Andary v Goulburn Mulwaree Council

Cases Cited: New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154

Texts Cited: Child Care Planning Guideline 2021
Goulburn Mulwaree Development Control Plan 2009

Category: Principal judgment

Parties: George Andary (Applicant)
Goulburn Mulwaree Council (Respondent)

Representation: Counsel:
J Smith (Applicant)
J Walker (Solicitor) and T Wood (Solicitor) (Respondent)
Solicitors:
Foundation Law Group (Applicant)
Maddocks Lawyers (Respondent)

File Number(s): 2024/347155

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by Goulburn Mulwaree Council (Council) of development application DA/0099/2324 (DA). The DA is for demolition of an existing dwelling and associated structures, removal of existing vegetation including one tree and construction of a 113 place centre based childcare facility at 130 Deccan Street, Goulburn (site).

The site and setting

2. I rely on Council’s Amended Statement of Facts and Contentions filed 13 August 2024 (Ex 1) for much of the material in this and the following descriptive sections of the judgment.

3. The site is legally known as Lots 51 and 52 in DP 14352. It has an area of 1,242.3m2 and is irregular in shape. The site has a street frontage of some 43 m to Deccan Street and a secondary street frontage of some 45 m to Mount Street. The site abuts a laneway to the north-west and shares a boundary to the south-west with 128 Deccan Street. There is a roundabout at the intersection of Fitzroy Street, Goldsmith Street, Deccan Street and Mount Street, adjacent to the site.

4. There is a single storey detached dwelling with vehicular access from Mount Street erected upon the site. Pedestrian entry to the residence is from Deccan Street.

5. The site falls from the south-west to the north-east, towards the roundabout intersection. The site is occupied by one tree nominated to be “of significance (weeping elm Ulmus procera “Pendula”)” (Ex 1 par 9). There is also domestic vegetation within the site.

6. The site is zoned R1 - General Residential under the Goulburn Mulwaree Local Environmental Plan 2009 (GMLEP).

Figure 1 - site and environs- site delineated in yellow dotted outline (source: Ex 1 p 3)

7. Figure 1, above, shows the site in yellow dotted outline. It is generally the case that areas shaded pink in Figure 1 are also occupied by low density residential development. Goulburn High School is directly across Declan Street from the site and Goulburn Preschool is located across the road on Mount Street.

8. There are a number of heritage items in the environs of the site. These include Local Heritage Item I470, nominated as ‘Dwelling, “Beamish”’ which is located to the immediate west of the site across a public laneway.

Statutory context

9. The R1 zone objectives in GMLEP are as follows:

“• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maintain the economic strength of commercial centres by limiting the retailing of food and clothing.”

10. Centre-based child care centres are permissible with consent in the zone. Demolition is permissible with consent under cl 2.7.

After expert evidence, amendments to the proposal respond to Council contentions

11. Ex 1 listed a series of contentions, which were indicated to warrant the refusal of the DA. The contentions, in summary, related to: acoustic impacts, parking and traffic, waste management, streetscape compatibility (including in relation to heritage and landscape), overshadowing, contamination, earthworks and public interest concerns. In addition, non-compliance with Goulburn Mulwaree Development Control Plan 2009 (GMDCP), the Department of Planning’s Child Care Planning Guidelines 2021 (CCPG) and Education and Care Services National Regulations (2011 SI 653) (Regulations) was contended.

12. There had been dialogue between the parties towards the resolution of the contentions, including during a without prejudice conciliation conference held earlier in 2025. Subsequently, and in accordance with the Court’s Class 1 Development Appeals Practice Note (Court’s Practice Note), orders were made regarding the preparation and filing of expert evidence in relation to the Council contentions. The following joint expert reports (JER) were tended into evidence in the proceedings:

13. JER Planning filed 18 June 2025 (prepared by D Waghorn called by the applicant and J Askin called by Council) and marked Ex 2.

14. JER Traffic filed 18 June 2025 (prepared by D Waghorn called by the applicant and J Askin called by Council) and marked Ex 3.

15. JER Acoustics filed 4 July 2025 (prepared by M Harrison called by the applicant and S Gauld called by Council) and marked Ex 4.

16. Again, consistent with the Court’s Practice Note, the JERs recommended specific amendments to the development which the experts saw as necessary for there to be agreement between the experts that particular contentions would be satisfied.

