Acorp Developments Pty Ltd v Council of the City of Ryde

Land and Environment Court (NSW)|2021-06-29

Introduction

COMMISSIONER: This is an appeal against the refusal by the respondent Council of the City of Ryde (Council), of Development Application No LDA2020/0035 (the DA) for land at 8 Monash Road, Gladesville (the Site). The DA as submitted to Council seeks consent for alterations to the basement, lower ground floor and ground floor levels of a commercial premises within a recently constructed mixed use development to accommodate a 53 place child care centre, with provision for 11 car spaces in the basement car park, as set out in the architectural plans prepared by Baini Design, Revision A dated 6 January 2020 (Revision A Architectural Plans).

Background

The DA was submitted to Council on 21 January 2020. On 13 February 2020 the DA was referred to the New South Wales (NSW) Department of Education (Department) for concurrence, and was notified and advertised for a 14 day period from 19 February 2020 to 4 March 2020. Four submissions were received objecting to the development, copies of which were tendered within Council's bundle of documents (Ex 2, Folios 383-390). On 25 May 2020 refusal to grant concurrence was received from the Department.
On 1 June 2020 amended plans and documentation were submitted to Council (the Amended Documentation). The Amended Documentation included a set of amended architectural plans prepared by Baini Design, Revision B dated 1 June 2020 (Revision B Architectural Plans), and was renotified from 10 June 2020 to 3 July 2020, and was referred to the Department on 16 June 2020. On 24 August 2020 concurrence was received from the Department, a copy of which was provided at Tab 12 of Exhibit 2. The Council subsequently refused the DA for the reasons set out in the Notice of Refusal dated 27 October 2020, a copy of which was tendered at Tab 1 of Exhibit G.

The proposal

The proposed development at the commencement of proceedings is set out in the DA as amended by leave of the Court on 3 June 2021 (the Amended DA) and illustrated in the Revision D Architectural Plans which became Exhibit A in the proceedings and the Issue H Landscape Plans which became Exhibit B. Other documents forming part of the DA documentation, as provided to the Court during the hearing include: 1. The Plan of Management prepared by Lynda Campbell, Version 5 dated 31 May 2021 (Version 5 POM), tendered as Exhibit C. An amendment to this document, hereafter referred to as the Version 6 POM, was later filed with the Court on 09 July 2021. 2. The Acoustic Advice Letter, prepared by The Acoustic Group, dated 25 May 2021 (Acoustic Letter) (Ex E), and the Acoustic Assessment report prepared by the Acoustic Group, dated 21 June 2021 (Acoustic Assessment) (Ex H, Tab 12). 3. The Class 1 application documents at Tabs 1, 2 and 7 to 14 (inclusive) of Exhibit G, which includes the Statement of Environmental Effects prepared by Think Planners, dated 19 December 2021 (SEE) at Tab 2.
The premises to be occupied by the child care centre is split over two levels and has a total gross floor area of 610m2, of which the majority (520m2) is located on the Lower Ground floor. These premises were approved as the commercial component of the mixed use development and have not been occupied since that development was completed. The approved mixed use development is currently in one ownership and the building has not been strata subdivided.
The DA materially affects the three areas of "common open space" that are approved as part of the existing development approval for the mixed use development. One of the common open space areas is located on the Ground Floor between the two residential apartment blocks; one on the Lower Ground Floor adjacent to the approved commercial premises and the largest area is located at the rear of the site, also at the Lower Ground Level. The proposed development involves converting the majority of the first two of these "common open space" areas into outdoor play spaces for the exclusive use of the child care centre. This reduces the area of "common open space" available for the use of residents on the Site.
The DA also proposes improvements to the third "common open space" at the rear of the Site that will remain for the use of the residents. The works proposed to the rear common open space area are illustrated in the Issue H Landscape Plans, and include a decked barbecue area, communal vegetable gardens and additional planting and seating.
Access to the rear common open space, as shown on the Issue H Landscape Plans and the Revision D Architectural Plans, is via a set of stairs on the western side of the retained "common outdoor area" at Ground Floor level, adjacent to Unit 9. From the base of those stairs, at the Lower Ground Level, an existing access path runs along the front (eastern side) of Unit 1 before turning 90 degrees to run along the southern side of the building to arrive at common open space at the rear of the Site.
Due to concerns raised about access for people with a disability, a further change to the architectural plans was made during the proceedings to incorporate a "BCA compliant platform lift" located outside the building adjacent to the lobby and lift of the rear residential block, as shown on the Drawings 03 and 04, Revision E, prepared by Baini Design and dated 29 June 2021 (Revision E Architectural Plans) and tendered by the Applicant as part of its second Bundle of Documents, Exhibit L, at Tab 3.
The main change between the Revision B Architectural Plans that were refused by the Council and the Revision D Architectural Plans (Ex A), occurs at the Ground Floor where the Outdoor Play Area has been increased from 58m2 to 105m2 by expanding it further into the area of common open space. The Outdoor Play Areas (in total) has been increased from 378m2 to 412m2, the total Indoor Play Areas has decreased from 176m2 to 169m2, and the number of parking spaces has increased from 11 to 13.

The Site

The Site is located on the north-west side of Monash Road, Gladesville between College Street, approximately 20m to the north, and Victoria Road approximately 70m to the south. It comprises one allotment of land legally described as Lot 100 in DP 1244953. It has an area of 2,059m2 and an irregular 'L' shape that is approximately 23m wide at the Monash Road frontage, 67m deep (along the northern boundary) and 40m wide at the rear boundary. The land falls approximately 4m over a distance of 70m from the front street boundary to the rear.
The Site is occupied by a recently constructed 5-6 storey mixed use development, containing two residential flat buildings, with a total of 43 residential units, ground floor and lower ground floor commercial premises and 3 levels of basement parking accessed via a driveway from Monash Road adjacent to the northern boundary.
The existing development was approved by the Court under a deferred commencement consent (Development Consent No LDA2015/0308) on 9 December 2016 and later modified by Council under MOD2018/0157 on 7 December 2018 (Modification Consent). A copy of the Modification Consent and approved modified architectural plans, prepared by Architects Becarra, were tendered by the Applicant, at Tabs 1 and 2 of Exhibit H and by the Council at Tab 15 of Exhibit 2.
The Site is located within the B4 Mixed Use Zone and forms part of the Monash Road Precinct of the Gladesville Town Centre. The Monash Road Precinct is characterised by a mixture of high density mixed-use developments with commercial and retail uses on the ground floor and residential apartments, and lower scale (one to two storey) older style retail and larger format hardware or building supply premises.
Development to the north and north-west of the site within the R2 Low Density Residential Zone consists of lower density residential development in the form of dwelling houses, dual occupancies and multi-dwelling housing developments.
The land immediately adjoining the Site along its northern boundary, and referred to as 10 Monash Road and 2 College Street Gladesville, is the subject of another mixed-use development consent, (LDA 2016/0624), that was approved by Council on 8 August 2017. A copy of the Council approved plans of this neighbouring development was tendered at Tab 17 of Council's bundle (Ex 2). This 4 storey development has not yet been constructed. The shadow impacts of the approved neighbouring development were raised as part of the consideration of solar access to the proposed child care centre.

Decision

For the reasons set out in this judgment the proposed development, subject to conditions, is acceptable and warrants approval. In reaching this decision, I have taken into consideration the written evidence of the town planning experts Mr Jonathon Wood (for the Applicant) and Mr Brendan Clendenning (for the Council) and the child care expert Ms Lynda Campbell (for the Applicant) as set out in their Joint Report of Planning Experts and Child Care Expert dated 24 June 2021 (Joint Report) that became Exhibit 3, as well as their oral evidence, and the various documents tendered in the proceedings.
I have also taken into consideration the relevant matters of the various statutory instruments and other matters for consideration under s 4.15 of the EPA Act, including the written public submission in the Council's Bundle of documents (Ex 2), my own observations of the site and its environs taken at the site view, and the Parties' submissions in the hearing.

Satisfaction of planning legislation, environmental planning instruments and other planning documents

The relevant statutory planning instruments and associated documents are listed at par 20 of the Amended SOFC. The main planning documents referred to in the proceedings were: 1. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP EE&CCF), and the associated Child Care Planning Guideline (CCP Guideline) that is a matter for consideration pursuant to cl 23 of the SEPP EE&CCF. 2. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) and associated Apartment Design Guide (ADG), which the Council says applies and the Applicant says is not triggered. 3. The Ryde Local Environmental Plan 2014 (RLEP). 4. The Ryde Development Control Plan 2014 (RDCP). The relevant provisions of the two SEPPs and their associated guidelines are addressed in my consideration of the contentions.

