Akula v Blacktown City Council

Land and Environment Court (NSW)|2018-12-12

Judgment

COMMISSIONER: This is an appeal under then s 97(1), now s 8.7(1), of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal of a development application by Blacktown City Council (the Council) to use a site containing a listed heritage item, known as 'Glenwood House' or 'Glenwood', as a child care centre. The site is situated at 174 Glenwood Park Drive, Glenwood.
Development Application DA-16-03709 (the application) sought consent for additions and alterations to Glenwood House, and its grounds, for the proposed use.
Glenwood House is a two storey building originally constructed as a dwelling c1893 but most recently used for commercial purposes. There are separate car parks on the eastern and western sides of the site, both with access to Glenwood Park Drive. These car parks were constructed under a previous approval for use of the site as a medical centre.
The following is a picture of Glenwood House (eastern or main façade) essentially as it exists today facing the adjoining park (sourced from the Council):
The site is 2308m² in area, is situated on the southern side of Glenwood Park Drive with a 65.22m frontage, and has a fall of some 2.5m from the rear to the front. The following is a photo of an aerial image comprising Exhibit 7 in the proceedings which shows, from the east, Glenwood House and its curtilage, which collectively comprise the site the subject of the application. It indicates that the elevation to Glenwood Park Drive to the north is in fact a side elevation of the building as is the elevation to properties to the rear (south).

Statutory Context

The site is located in the Residential R2 zone under the Blacktown Local Environmental Plan 2015 (the LEP) where the proposed development is permissible with consent.
As the site contains a heritage item listed in Schedule 5 of the LEP, the heritage provisions found at LEP cl 5.10 apply. Relevant provisions follow: 5.10 Heritage conservation Note. Heritage items (if any) are listed and described in Schedule 5... (1) Objectives The objectives of this clause are as follows: (a) to conserve the environmental heritage of Blacktown, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, … (2) Requirement for consent Development consent is required for any of the following: (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance): (i) a heritage item, … (3) … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). (5) Heritage assessment The consent authority may, before granting consent to any development: (a) on land on which a heritage item is located, … require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. (6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause...
A Conservation Management Plan (CMP) for the site was prepared in 1993 by Wendy Thorp for former owners of Glenwood House, the Department of Housing.
A Heritage Impact Statement (HIS) was prepared by Graham Hill and Partners in January 2016 and submitted with the application. This HIS was understood to comprise the 'heritage management document' required under subcl 5.10(5) to assess the extent to which the development would affect the heritage significance of Glenwood House. No other such document was provided to the Court nor were any updates to the HIS filed.
The application was lodged prior to the commencement of State Environmental Planning Policy (Educational Establishments) 2017 (the SEPP) and it was agreed that the savings provisions under Schedule 5 of the SEPP apply. This means that the Council controls rather than the SEPP apply. However, compliance is also required with the Education and Care Services National Regulation.
Development is also subject to the provisions of the Blacktown Development Control Plan 2015 (the DCP). As well as containing general provisions for development in residential areas, the DCP at Part 2 contains provisions for child care centres. These include that centres should not exceed 40 children and that outdoor play areas cannot be located within setback areas. Furthermore, applications must be accompanied by a Landscape Plan requiring a 2m front landscaped setback and 1m perimeter landscaping and showing proposed works, including shading structures.
The Council has adopted the Blacktown City Council Child Care Centre Guide 2016 (the Council Guide) which includes a requirement that 50% of outdoor play space is to be shaded by vegetation, structures or play equipment.