17. The applicant obtained the leave of the Court to amend the DA on 27 June 2025, essentially to accord with the JER findings. The amendments brought about a position where the proposal was now in accordance with particulars indicated as required, in the expert evidence, to respond appropriately to contentions raised. The particulars of the amendments to the DA were outlined in the supporting affidavit of M Trotter dated 19 June 2025, they included, among numerous other changes, the following (applicant’s written submissions on jurisdictional requirements dated 17 July 2025 (AWS)):

“• Reducing the proposed children numbers from 113 to 111;

• Lowering the maximum height by 1.14m with the change in form resulting in a 'single storey with attic' like appearance.

• Reducing the floor space ratio from 0.52:1 to 0.429:1; and

• Increasing the total number of car parking space in the basement from 22 to 26.”

15. The position put to me at the commencement of the hearing was that with the June 2025 DA amendments and mindful of the expert evidence already filed with the Court, there was no longer expert evidence against the contentions raised by Council in relation to the DA.

16. Issues remain for the Court’s evaluation in this judgement, nonetheless. These can be synthesised into two topics. The first relates to issues raised in lay submissions. The second concerns jurisdictional considerations, or the question of whether there is legal power available to the Court to grant consent in this instance.

Lay submissions

17. There were some considerable objections from lay persons which have been drawn to the Court’s attention. These included written submissions on the originally notified DA (Council’s Bundle of Documents filed 7 July 2025 Tab Q), submissions on the renotified DA after amendments (tendered into evidence as Ex 9) and oral submissions heard from objectors at the site inspection at the commencement of the proceedings in Goulburn (written notes from these oral submissions were tendered as Ex 10).

18. I have synthesised the lay objecting submissions into the following topics:

19. Building presentation and amenity impacts

20. Traffic and parking

21. Excavation and other construction effects

22. Evacuation planning

23. General concerns about CCPG compliance.

24. The consideration of lay submissions as a factor in the evaluation of development applications is a common consideration in this Court and a matter which has been well investigated in the case law. For example, New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 (New Century Developments) [61]) points to a need for discernment in evaluation of lay evidence, and to seek objective substantiation (ie rather than “blindly accepting”) such evidence. A practical means of verifying (or otherwise) the content of lay submissions is through evidence of the experts already giving sworn evidence or otherwise bound to assist the Court impartially, under the Expert Witness Code of Conduct.

25. In my evaluation below, I have given consideration to the opinions expressed in the lay submissions but also mindful of the evidence in JERs. In addition, I requested more specific feedback in relation to lay submissions from the town planning and traffic experts. These supplementary JERs were marked Ex 11 and 12, respectively.

Building presentation and amenity impacts

21. Lay submissions objected to the proposal on matters including streetscape presentation, building setbacks, overshadowing, visual privacy, noise, heritage conservation impact, general scale and site suitability.

22. Both GMDCP and the CCPG have relevance. For example, controls in Section 4.1.1 of GMDCP seek, for residential development, that proposed building, streetscape and landscape design relates to the site topography and the surrounding neighbourhood character. Section 4.1.6 states that dwellings are to have a maximum height of 2 storeys. Whilst the proposal is not for a dwelling, the planning experts found that the proposal would present as a single storey with attic, consistent with requirements in that respect. Proposed front side and rear setbacks are generally consistent with the controls set out in Section 4.1.10 of GMDCP. While the numerical controls relating to front setback in the CCPG are not met, the GMDCP provision is more pertinent in the experts’ view as it indicates local planning intention. The experts agreed, albeit noting proposed removal of a substantial tree in the Deccan Street environs, that the landscaping within the front setbacks and on structures as detailed in the Landscape Plan will also ensure the landscape character of the locality will be retained. GMDCP provisions for solar access are also met and overlooking to the single potentially affected property would be minimised. The experts agree that the proposed development is appropriately separated from the nearby heritage items.

23. In relation to noise, I note that the acoustic experts have agreed that each of Council’s contentions, mostly relating to plant details and fencing, have been now satisfied. Moreover, I note that Ex 4 included wider consideration of potential noise impact from the operation of the centre. The experts agreed that the acoustic analysis shows compliance with the applicable noise level criteria of 50 dBA for up to 4 hours of outdoor play (on Level 01) would be perceived at all receiver locations. A modelled exceedance of 1 dB at the upper-level balcony of 128 Deccan Street was noted, however. The experts agreed that this should be considered “negligible” due to the following (Ex 4 par 69):

“• 1 dB change in noise level is imperceptible and possibly immeasurable.

• The unattended background noise monitoring has not been conducted at the height / location of R01-C (upper-level balcony), it is likely that the background noise levels would be higher at this location than the measured levels at ground level due to the direct line of site to Deccan Street and the school located across Deccan Street from this elevated receiver location.

