Antoniou v Bayside Council

[2018] NSWLEC 1584

Land and Environment Court (NSW)|2018-09-28

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2018-09-28

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

Introduction

The application is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Bayside Council (Council) of a development application (DA-2017/325) for the demolition of existing structures and construction of a new two-storey child care centre for 50 children and 10 staff.

[2]

The site and locality

I generally rely on Council's Statement of Facts and Contentions (Exhibit 5) for the particulars that follow here. The subject land for this development application (DA) is 2 Kurnell Street, Brighton-Le-Sands, also described as Lot 31 in DP 5190 (the site). The site is situated on the south-western corner of the intersection of Kurnell Street and Crawford Road. The site is quite rectangular and has a frontage of 20.1m to Kurnell Street and a frontage of 41.1m along Crawford Road. The overall site area of 827.7m2. The property has a 0.5m gradual fall from east to west.
The site is occupied by a two-storey detached dwelling house approved via a building application in the 1970s, with roof top terrace which was not built in accordance with approval requirements according to Exhibit 5. There is also a detached single car garage and adjoining outbuilding near the southern boundary of the site. Low front fencing is located along the northern boundary of the site, and along the northern end of the eastern boundary of the site, with higher masonry fencing provided to the remainder of the eastern boundary. The site has an existing single vehicular accessway from Crawford Road. Trees previously located on the site have recently been removed.

[5]

Statutory interpretation - whether, and to what extent, current development consent is a matter for consideration

In the background to this case is the fact that a development consent was granted in 2016 for use of the existing building on the subject land for a 50 place child care centre. The Court disposed of the matter by approving the development after agreement was reached between the parties in accordance with s 34(3) of the Land and Environment Court Act 1979 (Court Act) (see Oxford Number 1 Pty Ltd v Rockdale City Council [2016] NSWLEC 1245.
Turning back to the current case, Mr Doyle referred to the requirement for the Court, in making its decision in respect of an appeal, to consider s 4.15 of the EPA Act and s 39(4) of the Court Act. Section 39 of the Court Act is concerned with the power of the Court in appeals. Subsection (4) provides as follows: In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.
Further, Mr Doyle advised: "It is settled law that relevant previously issued development consents are "instruments" for the purposes of that section which are be taken into account when determining a development application …"
He referenced Abrams v The Council of the City of Sydney (No 2) [2018] NSWLEC 85 at [35] - [38] and MLC Properties v Camden Council [1997] NSWLEC 130; (1997) 96 LGERA 52 at [35], to support his position.
Mr Doyle's submission, linking the above to the current case, included the following:

The existing consent records a form of development which Council has assessed to be acceptable for the site under the same LEP and DCP, and with, in substance, the same built context.
There had been physical commencement of the approved development, based on the issue of a construction certificate and removal of trees consistent with the consent (Exhibit J).
If the revised scheme (involving demolition) is not approved, the commenced (but incomplete) approved two storey child care centre will be part of the streetscape.
Oral evidence to the Court (at the Court's site view) from an objector to the approved scheme indicated strong support for the scheme which is the subject of the appeal (in comparison to the approved scheme) due to reduced overshadowing when the existing structure was compared to the now proposed roofline (which incorporates a pitched roof which had been previously seen as more desirable in streetscape terms).
A proposed car-stacker (argued as a negative component of the approved scheme) would no longer be required.

