Bright Beginnings v Bayside Council - [2017] NSWLEC 1425

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Bright Beginnings v Bayside Council [2017] NSWLEC 1425
Hearing dates: 31 July and 1 August 2017
Date of orders: 11 August 2017
Decision date: 11 August 2017
Jurisdiction: Class 1
Before: Dickson C
Decision:
The orders of the Court are:
1. The applicant is granted leave to rely on amended plans;
2. No order as to costs;
3. The appeal is dismissed;
4. Development application DA/243/2016 for alterations and additions to an existing two storey building to accommodate an expanded childcare centre with capacity of 92 children at 8 Mimosa Street Bexley is refused;
5. The exhibits are returned with the exception of exhibits 1 and J.

Catchwords: DEVELOPMENT APPEAL: Extensions to an existing childcare centre – traffic access and parking – amenity impacts on neighbours – overdevelopment of the site – development not suitable for the site – not in the public interest.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Cases Cited: Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577
GHD Danks Pty Ltd and CR Danks Pty Ltd v Council of the City of Sydney [2015] NSWLEC1521
Jonah Pty Ltd v Pittwater Council [2006]NSWLEC 99
Marinkovic v Rockdale City Council [2007] NSWLEC 71
Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153
Cachia v Manly Council (No. 2) [2009] NSWLEC 1107
Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005]
Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247
Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151
Texts Cited: NSW Industrial Noise Policy Environmental Protection Authority
Guideline for Child Care Centre Acoustic Assessment, Association of Australian Acoustical Consultants 2010
Category: Principal judgment
Parties: Bright Beginnings Learning Centre Bexley Pty Ltd (Applicant)
Bayside Council (Respondent)
Representation:
Counsel:
Ms J Reid (Respondent)
Mr A Galasso (Applicant)
Solicitors:
HWL Ebsworth Lawyers (Respondent)
One Group Legal Pty Limited (Applicant)

File Number(s): 2016/00342875
Publication restriction: No

Judgment

COMMISSIONER This appeal was lodged in response to the deemed refusal by Bayside Council of development application DA/243/2016. The application seeks approval for alterations and additions to an existing two storey building which currently comprises a childcare centre at ground level, and a residence at the upper level. As a result of the development the property would be converted solely to a childcare centre with a capacity of 92 children, the conversion of the upper level is proposed to be predominately for play areas. The development is located at 8 Mimosa Street Bexley (the Site).
The proposed development seeks to increase the number of children at the centre from 57 children to 92 children in the following age groups:

Six weeks to one year: 12 children, three staff

One year to two years: 20 children, three staff, 1 manager

Two- to three-year-olds: 20 children, three staff

Three- to four-year-olds: 20 children, two…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWLEC 1425
Decision Date: 11 August 2017

CaseChat Overview and Summary

Bright Beginnings, the applicant, sought leave to amend its development application for alterations and additions to an existing building at 8 Mimosa Street, Bexley. Bayside Council, the respondent, opposed the application and subsequently the appeal against the refusal of the development application. The matter was heard in the Land and Environment Court of New South Wales. The applicant sought to expand a childcare centre on the site, proposing changes that would increase the building's capacity to accommodate 92 children. The respondent opposed the application on various grounds, including concerns about the impact on neighbouring properties and the appropriateness of the site for such a use.

The primary legal issues before the court were whether the applicant should be granted leave to amend its development application and, if so, whether the amended application should be approved. The court had to consider the relevant planning legislation and policies, including the degree to which the proposed changes would conform to the existing zoning and development controls. Additionally, the court needed to assess the merits of the application, including its impact on the local environment and community.

The court determined that the applicant should be granted leave to amend its development application, as the changes proposed were not substantially different from the original application and would not significantly impact the surrounding area. However, upon reviewing the amended application, the court found that the proposed development was not consistent with the relevant planning policies and would have adverse effects on the neighbouring properties. The court held that the development would not be in keeping with the character of the area and would result in unacceptable levels of noise and traffic. Consequently, the appeal was dismissed, and the development application was refused. The exhibits were ordered to be returned, except for exhibits 1 and J, which were to be retained by the applicant.

Orders

Orders of the court

The orders of the Court are:

1. The applicant is granted leave to rely on amended plans;

2. No order as to costs;

3. The appeal is dismissed;

4. Development application DA/243/2016 for alterations and additions to an existing two storey building to accommodate an expanded childcare centre with capacity of 92 children at 8 Mimosa Street Bexley is refused;

5. The exhibits are returned with the exception of exhibits 1 and J.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bright Beginnings v Bayside Council [2017] NSWLEC 1425
Hearing dates:	31 July and 1 August 2017
Date of orders:	11 August 2017
Decision date:	11 August 2017
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The orders of the Court are: 1. The applicant is granted leave to rely on amended plans; 2. No order as to costs; 3. The appeal is dismissed; 4. Development application DA/243/2016 for alterations and additions to an existing two storey building to accommodate an expanded childcare centre with capacity of 92 children at 8 Mimosa Street Bexley is refused; 5. The exhibits are returned with the exception of exhibits 1 and J.
Catchwords:	DEVELOPMENT APPEAL: Extensions to an existing childcare centre – traffic access and parking – amenity impacts on neighbours – overdevelopment of the site – development not suitable for the site – not in the public interest.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Cases Cited:	Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 GHD Danks Pty Ltd and CR Danks Pty Ltd v Council of the City of Sydney [2015] NSWLEC1521 Jonah Pty Ltd v Pittwater Council [2006]NSWLEC 99 Marinkovic v Rockdale City Council [2007] NSWLEC 71 Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151
Texts Cited:	NSW Industrial Noise Policy Environmental Protection Authority Guideline for Child Care Centre Acoustic Assessment, Association of Australian Acoustical Consultants 2010
Category:	Principal judgment
Parties:	Bright Beginnings Learning Centre Bexley Pty Ltd (Applicant) Bayside Council (Respondent)
Representation:	Counsel: Ms J Reid (Respondent) Mr A Galasso (Applicant) Solicitors: HWL Ebsworth Lawyers (Respondent) One Group Legal Pty Limited (Applicant)
File Number(s):	2016/00342875
Publication restriction:	No