• It is therefore likely that the resulting operational criteria for R01-C would be greater than has been adopted for the overall assessment.”

24. Because of their conclusions in relation to the proposal’s general compliance with relevant controls and proximity to nearby schools, the planning experts believed the scale of development was appropriate and the site was well suited to the proposal.

Traffic and parking

25. The lay concerns included both pedestrian and traffic safety and congestion, particularly in relation to the intensity of activity in the site environs during regular peaks on typical days (ie including school-related activity). There was specific regard to pedestrians crossing the nearby roads (Mount Street, Goldsmith Street, Fitzroy Street, Deccan Street). While it was quiet during the site inspection, I particularly note that some lay submissions included photographic and video evidence showing traffic in the site environs during busy periods.

26. In relation to traffic congestion, in Ex 2 (par 49) the traffic and parking experts indicated an agreed view that there was ample spare capacity at the roundabout intersection and that the existing “level of service” would be retained.

27. In relation to pedestrian safety, the experts referenced the various pedestrian safety-related infrastructure in the local streets noting the following (Ex 12 par 3):

“a) The roundabout intersection of Deccan Street / Goldsmith Street / Mount Street /Fitzroy Street has the following pedestrian infrastructures:

i. Western leg (Mount Street) - refuge;

ii. Eastern leg (Goldsmith Street) - refuge;

iii. Northern leg (Fitzroy Street) – pram ramps and an island (not formally a refuge)

b) In addition to the above, Deccan Street (southern leg) provides a marked pedestrian crossing which provides for a safe pedestrian walking route across Deccan Street.”

28. The agreed position of the experts was that the above infrastructures supported the safe and convenient movement of pedestrians to and from the proposed centre within the locality.

29. While there was a shortfall of two off-street parking spaces compared to the CCPG, this guideline also provided scope for a reduced parking rate in circumstances where certain contextual criteria are met. The relevant criteria includes (CCPG p 21):

“• the site is co-located or in proximity to other uses where parking is appropriately provided (for example business centres, schools, public open space, public or commercially operated car parks);

• there is sufficient on street parking available at appropriate times within proximity of the site.”

30. In this instance, there is co-location with schools and according to the experts there is sufficient spare on-street parking capacity within convenient walking distances of the site. In relation to the use of the on-site basement car park, both experts agree the following design provides for a safe environment for drop-off and pick-up (Ex 12 par 3(h)):

“i. Separate pedestrian footpath provided at the rear of most visitor car parking spaces;

ii. A 6.2m wide circulation aisle, which is 0.4m above the minimum as per AS2890.1:2004;

iii. Exceedance of AS2890.1:2004 in relation to two-way passing criteria, with the site providing for a B99 passing a B99, rather than a B85 passing a B99. iv. The recommendation of a 10km/h internal speed zone sign within the car park.”

Excavation and construction effects

31. Some 3278 m3 of material would be excavated for the proposed basement to a depth of approximately 3m (Ex 12 par 1.14). There were objections relating to the extent of excavation and potential structural considerations. There were also general concerns about implications of the construction stage more generally.

32. The planning experts indicated that there are no numerical limitations in GMDCP regarding the volume of excavation but a maximum depth of 600mm was indicated (Part 4.1.4). The experts agreed that a child care centre has certain functional and operational requirements that differ from a typical dwelling, which was the focus of the cut and fill provisions of Part 4.1.4. The proposed excavation was seen to enable required parking and services (including undergrounding of otherwise potentially noisy plant and equipment) for a superior visual outcome when compared to provision at ground level. The experts were also satisfied that conditions of consent could address concerns relating to structural concerns for neighbouring property. I note in particular proposed Condition 13 directly concerned with this. I also note that Conditions 43 and 88 require dilapidation reporting.

33. The experts agreed that (Ex 12 par 1.15)

“the depth and quantum of excavation is appropriate in the context of the proposed child care centre and the implications on stability and construction are detailed in the Geotechnical Report and a matter for others. The experts agree that conditions of consent can be imposed in regards to construction and excavation techniques.”

34. In relation to more general construction impacts, I note that Conditions 25 and 26 require a Construction Environmental Management Plan and a Construction Traffic and Pedestrian Management Sub-Plan prior to issue of the construction certificate. The nominated reason for these conditions is to have the development undertaken “in a manner that is safe and does not unreasonably inconvenience the community”.