Modifications to the application

The application as lodged proposed a child care centre for 90 children with 12 staff. Proposed works included construction of a new single storey building at the rear to accommodate an indoor play area, a new internal driveway across the front of the site to connect the parking areas, alterations and additions to the parking areas, three outdoor play areas (OPAs) adjoining respectively the northern, southern and eastern boundaries, tree removal, landscaping, and associated internal layout modifications and external civil works.
The application was notified. Eight submissions were received, including from the Glenwood Community Association and both adjoining neighbours to the rear (south) fronting Dairy Court, raising concerns in terms of traffic impact, noise, insufficient car parking, and impact on a heritage site.
The application was refused by the Council in May 2017. The primary grounds were that the development was excessive in scale resulting in unacceptable traffic generation, noise and activity, which would be inconsistent with the surrounding residential area. It also proposed works which were not in keeping with the significant heritage values of the site. No specific heritage issues were raised with the proposed internal works.
Following lodgement of the appeal, the Council filed a Statement of Facts and Contentions (SFC) providing more details in terms of its concerns.
The appeal was listed initially for conciliation under s 34 of the Land and Environment Court Act 1979. As agreement could not be reached, the conciliation was terminated and the matter proceeded to hearing.
Arising from the conciliation, and in response to the SFC, in August 2018 the applicant was granted leave to amend the application. The key amendments involved a reduction in the number of children from 90 to 60 and in staff from 12 to 10, removal of the proposed internal access connecting the parking areas, and a redesign of the parking to create two separate car parks (10 spaces each). The eastern car park was to be used by parents for dropping off and collecting children and the western car park used solely by staff. It was also proposed to widen the driveway entrance for the eastern car park and construct a new external access footpath from the park to the east.
The proposed new building was also deleted and replaced by a 90m² extension to the rear with a 3m setback from the southern boundary (the rear addition). The OPA adjoining the same boundary was relocated away from that boundary to join the OPA adjoining the eastern boundary to create OPA2/3. A second OPA (OPA1) remained at the front of the site.
Acoustic barriers (also variously described as noise barriers or fences) were proposed, stated as being a 2.1m high opaque barrier along the western and southern boundaries, and as 2.1m high clear plexiglass adjoining the eastern fence around OPA2/3 and at 1.8m around OPA1. Three shade structures, each with an area of 12m², were proposed. These provided a combined shaded area from new structures of 36m² notwithstanding that, with the OPAs having a combined area of 486m², 243m² of shading was required by the Council Guide. Landscaping amendments were also undertaken including maintaining trees adjoining the rear and front boundaries.
An amended SFC was filed in response to the revised application (Exhibit 1). Contentions remained or new contentions arose in terms of overdevelopment of the site, the adequacy of the car parking, impacts on traffic and pedestrian safety, acoustic impacts, visual impacts of development within setback areas, and impacts on the significance of the heritage item.
Joint planning, traffic, heritage and acoustic expert reports were prepared on the basis of the amended application and the amended SFC by the parties' experts: for the applicant, Mr Hall (heritage), Mr Apps (planner), Mr Thompson (traffic) and Mr Dang (acoustics) and, for the Council, Mr Edgar (heritage), Ms Davidson (planner), Mr McLaren (traffic) and Mr Taylor (acoustics). These reports were filed between November 28 and December 3, 2018.
In their joint report (Exhibit 4), the planners agreed that the number of children in the centre had direct impacts in terms of safe and compliant parking, adequate and compliant play areas, staffing, and appropriate management of the centre to minimise amenity impacts on the locality.
The planners also agreed that visual impacts were a relevant consideration. Whilst deferring to the heritage experts in terms of visual impacts on the heritage item itself, they agreed there would be other visual impacts when the development was viewed from Glenbrook Park Drive and from the park to the east. These impacts included from OPA1, and its associated acoustic barrier, being only 1.25m from the front boundary.
As a consequence, Mr Apps proposed an alternate design reducing the size of OPA1 to enable relocation of the barrier in order to accommodate screen planting within the setback area thus reducing the visual impact of this OPA.
The planners also agreed that the acoustic barrier to OPA2/3 should be relocated to reduce visual impact from the park by enabling landscaping within the setback area. Further, the conditions of consent should require a Landscape Plan showing the required 50% of shading under the Council's Guide.
The planners also agreed that additional measures should be employed to enhance safety and differentiate between pedestrian and vehicular access, including provision of a new pedestrian path. They also proposed some internal design changes.
The traffic experts agreed in their Joint Report (Exhibit 5) that the use of the two car parks should be interchanged and that 'No Stopping' parking restrictions in Glenwood Park Drive were required, at least across the full frontage of the site, in order for traffic to be safely accommodated. Further, that approval from the Council's Local Traffic Committee for these restrictions would be necessary. Without such restrictions, the development should not proceed on road safety grounds. The extent of the area the subject of the restrictions was not agreed as it would need to be determined based on traffic surveys and an assessment of the impacts of the loss of on-street parking.
The acoustics experts agreed in their Joint Report (Exhibit 6) that the best option to reduce noise levels from children playing in the OPAs would be to allow only one group to play in OPA2/3 at any time and to increase the height of the acoustic barriers to 3m along the southern side of the OPA and returning along the eastern side of the OAP for not less than 15m to the north. The architectural drawings should reflect these acoustic measures. However, if only 2.4m high barriers were proposed around OPA2/3, there would need to be restrictions on the use of this space, with permissible quiet activities comprehensively listed.
Finally, the heritage experts in their Joint Report (Exhibit 3) agreed on the historic, aesthetic and associative significance of Glenwood House. They noted that acoustic barriers would be required to minimise noise. Mr Hall claimed that the barriers around OPA2/3 would be of transparent acrylic adjoining the existing metal fence and, whilst visible, the lower level of the house would still be seen through it whilst the views to the first floor and roof would be unimpeded. However, Mr Edgar was concerned that there were no details provided of the barriers and, in the absence of such details, they must be considered as having a negative impact on the setting of the heritage item.
Given the above comments in the expert reports, and notwithstanding that the majority of contentions remained in dispute between the experts (which I will deal with later), prior to the hearing I held a preliminary mention with the parties on 5 December 2018.