Mr Doyle concluded that: "It would be in breach of s.39 (of the Court Act) and artificial to ignore the substantial improvements to streetscape and impacts on the most affected neighbouring property offered by replacement of the incomplete commenced rebuild currently underway with its improved modern construction and build form."
Mr Cole's submission was that little regard need be had to the existing consent, and that it was not pertinent to a merits assessment. Council did not concede that commencement had occurred in regard to the 2016 consent (ie the "approved scheme"). The Council's view was that the Court needed to evaluate this application on its own merits, and not whether it provided an improved outcome when compared to something previously approved.
In making the point, Mr Doyle did acknowledge potential limitations to the relevance of any existing development consents on merits assessment, suggesting the need for weight to be decided in the circumstances of the case at hand. Here, he referenced Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 (Tuite).
A summary of Preston CJ's finding in Tuite regarding this question of "regard" to be had to previous consents can be found in Kamenev v Woollahra Municipal Council (No 2) [2018] NSWLEC 1228 at [40]: (Preston CJ found in Tuite [52]-[57]) in relation to an appeal on a question of law of a Commissioner's decision where the Commissioner had misconstrued the terms of a condition of a previous consent, that there was no error because even a proper construction of that condition could not have been used by the Commissioner to alter his conclusions in relation to the appeal before him, as the Commissioner's obligation was to determine the particular development before the Court by assessing the impact of the development proposed on the environment existing at the time of determination.
To quote briefly from the Tuite itself, Preston CJ found at [56] in part: With respect to the Commissioner, it was difficult to see how the Commissioner could have used the 1995 consent conditions, which had not been implemented, to set aside his findings as to the impact of the development proposed in the development application before the Court. The Commissioner, exercising the functions of the consent authority, found that the impacts of the proposed development are unacceptable and the development application should be refused. He could not come to a contrary conclusion because a previous development consent would, if implemented, lead to the same or similar impact.
Considering the circumstances from a first principles viewpoint, I do not consider the securing of a development consent instrument as a either a kind of guarantee or obligation that an approved development would proceed. Many circumstances arise where the fulfilment of a development consent would not occur. The likelihood of the carrying forward of approved development would increase with evidence of substantial works. In this case, the securing of a construction certificate and removal of trees consistent with the 2016 consent does not give particular clarity on that front. That is not at all to say that, in this particular instance, the approved development would not go ahead.

[7]

Overwhelming size

Council argued the proposed building to be visually imposing, particularly when viewed from Crawford Road and No.4 Kurnell Street, with its corner location exacerbating the problem. A key concern here, from the Council's viewpoint, is in regard to proposed first floor balcony arrangements, totalling some 283m2 in area, with, according to Council, some 51% of the required outdoor play space provided above ground level (Council sees this as generally not desirable in regard to child care standards, as outlined below).
A question arising was whether these balconies warranted inclusion as gross floor area (GFA). If the balconies were included in GFA, then the proposal exceeded LEP floor space ratio (FSR) controls. The maximum FSR is 0.6:1. The GFA with balconies excluded is 402m2 with an FSR of 0.49:1. The additional 189m2 of balconies would bring the FSR well over the standard.
The question of inclusion of balconies in GFA (and thus FSR) is considered directly in the LEP. This instrument indicates that "terraces and balconies with outer walls less than 1.4 metres high" are excluded.
To meet acoustic requirements, the balustrades to balconies need to be higher than normal. The applicant's acoustic expert, Mr Shearer indicated that balustrades to the first floor balconies of 1.39m height can satisfactorily meet acoustic requirements, when combined with other mitigative treatments as agreed. This position was not contested after analysis by the Council's acoustic expert, Mr Cooper.
Council's position (agreed by both planning experts) was that there was no perceivable difference for lay observers between a balcony height of 1.39m and 1.4m. Mr Clendenning (Council's planning expert) believed the balcony was not well integrated with the rest of the building and in that sense was incompatible. He believed objectives of the FSR standard warranted attention in any event. These objectives are cl 4.4 of the LEP: a) to establish the maximum development density and intensity of land use, accounting for the availability of infrastructure and generation of vehicular and pedestrian traffic, in order to achieve the desired future character of Rockdale, b) to minimise adverse environmental effects on the use or enjoyment of adjoining properties, c) to maintain an appropriate visual relationship between new development and the existing character of areas or locations that are not undergoing or likely to undergo a substantial transformation.
Mr Clendenning believed (Exhibit 3, p 12) that the development was inconsistent with the FSR objectives in that: "a) The current design seeks to increase the development density and intensity of land use beyond what is anticipated for the desired future character of Rockdale. b) The additional development does not minimise adverse environmental effects on the use of adjoining properties and this can partly be attributed to the floor space ratio non-compliance. c) It is unlikely that the surrounding locality within the R3 zone is undergoing or is likely to undergo a substantial transformation. The proposal is not consistent with the likely future character of the surrounding area."
Mr Clendenning believed balconies should be "recessive elements" rather than dominating as this one was including in regard to ballustrade heights. Overall, the balcony from his viewpoint was incompatible with built form in the locality. It could also prejudice future development in his view: "The impacts of the large balcony will compromise the capacity of the surrounding R3 zoned land to transition to a medium density environment, and the impacts of the balcony may compromise the design options available for a medium density residential development that could be provided on neighbouring sites."
On FSR, Mr Sarich (planning expert for the applicant) indicated (Exhibit 3, p14) that: "The permissible LEP floor space ratio of 0.6:1 is a numerical development standard that if complied with, indicates that the proposal meets the objectives of the standard. The site cannot be said to be overdeveloped on the basis of the floor space ratio. The proposal is of a lesser bulk and scale than anticipated by the LEP."
Mr Sarich also notes that the proposal meets the building height and setback controls. He finds: "The above three parameters set the fundamental envelope controls for buildings on the site. Compliance indicates compatibility with the vision for the zone as stated in the zone objectives for the R3 zone. The relevant zone objective is the fourth point being:- • To ensure that land uses are carried out in a context and setting that minimises any impact on the character and amenity of the area. The development minimises its impact on the character and amenity of the area by minimising its height, bulk and scale yet achieving a building that is functional and viable for its intended land use."

