Robinson Moeskops Architects v Sutherland Shire Council

[2006] NSWLEC 239

Land and Environment Court

of New South Wales

CITATION:	Robinson Moeskops Architects v Sutherland Shire Council [2006] NSWLEC 239
PARTIES:	APPLICANT Robinson Moeskops Architects RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	11197 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application :- Consent orders
DATES OF HEARING:	30 January and 7 March 2006
EX TEMPORE JUDGMENT DATE:	03/07/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr P Clay, barrister INSTRUCTED BY KQ Lawyers RESPONDENT Mr J Reilly, solicitor Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

7 March 2006

05/11197 Robinson Moeskops Architects v Sutherland Shire Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environment Planning and Assessment Act 1979 concerning Development Application 04/62 seeking the establishment of a new childcare facility at 38 Roberts Street, Jannali.

2 The application involves the demolition of an existing dwelling; the construction of a childcare centre; and the creation of a number of off-street car parking spaces.

3 The application comes to the Court as proposed consent orders having come in the first instance, on 30 January, as an onsite hearing.

4 During the course of that hearing, I indicated that I was not satisfied that the provisions of para 9 of the Consolidated Practice Direction had been complied with - in that I was not satisfied that the residents who objected to the proposal had had an adequate opportunity to consider the proposed consent orders and the conditions of consent which were imported into it.

5 In addition, as a consequence of my inspection of the site and a walk around the locality in company with the parties, their advisors and the concerned residents, it became apparent that there needed to be a number of modifications to the application, primarily to deal with noise issues.

6 These modifications involved:

• an extension of the acoustic shielding along the northern boundary;
• the infilling of a gap in the acoustic shielding along the fence on the eastern boundary; and
• a number of other minor adjustments.

7 A further adjustment has been made to the plans, this morning, to reflect the excision of an area of the eastern children’s play area to permit the location of an air conditioning unit at a location shielded physically from access by the children as well as acoustically shielded from the children playing in that area.

8 The revised plans and the proposed conditions of consent have been notified and there are two further submissions in addition to those which had been made prior to the onsite hearing.

9 A deal of the concern that was expressed by the residents related to the issue of whether or not it was appropriate to permit a second childcare centre to be located in close proximity to an existing childcare centre in the neighbourhood.

10 It is my understanding that, as the council has indicated by its proposal to enter into consent orders, the proposal is permissible with consent in the zoning and it is long established that any person may apply to undertake an activity that is so permissible.

11 Those concerns are ones which are not properly able to be taken into account by me because they are matters that relate to and arise out of the fundamental planning regime in the area - a planning regime with respect to which I am obliged to deal as it is rather than as it might be and certainly not as it might be wished to be by the residents.

12 The second matter that was put in contention during the course of the onsite hearing were a number of concerns raised by residents who lived in the vicinity of the existing nearby childcare centre, it being a facility also operated by the applicants in these proceedings.

13 Those residents sought to agitate what they considered to be unacceptable management practices by the applicants or unacceptable conditions on that centre imposed by the council. They were of the view that the combination of these were causing disruption, particularly arising from noise, to the residents in the vicinity of that other centre.

14 It is the long settled position in this Court that I am obliged to assume that a party given a consent subject to conditions will abide by those conditions of consent.

15 If a person is given a consent subject to conditions and fails to abide by those conditions that is a matter which is not only in the hands of the council but can also be in the hands of individuals. Such breaches may be brought to and dealt with by this Court. It is a jurisdiction, however, that does not arise during Class 1 administrative review proceedings of this Court.

16 I am obliged, as I have noted, to assume that any applicants who have given a consent will abide by its conditions.

17 I had the advantage of hearing evidence from Mr Barry Murray, an acoustic expert, concerning the effectiveness of the proposed shielding, particularly with respect to the Wilson residence which is to the rear and diagonally removed from the site.

18 It was as a consequence of Mr Murray’s evidence that a number of the revisions were made by the applicants to the plans and an additional condition has been agreed to; accepted and incorporated in the conditions of consent requiring post operational acoustic testing to be paid for by the applicants but to be done under the supervision of the council and at a time not notified to the applicants to ensure that the acoustic shielding in fact performs as Mr Murray expects that it will do.

19 If not, there is a requirement, in the conditions of consent, that remedial action will be undertaken to ensure that compliance is achieved.

20 I am satisfied that, with that post operative testing condition incorporated, there is no basis, on noise grounds, upon which I could refuse the application or require further modification to it.

21 The second major issue that was put in contention by the residents related to traffic and parking impacts in Roberts and Buller Streets, particularly the parking impacts for parents dropping off and setting down at the facility.

22 During the course of the onsite hearing, I canvassed with Mr Reilly, solicitor for the council, the question of whether or not it might be possible to have a time limited parking restriction placed between the driveway on Buller Street extending for part of the boundary of the property to ensure that it was a signposted short stay parking position for the purposes of picking up and dropping off children whether on an open ended basis or merely during the morning and peak operating hours of the premises.

23 I also raised the question of “No Stopping” signs possibly being appropriate to the west of the driveway in Buller Street to ensure that cars were not parked in an area that would be unsafe and adjacent to the intersection with Roberts Street.

24 It was put to me that, if I were to require such signage for these premises, I would be creating an undesirable and potentially expensive precedent for the council and that to do so would make this site inconsistent with every other similar site operated within the Shire.

25 I have, since the onsite hearing, considered this matter and have concluded, reluctantly, that it would be inappropriate for me to impose such signposting, unilaterally, on the council.

26 Of the two elements of the signposting that were under consideration, the drop off zone is perhaps of lesser importance. However, for the visibility of children from vehicles turning left from Roberts Street into Buller Street, I asked Mr Reilly to ensure that the council places before its Traffic Committee, for consideration, the desirability of a specific “No Stopping” marking between the driveway and Robert Street because of the risk to children in the vicinity.

27 I am satisfied, however, after an inspection of the premises and examination of the plans, that there are no traffic and parking bases on which I could refuse the application or require further adjustments to it.

28 The consequences of that and my consideration of the matters that are contained in the further representations, many of which go to the effective operation of the conditions such as the hours of demolition; the facilities during demolition and the like, are matters that are subject to the conditions of consent and about which, on my reading of the conditions, it is not necessary to impose further restrictions or restraints on the applicants.

29 I therefore conclude that, by consent, the orders of the Court will be that:

1. The appeal will be upheld; and
2. The development application will be approved subject to the conditions which have been circulated (with the minor further notation of the amendment to the plans made this morning and initialled by the legal representatives of the parties).

30 The orders of the Court will also include that the exhibits, other than Exhibits 9 and D, are returned.

Tim Moore

Commissioner of the Court