Ryde Local Environmental Plan 2014

The Site is located within the Zone B4 - Mixed Use (B4 Zone) of the RLEP, pursuant to the Land Use Table at the end of Part 2 of the RLEP and as shown on the Land Zoning Map. The proposed "Centre-based child care facility" is a use permissible with consent in the B4 Zone. The consent authority must have regard to the objectives for development in the B4 Zone set out in the Land Use Table, pursuant to cl 2.3(2).
The Council and the town planning experts did not contend that the proposal was contrary to the aims of the RLEP at cl 1.2, nor contrary to the objectives of the B4 Zone. I have considered the development in the context of the Aims of the RLEP and the objectives of the B4 zone and find the proposal to be satisfactory in that regard.
Council contended as part of Contention 11.2 that a revised gross floor area (GFA) figure had not been provided to determine compliance with the overall floor space ratio (FSR) of the development. Nevertheless I accept that the proposal results in a small reduction in the total GFA for the Site, and that there was no apparent breach of the FSR development standard under the previous consent, as modified. I therefore agree with the Applicant's submissions that there is no exceedance of the FSR development standard arising from this development.

Ryde Development Control Plan 2014

The RDCP is a matter for consideration under s 4.15(1)(a)(iii) of the EPA Act. "Part 3.2 Child Care Centres" of the RDCP relates specifically to child care centres, and includes sections relating to "All Child Care Centres" (Section 3.1); "Centres in Mixed Use Developments and in Non-residential areas" (Section 3.4); "Play Spaces" (Section 6.2) including "Outdoor Play Spaces (subs 6.2.2) that includes controls for "centres in mixed use facilities" (Folio 139 Ex 2) and for "Indoor Play Spaces" (subs 6.2.3). A copy of Part 3.2 was tendered at Tab 4 of the Council Bundle (Ex 2).
I note, however, the limitations on the application of development control plans at cl 26 of the SEPP EE&CCF. These limitations are explained in Section 1.1 of the CCP Guideline entitled "About this Guideline" and in Section 1.4 entitled "Where does this Guideline fit" which say: 1. The SEPP EE&CCF "… determines that a consent authority must take into consideration this Guideline when assessing a development application for a centre-based child care facility … It also determines this Guideline will take precedence of a Development Control Plan (DCP) with some exceptions, where the two overlap in relation to a child care facility." (Section 1.1 of the CCF Guideline); and 2. "The SEPP generally provides that Development Control Plans seeking to regulate development for a child care facility will not apply, except for controls relating to building height, rear and side setbacks and car parking rates." (Section 1.4 of the CCF Guideline).

The Contentions

The original SOFC predated the Council's consideration of the Amended DA. Having considered the Amended DA documentation, the Council's Amended SOFC (Ex 1) removed entirely the earlier Contention 2 relating to landscaping and, subject to conditions, Contention 7 relating to traffic and parking. Some of the remaining contentions were narrowed, as set out in the Amended SOFC.

Contention 1 - Concurrence of the Department of Education was based on incorrect or incomplete information

In Contention 1 of the Amended SOFC, Council states that the development did not provide adequate outdoor space, as required by Regulation 108 of the Education and Care Services National Regulations (National Regulations) and was therefore referred to the Department for concurrence. Council also claimed that the concurrence of the Department, dated 24 August 2020, was based on incomplete information provided with the application.
In the Joint Report (at pars 1 and 2) the experts agreed that the Revision D Architectural Plans before the Court altered the configuration of the outdoor play spaces compared to that considered by the Department when issuing its concurrence. They also agreed that concurrence was required on the basis that the child care centre relied on "simulated outdoor play space" to meet the outdoor play area requirements, and that the Court has power to exercise concurrence on behalf of the Department under s 39 of the LEC Act.
The experts also agree (at par 3) that the proposed outdoor play spaces are not specific to either of the 2-3 year or 3-5 year age groups and that these spaces are to be shared between the two groups, as outlined in the Version 5 POM. Based on this shared arrangement the experts say the quantum of outdoor play space (OPS) is compliant with the 7m2 per child rate required by the National Regulations for the number of children to be accommodated.
"Simulated outdoor environments" are a special category of outdoor play spaces recognised as an alternative to "outdoor spaces" in the CCP Guideline. They are described at p 34 of the CCP Guideline (Folio 350 Ex 2) as set out below, and examples are depicted in photographs, also at p 34 of the CCP Guideline. Simulated outdoor environments are internal spaces that have all the features and experiences and qualities of an outdoor space. They should promote the same learning outcomes that are developed during outdoor play. Simulated outdoor environments should have: • more access to natural light and ventilation than required for an internal space through large windows, glass doors and panels to enable views of trees, views of the sky and clouds and movement outside the facility • skylights to give a sense of the external climate • a combination of different floor types and textures, including wooden decking, pebbles, mounds, ridges, grass, bark and artificial grass, to mimic the uneven surfaces of an outdoor environment • sand pits and water play areas • furniture made of logs and stepping logs • dense indoor planting and green vegetated walls • climbing frames, walking and/or bike tracks • vegetable gardens and gardening tubs.
The CCP Guideline (p 34, Folio 350 Ex 2) also states: A service approval will only be granted in exceptional circumstances when outdoor space requirements are not met. For an exemption to be granted, the preferred alternative solution is that indoor space be designed as a simulated outdoor environment.
The DA referred to the Department, and the subject of its concurrence letter dated 24 August 2020 (as illustrated in the Revision B Architectural Plans), included three outdoor play spaces. The two spaces on the Lower Ground floor were generally consistent in terms of their size and location to those now proposed in the Revision D Architectural Plans. The outdoor play space at the Ground floor that was considered by the Department is smaller in area than the current proposal.
The Department's concurrence letter (Tab 12, Ex 2) expressly refers in the first paragraph under the heading "Reasons for decision" to the provision of a total of "388m2 of simulated outdoor space" (emphasis added) for the intended 53 children. The 338m2 of space equates to 7.3m2 per child, consistent with the minimum requirement for 7m2 per child found at cl 108 of the National Regulations.
The concurrence letter goes on to identify three separate "simulated outdoor areas" that together make up this total, as follows: 1. at Ground Floor level - one simulated outdoor area of 58m2, for the 0-2 age group. This area was partly under the residential floor above and partly covered by an 'awning' roof with skylights and glass walls to the north and south but open at the western end; 2. at the Lower Ground level - one simulated outdoor area of 224m2 for the 3-5 age group (the OPS1 area equivalent); and 3. also at the Lower Ground level - one simulated outdoor area of 106m2 for the 2-3 age group (the OPS2 area equivalent) which is described as having its northern and eastern sides opening into indoor spaces, and the southern and western sides enclosed by a 2.2m acoustic barrier made up of 1.5m high solid acoustic barrier with 0.7m acoustic barrier above allowing natural light to enter.
The Department's consideration of the previous proposed design found that the three "outdoor spaces", as they were then configured provided a suitable basis for granting concurrence. The final two paragraphs of the Department's concurrence letter, under the heading "Application for service approval", specifically refer to the need for a future application for service approval, and that such an application to the Department "should be accompanied by an appropriate waiver application". I have taken the "waiver" referred to mean an "exemption" to the standard outdoor space provision, as referred to in the CCP Guideline quoted above ([37]), on the basis of the Department's "preferred alternative solution ... (of) indoor space ... designed as a simulated outdoor environment."
Notwithstanding compliance with the 7m2 per child provision, the town planning expert Mr Clendenning (at par 18 of the Joint Report) raised a concern "that it is relevant that the Department were (sic) not aware of the privacy film when issuing concurrence, and this is part of the reason why the Court should not issue concurrence on behalf of the Department."
The concern raised by Mr Clendenning refers to the impact of the privacy film (to be attached to the street front windows) in diminishing the amount of daylight able to penetrate into the lower ground level through the proposed void adjacent to the street front windows.
The Revision B Architectural Plans considered by the Department at that time included the void and window openings in the northern wall that were smaller than now proposed (North East Elevation of the Revision B Architectural Plans, Ex G, Tab 3). Nevertheless the Department found fit to grant its concurrence, and expressly stated in its letter of concurrence that the "underground croft position" of the simulated outdoor play space in question "provides sufficient access to natural light" (Folio 372, Ex 2). I can see no reason why the Department would alter its decision due to design changes that increased the size of the windows and replaced the "hanging reflective panels" with the "virtual skylights, changes that could be expected to at least retain if not increase the light levels.
In the Joint Report the child care expert Ms Campbell expresses her opinion that: 1. "The changes to the plan are an improvement over the prior scheme with regard to outdoor play space, particularly with the greater areas of outdoor space at the ground floor and improvement in the design of these spaces shown on the landscape plans." (par 8); and 2. "I believe that the design of the simulated space and the centre generally are a good outcome for child learning and development, and will satisfy the requirements of the [National Regulations]." (par 13).
All three experts refer to the two-step approval process for child care centres, namely the development approval process followed by the later physical inspection of the centre and issuing of a service approval by the Department. Ms Campbell notes (at par 12) that the Department " ... has to view and approve the service prior to issue of a service approval and if they have concerns about any of the areas to be used by children, can place conditions or limits on the number of children to use the facility based on their assessment at this stage. Therefore the [Department's] concurrence step is not the final outcome … and a physical inspection of the completed development will determine compliance with the [National] Regulations at licencing stage."
Mr Clendenning (at par 19) says "that it does not give me comfort that the Department ... could later reduce the number of children in the centre ...". Mr Wood on the other hand notes (at par 23) that the physical inspection by the Department "... is a further check on the suitability of the end product delivered … which is important when considering a proposal at development application stage."
I concur with the agreed position of the experts that the outdoor play spaces (including any categorised as simulated) satisfy the National Regulations with respect to the area requirement of 7m2 per child, subject to the sharing of those spaces proposed in the POM (both versions 5 and 6). Such sharing arrangements are commonly adopted in child care centres.
I also note that whilst the service approval process may be a 'further check' on the suitability of the premises, this is a role for the Department whether or not concurrence is required or, as in this case, was granted. The granting of concurrence does not derogate from the Department's future role in granting the service approval. Furthermore, the Department has already identified in its concurrence letter, an application for service approval will need to be accompanied by a waiver application.
To reinforce the importance of delivering the outdoor spaces as shown on the Issue H Landscape Plans and the Revision D Architectural Plans, and in a manner acceptable to the Department, I propose to include an advisory note in the conditions of consent that the service approval as required under the Children (Education and Care Services) Supplementary Protection Act 2011 must be obtained.
Based on the agreed position that the minimum area requirements (of 7m2 per child) are satisfied, the Department's reasons for granting concurrence as set out in its concurrence letter, and the evidence of the child care expert Ms Campbell that in her opinion the current proposal is an improvement on the earlier scheme (that was considered satisfactory by the Department) and will satisfy the requirements of the National Regulations, I find that the findings in the original concurrence letter of 24 August 2020 remain valid. Accordingly, I do not consider further concurrence by me pursuant to s 39 of the LEC Act to be necessary. If, however, I am incorrect in that regard, concurrence by me is hereby granted.

