Gumnut Tree House v Rockdale City Council [2003] NSWLEC 126

> Land and Environment Court of New South Wales

CITATION : Gumnut Tree House v Rockdale City Council [2003] NSWLEC 126 APPLICANT: Gumnut Tree House PARTIES : RESPONDENT: Rockdale City Council FILE NUMBER(S) : 10864 of 1994 CORAM: Bignold J KEY ISSUES: Development Consent :- Modification application:-increase in hours of operation and maximum number of children in existing child care facility LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 96 CASES CITED: DATES OF HEARING: 28/03/2003 EX TEMPORE JUDGMENT DATE : 03/28/2003

APPLICANT: Ms F Dunning, Agent SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT: Ms J Hewitt, Solicitor SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Matter No . . 10864 of 1994 Coram : Bignold J 28 March 2003

GUMNUT TREE HOUSE PTY LIMITED

Applicant

v

ROCKDALE CITY COUNCIL

Respondent

JUDGMENT

1. This is an application pursuant to the Environmental Planning and Assessment Act 1979, s 96 to modify the Development Consent granted by the Court on 19 May 1995 for the expansion of an existing child care facility situated at property known as No 15 Rawson Avenue, Bexley. The consent was granted subject to a number of conditions and took the form of a "roll-up" consent, consenting not only to the development sought on that occasion but to the original development as well.

2. The actual development proposal before the Court in 1995 was a proposal to cease to use a residential component of the premises for residential purposes and to correspondingly expand the accommodation for child care facilities. That was approved but, as I say, the conditions of approval obviously were imposed in a "roll-up" fashion to apply to the expanded facility.

3. Those conditions included Condition 3 which limited the number of children at the centre to a maximum of 25 and Condition 9 which imposed operational hours of 8am to 5pm Monday to Friday with no work being carried out on Saturdays, Sundays or public holidays. I think that condition meant the facility was not to be open on those days rather than no work to be carried out on those days. In other words, it is a Monday to Friday facility.

4. The present modification application seeks to increase from 25 to 29 the maximum number of children that may be accommodated at the facility and seeks to extend the hours of operation by an extra half-hour, closing at 5.30pm instead of 5pm on Monday to Friday.

5. The Council originally had expressed opposition to the proposal, especially in the light of concerns expressed by objectors who had made representations to the Council, and because of the perceived adverse impact that the proposed extension of the facility had on the parking and traffic situation in Rawson Avenue.

6. However, today the Council has submitted that it has no objection to the Court modifying the consent in the manner sought subject to the imposition of an overriding condition that the on-site car parking facility provided in accordance with Condition 8 of the Development Consent be fully utilised. The reason for this insistence apparently is that in the past the facility, though provided, has not been fully utilised and its full utilisation will at least cause some relief in the traffic and parking situation in Rawson Street.

7. Council had notified all affected residents by letter of its decision to inform the Court that it would raise no objection to the modification proposal on the basis that the required on-site parking is fully utilised and each objector was given individual letter advice from the Council's Solicitor of the fact of the Council's decision and of the details of today's hearing to which they were invited to attend and were reminded of their entitlement to be heard by the Court if they wished to give evidence. There were a large number of objectors and a large number of letters were sent but on the hearing of the case today no resident objector has appeared.

8. The Council has, nonetheless, tendered in the case the various letters received from residents and organisations of residents in Rawson Avenue and those became Exhibit 1 and the Council's letters to the objectors advising of the Council's decision and of today's hearing became Exhibit 2.

9. Additionally, the Applicant submitted (as Exhibit A) a letter given to neighbours last year advising of the manner in which the premises were to be operated and inviting the neighbours to keep the operator of the facility aware of the neighbours' concerns.

10. I should add that the proposed modifications reflect what actually has happened in recent times by virtue of the operator of the facility obtaining the appropriate licence from the Department of Community Services to increase the maximum number of children permitted at the facility to twenty-nine and to increase by half an hour each day, Monday to Friday, the hours of operation.

11. In that sense, the present modification application brings the development activity into conformity with the existing arrangements administered by the Department of Community Services and the relevant planning provisions and Development Consent.

12. In all of the circumstances, I am of the opinion that it is appropriate that the Development Consent granted by the Court in 1995 be modified in accordance with the short minutes that have been prepared and subject to the additional requirement that is appropriate to be imposed requiring the full utilisation of on-site car parking provisions on the development site.

13. For all of the foregoing reasons, accordingly, by consent, I make the orders set forth in the short minutes which I shall sign and place with the Court papers (a copy of which is annexed hereto). The exhibits in the case should be retained on the Court papers.

In the Land and Environment Court of New South Wales

No. 10864 of 1994

GUMNUT TREEHOUSE PTY LIMITED

Applicants

(i.)

ROCKDALE CITY COUNCIL

(ii.) (iii.) Respondent

_______________________________ ORDERS

The Court orders by consent:

1. The appeal be allowed. 2. The application to modify the development consent issued by the Court on 19 May 1995, made pursuant to section 96 of the Environmental Planning and Assessment Act 1979 be allowed subject to the following conditions:- (i) Condition 3 be deleted and replaced with condition 3A as follows: "3A. The number of children being limited to twenty nine (29)." (ii) Condition 9 be deleted and replaced with condition 9A as follows: "The hours of operation being confined to between 8.00am and 5.30pm Monday to Friday with no activity being carried out on Saturdays, Sundays or public holidays." (iii) The onsite carparking facility provided in accordance with condition 8 of the development consent being fully utilised.

Ordered: 28 March 2003 By the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.