Anandakumar v The Hills Shire Council [2010] NSWLEC 1148

Land and Environment Court of New South Wales

CITATION : Anandakumar v The Hills Shire Council [2010] NSWLEC 1148

APPLICANT Manjula Anandakumar PARTIES : RESPONDENT The Hills Shire Council

FILE NUMBER(S) : 10112 of 2010

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT APPLICATION :- Child care centre

Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 LEGISLATION CITED: Protection of the Environment Operations Act 1997 Baulkham Hills Local Environmental Plan 2005 Baulkham Hills Development Control Plan

Project Venture Developments v Pittwater Council [2005] NSWLEC 191 CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399

DATES OF HEARING: 27 May 2010

DATE OF JUDGMENT: 23 June 2010

APPLICANT Mr D Briggs, solicitor LEGAL REPRESENTATIVES: DG Briggs and Associates RESPONDENT Mr C Winn, solicitor The Hills Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Commissioner Pearson

23 June 2010

10112 of 2010 Manjula Anandakumar v The Hills Shire Council

JUDGMENT 1 Commissioner: This is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by The Hills Shire Council (the Council) of a development application No 1732/2008/HA for the demolition of an existing two storey dwelling and the construction of a single storey child care centre at 112 Parsonage Road Castle Hill, lot 23 DP 246505 (the site). 2 The site is on the western side of Parsonage Road with a frontage of 22.85m, and a total site area of 965sq m. Adjoining the site are single dwelling houses, of one or two storeys. The site shares side boundaries with 110 and 114 Parsonage Road and its rear boundary adjoins 24 White Cedar Drive. Azalea Grove is a small cul-de-sac across the other side of Parsonage Road. 3 The proposed childcare centre is to have a maximum of 29 children aged 0 to 6 years, four employees, and nine car parking spaces, including one designated disabled parking space. The plans have been amended during the course of the proceedings. The proposal now before the Court is for a single storey building with three separate internal play areas, an open outdoor play area of 193sq m, and a covered outdoor play area of 39.5sq m. The building has storage and laundry rooms along the northern side adjoining 110 Parsonage Road, and office, staff, store and kitchen areas along the southern side adjoining 114 Parsonage Road. The car parking proposed has a setback of 5m from the street frontage, is double sided from a single aisle, with 4 staff and one disabled spaces on the side adjoining 110 Parsonage Road and 4 visitor spaces on the side adjoining 114 Parsonage Road. 4 The issues between the parties as identified in the Council's Statement of Facts and Contentions relate to compliance with the objectives of the Baulkham Hills Local Environmental Plan 2005 (the LEP); whether the proposed development is consistent with the objectives and development controls in the Baulkham Hills Development Control Plan (the DCP), in particular relating to setbacks, landscaping, amenity impacts, acoustic impacts and minimum allotment size; whether the proposed fencing will satisfactorily protect neighbouring amenity from adverse acoustic and other impacts; and impacts on streetscape. 5 The matter commenced on site on 14 April 2010 as a conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act). The matter was adjourned to enable further consideration of acoustic issues. The parties were unable to reach agreement and the conciliation conference was terminated. The parties consented pursuant to s34(4)(b)(i) of the Court Act to my determining the matter, and consented to the admission of evidence from the conciliation conference. An on site hearing was held on 27 May 2010.