[8]

Fencing

The concern with the proposal's fencing is in regard to its visual impact on the public domain. The plans before the Court show 1.8m high fencing, part masonry and part clear glass, along a little over half of the Crawford Road frontage (scaling at over 20m in length from the northern side boundary area). The rest of the fencing to this boundary would be 1.42m high palisade-style fencing, including the driveway gate. The plans do not seem to indicate the height of fencing to Kurnell Street, but the scaling and materials are as per the northern half of the Crawford Road frontage (1.8m high masonry and clear glass on top). The fence to Kurnell Street is setback for a landscape treatment between it and the road boundary.
The 1.39m high balcony balustrades at the first level are shown as opaque glass except for the top 0.19m which would be clear glass. The balustrades are higher in the south-west corner but this is not of significant concern in public domain terms.
According to Mr Clendenning, the overall size of the building is exacerbated by the proposal's fencing to the public road boundary. He sees it as non-compliant with a number of DCP provisions. The pertinent DCP clauses in regard to fencing non-compliance are in Part 4 which covers "General principles for Development", and in particular Part 4.2, which is concerned with "Streetscape and Site Context". The following controls were cited: "18. Front fences are to be a maximum height of 1.2m above footpath level. 19. Open construction front fences (with minimum 30% transparency) to a maximum height of 1.8 m may be considered, such consideration will have regard to the circumstances of the case. The solid portion in open construction fences is to be no higher than 600mm … … 24. Side and rear fences are to have a maximum height of 1.8m on level sites or 1.8m measured from the low side where there is a difference in level either side of the boundary. 25. Side fences between the street alignment and the front wall of the building are to be a maximum height of 1.2m or up to 1.8m if they are of open construction."
Mr Sarich indicated that: "The proposed fencing is suited to the operation of a child care centre while being compatible with the character of the area. The fence is 1.8m high; is partially solid and partially transparent and complies with the requirements of Controls 24 and 25 which are relevant to side fences… Further, solid paling fences with heights of 1.8m on corner lots are common in the local area. Such a fence is evident opposite the subject site in Kurnell Street and encloses the rear yard of 27 Crawford Road. The proposed fence as detailed in the architectural plans will be aesthetically attractive and will make a positive contribution to the local area compared to the existing fence."

[11]

Overall compatibility

Mr Clendenning submitted that the site environs comprised a special character area of mostly relatively low density form, with a small number of anomalous developments which included the bulky building on the subject site and the neighbouring two storey residential flat building at 30 Kings Road, which would not be permissible today (ie RFBs are not permissible in the R3 zone under the LEP). According to Mr Clendenning: "The most predominant streetscape quality within the R3 zone is that of single dwellings, many of these dwellings on Kurnell Street and Crawford Road are single storey only".
Again according to Mr Clendenning, an alternative "more skilful" design could bring forward a child care centre on the site which was less imposing and compatible with the local setting, something required here as a "new build". He suggested an example: "An example may include the provision of a basement to accommodate the required parking. Were a basement to be provided, outdoor play space would be able to be accommodated within the rear ground level (southern portion of the site), such that a large balcony would not be required at first floor."
Mr Sarich believes: "The proposed building is compatible with the present character of the area as it is of a built form and bulk and scale expected in the R3 zone. It adjoins a two storey dwelling to the west in Kurnell Street and a two storey residential flat building to the south in Crawford Road. The opposite side of Crawford Road is zoned R4 High Density Residential. This is presently developed with 3 to 4 storey residential flat buildings of a much greater bulk and scale. The fact that they are in a different zone is not irrelevant as the opposite side of Crawford Road is part of the present character in the visual catchment of the site."
Mr Sarich noted a need to consider intended future character as a factor in compatibility consideration: "As far as the future character in the R3 zone is concerned, the area will evolve into one supporting multi dwelling housing and attached dwellings. Centre based child care centres also remain permissible. All of these built forms have the potential to change the appearance of the local area, but in any event the proposed development would remain compatible with the future character."
Mr Clendenning argued that it is unlikely that the surrounding locality within the R3 zone is undergoing or is likely to undergo a substantial transformation and therefore, the proposal is not consistent with the likely future character of the surrounding area. Mr Cole referenced George Antiniou v Bayside Council [2017] NSWLEC 1464 in which the adjudicating Commissioner drew a similar conclusion.