The intent of the mention was to ascertain whether the applicant would be seeking to rely on an amended application in response to changes agreed or recommended by the experts. If so, details of proposed amendments would need to be provided to the Court and the Council prior to the hearing in order that experts could consider the implications ahead of giving oral evidence.
I specifically noted that reducing the OPAs could impact the number of children able to be accommodated, and the consequent impacts on parking and the like, and that the Council's heritage expert sought details of the acoustic barriers in order to ascertain the heritage impacts but no such details had been provided. Further, the recommended acoustic barriers were higher than proposed in the application.
Mr Mantei, lawyer for the applicant, was concerned that any changes to the plans may not be able to be filed ahead of the hearing but he indicated he would advise the Court of any recommended changes to the application that would be taken on board.
I therefore made orders, not opposed by the parties, that the applicant file and serve a written commentary of any proposed amendments to the application in response to expert's recommendations by 6 December 2018. Further, that any proposed consequential changes to plans as well as details of the proposed acoustic barriers were to be filed and served as soon as possible and preferably ahead of the hearing. Written advice on the proposed changes was subsequently filed ahead of the hearing.
The hearing commenced onsite where the Court, the parties and the experts viewed Glenwood House and the site including from the adjacent park and from the path adjoining the bus stop to the east in Glenwood Park Drive.
The Court also heard from the two objecting neighbours at the rear in Dairy Court. The Walters raised concerns in terms of property values, traffic and safety as well as with noise and outlook particularly given Mrs Walters works from home with an office at the rear close to the common boundary. Mr Walters was concerned with the proposed changes to the historical building as well as the amount of noise. A view was undertaken of the Walters property noting the proximity of Mrs Walters' office to the proposed rear addition. Ms Beament endorsed what the Walters said and also raised concerns regarding impacts on Glenwood House and with trees from the property falling onto her dwelling.
Whilst onsite, the applicant provided amended plans in response to recommendations arising from the expert reports. The use of the two car parks was interchanged and the height of acoustic barriers along the southern and eastern boundaries increased from 2.1m to 2.4m with a new acoustic barrier proposed to 1.8m around OPA1. The setback of OPA1 from Glenwood Park Drive was increased from 1m to 2m to enable landscaping to be provided. The setback of the eastern acoustic barrier was also increased to be within the boundaries of the site and to enable additional landscaping. No changes to the number of children were proposed or required by the amendments although it was proposed to amend the Plan of Management (PoM) to restrict the use of OPA2/3 to no more than 2 hours per day to limit impacts to neighbours.
At the site view, Mr McLaren indicated that he thought it would be possible to undertake further changes to the western car park to address his pedestrian and vehicular safety concerns. These were not opposed by the applicant and it was agreed that plans showing the proposed changes would be drawn up and reviewed by the experts prior to expert evidence being called.
I also raised concerns with the applicant, as did the Council, that there were still no details provided in terms of the proposed acoustic barriers nor of the shade structures in the OPAs. Accordingly, the impact of these structures on the heritage item could not be determined.
I adjourned the hearing until the following day to enable the applicant to prepare the details sought and revise the plans in terms of the western car park and in order for the experts to provide any updates to their joint reports in response to these amendments.
When the hearing continued, the applicant provided amended plans which contained an example of the acoustic barriers to be used (comprising plexiglass with metal posts), as well as details of a typical 12m² shade structure intended to be erected, at a height of 2.49m. Only three such structures were shown notwithstanding the Council Guide requirement for 243m² of OPA shading. The height of the proposed acoustic barriers and security fencing was provided. However, no visual impact assessment of the impact of these works on the heritage item, its views or setting was submitted.
Leave was granted for the applicant to rely on these amended plans. The parties agreed that the amendments were not minor. However, Mr Mantei submitted, having regard to McDonald's Australia Limited v Ashfield Council (No 2) [2012] NSWLEC 268 (McDonald's Australia) at [124], that, as the changes were required by the Court to assist the Court and also the conferral process, costs should not flow.
I rejected this submission advising that, unlike McDonald's Australia, where at [124] Sheehan J indicated that the Court had directed the applicant to amend the plans, the applicant had been invited by the Court (not opposed by the Council) to amend the application. This was in response to the advice of experts to the parties (including the applicant's own experts) with the intent of reducing the contentions. However, the applicant had not been required by the Court to take on board the recommended amendments. Accordingly, a cost order was imposed.
In the agreed conditions of consent filed with the Court, deferred commencement conditions were proposed requiring some 13 actions to be undertaken, including a number of further plan amendments, prior to the consent becoming operational. These actions in summary included: 1. Council's Local Traffic Committee supporting 'No Stopping' restrictions along Glenwood Park Drive in order to ensure the safety of drivers; 2. Submission for Council approval of an updated PoM including with restrictions on the time of OPA use and waste collection; 3. Submission for Council approval of an amended Acoustic Assessment reflecting proposed increased heights to a number of acoustic barriers; 4. Submission for Council approval of revised architectural plans which: detail all of the acoustic barriers (including their height, materials, colours, and dimensions of support columns); increase the height of security fencing; show the location, size and height of shade structures within the OPAs; show landscaping details; and dimension and revise the car parking areas; 5. Submission for Council approval of revised swept path diagrams demonstrating safe vehicle movements to and from the car parks; 6. Submission for Council approval of an Arborist's Report identifying trees proposed to be removed; 7. Submission for Council approval of details of the location, height, structural and support materials for any vehicle impact areas proposed within the staff car park adjoining the northern boundary; and 8. Submission for Council approval of an updated CMP including details of works within the heritage item.
The Council proposed 12 months as an appropriate timeframe within which to satisfy the deferred commencement conditions and strongly opposed no time limit which would mean the consent may not become operational for a period of 5 years. The applicant objected to a 12 month imposition for compliance on the basis of the nature and extent of what was required.

