McNamee v Baulkham Hills Shire Council

[2006] NSWLEC 569

Land and Environment Court

of New South Wales

CITATION:

McNamee v Baulkham Hills Shire Council [2006] NSWLEC 569

PARTIES:

APPLICANT
Peter McNamee

RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S):

10908 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Consent :- Child care centre, increase the number of child care places, car spaces, storage

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Baulkham Hills Local Environmental Plan 2005
Development Control Plan No. 3 - Residential
Development Control Plan No. 12 - Parking

DATES OF HEARING:

08/09/2006

EX TEMPORE JUDGMENT DATE:

09/08/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr P McNamee, self represented

RESPONDENT
Mr M Pearce, solicitor
Of: Baulkham Hills Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

8 September 2006

10908 of 2005 Peter McNamee v
Baulkham Hills Shire Council
JUDGMENT

This decision was given extemporaneously and

has been revised and edited prior to publication.

1 This matter concerns a s 96 modification to a development consent granted by the Court for a 70 place childcare centre at 764 Pennant Hills Road, Carlingford. Having considered the proposal, the parties have agreed to consent orders.

2 The modification is to increase the number of places by 8 in accordance with the following schedule:

Number of children proposed	Existing	Approval
0 – 2 years	10	15
2 – 4 years	24	24
4 – 6 years	36	39
TOTAL	70	78

3 As a consequence of the proposed increase, changes are required to the first floor level accommodation and basement carpark. These modifications include:

First floor :

1. Internal rearrangements to accommodate 2 extra cots in the cot room.

2. An increase in the size of the staffroom. This has been achieved by moving the northern wall of the staffroom 1.5 m to the north. This modification has no effect on shadows projected onto adjoining properties.

Basement :
The increase in the number of children results in requirement provide 2 extra car spaces, i.e. 21 to 23. This is achieved by reducing the amount of storage in the basement to provide the 2 extra spaces.

4 Minor changes are proposed to the roofline.

5 The s 96 modification was notified to the original objectors, however no further objections were made.

6 The modification application has been subject to a detailed merit assessment by council's senior town planner and the modification considered relative to the original objections. From this, the planner concluded the issues raised were adequately addressed. This merit assessment resulted in the planner’s support for the s 96 modification and no evidence has been presented to the Court to disregard this.

7 Having considered the evidence, I am satisfied that:

• The modification relates to substantially the same approved development.
• The modification has been renotified and there are no further objections which would warrant refusal.
• The merit assessment confirms that the proposal is for minor changes to the approved development and the environmental impacts are acceptable. No evidence was presented, which in my opinion results in the refusal of this application.

8 Accordingly the Court grants, by consent on the following orders contained in Exhibit 1.

Court orders

1. The appeal under s 96 of the Environmental Planning and Assessment Act 1979 is upheld.

2. The application to modify a Court granted consent under s 96 of the Environmental Planning and Assessment Act is approved subject to the following amended conditions of development consent DA 2701/2005/HA:

(a) Condition 1 be amended to read:

“1. Development in accordance with submitted plans


The development being carried out in accordance with the following approved plans and details, stamped and returned with this consent. No works (including excavation) shall be undertaken prior to the release of the construction certificate.

Drawing No.	Prepared by:	Date
DA01 Amend C	Gelder Architect Group	22/06/06
DA02 Amend B	Gelder Architect Group	22/06/06
DA03 Amend B	Gelder Architect Group	06/06/06
DA04 Amend D	Gelder Architect Group	22/06/06
DA05 Amend C	Gelder Architect Group	06/06/06
DA06 Amend C	Gelder Architect Group	06/06/06
DA07 Amend C	Gelder Architect Group	22/06/06
DA08 Amend C	Gelder Architect Group	06/06/06
DA09 Amend B	Gelder Architect Group	06/06/06
L01 Amend B	Gelder Architect Group	13/03/06”

b) Condition 2 be amended to read:

“2. Provision of Parking Spaces

The provision and maintenance thereafter of twenty three (23) off street parking spaces comprising thirteen (13) visitors and ten (10) staff parking spaces”.

c) Condition 4 be amended to read:

“4. Number of Children and Staff
The Childcare centre is restricted to a maximum of seventy eight (78) children and ten (10) staff members at any time. Any increase in child or staff numbers will require the further approval of Council”.

Note : The Court notes the parties agreement to bear their own costs.

___________________
R Hussey
Commissioner of the Court
rjs