the centre is operational and compliance with the criteria then monitored as required by conditions 18 and 19. 5 Council considers it is more appropriate that the measures such as numbers of children etc be included in the Plan of Management than as conditions. Any amendments to the operation of the centre and the Plan of Management required as a result of the monitoring can then be undertaken to satisfy the noise criteria, without amending other conditions of consent. Council also submits that it is more reasonable to enforce compliance with noise criteria conditions than conditions which require other measures such as numbers of children engaged in active play. 6 The applicant submits that it is more appropriate to include conditions that reflect the agreement of the noise experts. The applicant has proposed alternate conditions which specify the following alternate conditions: