Shelly Bear Pty Ltd v Canterbury City Council [2004] NSWLEC 45

Shelly Bear Pty Ltd v Canterbury City Council [2004] NSWLEC 45

Tonal noise should not be included in the acoustic assessment because, on the evidence, it would occupy at most 16% of the total time children were at play, whereas inclusion of tonal noise required it to occupy 50% or more of the total time. The Court also noted the applicant's proposed separation of 0-2 year olds and 2-3 year olds during playtime and the common ground that 0-2 year olds did not create significant noise.

Jurisdiction
Australia
Judgment Date
21 January 2004
Procedural Posture
Class 1 Appeal Concerning a Development Application / Threshold Determination on Tonal Noise, With Further Adjournment
Outcome
Tonal noise was not included in the assessment of acoustic impacts, and the hearing was further adjourned.
Legal Topics
['development Application' 'child Day Care Centre' 'acoustic Impacts' 'tonal Noise' 'neighbour Amenity']
['environmental and Planning Law'] ['development Application' 'child Day Care Centre' 'acoustic Impacts' 'tonal Noise' 'neighbour Amenity']

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Procedural Posture

Class 1 Appeal Concerning a Development Application / Threshold Determination on Tonal Noise, With Further Adjournment

Legal Issues

  1. 1 ['Whether tonal noise created by children at play should be included in the assessment of acoustic impacts on neighbours.' 'If tonal noise should be considered, whether it had determinative weight against the proposal.']

Ratio Decidendi

Tonal noise should not be included in the acoustic assessment because, on the evidence, it would occupy at most 16% of the total time children were at play, whereas inclusion of tonal noise required it to occupy 50% or more of the total time. The Court also noted the applicant's proposed separation of 0-2 year olds and 2-3 year olds during playtime and the common ground that 0-2 year olds did not create significant noise.

Court Disposition

Tonal noise was not included in the assessment of acoustic impacts, and the hearing was further adjourned.

Orders

  • ["The hearing is further adjourned to the Registrar's callover on 18 February 2004."]