Boulton & Ors v Burwood Municipal Council [1988] NSWLEC 128

Land and Environment Court of New South Wales

CITATION : Boulton & Ors v Burwood Municipal Council [1988] NSWLEC 128 APPLICANT Boulton and Others PARTIES : RESPONDENT Burwood Municipal Council FILE NUMBER(S) : 40058 of 1988 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act, 1979 Tooth & Co. Ltd v. Lane Cove Municipal Council (1968); CASES CITED: Fuller v. Bellingen Shire Council, 16th June (1988); Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986); Sordini v. Wilcox, (1983) DATES OF HEARING: DATE OF JUDGMENT: 07/28/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: The applicants, as concerned neighbours, seek orders relating to the lawfulness of a development consent granted by the respondent ("Council") as consent authority under the Burwood Planning Scheme Ordinance, to itself as the registered proprietor of premises known as 7-9 Elm Street, Enfield for the purpose of a child care centre. The land is situate within a Residential 2(a) zone pursuant to that scheme and the said development is permissible with consent thereunder.

Erected thereon is a large industrial style building which enjoyed existing use rights pursuant to the Environmental Planning and Assessment Act, 1979 ("the E.P.& A. Act"), and which has been vacant since 1985. The land was acquired by the Council in 1987.

I accept that Council has been aware for some years, as a consequence of submissions by residents and representatives of the Burwood Kindergarten, of an urgent need to provide premises for pre-school education in the Municipality. The subject land was identified in 1986 by interested persons as appropriate for acquisition by Council and renovation for use as a child care centre. Council called for a report from its Community Worker and on 26th November, 1986 it resolved to negotiate for its acquisition for use as a child care centre. An application was submitted for funding under relevant Commonwealth and State legislation in accordance with a Children's Capital Works Programme to convert it to a child care centre. Wide publicity was given of such decision. Support for the centre, including that of some residents in Elm Street, depended upon whether the centre was to be used for a "long day" or "sessional" kindergarten.