Skoulogeni & Skoulogenis v Blue Mountains City Council [2007] NSWLEC 584

Land and Environment Court of New South Wales

CITATION : Skoulogeni & Skoulogenis v Blue Mountains City Council [2007] NSWLEC 584

APPLICANT Spyro Skoulogeni & V Skoulogenis PARTIES : RESPONDENT Blue Mountains City Council

FILE NUMBER(S) : 10100 of 2007

CORAM: Murrell C

KEY ISSUES: Development Application :- child care centre, noise, traffic, safety, parking, landscape, streetscape, acoustic fencing.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Blue Mountains Local Environmental Plan No. 2 State Enviornmental Planning Policy No. 1

CASES CITED: Winton Property Group v North Sydney Council

DATES OF HEARING: 28/05/2007 and 19/07/2007

EX TEMPORE JUDGMENT DATE : 19 July 2007

APPLICANT Mr N. Howie, solicitor of Wilshire Webb Staunton Beattie LEGAL REPRESENTATIVES:

RESPONDENT Mr A. Seton, solicitor of Marsdens Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

19 July 2007

10100 of 2007 Spyro Skoulogeni & V Skoulogenis v Blue Mountains City Council

JUDGMENT 1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against the Blue Mountains City Council's refusal of a development application to increase the operating weeks of a child care centre from 40 to 48 weeks per year at the property known as 8 Tabor Street, Glenbrook. 2 By way of background only, and not a matter for my consideration, but previously a development application was submitted for the adjoining property at No. 10 which was to provide, for in conjunction with No. 8, a much larger centre. This is not a matter that is part of these proceedings and indeed the council refused such an application. 3 The application before the Court now relates to the extension of the number of operating weeks only for the existing centre. The application for this property also includes an extension to the rear of the subject premises which the council approved and has no issue with. 4 The Court met on site in April, and the matter was adjourned to allow the applicant to provide further details on the acoustics and of the driveway. 5 When the matter first came to the Court, a number of issues were identified by the council as follows: i. The proposed extension of operating hours from 40 to 48 weeks per year for the existing childcare centre will have an adverse impact on the amenity of adjoining and surrounding residential properties and a number of particulars were provided. ii. The proposed extension will cause an increase in traffic in the area during school holiday periods, which will result in unacceptable risk to safety of pedestrians, children in the existing street network. Once again, a number of particulars were provided. iii. Whether the proposed extension complies with the objectives of the living conservation zone of the Blue Mountains LEP, particularly objectives (a) and (e), and whether the proposed development is in the public interest having regard to the existing residential character of the area, the impact on residential amenity, pedestrian safety, increased traffic matters and matters raised by objectors. 6 The Court, as I said, met on site and heard from a number of resident objectors to the proceedings. I will identify and briefly summarise their evidence. Ms Belinda Wagenfeller of 7 Carmel Street resides with her family at the rear of the subject premises, and the Court had the opportunity of also inspecting her property which has a swimming pool at the rear and relatively steep topography up to the subject site. She is concerned about the continuation of noise that they currently have for 40 weeks of the year and that it would impact on their amenity. She commented that this is a quiet side of Glenbrook and the residents are concerned that their amenity will be further eroded by the increased number of weeks the childcare centre is open. 7 The Court also heard from Mr Malcolm Sheehan of 6 Tabor who resides at the adjoining property to the south of the subject site. He is concerned about the increase to 48 weeks of the year and that outside of the current 40 weeks this is the only time they get peace and quiet when the centre is not operating. He considers it would be an incremental increase by stealth of the operation of the commercial childcare centre. He also advised the Court about the concern for the safety of children and vehicles reversing onto the street from the current parking spaces. The noise from the children was the issue that was raised in particular by Mr Sheehan, and Mrs Sheehan also informed the Court that it disrupts the peace and quiet needed for her studies. That the removed shed in the rear yard had previously provided a noise barrier. She was concerned about the leaf blower of a morning to clean up the yard before the children's play, and she is of the opinion that the increased number of weeks should not be allowed.