Traffic and parking impacts

The Council raised a number of contentions in terms of parking and access. During expert conferral, Mr McLaren specifically raised concerns with the proposed pedestrian access into the site and with the validity of the swept path tests that had been undertaken for vehicles entering the site. He was particularly concerned with the configuration of the eastern car park designated for parent drop-off and pickup which could result in cars queuing in and backing out into Glenwood Park Drive.
As previously indicated, the traffic experts therefore agreed that the eastern car park would be better as the dedicated staff only car park and the western car park used by parents. The application was subsequently amended as recommended in terms of swapping the use of the two car parks.
Mr McLaren was also concerned that there was a drop-off in excess of 600mm between the verge/kerb level and the turning area in the eastern car park. The experts agreed that a barrier was needed to prevent an errant vehicle from running over the edge into the path of pedestrians and vehicles using Glenwood Park Drive.
In a supplementary report of the traffic experts (Exhibit E), further adjustments to the car parks were proposed in accordance with the suggestions made by Mr McLaren onsite. These included a redesign of the western car park to improve pedestrian safety and installation of a 4m long barrier proposed on the northern property boundary of the eastern car park to protect vehicles against the drop-off, designed and certified by a qualified structural engineer.
The traffic experts agreed that implementation of the measures in Exhibit E would result in an improved outcome. However, they indicated that this would still not be the best outcome. Instead, in principle, the best arrangement for managing traffic and its impacts both internally and externally would be to provide a one-way traffic flow system within the site. The benefits of such a system included a reduced extent of 'No Stopping' restrictions along Glenwood Park Drive.

Acoustic impacts

The Council contended, and it was not in dispute between the parties, that, without acoustic barriers, the development would result in unacceptable acoustic impacts for neighbours given the proximity of the OPAs to adjoining dwellings to the west and south.
During conferral, the applicant's expert, Mr Dang, proposed changes to the location and use of the OPAs, and to the heights of the acoustic barriers. These were recommended as the experts agreed that the application would otherwise result in exceedances of typically adopted acoustic criteria unless there were restrictions on the use of OPAs and/or additional barriers installed.
The experts considered three options for meeting the noise criteria which varied in terms of barrier heights and use of the OPAs. They agreed that Option 3, involving 3m high perimeter acoustic barriers to OPA2/3, would be the best option as it would not require restriction on, or management of, the use of OPA2/3 and would therefore provide the best means to protect acoustic amenity of nearby residents. This was because time restriction and management measures would not need to be relied upon to control the noise, albeit Mr Dang argued that there are many child care centres which control the number of children using, and the time of use of, OPAs as a means of noise control and compliance.
Mr Taylor raised a concern that the documents provided to the Council did not reflect what was proposed in terms of acoustic barriers and use restrictions for the OPAs, and that the plans and PoM should reflect the acoustic measures proposed. Mr Dang agreed.
Should Option 3 not be adopted by the applicant, and Option 2 pursued (as eventuated) with only 2.4m high acoustic fencing proposed for OPA 2/3, then use of this space must be restricted.
Under all options, the experts recommended a 1.8m high timber lapped and capped or colorbond fence as the required acoustic barrier to the western and southern boundaries of the site to reduce noise from the western car park, and to the north, east and west of OPA1 to ensure acceptable noise emissions at the adjacent residences to the west and south. They subsequently agreed that other materials could be used.
Following modifications to the application responding to the recommendations of the traffic experts and the decision of the applicant not to adopt Option 3, the acoustic experts prepared a supplementary report (Exhibit F). This contained recommendations that: the use of OPA2/3 should be for not more than 2 hours each day and otherwise only for specifically designated passive uses with no more than 22 children at any time; and that no activities should be permitted on the first floor balcony.
Further, based on additional information from the traffic engineers, it was confirmed that there was a requirement for a 1.8m high solid fence along the entirety of the western boundary. Currently the existing boundary fence stops short of the front boundary and it would therefore need to be extended to run the full length of the common boundary, although it could be tapered if required for sightlines.

