Peter McNamee v Baulkham Hills Shire Council [2006] NSWLEC 319

Land and Environment Court of New South Wales

CITATION : Peter McNamee v Baulkham Hills Shire Council [2006] NSWLEC 319

APPLICANT: PARTIES : Peter McNamee RESPONDENT: Baulkham Hills Shire Council

FILE NUMBER(S) : 10908 of 2005

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Amenity of abutting premises including the impact of the bulk and scale of the proposal on No 21 Moseley Street and on properties to the south

LEGISLATION CITED: Baulkham Hills Local Environmental Plan 2005, (BHLEP) Environmental Planning and Assessment Act 1979, ss79C and 97

DATES OF HEARING: 06/06/2006 and 07/06/2006

EX TEMPORE JUDGMENT DATE : 06/07/2006

APPLICANT: Mr H Irish, barrister instructed by Mr B T Goldsmith of B.T. Goldsmith Planning Services Pty Limited SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr P N Vergotis, solicitor SOLICITORS: Matthews Folbigg Pty Limited, Solicitors

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

7 June 2006

10908 of 2005 - Peter McNamee v Baulkham Hills Shire Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Baulkham Hills Shire Council (the council) of a development application to demolish the existing dwelling and to construct a seventy (70)-place childcare centre with associated underfloor/basement parking for twenty one (21) vehicles Lots 1 & 2, DP 135965 and known as No 764 Pennant Hills Road, Carlingford. 2 I visited the land in company with the parties on the morning of the first day of proceedings. Mr Rosario, the neighbour to the west, at No 21 Moseley Street gave evidence on site. 3 I have concluded that the consent orders proposed by the parties may be endorsed. The land 4 The land is situated on the southwestern corner of Pennant Hills Road and Moseley Street and has a 54.8m street frontage with a corner splay of 3.505m to Moseley Street, a 16.8m frontage to Pennant Hills Road with a corner splay of 3.505m, a western side boundary of 22.8m, a southern boundary of 56.85m and an area of 1,193m2. 5 The land slopes down from Pennant Hills Road with a fall of 4.5m and 5.7m. 6 The land is in that part of Carlingford, which is predominantly residential with some business-uses occupying existing dwelling houses. There is a church opposite to the north the land in Moseley Street. To the south and west of the land are dwellings occupied by businesses along Pennant Hills Road and residential dwellings to the southwest. To the east of the land, across Pennant Hills Road, is Carlingford Court Shopping Centre within the Hornsby Shore Council boundary. 7 The character of the area is in transition from lower density to higher density residential uses. A development application of an apartment development has been lodged for adjoining site to the southwest. 8 The Land and Environment Court granted consent orders, on 14 October 2005, in Appeal No 10384 of 2005, in respect of a development application for a townhouse development on the subject land. Relevant planning controls Baulkham Hills Local Environmental Plan 2005, (BHLEP) 9 Under the provisions of the BHLEP the land is zoned Residential 2(a1) and the proposal is permissible with consent. To make more detailed provisions with respect to development the council has adopted development control plans. 10 Development Control Plan No 3 – Residential; Development Control Plan No 4 – Town Houses; Development Control Plan No 6 – Apartment Buildings; Development Control Plan No 12 - Parking and Development Control Plan No 15 – Landscaping, apply to the land. 11 A draft Development Control Plan No 39 - Child Care Centres, (DDCP39) has been prepared and on 28 June 2005 the council resolved to exhibit the DDCP39 with the draft Local Environment Plan. The draft LEP and DCP39 has been advertised. 12 The parties agreed that: · DCP3 is relevant to the subject land. · DDCP39 should be given little weight due to its current draft status. · The guidelines in DCP4 - Townhouses and DCP6 - Apartments are relevant to assess the likely future character of the surrounding sites.