Parkyn v Hornsby Shire Council

[2005] NSWLEC 153

Land and Environment Court

of New South Wales

CITATION:

Parkyn v Hornsby Shire Council [2005] NSWLEC 153

PARTIES:

APPLICANT
Kay L Parkyn

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

11627 of 2004

CORAM:

Hoffman C

KEY ISSUES:

Development Consent :- Preliminary question of fact

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hornsby Local Environmental Plan 1994

DATES OF HEARING:

07/04/2005

EX TEMPORE JUDGMENT DATE:

04/07/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr G McKee, solicitor
SOLICITORS
MCKEES

RESPONDENT
Mr I Woodward, solicitor
SOLICITORS
Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

7 April 2005

11627 of 2004 Kay L Parkyn v Hornsby Shire Council

JUDGMENT

1 This was a class one appeal No. 11627 of 2004 between Kay L Parkyn and Hornsby Shire Council in regard to an appeal against the refusal of the council to grant a s 96 application to amend a development consent issued No. DA 71/02 for a property described as Lot 501 DP 85633 being No. 831 Old Northern Road, Dural.

2 The hearing was attended for the respondent by:

• Mr I Woodward, solicitor
• Mr L Nagy, traffic engineer for the council
• Ms S Correia, planner for the council,
• Mr A P Gaul, objector and resident of 85 Quarry Road
• Mr D Burkhardt, objector and resident of 12 Hemers Road, Dural
• Ms J Mettam, objector and resident of 53 Quarry Road, Dural
• Mr P Mettam, objector and resident of 53 Quarry Road, Dural. and
• Mr C Norris, objector and resident of 36 Quarry Road, Dural.
3 For the applicant was represented by:
• Mr G McKee, solicitor
• Ms Kay Parkyn, licensee and owner of property and
• Ms L Connolly, associate.

4 At the commencement of the hearing the Court was taken to the circumstances applying to the application which in summary can be stated as follows:

5 An original application was lodged for the site showing three buildings each one of which contained a certain number of children totalling 110. During negotiations on the application the number of children was reduced to 90 and one of the buildings was apparently deleted or, not having seen the original drawings, two of the buildings were joined together. But, there were still three separate areas within which children would be cared for, with three separate associated play areas.

6 There was also related facilities on the site such as single entry off Quarry Road to a single car park area from which each building had its own entry. There was a joint stormwater detention system and a joint septic tank wastewater purification and disposal system which consisted of an irrigation area on the downhill side of the property.

7 Before the Court was an application under s 96 of the Environmental Planning and Assessment Act 1979 to amend the approved development to allow 110 children to be cared for on the site. Ten additional children were to be in the building called Irish which on the approved plan was identified as Centre 2; and another 10 children located in the building called Dural which was shown on plan as Centre 1. Buildings and the facilities as approved by council had been designed with sufficient space to accommodate 110 children.

8 The question then arose whether or not there were three separate childcare centres on the site, or, only one consisting of two buildings with three areas within which children were cared for.

9 This became important because the council’s applicable Community Uses Development Control Plan limited the total number of children to be cared for to 90 in any one childcare centre. This control was apparently related to the Department of Community Services’ (DOCS) provisions for licensing which also limited the numbers to 90 in any one centre.

10 A reading of the Community Uses Development Control Plan on p 4 indicated that the density provision which was applicable under the heading ‘Maximum Size of Childcare Centres’ in fact referred to childcare centres only, whereas ‘Site’ was dealt with under a separate heading but still within the same section on density.

11 The applicant pressed that, because the Development Control Plan had no specific provision that prevented more than one childcare centre existing on the same site, it was quite legitimate to consider the approved development as having three separate childcare centres.

12 In fact this was the way, from a financial point of view, they were operated since the three different areas for childcare were leased to different persons. Although, the whole site and the buildings and facilities were owned by Ms Parkyn.

13 The parties put to the Court that it was a preliminary question of fact that needed to be determined and the question put to the Court was:
What did the council approve in DA 71/02 which was determined on 19 June 2002. Was it 3 childcare centres on one site or 1 childcare centre only consisting of two buildings and related facilities with three separate areas for childcare.

14 In considering this matter the applicant referred to the council report tendered in Tab 1 Exhibit 1 and was directed to p 4 cl 1.3 where the Baby Care Centre and Childcare Centre 1 and Childcare Centre 2 were separately enumerated as 1, 2 and 3.

15 The respondent drew the Court’s attention to the introductory lines to that listing which stated “ the childcare centre shall cater for 110 students in two detached buildings as follows”.

16 The respondent also said that throughout council reports the development was referred to as “the childcare centre”. Also the plans that were the subject of the application which were contained in Exhibit A had title blocks to each drawing which called the development “proposed childcare centre”. The title block listed the clients as: Irish Childcare Pty Ltd., Dural Memorial Pre-school and Lindsay Childcare Group.

17 The original council report in May 2002 was superseded by a further report in June 2002 in which the application had been modified from 110 children to 90. There were discrepancies of opinion between the parties as to how the change from 110 to 90 had come about.

18 On the applicant’s side Mr McKee was instructed that one of the tenants of the proposal had to vacate other childcare centre premises in Baulkham Hills and needed the consent. The number of children was reduced from 110 to 90 in order to expedite that matter.

19 From the respondent’s point of view the Court was told that the reduction in numbers was in order to comply with the relevant development control plan on density and the DOCS licensing provisions which would only allow a maximum of 90.

20 As it turned out there were three separate licences issued by DOCS when the development was ultimately built, ostensibly because each separate lessee would need a separate licence.

21 The parties agreed the issue of the DOCS licences had no bearing on the question of fact put to the Court. The question of fact needed to be determined on the basis of the reports that were before the council, the application, the plans and the consent.

22 It was unfortunate the Court did not have in evidence a copy of the original development application form which may have shed some light on the applicant’s contention that the proposal was always for 3 separate childcare centres.

23 Having considered the documents before the Court, I have come to the conclusion it is inescapable, that no matter what the application was, the council determined the proposal as a single childcare centre on the site containing two buildings with three separate areas for childcare within them and associated facilities.

__________________
K G Hoffman
Commissioner of the Court
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