BSDI Pty Ltd v Manly Council - [2009] NSWLEC 1067

Land and Environment Court

of New South Wales

CITATION: BSDI Pty Ltd v Manly Council [2009] NSWLEC 1067
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
BSDI Pty Ltd
RESPONDENT
Manly Council

FILE NUMBER(S): 10429 of 2008

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- for 90 place childcare centre, impact on adjoining properties in terms of bulk and noise; traffic generation and parking adequacy; intersection of two main roads; internal amenity for children and amenity of outdoor play areas.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Roads Act 1993
Manly Local Environmental Plan 1988
Manly Development Control Plan

DATES OF HEARING: 19, 20 & 21/11/2008, further written submissions received on 3 and 9/12/2008

DATE OF JUDGMENT:
20 March 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr D. T. Miller, barrister
instructed by Gadens Lawyers
RESPONDENT
Ms. C. Schofield, solicitor
of Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

20 March 2009

10429 of 2008 BSDI Pty Ltd v Manly Council
JUDGMENT

1 The applicant in these proceedings is seeking to demolish the existing structures on the site and construct a two-storey child-care centre with associated carparking to accommodate 90 children. The number of children by age groups: 30 places for the 0-1 year olds; 32 places for the 2-3 year olds; and 28 places the 3-5 year olds.

2 The subject site is known as No. 114 Frenchs Forest Road, Seaforth being lots 1 and 2 in DP 134651 and part portion 79 in DP 752038. The former service station on the site ceased operation in approximately 2003.

3 The site is located on the north eastern corner of the intersection of Frenchs Forest Road and Clontarf Street. The site has a frontage of 46 metres to Frenchs Forest Road and some 29 metres to Clontarf Street with a northern boundary of 49 metres and an eastern boundary of 30.5 metres. This yields a total site area of 1464 square metres. The site slopes from the Frenchs Forest Road frontage down to the north eastern corner and falls approximately 4.4 metres across the eastern property boundary, and 2.3 metres on the northern boundary.

4 Adjoining the site to the north at No. 6 Clontarf Street there is a single storey dwelling house and council has recently granted consent for the erection of a new two-storey dwelling. On the eastern side at No. 112 Frenchs Forest Road is a part one and part two storey weather board dwelling house with an elevated terrace at the rear. Further to the east are properties Nos. 106 to 110 and these with No. 112 have the benefit of a separate access within the road reservation off the main road. Diagonally opposite the subject site on the opposite side of the major roads is a heritage listed property known as ‘Dalwood Home’. This contains a number of community facilities within the grounds. The aerial photograph at Figure 1…

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: [2009] NSWLEC 1067
Decision Date: 20 March 2009

CaseChat Overview and Summary

BSDI Pty Ltd sought approval from Manly Council for a development application for a 90-place childcare centre on a site located at the intersection of Frenchs Forest Road and Clontarf Street in Seaforth. The primary issues before the court were the impact on adjoining properties in terms of bulk and noise, traffic generation and parking adequacy, intersection of two main roads, and the internal and external amenity for children. The court examined the application against the statutory planning framework, including the Environmental Planning and Assessment Act 1979, Manly Local Environmental Plan 1988, and Manly Development Control Plan. After considering the evidence from the expert witnesses, the concerns of the residents, and the site inspection, the court found that the proposed development was suitable for the site. The court concluded that the design of the childcare centre, the proposed noise attenuation measures, and the landscaping would not present an unreasonable bulk or scale to the adjoining properties. The court also found that the on-site parking provision satisfied the requirements of the council and the Roads Traffic Authority. The court granted consent for the development application, subject to various conditions, including a deferred commencement condition to allow for the remediation of the site.

Orders