Contention 3 - Solar access, natural light, ventilation and privacy to outdoor play spaces

The Amended SOFC raises a number of amenity issues associated with the location of the centre within the building and the design of the facilities, and in particular the amenity of the outdoor play spaces. Contention 3 refers in the Particulars to the "relevant planning requirements", and the Court was taken to these by Ms Berglund.
The key concerns in Contention 3 with respect to the amenity of the child care centre can be broken down into essentially four sub-considerations: 1. Natural light and ventilation and solar access to the Lower Ground floor simulated outdoor play space. 2. Solar access to the Lower Ground floor outdoor play area. 3. Privacy of the facilities and outdoor play spaces, especially arising from overlooking from the residential apartments located on the Site.
I have adopted the labelling of the outdoor play spaces that are used in the Joint Report, as follows: 1. OPS1 - the 224m2 outdoor play space located in the north-eastern portion of the lower ground floor, and referred to in the Expert Report as a "simulated outdoor play area", 2. OPS2 - the 83m2 outdoor play space located in the south-western portion of the lower ground floor, and 3. OPS3 - the 105m2 outdoor play space on the ground floor and noted as the 0-2 age group outdoor play area.

Natural lighting, ventilation and solar access to OPS1

The most contentious of these play spaces is the "simulated outdoor play space" OPS1. The internal amenity considerations relevant to this particular space focused on natural lighting and ventilation, and to a lesser extent solar access. The adequacy of the natural lighting and ventilation experienced by the other two outdoor play spaces (OPS2 and OPS3) was not contested, although the Council maintained the amount of sunlight to OPS2 was inadequate.
Clause 110 of the National Regulations that addresses ventilation and natural light to indoor spaces used by children simply states: 110 Ventilation and natural light. The approved provider of an education and care service must ensure that the indoor spaces used by children at the education and care service premises - (a) are well ventilated; and (b) have adequate natural light; and (c) are maintained at a temperature that ensures the safety and wellbeing of children.
At par 30 Ms Campbell refers to the National Regulation cl 110 for Ventilation and natural light, and says this does not provide specific guidelines on what is "adequate" and the Guide to the National Regulations states that a combination of natural and artificial light is permitted.
As shown on the Lower Ground floor Plan, (Drawing Number 03 in Ex A), OPS1 has an axe-like shape, with the 'axe head' located within the south-eastern end of the space bounded by the street boundary, north-eastern side boundary and wrapping around the store room under the vehicular ramp. This is the portion of OPS1 that was of most concern to the Council's planning expert when assessing the adequacy of natural light and ventilation.
The primary source of natural light, ventilation and sunlight to OPS1 are the windows proposed at the north-eastern end of the 'axe handle', as shown on the North East Elevation (Drawing 06 of Ex A). There are two small round windows in this wall and three main window openings, each approximately 3m wide. The first is raised approximately 600mm above the floor level (due to the height of the vehicle ramp at this point) and the next two start at the floor level. All three rise to a height of 2.7m above the floor level. For each of these three window openings the upper portion contains four x 1200mm high operable sliding glass panes, located at a height of 1500mm above the floor level. The lower portion of these three windows have a single fixed pane of clear glass. A fourth, higher level, window is also proposed further west in this wall of the 'axe handle', next to the evacuation door.
The experts agreed position (at par 26 of the Joint Expert Report) is that "These openings provide natural light and ventilation to the long portion of the OPS1". From my own observations at the site view it is also apparent these windows allow views of the sky and clouds, and any trees that are, or may in the future, be planted on the neighbouring property to the north.
The experts also agreed (at par 26 of the Joint Report) that "According to the Acoustic Group Letter (Ex E), only 50% of the operable windows overlooking the access ramp are permitted to be open so as to satisfy the noise criteria at the northern boundary of the site." There was no expert evidence, however, on the effect these noise mitigation measures might have on the natural ventilation of OPS1, although I note that this space, like the remainder of the child care facility is to have its ventilation supplemented by mechanical means.
The design of OPS1 includes other features intended to enhance the amenity of the OPS1 space generally, and the 'axe head' portion in particular, for its intended purpose. One of those measures to provide a degree of natural light and ventilation is a void measuring approximately 5m x 5m in the roof, located adjacent to the ground floor street front window at a point approximately midway along the OPS1 room's wall to that boundary. The note on both Drawings 03 and 04 of Exhibit A states the purpose of the void is "… to allow direct solar access into lower ground level".
Natural lighting of the south-eastern part of OPS1 space afforded by the void will be supplemented by artificial lighting, including but not limited to six "virtual skylights". The virtual skylights whilst adding artificial light are primarily intended to enhance the amenity of the space by adding an artificial sky view. At par 27 of the Joint Report the experts Ms Campbell and Mr Wood "... note that there are 6 'virtual skylights' (Sky Factory) proposed on the ceiling of the OPS1 as per the landscape plan to give a sense of the outdoors and sky." Ms Campbell (at par 40 of the Joint Report) says that the 'virtual skylights' "… will mimic views outside and nature elements".
The Issue H Landscape Plans (Ex B), at Drawing Number L - 01, show the location of the six ceiling-mounted 'virtual skylights' as dashed-line circles, running in a row along the length of the space from within the 'axe head' and through the 'axe handle'. They are also shown on the AA and BB sections and elevations at Drawing Number L - 03, as blue boxes fixed to the ceiling. An image of a "virtual sky light" is also shown on Drawing Number L - 03.
In written evidence, Mr Clendenning dismissed the virtual sky lights. At par 79 he states: "The [CCP Guideline] indicates that 'simulated outdoor environments are internal spaces that have all the features and experiences and qualities of an outdoor space.' In my opinion neither the [void] opening above, or the virtual skylights successfully offset the absence of natural light and ventilation that would be expected in a genuine outdoor space."
There was no evidence, however, by a lighting expert on the efficacy of either the void or the virtual skylights in terms of illuminating the space. Having considered the evidence and viewed the space in question I have no reason to doubt that the lighting levels in the 'axe head' part of OPS1 will need to be supplemented by artificial lighting. Artificial lighting, however, is not precluded by the regulations and is commonly used in "simulated outdoor environments", including in those depicted in the photographs at p 34 of the CCP Guideline (Folio 350, Ex 2). Based on the evidence before me I find that, with the assistance of supplementary artificial lighting, including from the "virtual skylights", the natural light to the OPS1 will be sufficiently fit for purpose.
Similarly OPS1 will have its' limited natural ventilation, provided by the window openings shown on the North East Elevation, supplemented by mechanical ventilation. I have no reason to find that the mechanical ventilation proposed is not capable of rendering this space sufficiently "well ventilated". Nor that this system will not be capable of maintaining a suitable temperature "to ensure the safety and wellbeing of children" as required by National Regulation cl 110.
With respect to sunlight or solar access the CCP Guideline contains essentially three references: 1. In the Design Quality Principles at Part 2, Principle 4 - Sustainability and Principle 6 - Amenity both refer to sunlight as contributing to sustainable design and good amenity respectively. 2. Part 4, Section 4.11 - Shade, which refers to the National Regulation cl 114 that requires the approved provider of the service needing "to ensure that outdoor spaces include adequate shaded areas to protect children from overexposure to ultraviolet radiation from the sun." 3. Part 4, Section 4.11 - Shade includes "design guidance" for solar access, including that: Outdoor play areas should: • have year-round solar access to at least 30 per cent of the ground area, with no more than 60 per cent of the outdoor space covered. • provide shade in the form of trees or built shade structures giving protection from ultraviolet radiation to at least 30 percent of the outdoor play area. • have evenly distributed shade structures over different activity spaces.
The OPS1 will receive some sunlight through the windows in the north-eastern wall of the 'axe handle'. The Revision D Architectural Plans include at Drawing Nos 24 and 25 perspective shadow diagrams illustrating the current extent of sunlight falling within the long portion or 'axe handle' of the OPS1 in midwinter at hourly intervals from 9:00am to 3:00pm.
These diagrams relate to the existing built environment to the north-east of the Site and do not take into account the approved 4 storey development on the adjoining land at 10 Monash Road and 2 College Street, which the planners acknowledge in the Joint Report would reduce the amount of direct sunlight through the north-eastern windows.
The extent to which the sunlight will be reduced by the neighbouring approved development is shown on a supplementary set of "Shadow Diagrams incorporating adjoining property" tendered during the proceedings as part of the Applicant's second Bundle of Documents (Ex L), at tab 7 (Supplementary Shadow Diagrams). The Supplementary Shadow Diagrams show a small portion of the OPS1 will receive sunlight through its northern windows between 12:00 noon and 2:00pm in midwinter.
Mr Wood expressed the opinion (at par 54 of the Joint Report) that he didn't believe the solar access provisions of the CCP Guideline should be applied to a simulated outdoor space, "given the nature of a simulated space". This was not disputed by either Ms Campbell or Mr Clendenning.
The CCP Guideline makes no reference to sunlight or solar access for "simulated outdoor environments". Ms Campbell (at par 30 of the Joint Report) says there are no National Regulations requiring access to direct sunlight and these regulations focus on shade and protecting children from the harmful effects of ultraviolet radiation. Ms Campbell refers to the National Regulation cl 114 on shade as requiring "adequate shading for both active and passive outdoor play. Shade may be provided by large trees, heavy shade cloths and solid roofs." Mr Wood, at par 49 of the Joint Report agrees with Ms Campbell's comments regarding solar access and shade. There was no dispute that the development provided "adequate shaded areas to protect children from overexposure to ultraviolet radiation from the sun" as required by National Regulation cl 114.

