Coruhlu v Blacktown City Council - [2009] NSWLEC 1270

Land and Environment Court

of New South Wales

CITATION: Coruhlu v Blacktown City Council [2009] NSWLEC 1270

PARTIES:
APPLICANT
Ertuerul Alf Coruhlu
RESPONDENT
Blacktown City Council

FILE NUMBER(S): 10014 of 2009

CORAM: Murrell C - Dixon C

KEY ISSUES: DEVELOPMENT APPLICATION :- 66 place child care centre; noise impacts on adjoining proeprties; traffic & parking; and impact on streetscape.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Blacktown Local Environmental Plan
Blacktown Development Control Plan

DATES OF HEARING: 9 July 2009 and 10 July 2009

DATE OF JUDGMENT:
4 November 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr S Kondilios (solicitor)
SOLICITOR
Maddocks Lawyers
RESPONDENT
Mr A Seton (solicitor)
SOLICITOR
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C
Dixon C

4 November 2009

10014 of 2009 Coruhlu v Blacktown City Council
JUDGMENT

1 The applicant seeks consent to build a 66 place long day childcare centre on a large vacant site at Kellyville Ridge. The Council contends that the development is unacceptable because “it is just too big”. The other related issues are the traffic and acoustic impacts on the residential amenity of the neighbourhood.

2 The Court determines that this appeal for the proposed 66 place centre should be dismissed and consent refused because of the exceedence in noise levels from the traffic manoeuvring and parking onsite.

Relevant background

3 The original Development application (DA-07-1605) seeking consent to build a 72 place childcare was lodged with council 2 July 2007 and refused 2 June 2008. The applicant appealed Council’s refusal and following a discontinuance of those proceedings lodged an amended application with the council in April 2009, which is the subject of this appeal.

4 As background the following is noted. Despite discontinuing the September 2009 hearing for a 72 place centre, which could have facilitated further acoustic evidence and possible amendment to the plans this did not happen prior to the current appeal being lodged. In January 2009 this appeal was lodged on the plans of the previously discontinued appeal for the original 72 place childcare centre and this was listed for hearing in April 2009.

5 The applicant changed solicitors and on 30 March 2009 a notice of motion to vacate the hearing dates of 20 and 21 April was lodged on the basis that “for reasons outside the Applicant’s control it is not in a state of preparedness for presentation at a trial…”. The dates were vacated to allow for the preparation of further documentation. The Court directed a new timetable for the filing of evidence and new hearing dates of 9 and 10 July 2009 were allocated.

6 Prior to the July hearing an application on 21 April was made to rely on further amended plans resulting from the applicant’s expert reports that were prepared subsequent to the 2009 appeal being lodged.

The Proposal

7 The current plans for this appeal provide for a 66-place long day childcare centre at 8-12 Kilmore Street and 48 Clonmore Street, Kellyville Ridge. The centre…

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 1270
Decision Date: 4 November 2009

CaseChat Overview and Summary

In Coruhlu v Blacktown City Council, the applicant sought consent to build a 66-place childcare centre on a large vacant site at Kellyville Ridge. The Council opposed the application on the basis that the development was unacceptable due to its size and the noise, traffic, and streetscape impacts it would generate. The key legal issues before the court were whether the development was in accordance with the planning framework and whether the development would have unacceptable impacts on the amenity of the neighbourhood. The court considered the relevant planning instruments, including the Blacktown Local Environmental Plan and the Blacktown Development Control Plan, and heard expert evidence on the proposed development's impacts. The court found that while the development could be integrated with the residential area, the noise generated by the vehicle movements and parking on site would exceed the acceptable design target of 46dB(A) by up to 5dB(A). The court concluded that the applicant had not demonstrated that the circumstances of the "greenfields site" warranted a variation from the accepted noise criterion and dismissed the appeal. The determinative reason for refusal was the exceedance in noise levels generated by the vehicle movements and parking, which could not be appropriately managed. The court rejected the applicant's argument that the noise exceedance was appropriate because it related to the concentration of vehicles at the start of the day. The court found that the noise from children playing during the day and a relaxation of the design standard could not be compared to the movement of vehicles and the closing of car doors.

Orders