Heritage impacts

The Council raised 12 contentions in terms of the heritage impacts of the proposed development, including that the objective at subcl 5.10(1)(b) of the LEP and the provision at subcl 5.10(4) were not met contending that the development would have unacceptable impacts on the heritage significance of Glenwood House and its setting and views.
Whilst the HIS submitted with the application supported the 'adaptive reuse' of Glenwood House for the child care centre, a use which was not opposed by the Council per se, it is of relevance that the HIS was prepared in 2016 prior to the preparation of the acoustic report and recommendations associated with the use. It was not updated in response to amendments to the application, including having regard to the impacts of the works recommended by the subsequent acoustic analysis and the requirement for OPA shading structures and security fencing as well as the proposed tree removal.
The HIS also did not reference the CMP. It did note that Glenwood House was severely damaged by fire in 1995 and states that the extensions since the fire 'were subordinate and complimentary but, of the changes to the original house, only the presumed reinstatement of the openings and French windows on the ground floor represents sound conservation practice'.
It was in this context that the HIS concluded that the proposed use would have an acceptable impact on the heritage significance of Glenwood House including helping to ensure its ongoing maintenance.
The heritage experts had regard to both the HIS and the CMP and generally agreed on the significance of Glenwood House noting the Statement of Significance summarised as follows: "Glenwood is a rare example of a large two-storey Victorian homestead, originally the centre of one of the small farms which occupied most of the district and was the home of prominent fruit grower, James Cock."
The experts also agreed that the curtilage of the item has been progressively reduced including by the construction of the paved car parks under the previous approval for a medical centre use.
Mr Edgar argued however, that the building remained a highly significant historic, cultural and built element of the heritage of the Blacktown region. His main concern was with what was to happen in the remaining curtilage of Glenwood House, namely between the house and its boundaries, and therefore how it is seen and therefore interpreted. The impacts in front of the eastern (or main) elevation were of particular concern.
Mr Edgar contended that the placement of barriers would corral the garden area which connects the house to what were the former orchards and now to the park, losing a rare vista that should be maintained. In his view, the existing additions were to the full extent and in the location envisaged in the CMP and further additions would be inappropriate for the maintenance of the building's setting within its current curtilage.
He was concerned with the visual impact of the additional parking required, as well as acoustic barriers and security fencing up to and exceeding 2m in height in the curtilage and foreground of Glenwood House. He considered these structures would be visually intrusive and would disconnect the building from its open setting thus having a negative impact on the aesthetic and historic significance of the property. It would also alienate the view of Glenwood House from the public domain.
Mr Edgar contended that even transparent fencing and barriers would not be invisible and would likely be reflective. He argued that the proposal did not include any details as to how these elements would be designed to mitigate their placement in the historic setting. Specifically, there were insufficient details of the proposed acoustic barriers, security fencing, paving, pergolas and landscaped treatments and inadequate detailing of the rear addition or of the proposed internal works to indicate what the heritage impacts would be.
Finally, Mr Edgar was concerned about the loss of the trees required to accommodate the proposed rear addition with an indication that 5 trees may be removed. There had been no Arborist report prepared as to the condition or heritage values of these trees but they were significant elements of the current setting and curtilage of Glenwood House separating it from adjoining properties to the south.
In contrast, Mr Hall considered that Glenwood House and its setting had been seriously degraded over time, including as a result of the fire and the subsequent agreed unsympathetic restoration as well as recent approvals and works, including construction of the two car parks.
He argued that the visual link between the ground floor of Glenwood House and the park was not historic as only the upper levels of the house would have been previously seen as a distant landmark set amidst orchards. The house was screened from the orchards by a private garden featuring tall shrubs. When the orchards became pasture, trees were planted to provide screening although he accepted that in recent decades the opportunity was taken to create the adjoining public park providing views of the house through the trees.
He submitted that the proposed use would enable OPA2/3 to reinstate garden elements where currently there is a car park. Furthermore, there was nothing stopping reuse of Glenwood House as a private residence whereby the residents could plant extensive dense screening trees.
Mr Hall also argued that in recent times no viable uses had emerged which leaves the heritage item at significant risk. What is proposed would provide a viable use to ensure its ongoing maintenance and open up the item for appreciation by local families given the community use of a child care centre. The CMP supports community use of the item including as a child care centre.
Mr Hall concluded that the proposal would impact very little on the views of Glenwood House with 'simple transparent acoustic screening proposed' allowing the lower level to be seen through it, with no views impeded of the upper level or roof. In any event, those views, including from the park, were impeded by the topography and existing trees, and the park appeared little used. The proposed OPAs, planting, shading devices and equipment could all be designed and conditioned to facilitate enhanced views of the entire façade and to reinterpret the original private garden where there is currently a car park.
Mr Hall was of the view that any interior alterations would be entirely acceptable given the 'inexpert restoration' after the fire, unsympathetic additions would be removed, and the proposed rear addition was modest, sympathetic and well located so as not to obscure any views of Glenwood House from the public domain. He considered that the trees that would be lost had no heritage value, their condition was doubtful, and they could be replaced.