Solar access to OPS2

Solar access is also restricted to OPS2, the other outdoor play space at the Lower Ground level. Whilst OPS2 is located outdoors it is overshadowed in midwinter by the existing buildings on the Site. This space is partially covered by the angled acoustic baffles that run across the top of the play space, as depicted in Drawing 16 of the Revision D Architectural Plans and described at p 16 of the Acoustic Assessment. The Acoustic Assessment notes at Folio 160 of Ex H that the baffles can be constructed of either one of two alternative nominated materials "to allow natural sunlight into the play area."
The midwinter shadow diagrams (both Drawing 21 of the Revision D Architectural Plans and the Supplementary Shadow Diagrams) reveal no sunlight to the ground of OPS2 in midwinter. The March 21 diagrams reveal sunlight over some of the space with a maximum coverage to approximately 50% of the space at 1:00pm. These diagrams show no shadow impact from the overhead acoustic baffles, suggesting use of the sunlight penetrating materials referred to in the Acoustic Assessment.
Bearing in mind that the development would satisfy the National Regulation cl 114 on shade and that the Department had granted concurrence to the calculation of this area of outdoor space as if it were a simulated outdoor environment, coupled with the fact that there is no dispute as to the adequacy of its access to natural light and ventilation I find this space acceptable as an outdoor space for the purposes of granting development consent notwithstanding the lack of solar access in midwinter.

Privacy associated with OPS2 and OPS3

Contention 4 relates to the potential for visual privacy impacts from the child care centre's outdoor play areas OPS3 to the neighbouring property to the north-east, that is subject to the 2017 DA approval LDA2016/0624. I concur with the assessment of the town planners in their response to Contention 4 at pars 93 to 108 of the Joint Report, and concur with their conclusion at par 109 that the issue of overlooking of this property has been resolved, due to the 1.6m high fencing and inclusion of privacy screens along the north-eastern and north-western sides of OPS3.
The screening recommendations of the experts have been included in the revised landscape plan prepared by Outside In Design Group Drawing No. L-02, Issue I dated 28 June 2021 which was included in the Applicant's second Bundle of Documents (Ex L) at Tab 1 (Landscape Plan 02 Issue I).
The potential overlooking of the outdoor play spaces OPS2 and OPS3 from balconies of apartments on the Site was raised as one of the design quality issues in Contention 6 and site suitability issues in Contention 8. The three experts agreed at par 218 of the Joint Report that the balconies presently overlook the central communal open areas and there is potential for overlooking into the child care centre. This was also evident to me from the site visit.
Mr Clendenning expressed the view (at par 240) that there "… is a problematic trade-off between amenity of the balconies and the outdoor play spaces". In terms of privacy the 'trade-off' in this instance occurs with protecting the privacy of the children in the centre on the one hand, and the privacy and outlook of residents on the other. The two are not, however, necessarily mutually exclusive.
To address the down-looking from the higher apartment balconies impacting on the privacy of the child care centre, the application was ostensibly amended to add planter boxes to the outside of the balconies above or overlooking the outdoor play spaces. The only reference to these 'add on' planter boxes shown on either the Revision D Architectural Plans or the Issue H Landscape Plans is found on the Revision D Architectural Drawing 06 North East Elevation.
The town planners agreed (at par 149 of the Joint Report) the north-east elevation in the Architectural Drawing 06 was unclear with respect to the planter boxes. Accordingly Mr Wood sought clarification of what was proposed from the architects and landscape architects, resulting in the preparation of additional plans, sections and elevations of the planter boxes by the Landscape Architects, Outside In Design Group. Those additional landscape drawings of the balcony planters prepared by Outside In Design Group, referenced as Drawing Numbers L-05 and L-06 Revision H dated 25 May 2021, are attached to the Joint Report as Annexure B (Planter Box Landscape Plans).
The Planter Box Landscape Plans clearly show there is no extension to the depth of the balconies, as suggested in the Revision D Architectural Drawing 06 and understood by Mr Clendenning in the Joint Report. They also specify a particular planter, a Quatro Design Modular Trough Planter. The planners agreed (at par 151) that "... the architectural drawings would need to be updated to reflect this, but the landscape section and drawing [in the Planter Box Landscape Plans] enables a two dimension depiction of the treatment proposed."
Mr Clendenning does not expressly reject the use of the planters as a privacy device, but notes (at par 166) that if they "... are deemed to be an effective privacy measure, then the opportunities for passive surveillance of the remaining central communal open space would also be removed." At pars 177 and 178 he raised concerns about the longevity of the planting as a privacy benefit due to maintenance failures or different preferences of future apartment owners.
Mr Wood addresses the suitability of the planters proposed in the Planter Box Landscape Plans as a privacy measure and other consequences at par 185 of the Joint Report. I agree with Mr Woods assessment that the retention of the existing balconies with the addition of the planter boxes as detailed on the Planter Box Landscape Plans resolves a number of the particulars to Contention 10. In particular I agree that: 1. There is no change to the design of or separation distance between the opposing balconies. 2. The colour of the planter boxes can be conditioned to enhance their integration with the existing façade treatment, and the addition of some planting contributes positively to breaking up the façade and presentation of the building. 3. The planter boxes would not have any material adverse impact on the amount of solar access available to the apartments.
The planting proposed in the planter boxes, as nominated in the note of the Planter Box Landscape Plan Drawing No L-05 (Split Leaf Philodendrons) have a nominated mature height of 0.65m which will help screen the balconies to a total height of 1.65m, provided they are cared for.
The inclusion of the planters, as set out on the Planter Box Landscape Plans, is a key privacy mitigation measure and any approval of the DA will be contingent upon the inclusion of suitable conditions to ensure the planters are provided and maintained.
A further possible visual privacy impact occurs with the potential for overlooking OPS3 from the balcony of Unit 14, due the relative floor levels of that unit at RL 54.74 (refer the approved plans for the DA modification MOD2018/0157, Ex 2, Folio 414) and the lower play space at RL 52.6. The privacy impact cannot be sufficiently mitigated by the planter box on the balcony or the screen fencing along the north-eastern and north-western sides of OPS3. It can, however, be addressed by additional screens being fixed to the balcony to Unit 14, which can be effected by way of a condition of consent.

