Nada v Hurstville City Council

Land and Environment Court

New South Wales

Case Name:	Nada v Hurstville City Council
Medium Neutral Citation:	[2015] NSWLEC 1300
Hearing Date(s):	4-5 June and 6 July, 2015
Decision Date:	28 July 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	Refer to paragraphs 75-76
Catchwords:	DEVELOPMENT APPLICATION: childcare centre for 37 children; appearance and colour scheme; acoustic impacts; number of car parking spaces and impact of traffic on the local area; adequacy of landscaping and outdoor play areas; stormwater disposal.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Emad and Eva Nada (Applicant) Hurstville City Council (Respondent)
Representation:	Counsel: Mr S. Kondilios solicitor (Applicant) Dr S. Berveling barrister (Respondent) Solicitors: Hall & Wilcox Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	11040 of 2014

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2014/0928 for the demolition of existing structures and the construction of a childcare centre for 37 children and 7 staff, with 8 car parking spaces (the proposal), at 45 Ogilvy Street, Peakhurst (the site), by Hurstville City Council (the Council).

2. The appeal was subject to mandatory conciliation on 19 February, 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 24 March, 2015, pursuant to s 34(4) of the LEC Act.

Issues

1. Following the amendment of the proposal, the contentions that the Council presses in the matter can be summarised as:

• The proposal will have an adverse impact on the existing streetscape due to the form and appearance of the building;

• The proposal should provide 13 places for children 0-2 years, instead of the 12 places proposed;

• The proposal does not provide 1 car space per staff person, which is encouraged by the relevant planning control;

• The stormwater disposal proposed is unacceptable because it does not drain by gravity.

1. Council’s contentions regarding landscaping and waste management are resolved by the inclusion of two conditions of consent, not opposed by the applicant, requiring a landscape plan and a waste management plan to be provided prior to the issue of a construction certificate (conditions 27 and 30 of exhibit 11). A number of other contentions raised by the Council’s Statement of Facts and Contentions (exhibit 2) were addressed, to Council’s satisfaction, by the amended plans (exhibit N).

The site and its context

1. The site has an area of 919.7sqm, with a street frontage of 20.115m to Ogilvy Street. The site falls gently away from the street to the western boundary. The site contains a single storey dwelling and out buildings.

2. Peakhurst West Public School is located on the opposite side of Ogilvy Street.

3. Henry Lawson Drive is to the north of the site and there are a group of small to medium scaled neighbourhood…