Burns Aldis Engineers Managers v Blacktown City Council
[2007] NSWLEC 413
•25 June 2007
Land and Environment Court
of New South Wales
CITATION: Burns Aldis Engineers Managers v Blacktown City Council [2007] NSWLEC 413 PARTIES: APPLICANT
RESPONDENT
Burns Aldis Engineers Managers
Blacktown City CouncilFILE NUMBER(S): 10288 of 2007 CORAM: Bly C KEY ISSUES: Development Application :- 2-storey counselling and referral community centre, streetscape, noise, traffic, carparking, property value. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Blacktown Local Environmental PlanDATES OF HEARING: 25/06/2007 EX TEMPORE JUDGMENT DATE: 25 June 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr P. Lalich, solicitor
of Allens Arthur RobinsonRESPONDENT
Mr S. Simington, solicitor
of Lindsay Taylor Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
10288 of 2007 Burns Aldis Engineers Managers v Blacktown City Council25 June 2007
This decision was given extemporaneously on site. It has been revised and edited prior to publication.
JUDGMENT
1 On 29 September 2006 the Blacktown City Council granted Development Consent No. 05-2675 for the construction of a two-storey advocacy counselling and referral centre at 79-81 Jersey Road, Blacktown. That consent was subject to a number of conditions comprising conditions 119, 120, 123 and 124 which are now the subject of an appeal by the applicant in these proceedings Burns Aldis Engineers Managers. Those conditions involve the hours of operation of the premises.
2 These conditions have now been the subject of negotiations between the applicant and the council and a revised set of conditions have now been agreed to and as a consequence consent orders are now being sought.
3 The hours of operation now provided for in the conditions comprise a trial period where by the centre can operate between 9 am and 5 pm weekdays and between 7 pm and 9 pm on Wednesday nights. At the end of the 12 month trial period the fall back hours would be (absent an amendment to the consent) to 10 am to 2.30 pm weekdays and 7 pm to 9 pm on Wednesday nights. The Marrinweejali Aboriginal Corporation already operates an almost identical facility at Emerton and as a result of the need to expand the operation it was decided to develop a new facility as is now proposed on the subject site.
4 In relation to the existing Emerton facility the council conducted a survey by notifying or enquiring of the neighbours to that facility including the adjoining school and the NSW Police. As a result of that survey no objection to the proposal in terms of its manner of operation or any adverse impacts was recorded.
5 When the subject application was notified two petitions of objections containing some 184 signatures and 7 individual submissions of objection were received. Those submission and petitions raised concerns as to:
- The appropriateness of the proposed centre in the 2(a) zone pursuant to Blacktown Local Environmental Plan (“the LEP”) is appropriate.
- Whether sufficient car parking is provided
- The consequences of likely undesirable, anti-social behaviour.
- The inappropriate location of the proposed development in this residential area.
- The consequences of the possible expansion of the centre,
- Adverse amenity impacts on neighbouring properties in terms of noise and overlooking.
6 When this s 34 conference began on-site the Court had the opportunity of hearing from a number of concerned residents comprising:
- Ms D. Madell of 85 Jersey Road,
- Ms D. Foxley, the secretary of the Dawson Public School, parents and citizen association,
- Mr and Mrs S and R McCully of 2 Burong Place,
- Mr J. Teal of 87 Jersey Road and
- Mr M Raymond of 80 Jersey Road.
7 I gained a strong impression from those residents that whilst they believe that there is a need for a facility of this kind in the Blacktown area this particular location is inappropriate. It is inappropriate because there are members of the community particularly school children who might be vulnerable to adverse behaviour from the clients of this facility. In addition they were concerned that the centre might attract people who would come to it and vandalise the building or misuse its premises. More generally while there is a certain level anti-social behaviour in this locality this centre could see that worsened. More particularly in relation to the proposal Ms Madell was concerned that the centre might result in people loitering in her nearby driveway and that the “discussion area” in the corner of the site nearest her property could adversely affect her amenity in terms of noise and cigarette smoke.
8 As indicated earlier the site is included in the residential 2(a) zone and in that zone the proposal is permissible with development consent. It is permissible as a “recreation area” which definition includes:
- “a building or place used for the purposes of enhancing the physical, cultural or intellectual welfare of the community.”
9 There was no dispute that the proposal falls within this aspect of the recreation definition.
10 The relevant objective of the 2(a) zone is objective (f) which is:
- “To allow within the zone a range of non-residential uses which:
1. are capable visual integration with the surrounding environment.
2. either serve the needs of the surrounding population or the needs of the city of Blacktown without conflicting with the basic intent of the zone.
3. do not place demands on public services beyond the level reasonably required for residential use.”
11 Relevantly cl 9(3) of the LEP requires that consent should not be granted unless the consent authority is of the opinion that the carrying out of development is generally consistent with one or more of the objectives of the plan and one or more of the objectives of the zone within which the development is proposed to be carried out. The objectives of the plan in cl 2 of the LEP include the need for space to be provided for community services and facilities and recreational activities and facilities.
12 This proposal is plainly responsive to those general objectives and is responsive to the particularly relevant objective of the zone. I have reached this conclusion accepting that the proposed two-storey building will comfortably provide visual integration with the surrounding environment. The proposed centre will also serve the needs of the surrounding population and subject to what I will say about the concerns of the residents will not conflict with the basic intent of the zone.
13 In relation to demands on public services I heard nothing to suggest that the demands generated by this centre on this locality would be unreasonable. I can understand the concerns of the residents that this facility could attract people into this locality who might contribute to existing anti-social behaviour that was mentioned by at least one of the residents. However, I have not been persuaded that, taking into account the nature of the proposed centre that this would occur. In reaching this conclusion I have taken into account the long history of the existing centre and the absence of any concerns that it has generated. I have also taken into account the statement of environmental effects provided by the applicant; the supporting report provided by the council’s town planning department; and the supporting noise and traffic reports as well as the position statements provided by Mr G Apps, a council town plan and Ms J Burns, the applicant’s consultant town planner.
14 As for Ms Madell’s concerns about noise and smoke, taking into account the provision of appropriate fencing and the expert acoustic report I do not accept that there would be any adverse noise impacts on her residential amenity. I also do not accept that cigarette smoke is likely to be a problem. I am also unconvinced that this facility should result in persons loitering in her driveway.
15 As the more general aspects involving the safety of children, again the history of this facility particularly taking into account what is clearly high quality management and the persons using this facility are predominately people who are attending of their own volition and wishing to improve their own personal circumstances, provides me with the degree of comfort that anti-social behaviour of the kind that is of concern to the residents is unlikely. Hence I have no doubt that concerns about quality of life being adversely affected are unfounded.
16 In relation to traffic I note that there is a theoretical under - provision of carparking but I accept the expert evidence that the majority of people attending this facility would either not come car or would come in the proposed mini bus that has been used by the existing facility and will continue to be available. Hence I do not see that either traffic generation or the strict non compliance with the carparking requirements would be problematical.
17 One of the concerns raised by the residents was that this facility might change the valuation of their properties. In this regard I note the council officer’s report that there is no evidence to support this contention and bearing in mind that the building is to be of a domestic scale and will not look out of place in the streetscape I can not accept the argument that the market value of properties will be adversely affected by this proposal.
18 In the circumstances I have decided that the appeal should be upheld and development consent granted. The orders of the Court will therefore be in accordance with the consent orders, (Exhibit 1), which will be retained.
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- T A Bly
Commissioner of the Court
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