Active street frontage (Contention 5)

The Council maintained in Contention 5 that "the proposed development does not provide an appropriate ground floor presentation for a town centre." Council invoked Part 4.6 of the RDCP, Section 3.1.2 "Active street frontages" which states: a. Provide ground level active uses where indicated on the Active Street Frontages Control Drawing (Figure 4.6.05). b. Active uses contribute to personal safety in the public domain and comprise: i. Community and civic facilities; ii. Recreation and leisure facilities; iii. Shops; iv. Commercial premises; v. Residential uses, particularly entries and foyers, however, these must not occupy more than 20% of the total length of each street frontage. c. Where required, active uses must comprise the street frontages for a depth of at least 10 m. Note: the site is marked on the Active Street Frontages Control Drawing
This contention essentially raises two issues: firstly the use of the premises as a child care centre and its ability to activate the street frontage, and secondly the restricted visibility into the child care centre premises arising from the use of the privacy film to be applied to the streetfront windows. With respect to the privacy film the town planners agreed (at par 115 of the Joint Report) that the treatment of the windows is likely to result in a 'view out' of the centre but 'views in' will be effectively unavailable to a casual observer. They also agree that the extent and quantum of the tenancies is fixed by the prior approval.
Mr Clendenning's opinion is that child care centres are not always compatible with active frontage requirements, particularly as pedestrian activity is concentrated in the morning and afternoon, but that it is possible for them to provide a design response which can satisfactorily address those requirements. In his view the proposed development does not provide a suitable design response with the void adjacent to the front window and an additional entry way as well as the poor visual permeability of the space.
Mr Wood draws attention to the fact that the types of uses referred to in Section 3.1.2 are diverse, and include community and civic facilities and recreation and leisure facilities, and that it is a combination of uses that serve to activate the area. In his view the child care centre does activate the frontage and will generate pedestrian and vehicular movement to the site. Other ground floor premises in the town centre, namely a medical centre and a gymnasium on the opposite side of Monash Road, as pointed out to the Court at the site view, also have applied film to their street facing windows.
Mr Wood refers to the objectives of the RDCP's 'active street frontage controls' (at par 119) which he says are satisfied in the development. Those objectives are: 1. To reinforce the commercial uses that currently exist in the town centre. 2. To avoid privacy problems for residential buildings built on or close to the street frontage. 3. To allow for a wide range of retail, commercial, entertainment and community uses at ground floor level. 4. To promote appropriate residential development. 5. To enhance personal safety and security. 6. To promote the commercial viability and function of the centre/corridor.
On this matter I accept and prefer the evidence of Mr Wood that the proposed development is satisfactory in terms of meeting the objectives of the active street frontage provisions of the RDCP, and find there are no substantive reasons for refusing the DA on the basis of street frontage activation.

Design quality of the residential apartments, resident access and connectivity (Contentions 6 and 7)

The Council claims in Contention 6 that the proposed development undermines the design quality of the approved residential flat building on the Site, and that the provisions of SEPP 65, and the associated ADG, apply pursuant to cl 4(1)(a)(ii). Clause 4 (1)(a)(ii) states: 4 Application of Policy (1) This policy applies to development for the purposes of a residential flat building, shop top housing or mixed use development with a residential accommodation component if: (a) The development consists of any of the following: (i) … (ii) The substantial redevelopment or the substantial refurbishment of an existing building.
Council claims the proposal represents a "substantial refurbishment of a mixed use building". The particulars to Contention 6 largely cite the proposed planter boxes, the insufficient information about the planter boxes and their impacts on design quality and residential amenity.
In Mr Clendenning's opinion the proposed changes to the commercial spaces within the mixed use development represents "at least a substantial refurbishment and are therefore a trigger for consideration of SEPP 65". He agrees with Mr Wood that, regardless of the application of SEPP 65, the merit matters set out in Contention 6 should be addressed.
Mr Wood says at par 179 of the Joint Report that SEPP 65 is not triggered as, in his opinion, the proposed development is not a substantial refurbishment of a mixed use building, nor is it a substantial redevelopment of an existing building. His reasoning for reaching that conclusion are set out at par 180 of the Joint Report.
The Court has the benefit of written closing submissions filed on behalf of the Applicant on 14 and 30 July 2021, and on behalf of the Council on 28 July 2021. The Applicant submitted that: 1. Clause 4(1) of SEPP 65 only applies to the development specified, and that the DA is to use part of the ground and lower ground floor of an existing mixed use building for the purposes of centre based child care and this is not "mixed use development". 2. Even if "by reason of the fact that the development is to occur in a mixed use building and involves alterations to parts of the building approved for residential use, no part of the proposed development is a "residential accommodation component", being the residential apartments which remain unchanged. 3. The proposed development does not constitute a "substantial refurbishment" of the existing building. The proposed works are not a refurbishment but a fit-out, with changes to the entry/exit stairs, front entry, void, windows on the Lower Ground floor, and landscaping works are not "substantial" in the context of the whole of the original consent. 4. Even if the development could be found to fall within cl 4(1) of SEPP 65, the child care component of the DA is expressly excluded from SEPP 65 by virtue of cl 4(2). Thus the proper comparison to make for the purposes of determining whether they are substantial is limited to a comparison of the works to the residential component of the building, being the planter boxes on the balconies, privacy screening and enhancements to the communal open space.
The Council's submissions in response are that SEPP 65 is triggered because: 1. The development comprises the substantial refurbishment of the building, including substantial changes to the common open space available to residents. 2. Alternatively, the development comprises the conversion of an existing building from a commercial use to a child care centre, requiring a significant amount of construction. 3. Work to the residential component of the mixed use development is not the subject of any other development application and so the DA relates to the whole of the building and not only the newly proposed child care centre.
On the question of the applicability of SEPP 65 to this application I am persuaded by the evidence within the architectural and landscape plans and of Mr Wood, and by the Applicant's submissions, that the proposed development primarily involves: 1. the fit-out, including construction works to the base building, of vacant and not previously occupied floor space within a mixed use building, for a particular child care centre design and a change of use of that space from commercial premises to a child care facility, 2. works to and the change of use of some of the common open space areas, previously available for use by residents, to outdoor play space for the exclusive use of the child care centre, 3. new balcony planter boxes and screening in order to mitigate the visual privacy impacts arising from the child care centre, and 4. the embellishment of and improvements to the remaining common open space for the exclusive use of the residents, including improved access for people with a disability, in order to mitigate the reduction in the amount of common open space available to residents.
The DA therefore relates to the whole Site and to more than one use. I have therefore considered it as a mixed use development with a child care and residential component. Whether the residential component of the development falls within the description of "residential accommodation" (emphasis added) found at cl 4(1) of SEPP 65, depends on whether one considers "accommodation" in the narrower sense of being the private apartments where residents live, or to include the full suite of spaces and amenities that comprise the residents' accommodation collectively and more widely, including the common areas. The conservative approach of including the common areas as "residential accommodation" is the one I have adopted in this instance. In my view, therefore, the proposal is reasonably characterised as a mixed use development with a residential accommodation component.
SEPP 65, however, applies to "mixed use development with a residential accommodation component" only if the development fits within one of the three nominated circumstances in cl 4(1)(a), and then satisfies the criteria in subcll 4(1)(b) and (c). In this case the relevant hurdle that must first be cleared is found in cl 4(1)(a)(ii), which requires that the development is either "the substantial redevelopment or the substantial refurbishment of an existing building." (emphasis added).
In the context of the existing building on the Site and the changes proposed to that building (which includes the basement parking, two residential blocks and the commercial areas) the proposed development does not constitute a "substantial redevelopment of the existing building" nor does it constitute a "substantial refurbishment of the existing building". The hurdle of cl 4(1)(a)(ii) is not overcome and SEPP 65 is therefore not triggered by this proposal.
The amenity of the residents of the existing development is, however, a matter for consideration under s 4.15(1)(b) of the EPA Act as a merit issue arising from the impacts of the development. The impacts on solar access and outlook arising from the planter boxes on balconies has been addressed elsewhere in this judgment. Noise impacts were not in contention with noise mitigation measures included in the DA based on the advice of acoustic engineers.
Contention 7 raises issues about the reduction in the common open space areas, equitable access to the remaining common open spaces and additional privacy impacts to lower level apartments located in the rear apartment block.
The town planners agree, at p 49 of the Joint Report that: 1. The proposal results in the common open space for the whole of the site measuring at least 25% of the site area (or 514.75 m2), consistent with the ADG were it to be considered a benchmark. 2. The existing access arrangements to the rear common open space are less than ideal. The path of travel takes a circuitous route, including stairs, and the rear space is not accessible for persons with a disability. 3. The embellishment of the rear common open space is a positive element of the proposal as the existing space is poor and largely uninviting, and the improvements will result in the space having greater 'pull' in attracting users.
In response to the concerns raised in this Contention and by the town planners in their written evidence, the DA plans were further amended during the course of the hearing to include a mechanical platform lift attached to the rear apartment building to allow access for people with a disability to the lower ground floor pathway that leads to the rear common open space. The new lift is shown on the revised architectural plans prepared by Baini Design, Revision E, dated 29 June 2021, Drawing Numbers 03 (Lower Ground Floor Plan) and 04 (Ground Floor Plan). In oral evidence Mr Clendenning agreed the new lift was a better arrangement.
A further possible impact on resident privacy for occupants of some of the Lower Ground apartments in the rear apartment block was raised during the hearing. The concern raised was that privacy of these apartments could be compromised by residents looking into them from the pathway providing access to the rear common open space. That privacy impact currently exists, but would increase if more people use the improved open space at the rear of the Site. In oral evidence the town planners acknowledged that the potential privacy impacts need mitigation - to the kitchen windows on the south-western side of the rear building and to the rear units that are level with the raised top of the Onsite Detention (OSD) tank located within the rear common open space. The draft conditions of consent address these issues.

