Min Stanley Group Pty Ltd v Hornsby Shire Council [2017] NSWLEC 1314

Land and Environment Court New South Wales

Medium Neutral Citation: Min Stanley Group Pty Ltd v Hornsby Shire Council [2017] NSWLEC 1314 Hearing dates: 31 May and 1 June 2017 Date of orders: 21 June 2017 Decision date: 21 June 2017 Jurisdiction: Class 1 Before: Smithson C Decision: 1. The appeal is dismissed. 2. Development Application DA/1667/2015 for conversion of a dwelling into a child care facility at 32 Greenvale Grove, Hornsby is refused. 3. The exhibits, except Exhibits 2 and G, are returned. Catchwords: DEVELOPMENT APPLICATION: conversion of dwelling house to child care facility; child care facility in cul-de-sac; visual impact; impact on character and streetscape; traffic impact; traffic safety; elevated car park with lift; community opposition Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Hornsby Local Environmental Plan 2013 Category: Principal judgment Parties: Min Stanley Group Pty Ltd (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: Ms S Duggan (Applicant)

Solicitors: Mr V Conomos, Conomos Legal (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 2016/275701

Judgment 1. COMMISSIONER: This is an appeal under section 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Hornsby Shire Council (the Council) of development application DA/1667/2015 (the application). 2. The application proposes the conversion of a dwelling house into a child care facility at 32 Greenvale Grove, Hornsby (the site). The facility is to accommodate 30 children between the ages of 3 to 5 years. An external play area of some 266.5m² is proposed within the front setback given that the existing dwelling is at the rear of the site. A car park, partially elevated on piers, is proposed with a lift from the car park to the facility. The car park will accommodate eight parking spaces including three spaces for staff. 3. Fencing is proposed along the majority of the frontage of the site (of between 1.2 and 1.8m in height) as well as adjoining the car park along the northern side boundary (of between 1.2 and 2m in height). This fencing is required to comply with acoustic requirements. Flood deflection fencing at a height of 1.8m is also proposed along the eastern boundary extending for a portion of the rear and front boundaries. Eight trees would be removed or impacted by the development. The facility is to operate from 7:30am to 6pm Monday to Friday excluding public holidays. 4. The Council contended that the development would not be in the public interest. The grounds for refusal were that: the centre was located in a cul-de-sac which is against the Council's siting requirements; the site was flood affected which would require a substantial mitigation barrier in the form of a flood deflection wall; and there would be adverse visual impacts on the predominantly open landscape character of the Greenvale Grove streetscape. 5. In particular, the Council was concerned with the adverse visual impacts on the low density residential character of Greenvale Grove due to a then proposed 2.2m high solid boundary fence for acoustic or flood attenuation and the elevated car park and associated lift, considered to be substantial structures erected on the most visually prominent part of the site with insufficient setbacks. 6. Finally, the Council contended that the development would result in potential traffic hazards given the location of the car park entry on an inside curve in Greenvale Grove.