Planning considerations

The DCP requires that child care centres should not exceed 40 children, have a 2m front landscaped setback and 1m perimeter landscaping, and not contain OPAs within the setback areas. Furthermore, applications must be accompanied by a Landscape Plan showing proposed works, including shading structures. The application did not meet any of these requirements.
Mr Loether, lawyer for the Council, argued that the provision of a Landscape Plan with the application, as required by the DCP and recommended by the CMP, was fundamental to consideration of the proposed development given the impact external works could have. He considered the details provided of what was proposed in terms of the new structures to be 'grossly inadequate' particularly given the heritage listing of the site.
During conferral and having regard to the DCP and Council Guide, the planners agreed that the extent of OPA1 should be reduced and an increased landscaped setback provided but the extent of these required changes was not agreed. They also agreed that additional measures should be employed to enhance pedestrian safety but they disagreed on the need for a separate pedestrian path from Glenwood Park Drive. Ultimately this later issue fell away with the redesign of the western car park although this raised new concerns in terms of the amenity impacts on the adjoining neighbour at 168 Glenwood Park Drive.
In essence, the planners disagreed on whether the development would result in an unreasonable visual impact on Glenwood Park Drive and whether the proposed reduction in the extent of OPA1 adequately addressed this issue.
Mr Apps considered that the agreed increased landscape setback of 2m along the frontage would be sufficient to screen OPA1. He accepted that the DCP prohibits OPAs within front setbacks but believed the front setback objectives of the DCP were still met in terms of compatibility with adjacent development, preservation of residential amenity, ensuring residential streetscapes are safe and aesthetically pleasing, and ensuring that setbacks respect site constraints and significant landscape features.
He argued the site was not a greenfield site and had constraints, including the location of the heritage item. Nevertheless, OPA1 was separated from adjacent residential development, there would be additional planting to enhance the streetscape generally, and the location of OPA1 and acoustic fencing and landscaping would not result in adverse impacts on residents. Given their height, the acoustic barriers for OPA1 could be screened with suitable planting
In terms of OPA shading, the planners referenced the overshadowing diagrams submitted with the application. These showed little overshadowing of the OPAs after midday in mid-summer from existing structures, thus requiring new shade structures.
However, Mr Mantei submitted that children would only use the OPAs for 2 hours a day, the timing of their use could be controlled, and the diagrams only showed overshadowing between 9am and 3pm.
Mr Loether submitted that the Council Guide required 50% of the OPAs to be shaded and the proposed structures shaded only some 36m² of the 243m² required, the shadow diagrams no longer reflected what was now proposed by way of acoustic barriers, security fencing or landscaping, and each shade structure was up to 2.5m high.
Ms Davidson was concerned with these structures, and with increased parking within the eastern car park, within the front setback area. Her concerns were with the visual impacts from OPA1 caused by acoustic barriers, security fencing, and play equipment, and with the wheel stops and safety barriers within the car park which had a nil setback to the front boundary. Relying on landscaping to reduce visual impacts along the entire frontage areas was an insufficient response.
The Council also raised a concern that the proposed new path and western car park redesign, whilst addressing some issues, raised new impacts particularly on the residence to the west at 168 Glenwood Park Drive, with acoustic impacts required to be addressed by a 1.8m high acoustic barrier along the common boundary and potential resultant tree loss adjoining this boundary. Similarly, the impacts of the tree loss on the neighbours to the south had not been assessed.
Ms Davidson was of the view that trying to develop the site to capacity had influenced the extent of play areas and parking required with adverse external impacts on streetscape character, built form and neighbours.

