BSDI Pty Ltd v Manly Council [2009] NSWLEC 1067

BSDI Pty Ltd v Manly Council [2009] NSWLEC 1067

On a merits assessment of the expert evidence, resident objections, site inspection, LEP and DCP controls, the constrained arterial-road location did not require refusal. The proposed design and conditions adequately addressed parking, access, on-site manoeuvring, noise attenuation, impacts on adjoining dwellings, built form, landscaping, internal amenity, air quality and heritage impacts. The three Frenchs Forest Road staff spaces and overall parking allocation were acceptable, the acoustic and boundary treatments were sufficient, and remediation could be secured by deferred commencement condition. Accordingly, the site was suitable for the proposed child-care centre subject to conditions.

Jurisdiction
Australia
Judgment Date
20 March 2009
Procedural Posture
Development Application Appeal Concerning Demolition of Existing Structures and Construction of a Two Storey 90 Place Child Care Centre With Associated Car Parking / Final Judgment After Hearing; Appeal Upheld and Development Consent Granted Subject to Deferred Commencement and Conditions
Outcome
Appeal upheld; development application approved for deferred commencement and, upon satisfaction of the deferred commencement requirement, consent granted subject to conditions.
Legal Topics
['site Suitability' 'traffic Generation and Parking Adequacy' 'noise Impacts on Adjoining Properties' 'bulk and Scale Impacts' 'internal Amenity for Children' 'remediation of Former Service Station Land' 'roads Act Approvals' 'heritage Impact']
['environmental Planning and Assessment' 'development Consent' 'land and Environment' 'roads and Traffic' 'child Care Centre Development'] ['site Suitability' 'traffic Generation and Parking Adequacy' 'noise Impacts on Adjoining Properties' 'bulk and Scale Impacts' 'internal Amenity for Children' 'remediation of Former Service Station Land' 'roads Act Approvals' 'heritage Impact']

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Procedural Posture

Development Application Appeal Concerning Demolition of Existing Structures and Construction of a Two Storey 90 Place Child Care Centre With Associated Car Parking / Final Judgment After Hearing; Appeal Upheld and Development Consent Granted Subject to Deferred Commencement and Conditions

Legal Issues

  1. 1 ['Whether the site at the intersection of Frenchs Forest Road and Clontarf Street was suitable for a 90 place child-care centre.' 'Whether traffic generation, parking supply, ingress, egress and queuing would be acceptable.' 'Whether the proposed child-care centre would create unacceptable noise impacts on adjoining residential properties.' 'Whether the built form, excavation, boundary walls and landscaping would unacceptably affect neighbouring amenity or amount to overdevelopment.' 'Whether the centre would provide acceptable internal and outdoor amenity for children despite traffic noise, vehicle emissions and high walls.' 'Whether remediation requirements for the former service station use should be imposed as a deferred commencement condition.' 'Whether the Court could deal with associated Roads Act applications for road works, secondary access and tree removal.']

Ratio Decidendi

On a merits assessment of the expert evidence, resident objections, site inspection, LEP and DCP controls, the constrained arterial-road location did not require refusal. The proposed design and conditions adequately addressed parking, access, on-site manoeuvring, noise attenuation, impacts on adjoining dwellings, built form, landscaping, internal amenity, air quality and heritage impacts. The three Frenchs Forest Road staff spaces and overall parking allocation were acceptable, the acoustic and boundary treatments were sufficient, and remediation could be secured by deferred commencement condition. Accordingly, the site was suitable for the proposed child-care centre subject to conditions.

Court Disposition

Appeal upheld; development application approved for deferred commencement and, upon satisfaction of the deferred commencement requirement, consent granted subject to conditions.

Orders

  • ['The appeal in respect of the property known as No. 114 Frenchs Forest Road, Seaforth being Lots 1 and 2 in DP134651 and part portion 79 in DP752038 is upheld.' 'The development application submitted to Manly Council and as amended is determined by the granting of consent subject to the conditions contained in...