Site suitability (Contention 8)

In Contention 8 the Council contended that the site is not suitable for the development, particularly in the location proposed "within the subterranean areas of a mixed use building" with resultant compromised amenity for the centre. The particulars refer to various matters raised in the other contentions, such as overlooking from balconies, active street frontages, conversion of communal open space to outdoor play areas and connectivity for residents.
The town planners agree (par 215 of the Joint Report) that "the site is in a good location for a child care centre, but disagree as to its appropriateness in the context of the retrofitting the space proposed and the merit issues arising …". I agree with Mr Clendenning (at par 230 of the Joint Report) that this contention largely relates to matters described elsewhere in the SOFC.
The two principal additional matters, not raised in other contentions, are: 1. that the development proposes the sharing of the main entry by the residents and the users of the child care centre, rather than having a clearly defined separated entrance, and 2. there are potential safety impacts to children and staff where the outdoor play spaces are located directly underneath balconies.
With respect to the entrance arrangements the child care centre has three access points, two via the ground floor "main lobby" of the building, that is shared with the residents, and one via a small stand-alone lobby that provides stair access only to the lower ground level, for the exclusive use of the child care centre. The two access points to the child care centre that are off areas shared within the residents are: 1. from the main lobby, a doorway that leads to the ground level indoor play area for the 0-2 year old children; and 2. from the lift lobby in the front building (at the rear of the main lobby) to access the lift to the Lower Ground child care centre premises.
Access to the ground floor shared front entrance and front building lift lobby will be controlled by key cards issued to residents and to the guardians of the children and staff of the child care centre. Lift access to the lower ground floor of the child care centre will also be controlled by key cards, and locked other than to staff and guardians of the children.
The concerns raised by Council and Mr Clendenning are that the lack of separated access is contrary to Part 3.2 of the CCP Guideline which provides that for child care centres in a mixed use development entry should be limited to "one secure point" which is, amongst other things, "clearly defined and separate from entrances to other uses in the building." Mr Clendenning notes that the proposal includes introducing additional entry doors that residents need to navigate, and these "create an added nuisance to residents."
Mr Wood and Ms Campbell on the other hand focus more on the suitability of the entry arrangements from the point of view of the users of the child care centre. Ms Campbell says (at par 228 of the Joint Report) that "It is common for approved services in mixed use facilities to have shared common entrances and the safety of the children in this proposed service would not be compromised due to the specific access management plan" (via swipe cards). Mr Wood maintains (at par 222 of the Joint Report) that "wayfinding and access for guardians is relatively clear and the repeat visitors and orientation process means that they will be familiar with the access and entry arrangements."
Whilst having more than one entrance, including off the main building entry that is shared with residents, may not be ideal, and is less convenient for residents, it is never-the-less workable in this case, and the proposal provides for independent secure access for both the child care centre and the residential areas of the building.
The particular safety impacts arising from balconies located over the outdoor play areas are not detailed in the SOFC. Mr Clendenning (at par 239 of the Joint Report) suggests this is related to "falling objects". The evidence of Ms Campbell (at par 227 of the Joint Report) is that "The proposed service would have a range of safety policies and practices as outlined in the Plan of Management and one of these would include daily checks of the outdoor environment before children go outdoors. These checks include ensuring there is no rubbish, … or broken glass in the area." Based on the paucity of evidence in support of any substantive safety concerns arising from the overhead balconies and noting that all the balconies will have planter boxes which will help reduce the opportunity for 'falling objects' I find this is not a sufficient reason for refusal of the application.
With respect to the broader consideration of site suitability I accept the evidence of the town planners that the Site is suitably located by virtue of its good access to public transport and location within the mixed use Gladesville Local Centre, where it can service the needs of people who live and work in the area. With respect to the detailed design and impacts of the particular premises I also find, for the reasons set out in my response to the other contentions that the Site is suitable for the proposed development, subject to the imposition of conditions.

Unauthorised works (Contention 9)

The Council contended that various works had been carried out without development consent, contrary to s 4.2 of the EPA Act, and constitute unauthorised works. The parties agree that a Building Information Certificate (BIC) has not been submitted to regularise the unauthorised work. The town planners agree (at par 246 of the Joint Report) that works including the creation of a void area and entry door from the main lobby were undertaken prior to the determination, do not have consent and are therefore unauthorised. They also agree the unauthorised works can not be approved retrospectively.
In his written submissions dated 12 July 2021 Mr Pickles for the Applicant says this contention is not a basis for refusal, that the void proposed is different in shape to the void existing and that the entry door from the main lobby to the premises is not yet complete, but works that are complete could be the subject of a condition of consent. In her written submissions undated (filed with the Court on 28 July 2021) Ms Berglund for the Council responded that the unauthorised work has not been properly identified, that Mr Clendenning observed they are often difficult to pinpoint, and that as a result "there is a lack of clarity around what is approved by this development application and what needs to be regularised or approved separately."
In reply Mr Pickles submitted (written submission dated 30 July 2021) at par 2b): "The existence of otherwise of unauthorised work is also of no moment. The work for which consent is sought is clearly shown on the plans for which consent is sought. If that leaves any elements of work constructed when the original building was constructed as 'unauthorised', that is a matter for the Council to address through a different process, not a matter for this appeal nor this Class 1 jurisdiction."
I agree that the proposed works that are the subject of the DA are sufficiently clear, with the addition of the Planter Box Landscape Plans, to allow a full and proper consideration of the DA and to clearly identify the works for which consent is sought. I also agree that any unauthorised works would need to be remedied by Council through a different legal process than this Class 1 application.

Deficiencies in the Emergency Evacuation Plan (part of Contention 11 - insufficient information).