Findings

This appeal arose from the Council's concern not with the proposed use of the site as a child care centre as such but with the intensity of the development and the potential heritage impacts associated with this use; in particular the required acoustic barriers, outdoor play area structures and location, and parking and traffic implications.
The site is constrained by its extensive street frontage and the heritage item it contains, Glenwood House, given its size, isolation relative to other heritage items, and prominence in the landscape, notwithstanding it is partially screened by trees. The development is also constrained by the acoustic, security and outdoor play area requirements of child care centres. These require the introduction of new structures within the curtilage of an existing heritage listed building which will be visible from vantage points in Glenwood Park Drive and from the adjoining footpath and park, albeit I accept the park appears to be little used and poorly maintained. However, this may not always be the case.
I also accept that the use of a child care centre was supported in the 1993 CMP for the site, is a community use which would make the heritage item more accessible to (and enjoyed by) the local community, and would assist in the maintenance of Glenwood House itself.
However, there can be, and was, no dispute that new structures on the site external to the heritage listed building, and required to facilitate the nature and scale of the centre proposed, will have a degree of external impact. This primarily comprises visual impact in terms of the setting, curtilage, context, and views to and from, the heritage item. Whilst these impacts may be limited or mitigated, they are simply not known. Some impact is unavoidable because such structures are a required feature of a child care centre in a residential area in order for acoustic and operational requirements to be met.
The extent and nature of the visual and physical impact of the proposed and required new structures on Glenwood House was not apparent from the evidence. Therefore, the impact of the proposed works on the significance of the heritage item, including its setting and views, could not be established. This is despite there being a requirement under the LEP for the Court to consider the impact of 'the development' on the heritage significance of the heritage item as a pre-condition of consent and the opportunity being given to the applicant on several occasions, as I have detailed, to provide the material and information required in order to be able to consider these impacts.
Specifically, the LEP requires me to consider the effect the development would have on the significance of the heritage item at subcl 5.10(4). However, I was provided with insufficient detail of the proposed works, in terms of the materiality, form, height, location and/or extent of the acoustic barriers and security fencing, the safety barrier in the car park, the play area shade structures or even the play equipment itself, to consider their effect.
The HIS submitted with the application in its conclusion that the proposed development would be acceptable in terms of the heritage impacts did not assist. It was prepared in 2016 and therefore had no regard to, or apparent knowledge of, the extent of the proposed external works. It therefore could not reasonably be said to assess the extent to which the development would affect the heritage significance of Glenwood House, other than to consider the benefits associated with its maintenance.
If the elevational details of all external structures (including their materials of construction and location) had been provided relative to Glenwood House and its views, as the applicant was offered or requested on several occasions by the Council and the Court to provide, the required consideration may have been possible.
As it emerged during the hearing, works proposed or required include extensive acoustic barriers between 1.8m and 2.4m high with the tallest barriers required in front of Glenwood House and where its primary façade is partially visible through existing trees from both the adjoining public park and Glenwood Park Drive, including from the bus stop and footpath. Even setting aside the rear addition, other proposed works include, or will be required to include, security fencing, shade structures, outdoor play equipment and landscaping. Tree removal was also proposed although the extent of removal required was not confirmed.
Whilst I accept that development applications for child care centres may not always include details of all structures in or associated with OPAs, where they are proposed within the curtilage of and adjoin a heritage item and the LEP requires the consent authority to consider the impacts of the development on the heritage significance of a listed heritage item, such details are necessary.
In this regard, the applicant remained vague as to the location and number of shade structures proposed or required to be erected with the number shown (having a total shading area of 36m²) likely to be significantly inadequate in terms of the extent of OPA shading required (243m²) even accepting shading can also be provided by buildings, barriers, fencing and vegetation. At a height of 2.49m, such structures must have an impact on the setting and views of the item, albeit such impacts may be acceptable in context and form.
I reject Mr Mantei's assertion, made only in closing submissions, that, on the grounds of procedural fairness, the hearing should have been adjourned in order to enable the applicant to prepare and provide the details sought of the proposed external structures. Otherwise, he submitted, the applicant would be seriously prejudiced by any suggestion that the application was inadequate when such inadequacy was not a contention nor was the lack of detail on external structures raised as part of the insufficient information contention.
