Hamptons Development Group Pty Ltd v North Sydney Council - [2008] NSWLEC 23

Land and Environment Court

of New South Wales

CITATION: Hamptons Development Group Pty Ltd v North Sydney Council [2008] NSWLEC 23

PARTIES:
APPLICANT
Hamptons Development Group Pty Ltd
RESPONDENT
North Sydney Council

FILE NUMBER(S): 10990 of 2007

CORAM: Hoffman C

KEY ISSUES: Deemed Refusal :- 72 place child care centre, traffic generation, parking, noise to adjoining/adjacent dwellings, visual privacy, size of business, height limit, inconsistencies in drawings.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2001
North Sydney Development Control Plan 2002

CASES CITED: Bluestone Property v North Sydney Council [2006] NSWLEC 449

DATES OF HEARING: 20/11/2007, 12/12/2007 and 20/12/2007

DATE OF JUDGMENT:
17 January 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr C. McEwen, SC
instructed by Ms I. Ferguson
of Gadens
RESPONDENT
Mr C. Drury, solicitor
of DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

17 January 2008

10990 of 2007 Hamptons Development Group Pty Ltd v North Sydney Council
JUDGMENT

1 Commissioner: This is a Class 1 Appeal No. 10990 of 2007 between Hamptons Development Group Pty Ltd and North Sydney Council in regard to the deemed refusal of a proposal to fit out and use level 3 of Building C at Nos. 450-476 Miller Street, and No. 11 Amherst Street, Cammeray, for a 72 place child care centre. The number of children in each age group are:

2 The hours of operation are between 7am and 7pm Monday to Friday. Twelve staff are proposed.

3 Level 3 is the roof of the proposal on which a penthouse area was approved in the original consent. It was foreshadowed as a 40 place child care centre. The proposal alters and extends that to provide 542 sq m of internal space, and 551 sq m of roof deck space for 2 play areas. One is on the north side of the roof overlooking the internal courtyard of the development. The other is on the west end of the roof overlooking the residential dwellings on adjoining land to the west, the expressway to the south, and the end units of Building D.

The site

4 The site is known as 450-476 Miller Street and 11 Amherst Street Cammeray. The property description is Lot 13 DP8089819, Lot 1 DP846797 and Lot 1 DP936507.

5 The property is located on the south-western corner of Miller Street and Amherst Street, Cammeray. The site is generally rectangular in shape with frontages of 80.195m to Amherst Street and 85.0 m to Miller Street; southern boundary of 77.95m to the Warringah Expressway; western boundary of 84.416m adjoining residential flats and dual occupancies. The site area is 6,815m2.

6 The site is currently under the construction of four buildings around a central landscaped courtyard. The proposed buildings are four storeys, and consist of 39 residential apartments and retail/ commercial premises. Two basement levels are proposed, to accommodate car parking; building…

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: [2008] NSWLEC 23
Decision Date: 17 January 2008

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an appeal by Hamptons Development Group Pty Ltd against the North Sydney Council's decision to refuse their proposal to establish a 72-place child care centre on Level 3 of Building C at 450-476 Miller Street and 11 Amherst Street, Cammeray. The court was required to determine whether the proposal was inconsistent with the objectives of the Residential D Zone under the North Sydney Local Environmental Plan 2001, whether the development was over-development of the site, and whether it complied with the statutory height limit and other planning requirements. The court examined evidence from the applicant, the respondent, and a resident objector, as well as expert reports on noise and traffic impact. The key legal issues included whether the proposal was consistent with the previous approval for a 40-place child care centre, whether the increased scale and size of the development was appropriate, and whether the proposal complied with the objectives of the Residential D Zone.

The court concluded that the previous approval for the overall development did not limit the child care centre to 40 kids, and the proposal for 72 kids was acceptable. The court found that the applicant had addressed the concerns about traffic generation, parking, and noise impact with appropriate measures, and that the acoustic expert's recalculations showed that the noise levels would be within acceptable limits. The court also found that the proposal complied with the objectives of the Residential D Zone, including encouraging a range of small businesses that serve local needs, and that the increase in size from 40 to 72 places was acceptable given the minimal and acceptable impacts. The court accepted the applicant's objection to the height limit to permit the exceedances, finding that the increased height of the noise barrier and shade structures would not have adverse impacts on the other objectives. The court granted development consent for the use of Level 3 of Building C as a 72-place child care centre, subject to appropriate conditions.

The final orders of the court were that the appeal was upheld, development consent was granted for the use of Level 3 of Building C as a 72-place child care centre, and the exhibits were returned to the parties except for Exhibits 6 and C. The court's decision provides guidance on the assessment of applications for child care centres in residential zones, the consideration of noise and traffic impacts, and the application of height limits and other planning requirements.

Orders