Evacuation planning

35. A concern was raised in regard to evacuation of the site in emergency situations including distance to safe haven.

36. The experts agreed with the resident objectors on this point, and that the proposed Plan of Management needed to be updated to detail a path to safe haven at Victoria Park. The experts agreed that the distance from the relevant point to the north-western corner of the site is approximately 200m and represents the most appropriate location to assemble in the case of an emergency or evacuation. This is because the path of travel to the park provides for a zebra crossing, level footpath and refuge islands at Clifford Street to provide for safe crossing. The experts agree that in the event of evacuation from the centre, prams must be provided on the site to transport children, particularly 0-2 children to the assembly point. Ex 12 annexed a revised evacuation plan and updated plan of management to address these concerns. The experts agree that these matters can be resolved by a condition of consent.

General concerns about Child Care Planning Guideline compliance

37. Objections raised concerned that there were various non-compliances with the CCPG. In Ex 12 (par 1.9), the planning experts provided an explicit working through of various relevant points in the guidelines related to their expertise. It is clear to me that these experts are satisfied that the proposal complies with relevant guidelines.

Findings in relation to lay submissions

38. Mindful of New Century Developments (see [18]), it is reasonable in this instance for me to see the commentary from experts as objectively responding to the lay submissions as put. In this instance the amended application and proposed consent conditions reasonably respond to the issues raised in lay submissions.

Other jurisdictional considerations

39. In AWS the applicant listed relevant jurisdictional factors and how they have been addressed with the application. Relevant findings are made below:

40. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) has been given consideration in the application. I note the following:

(a) The DA was referred to Transport for NSW (TfNSW) which raised no objection to the amended application (see Council Bundle (Ex 5 Tab 4 page 30)). I also note the advice in Ex 3 and 12 that there will be no significant adverse traffic impacts. (b) There is also a requirement to consider applicable provisions of the CCPG under SEPP T&I. I note that this has occurred in the evaluation of the DA and no concerns remain on that front on Council’s part. I accept that the proposal before me accounts for the requirements for unencumbered indoor and outdoor space under the Regulations.

2. State Environmental Planning Policy (Resilience and Hazards) 2021 has been given consideration in regard to contamination. The site has been historically used for residential purposes. A “Detailed Preliminary Site Investigation” concludes that the risk to human health and the environment associated with soil and groundwater contamination is low, recommending suitable conditions, which are included in the agreed set. The requirements of cl 4.6(1) have been met.
3. State Environmental Planning Policy (Biodiversity and Conservation) 2021 is a consideration as the site is located within the Warragamba Catchment, which forms part of Sydney’s water supply. The AWS draws attention to the provisions of ss 6.61-6.64 which, among other things, require a finding of satisfaction on the Court’s part that the carrying out of the development would have a neutral or beneficial effect on water quality. The AWS indicates how this finding can be made based on the application material. Section 6.64 requires concurrence of Water NSW as the regulatory authority, having considered whether the development will have a neutral or beneficial effect on water quality among other things. Water NSW has provided its concurrence (Ex 5 p 42) subject to conditions which are referenced in proposed Consent Condition 119. I am satisfied that carrying out of the development, in accordance with the nominated consent conditions, would have a neutral or beneficial effect on water quality.
4. Further in relation to GMLEP, and mindful of the advice of the applicant, not disputed by Council:

(a) I accept that the proposal does not breach any of the applicable development standards. (b) In relation to cl 7.1A and earthworks, I note that the AWS provides a detailed response in regard to each of the matters listed as “considerations” at subcl 7.1A(3). I have reviewed these points which indicate a satisfactory response in relation to earthworks questions. I note that the proposed conditions also include a series of requirements in relation to earthworks. The required consideration has occurred with respect to earthworks. (c) I can also note that I am satisfied, given in particular the site location, that relevant essential services will be available to the development when required.

5. I further note that it seems to me clear that relevant consideration of GMDCP has occurred in the evaluation of the DA.

Conclusion

40. In accordance with the above findings, the proposal warrants consent in accordance with conditions agreed between the parties.

Orders

41. The Court orders that:

42. The appeal is upheld.

43. Development Application No. DA/0099/2324 for the demolition of an existing dwelling and associated structures, removal of existing vegetation including one tree and construction of a 111 place centre based childcare facility and associated development at 130 Deccan Street, Goulburn is determined by the grant of consent, subject to the conditions set out in Annexure A.

44. The exhibits are returned, except for Exhibits A-D, 1 and 13 which are retained.

P Walsh

Commissioner of the Court

Annexure A (1.58 MB, pdf)

**********