I do not accept this submission. The applicant was provided several opportunities, and time, to provide the details sought. Further, consideration of the impact of the development on the heritage item was always a pre-condition of any consent.
The requirement to provide details on all of the proposed external structures in the context of their potential impacts on Glenwood House was raised in the SFC, in the amended SFC, by the Council's heritage expert in the joint heritage report, by myself in the pre-hearing mention and orders, and onsite at the commencement of the hearing (resulting in an adjournment to enable the details to be provided). The Council also offered at the outset to adjourn the hearing in order to provide time for the applicant to provide the details sought but the applicant opposed such an adjournment.
I agree with Mr Loether's submission that the applicant was advised in no uncertain terms that these details were fundamental to assessing the application in terms of the requirements of cl 5.10.
Furthermore, it is not the role of the Court to have to inform the applicant of precisely what is required to be submitted in order to determine the heritage impacts and satisfy cl 5.10 of the LEP. However, in my opinion it is self-evident, particularly having had the issue raised on several occasions, that a starting point would be a visual impact assessment of the works proposed or required relative to the heritage item, including its curtilage and views, as viewed onsite and from various locations within the public domain.
As I have indicated, the HIS submitted with the application was prepared in 2016, did not address any of the works the subject of the amended application in terms of the likely impacts of acoustic, security or shading structures, nor of the changes proposed to car parking areas or to landscaping (including tree removal). If this was the heritage management document required under subcl 5.10(5) to assess the extent to which the development would affect the heritage significance of Glenwood House, it failed. No other assessment was provided other than commentary in the joint expert report by the applicant's heritage expert to the effect that such works would be acceptable and could be conditioned to be so if they were not already.
In summary, I am unable to consider, as I am required to by cl 5.10 of the LEP, the effect that the development will have on Glenwood House including its setting and views. Like the Council, I am therefore unable to conclude on the evidence provided that such an effect from the development in its entirety will not adversely impact the heritage significance of the item particularly in terms of its setting and views. On this basis, the application is refused.
Even if the heritage impacts from all of the required works and structures had been documented and found acceptable, I am concerned that the traffic experts consider the proposed parking and access not to be the best outcome for the site instead preferring a one-way traffic flow internal to the site between the car parks. Should this not occur, further changes to the parking and pedestrian access arrangements were recommended by both experts even in their supplementary report and notwithstanding amendments to the application arising from their initial report.
I am also concerned that the acoustic experts recommended a different solution to address noise impacts. Whilst such a solution may raise other contentions in terms of visual and heritage impacts, and I accept a submission by Mr Mantei that a development does not need to provide the best solution only an acceptable one, the evolving nature of the development proposal throughout the hearing made dealing with the evidence and the acceptability of any of the proposed works and their impacts difficult and, therefore, questionable.
I was also not persuaded that there is sufficient basis for not complying with the DCP required landscaped setbacks for ODA1 or the eastern car park and I agree with the Council that the extent and size of all of the OPAs, and the need to locate OPA1 in the front setback, is in part driven by the number of children sought to be accommodated. However, this issue alone would not have been determinative of the application given new landscaping itself could potentially impact the setting of or views associated with Glenwood House and having regard to the extensive frontage of the site and the agreed position of the experts that the northern elevation of Glenwood House is not of heritage significance relative to the presentation to the east.
Similarly, the loss of some trees would not, of itself, likely resulted in the application failing. However, the nature and number of trees to be removed and the impact this would have on the heritage item and on adjoining residents was a further unresolved issue in the proceedings and in part at least resulted from the evolving nature of the application following lodgement of the appeal.
Finally, the fact that there were some 13 agreed actions required by way of deferred commencement conditions in order for the operational consent to be acceptable (with its further conditions) suggests that the application, even despite being continuously amended during proceedings, was not in a form that warrants approval.
The Court orders that: 1. The applicant is granted leave to rely on amended plans. 2. The applicant is to pay the respondent's costs thrown away as agreed or assessed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. 3. The appeal is dismissed. 4. Development Application DA-16-03709 for alterations and additions to a heritage item for the purposes of operating a child care centre at 174 Glenwood Park Drive, Glenwood is refused. 5. The exhibits are returned other than Exhibits A and 1.

Jenny Smithson Commissioner of 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. Decision last updated: 24 January 2019

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Cases Cited (1)