Contention 11.2(b) says that neither the Plan of Management nor the emergency evacuation plan (one of the Revision B Architectural Plans) completely address the design guidance within Part 4.8 of the CCP Guideline, and that the latter does not depict exits or assembly areas. During the hearing a revised Evacuation Plan, dated 29 June 2021, was tendered as Exhibit K (Revised Evacuation Plan). The Revised Evacuation Plan shows evacuation routes, exits and assembly points, including an assembly point on adjoining land within a right of carriageway benefiting the Site. The Revised Evacuation Plan does not identify who prepared it and when questioned by me Mr Pickles advised that he understood that it had been prepared by the architects but not by anyone with expertise in fire evacuation.
Mr Pickles then requested leave to submit a further amended evacuation plan on the basis of expert advice from a fire engineering expert, to be filed and served after completion of the hearing, with Council afforded the opportunity to review and comment on any amended evacuation plan and associated fire advice in closing written submissions. Ms Berglund advised that Council was willing to agree to that process, and I granted leave on that basis.
On 6 July 2021, in accordance with my Orders made on 29 June 2021, the Applicant's legal representatives filed a further amended evacuation plan comprising two drawings, both referenced as Rev E - Section 34 Conference 29/06/2021 (Further Amended Evacuation Plans). In the email accompanying the Further Amended Evacuation Plans the solicitor of the Applicant advised that "These plans are informed and supported by Nominated Architect Albert Becerra (Registration 5387) and fire engineer Mardiros Tatian of Building Innovations Australia."
On 7 July 2021 the Applicant filed a copy of a letter from a BCA and Fire Engineering Consultant, Mr Mardiros Tatian, at BCA Innovations Pty Ltd, dated 7 July 2021 entitled "Fire Engineering Advice" (Fire Advice), in which the author identified that he had considered three plans prepared by Baini Design: the two Revision E Architectural Plans and the Revised Evacuation Plan. The Fire Advice includes at Appendix B a number of recommendations to provide safe evacuation during an emergency, and notes those recommendations on a copy of the Lower Ground Floor and Ground Floor Revision E Architectural Plans, which are included at Appendix C of the Fire Advice.
The Further Amended Evacuation Plans include three floor plans of the child care centre showing exits, four evacuation routes and an assembly area outside the building on Monash Road. The second drawing is an aerial photograph showing an evacuation route from the assembly area outside the building on Monash Road to another assembly area in a nearby public park on Ryde Road. The previously proposed assembly area on the Right of Carriage on the adjoining site to the rear has been removed.
On 28 July 2021 the "Respondents written submissions" by Ms Berglund for the Council were filed, along with a copy of the Council's draft Conditions of Consent that are referred to in that document. In her written submissions Ms Berglund responded to the Fire Advice and the Further Amended Evacuation Plan by noting that whilst they are an improvement in terms of certainty they raise two new questions: 1. the Further Amended Evacuation Plan "involves children crossing Victoria Road at (a) large roundabout" and that there has not been an adequate opportunity to assess whether this is feasible, and 2. the Fire Advice requires fire doors in the main lobby "… exacerbating existing concerns regarding the capacity of the lobby if it were feasible to install at all".
In written submissions in reply, filed on 30 July 2021, Mr Pickles responded to the first question that the Further Amended Evacuation Plans provide for an assembly area on Monash Street and if necessary evacuation to the park on Ryde Road, that this involves crossing Monash Road (not Victoria Road) at a pedestrian refuge point at the roundabout, and that "there would be no reason to raise questions to the safety of the proposal" as the children's evacuation would be carried out by supervising staff.
With respect to the second question Mr Pickles responded that it is difficult to understand why a fire rated door with automatic closer between the child care centre and the main lobby is a concern, and it is not understood what the "capacity" of the lobby is as the lobby does not have a capacity limit.
With respect to the Further Amended Evacuation Plans I accept that these documents have been prepared with the benefit of input from a suitably qualified fire expert, who also prepared the Fire Advice, and I have no reason to believe that they are unsafe or otherwise unsuitable from a fire safety point of view. They now provide sufficient additional information and clarity for the purposes of considering the fire evacuation issues. The Further Amended Evacuation Plans are shown attached to the revised Version 6 POM, which is referenced in the Table to Condition 2 in Part 2 of the Council's Draft Conditions of Consent, filed with the Court on 28 July 2021.
The capacity of the main lobby was not raised previously as "an existing concern" and I have no evidence or reason to find that the fire rated door would significantly affect the capacity of the lobby in terms of the number of people it may accommodate or their ability to safely navigate the space.

Conditions

On 28 July 2021 the Council filed a set of draft Conditions of Consent that it had prepared in satisfaction of the Court's directions (Council's Draft Conditions). The Council's Draft Conditions is the version referred to in the written submissions of Ms Berglund filed on 28 July 2021, and the written submissions of Mr Pickles filed on 30 July 2021. The written submissions of Ms Berglund refer also to an earlier set of draft conditions that had been prepared by the Applicant and tendered as part of Exhibit L, at Tab 6 (Applicant's Draft Conditions), and upon which the Council's Draft Conditions are partly based. The written submissions identified the conditions that remained in dispute between the parties.
Council's Draft Conditions, unlike the Applicant's Draft Conditions, include deferred commencement conditions imposed pursuant to s 4.16(3) of the EPA Act. The deferred commencement conditions are found in Part 1 of Council's Draft Conditions.
Condition (A)1 in Part 1 of Council's Draft Conditions addresses the design changes arising from the evidence presented during the hearing, and which the Council maintains need to be resolved to Council's satisfaction before the consent can operate. In submissions Mr Pickles advised the Court that the Applicant does not oppose the imposition of design changes as deferred commencement conditions, although there is a disagreement with respect to some of the changes proposed in Council's Condition (A)1.
Deferred commencement Condition (A)1 refers to plan amendments. It is based upon Condition 29 in the Applicant's Draft Conditions, that also lists plan amendments. In final submissions the Applicant's position on the plan amendments identified in Council Condition (A)1 is clarified as follows: 1. Council Condition (A)1 a) Unit 14 privacy screen (Applicant Condition 29 b) - Applicant did not comment / object. 2. Council Condition (A)1 b) Planter box details (Applicant Condition 29 c) - "Council's amendments are not opposed". 3. Council Condition (A)1 c) Rear communal open space - amendment by way of additional plan changes (no equivalent Applicant condition) - "Council's amendments are not opposed except for (iv)". Condition A1 c) (iv) is addressed below as a condition in dispute. 4. Council Condition (A)1 d) Outdoor play space fence heights (Applicant Condition 29 b) - amendment by way of additional plan changes (no equivalent Applicant condition) - Applicant did not comment / object. 5. Council Condition (A)1 e) Platform lift - (Applicant Condition 29 d) - Applicant did not comment / object. 6. Council Condition (A)1 e) Swipe card access - (same wording as Applicant Condition 29 f) - Applicant did not comment / object.
Proposed Condition (A)1 c) (iv) that the Applicant objected to requires the rear communal space to be amended to "Provide a gate between each of Unit 2 and Unit 3 balconies and the adjoining OSD elevated tank area." The Applicant's response, in Mr Pickles final submissions is: "It is not understood why gates should be provided to units 2 and 3 from their balconies direct into the open space. The residents of those units already have access via the existing side path along with all other residents."
The Applicant's response appears, with respect, to have misunderstood the consequences of the amendments proposed in Condition (A)1 c)(ii) and (iii), which are to deny access to, and therefore use of, the top of the OSD tank for residents. The denial of access to the top of the OSD tank is to remedy privacy impacts to the residents of Units 2 and 3 arising from the use of this part of the communal open space by residents generally. Such impacts currently exist but to a lesser extent.
The adverse privacy impacts are exacerbated by the anticipated additional use of the rear common open space that arises from a) its increased attractiveness by virtue of the improvement works, b) its improved accessibility by virtue of the new platform lift and c) the reduction in other communal open space recreational opportunities as a result of their conversion for the exclusive use of the child care centre. Denial of access to the elevated level of the OSD tank is therefore a reasonable condition to mitigate privacy impacts arising as a result of the development.
The Council, however, has gone further by allowing access to the top of the OSD tank from the private balconies of Units 2 and 3. I find the condition has merit as it means this portion of the common open space area can be used by at least some of the residents, namely those who occupy Units 2 and 3.
Council's Draft Conditions have deleted some design changes that the Applicant had proposed in Condition 29 a) and 29 e) of the Applicant's Draft Conditions. Proposed Condition 29 a) provides: "a) The 2 kitchen windows, being to Unit 1 and 2, on the south-western façade of the lower ground floor are to be provided with an angled louvre privacy screen to mitigate the existing visual privacy impacts of persons walking past these windows to access the rear communal open space areas. The details of the screens are to be shown on the plans accompanying the Construction Certificate."
The Council's response to the Applicants' draft Condition 29 a) is set out in Ms Berglund's final submissions at par 20 which says: "Kitchen windows to Unit 1 and Unit 2 (applicant condition 29(a)) These windows are the only source of natural light and open ventilation to Unit 1 and the only source of ventilation to Unit 2. The application still includes a Ventilation Plan dated 22 September 2016 which relies on cross ventilation to these two units. The condition as proposed would mean these units are no longer cross ventilated, potentially affecting SEPP 65 compliance. The dwellings do not cause the privacy impacts but the people travelling past. Therefore whatever treatment is used should be able to be controlled by the residents so they may choose between privacy and light/ventilation."
The Applicant's response to this is set out in pars 19 and 20 of Mr Pickles final submissions, which state: "19. Applicant condition 29(a) - As the principal impact causing the need for screening of the kitchen windows arises from the residents accessing the communal open space and this was a consequence of the previously approved modification, not from this application for a child care centre, which will not generate the adverse privacy impact on the windows, the applicant is not opposed to the deletion of the proposed condition. However, the condition was proposed principally because it appears to be a shortcoming of the previously approved modification that could be addressed through this consent. It is unlikely that privacy louvres will have any adverse impact on ventilation as they will not fully enclose the windows. 20. Further, if the louvres are capable of being opened or closed by the occupants, then they can control whether they prefer privacy or light and ventilation. If the Council does not consider it to be a good outcome for those units, then the screens need not be added unless the Court is of a different view."
I have considered the arguments of both parties on this matter and taken into account my own observations on the site view of the windows in question and the other windows in Unit 1 on the lower ground floor of the rear apartment building. Having done so I find: 1. Unit 1 has light and ventilation from sources other than the kitchen windows but there will be a privacy impact to Units 1 and 2 that occurs as a result of the residents accessing the rear communal open space via the pathway that runs past the kitchen windows to these units. That impact currently exists but will be exacerbated with the likely increase in passers-by arising from the proposed development, for the reasons set out in [140] of this judgment. This privacy impact can be mitigated by screening the kitchen windows to Units 1 and 2. 2. The privacy screens need not adversely affect ventilation if they are designed to not obstruct the opening of the windows. This depends on the distance separating the screens from the windows and/or the type of windows installed. For example sliding and casement windows are not affected by the addition of external screens, and for awning windows, external privacy screens can be attached to the outside of the windows at a distance that allows opening by at least 100mm, which is the safe opening limit on all upper level windows. This is commonly done. 3. The privacy screens also need not adversely affect daylight if they are constructed in a translucent material such as obscure glass or a polycarbonate material. 4. I agree with the parties agreed objective to allow the residents some control over the screens, such that they can adjust the screens depending on their preferences for less or more visual privacy. This can be achieved by making the screens adjustable, such as occurs with operable louvres. In this case, where there is a two-way pathway running parallel to ground floor windows, horizontal louvres are considered more effective than vertical louvres.
I therefore find that an additional design change is required to mitigate the visual privacy impacts of the development and minimise the impact of those screens on the natural light and ventilation available to the units. Accordingly Council's Draft Condition (A)1, needs to be amended to add the following: "The kitchen windows to Units 1 and 2 on the south-western façade of the lower ground floor are to be provided with external horizontal louvre privacy screens that: a) allow for the opening of the windows by at least 100mm, b) are operable by the residents of those units, and c) are constructed in a translucent material that obscures visibility."
The operational conditions of the Council's Draft Conditions are found in Part 2 of that document. The Part 2 conditions shall apply upon satisfactory compliance with the deferred commencement conditions upon receipt of written confirmation by Council. Some of those conditions are not agreed between the parties and I have therefore paid particular attention to the conditions in dispute and made findings on them, as set out below.
I have also identified two omissions in Part 2 of the Council's Draft Conditions: an omission in the list of "Approved Plans/Documents" in the Table to Condition 2 of Part 2, and an omission in referencing compliance with the Fire Engineering Advice (that is included in the aforementioned Table). Amending the conditions to address these omissions is necessary to provide certainty of what is approved and provide consistency with the findings of this judgment.
The first omission I have identified is the failure to include the Planter Box Landscape Plans in the Table of Part 2 Condition 2. The Table in this condition needs to be amended to include the Outside In Design Group's Drawing Number: L-05 Issue H entitled Balcony Planters Landscape Plan, dated 25.05.21 and Drawing No L-06, Issue H entitled Balcony Planters Section FF, dated 25.05.21.
The second omission I have identified is the failure to require compliance with the "Fire Engineering Advice" that is referenced in the list of approved documents in Table 2 of Part 2 Condition 1, in the same manner as, for example, Conditions 46 and 69 require compliance with the Acoustic Report. Whilst the Council's Draft Conditions address fire safety generally (at Conditions 4 and 64), they do not refer specifically to the recommendations of the "Fire Engineering Advice". The conditions of consent need to be amended to address this oversight.
I have also identified that the Advisory Notes at the end of the Council's Draft Conditions do not include an Advisory Note on the need for a service approval from the NSW Department of Education. In this case I consider the inclusion of such an Advisory Note to be a necessary precautionary measure as concurrence under the provisions of cl 22(5) of the SEPP EE&CCF relies on the use of "simulated outdoor environments" to satisfy the outdoor open space minimum area requirements (Refer to the Department's Notice of Approval letter dated 24 August 2020, Folios 371-373, Ex 2). In particular, and in accordance with the Department's concurrence letter, the Advisory Note should provide the following: 1. A person may not operate an education and care service, as defined by the National Law or the Children (Education and Care Services) Supplementary Provisions Act 2011 unless they hold a service approval. 2. The operator of the service will need to submit a service approval application to the NSW Department of Education upon completion of the works. In this case the service approval application, should refer to the Department's letter dated 24 August 2020 and be accompanied by the appropriate application referred to therein for an "exemption" to the outdoor space minimum area provision, on the basis of the Department's "preferred alternative solution … [of] indoor space ... designed as a simulated outdoor environment." (Refer to page 34 of the CCP Guideline).
For reasons set out in this judgment I have concluded the development should be approved. In order to grant development consent the DA must first be amended by uploading the amended application to the NSW planning portal. Once the DA has been amended I foreshadow granting consent, subject to the Draft Conditions, as amended in accordance with the findings in this judgement.

