D’Souza v Hornsby Shire Council [2007] NSWLEC 838

Land and Environment Court of New South Wales

CITATION : D'Souza v Hornsby Shire Council [2007] NSWLEC 838

APPLICANT Lena Anne D'Souza PARTIES : RESPONDENT Hornsby Shire Council

FILE NUMBER(S) : 10238 of 2007

CORAM: Tuor C

KEY ISSUES: Development Consent :- s96 application to increase number of children from 16 to 24 at an existing child care centre noise impact and provision of on site parking

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Hornsby Shire Local Environmental Plan 1994

DATES OF HEARING: 12/09/2007 and 29/11/2007

EX TEMPORE JUDGMENT DATE : 29 November 2007

APPLICANT Mr A. Pickles, barrister Instructed by Mr P. Saab of Macquarie Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr T. Pickup, solicitor of Storey and Gough Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

29 November 2007

10238 of 2007 Lena Anne D'Souza v Hornsby Shire Council

JUDGMENT 1 This is an appeal against the refusal by Hornsby Shire Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the application) to modify a Development Consent (2025/02). Council approved the development application on 3 December 2003 for conversion of an existing house into a childcare centre at 18 Wentworth Avenue, Waitara (the site). 2 The application seeks to increase the number of children from 16 to 24. No internal or external changes are proposed to the existing centre The site and its context 3 The site has an area of 1,208 square metres, and is located on the eastern side of Wentworth Avenue. It contains an existing childcare centre for 16 children. The front of the site has been excavated and provides four off-street parking spaces. There are a number of storage sheds located in the rear yard of the site. The outdoor play area for the centre is also located at the rear of the site. 4 The site is located approximately 850 m from Hornsby railway station and 600 m from Waitara railway station. Wentworth Avenue is a cul-de-sac, and is located approximately 450 m from the Hornsby commercial centre area. 5 Development surrounding the site comprises low density residential development. To the south of the site there is a single-storey weatherboard and tiled dwelling (16 Wentworth Avenue) to the north of the site is a single-storey brick and tiled dwelling (20 Wentworth Avenue). Planning framework 6 The site is zoned Residential A (Low Density) under Hornsby Shire Local Environmental Plan 1994 (LEP 1994). The proposal is permissible with consent. 7 Hornsby Community Uses Development Control Plan (Community Uses DCP) is relevant, particularly the parking and access and acoustic elements. Hornsby Car Parking Development Control Plan (Car parking DCP) also applies and provides the same requirements for parking as those in the Community Uses DCP. Issues and evidence 8 The Court visited the site on 12 September 2007 and heard evidence from the adjoining owners, Mr and Mrs Tiltins, 16 Wentworth Avenue, and Mr and Mrs Morrison, 20 Wentworth Avenue. Mr and Mrs Turnbull also gave evidence on site. 9 The main concern of the residents was the noise generated by the existing operation of the centre and the impact of increased traffic and on-street parking. These concerns reflected the issues raised by council in the proceedings. 10 The Court heard expert evidence from Mr Jenkins, traffic consultant, and Mr Cooper, acoustic consultant, for the council. Mr Hazell, traffic consultant, and Mr Craig, acoustic consultant, provided evidence for the Applicant. 11 At the conclusion of the hearing on 12 September 2007, it was agreed that the appeal be adjourned to enable independent noise monitoring to be undertaken by Mr N Koikas to quantify the level of noise emitted from the existing childcare centre. Monitoring was undertaken, and Mr Cooper and Mr Craig prepared a further joint report and provided evidence at the resumed hearing on 29 November 2007.