B T Goldsmith Planning Services Pty Limited v Ashfield Municipal Council [2007] NSWLEC 532

Land and Environment Court of New South Wales

CITATION : B T Goldsmith Planning Services Pty Limited v Ashfield Municipal Council [2007] NSWLEC 532

APPLICANT: PARTIES : B T Goldsmith Planning Services Pty Limited RESPONDENT: Ashfield Municipal Council

FILE NUMBER(S) : 10325 of 2007

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Traffic, parking and safety

LEGISLATION CITED: Ashfield Local Environmental Plan 1985, (ALEP) Environmental Planning and Assessment Act 1979, ss 79C and 97

DATES OF HEARING: 22/08/2007

DATE OF JUDGMENT: 24 August 2007

APPLICANT: Mr B T Goldsmith, agent SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr S N Griffiths, solicitor SOLICITORS: Pike Pike and Fenwick

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

24 August 2007

10325 of 2007 - B T Goldsmith Planning Services Pty Limited v Ashfield Municipal Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ashfield Municipal Council (the council) of a development application to alter and add to the existing dwelling house to use the ground floor as a child care centre for forty children and the first floor as a residence at Lot 1, DP 10498, being No 262 Hawthorne Parade, Haberfield. 2 I visited the land in company with the parties on the morning of the hearing and local residents gave evidence. 3 I have concluded that the application should succeed when considered under the heads of consideration of the Environmental Planning and Assessment Act 1979. I am satisfied that car parking arrangements would be met with two staff parking spaces provided on-site. The land 4 The land is situated on the western side of Hawthorne Parade and has a frontage to that street of 15.24m a rear boundary of 15.24, a southern side boundary of 78.94m and a northern side boundary of 80.82m, giving an area of about 1,217m2. 5 The land slopes gradually down to the street, and a shear rock face exists to the rear that separates the land from the Tillock Street properties to the rear. Erected on the land is a two-storey, highly modified Post-War dwelling house, carport and two outbuildings. 6 To the north of the land is Dobroyd Parade and the City West Link. Tillock Street is to the west and Waratah Street to the south. The Tillock Street properties are raised significantly higher (around 5m to 6m) than the subject land. 7 The area comprises dwelling houses, many being single-storey Mid-War Federation bungalows that dominate Haberfield to the west. Opposite the subject land, to the east, are Richard Murden Reserve and Hawthorne Canal. Relevant planning controls Ashfield Local Environmental Plan 1985, (ALEP) 8 Under the provisions of the ALEP the land is zoned 2(a)-Residential and the proposal is permissible with consent. The land is located within the Haberfield Heritage Conservation Area as identified on the council's heritage conservation map. Other planning controls 9 Other applicable controls include: · Ashfield Development Control Plan 2007, (DCP): This DCP was notified by Council on 4 August 2006 and was adopted by the council on 21 May 2007. Of relevance are: Part C7, Haberfield Heritage Conservation; Part C12, Public Notification in the Planning Process; Part C5, Dwellings in Residential Zones; Part C11, Parking; Part Cl, Access, Adaptability and Mobility; Part C2, Advertisements and Advertising Structures. · Children and Young Persons (Care and Protection) Act 1998 and the Children's Services Regulation 2004. · Road and Traffic Authority's 'Guidelines for Traffic Generating Development'.