Directions

The Court therefore makes the following directions: 1. The Council of the City of Ryde is to lodge a revised set of Draft Conditions of Consent, in Word format, amended in accordance with the findings of this judgment within 10 working days of the date of these directions, and including amending the Table to Condition 2 in Part 2 of Council's Draft Conditions as set out in Direction (2) below. 2. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of the Council of the City of Ryde as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending the development application No. LDA2020/0035 filed with the Court on 2 December 2020 by the addition of the following documents: Document Description Date Plan No/Reference Compliance Table 25.05.2021 Baini Design, Drawing No. 00, Project No. 20027, Rev D Site Plan 25.05.2021 Baini Design, Drawing No. 01, Project No. 20027, Rev D Basement Plan 25.05.2021 Baini Design, Drawing No. 02, Project No. 20027, Rev D Lower Ground Floor Plan 29.06.21 Baini Design, Drawing No. 03, Project No. 20027, Rev E Ground Floor Plan 29.06.21 Baini Design, Drawing No. 04, Project No. 20027, Rev E Evacuation Path Plan 29.06.21 Baini Design, Project No. 20027, Rev E Elevations 25.05.2021 Baini Design, Drawing No. 05, Project No. 20027, Rev D Elevations 25.05.2021 Baini Design, Drawing No. 06, Project No. 20027, Rev D Sections 25.05.2021 Baini Design, Drawing No. 07, Project No. 20027, Rev D Sections 25.05.2021 Baini Design, Drawing No. 08, Project No. 20027, Rev D Callout Elevations 25.05.2021 Baini Design, Drawing No. 09, Project No. 20027, Rev D Nappy Change Detail 25.05.2021 Baini Design, Drawing No. 10, Project No. 20027, Rev D Bottle + Craft Bench Detail 25.05.2021 Baini Design, Drawing No. 11, Project No. 20027, Rev D Kitchen + Laundry Details 25.05.2021 Baini Design, Drawing No. 12, Project No. 20027, Rev D Calculation Plan 25.05.2021 Baini Design, Drawing No. 13, Project No. 20027, Rev D Indoor Play Area Diagrams 25.05.2021 Baini Design, Drawing No. 14, Project No. 20027, Rev D 0-2 Outdoor Play Area 25.05.2021 Baini Design, Drawing No. 15, Project No. 20027, Rev D South Western Outdoor Play Area 25.05.2021 Baini Design, Drawing No. 16, Project No. 20027, Rev D Natural Ventilation Diagrams 25.05.2021 Baini Design, Drawing No. 17, Project No. 20027, Rev D Outdoor Area Calculations 25.05.2021 Baini Design, Drawing No. 18, Project No. 20027, Rev D Ground Floor C.O.S Calculation 25.05.2021 Baini Design, Drawing No. 20, Project No. 20027, Rev D Lower Ground Childcare Centre + Common Outdoor Area Landscape Concept 25.05.2021 Outside in Design Group, Drawing Number: L-01, Issue H Ground Floor Childcare Centre + Common Outdoor Area Landscape Concept 25.05.2021 Outside in Design Group, Drawing Number: L-02, Issue H Sections + Elevations 25.05.2021 Outside in Design Group, Drawing Number: L-03, Issue H Sections + Elevations 25.05.2021 Outside in Design Group, Drawing Number: L-04, Issue H Balcony Planters Landscape Plan 25.05.2021 Outside In Design Group, Drawing Number L-05 Issue H Balcony Planters Section FF 25.05.2021 Outside In Design Group, Drawing Number L-06 Issue H Access 2019 Indicative Compliance Assessment Report 03.06.2020 Building Innovations Australia, Report No. PRO-04511-D1W4, Issue v1.1 Fire Engineering Advice 02.07.2021 BCA Innovations Waste Management Plan 06.01.2020 Baini Design Pre-Construction (Detailed Design) Road Safety Audit 28.05.2020 TTPP Transport Planning, Ref No. 17367, V01 Plan of Management 09.07.2021 Early Education Solutions, Version 6 Acoustic Report 21.06.2021 The Acoustic Group

The respondent, the Council of the City of Ryde, is to lodge the amendment of the development application on the NSW planning portal within 7 days of the date of this direction and notify the Applicant after it has been lodged. 2. The Applicant is to file a copy of the amended development application within 7 days after the respondent has notified the Applicant that the amendment has been lodged on the NSW planning portal. 3. In the event the respondent is unable to lodge the amended application on the NSW planning portal as directed in (3) above, the respondent is to notify the Court via Online Court as soon as possible but no later than 14 days after the date of the direction and request for the matter to be relisted for further directions.

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. Decision last updated: 07 February 2022

At a glance

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Decision date

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Judgment (23 paragraphs)

Parties

Cited By (2)