[12]

Conclusions in regard to impacts in the locality

Amenity impacts like those related to privacy, overshadowing or noise are not the points of attention here. The hub of Council's concern is that, rather than "integrate" with the locality, the building would impact adversely and unreasonably on the distinctive streetscape and visual character in this locality, and is therefore not in the public interest. For Council, the proposal's massing exceeds considerably what would be statutory interpretation of GFA, in a sense evidenced by what they see as something of a "borderline" compliance with FSR, and exacerbation (rather than mitigation) of this concern with parking, fencing and landscaping responses.
The latter two objectives of the R3 zone warrant particular attention in drawing conclusions in this matter. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that land uses are carried out in a context and setting that minimises any impact on the character and amenity of the area.
These two objectives align with two idiosyncratic factors which need to weigh into the analysis of this application. To commence with the latter objective, the consideration of "impact", necessarily involves a before and after analysis. This requires the implications of the existing building on local character to be taken into account. I recognise Mr Clendenning's characterisation of the R3 zoned area, generally, as compliant in regard to DCP controls on matters such as massing, fencing and landscaping. But Mr Doyle's characterisation of the existing building on site (along with the residential flat building to the south) as "an interruption", is a valid point. Mr Sarich's emphasis on the fact of the higher density development to the east is also important if streetscape character is the consideration.
Turning to the other objective at [53] above, it also needs to be noted that proposing a child care centre, as intended here, is concerned with the provision of locally needed facilities and services.
It is in part because of the visual character of the existing building on-site (agreed as highly inconsistent with the locality) that something other than a compliant building might be reasonably expected here. But in addition, the circumstances of the proposed child care centre use (ie a local service) needs to be factored in. That is to say, some additional unusual visual elements might be reasonable in such an instance as a consequence of the nature of the use. I mention here that there is still a test of whether the proposal meets the assessment requirements in regard to its use as a child care centre and this is considered below.
I note Mr Cole's reference to the DCP's "General Principles of Development" such as those applying to streetscape character. The DCP provides at p4|2 that: "General principles apply to all sites within Rockdale City Council regardless of the type of development. Developments are required to fulfil the relevant requirements of all general principles."
Section 4.15(3A) of the EPA Act directs me to the objects of such DCP "requirements" and it is Section 4.2 of the DCP (concerned with streetscape) where the following relevant objectives can be found: "A. To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics and legibility of the existing urban environment. B. To ensure development responds to predominant streetscape qualities. … E. To ensure fences complement and conserve the visual character of the street and neighbourhood"
I am persuaded that the proposal, including as a consequence of the amended architectural and landscape plans, adequately responds to these objectives. I accept Mr Sarich's evidence that the development would result in a "better streetscape" outcome than exists now. The balcony is large and balustrade is higher than normal but these elements do not add the same type of bulk or scale perception as would a building wall, say. Notably, the roof arrangement and landscaping provides some improved degree of integration compared to that which exists at present. The intended future use as a child care centre (that is, a service use to the otherwise residential area) provides an explanation for the required fencing. In this instance, where: (1) there is already a considerable "interruption" to the lower density scale west of Crawford Road, and (2) a service use for local families is proposed; something other than the "conservation" of visual character can be accepted, and the design and landscaping suggests a reasonable "relationship" and potential for a sense of "complementarity" with the setting to be achieved.
The evidence indicates considerable agreement that the proposal meets reasonable standards in regard to acoustic and visual privacy and overshadowing. The above, also suggests to me a reasonable outcome in visual character terms. Together this directs my conclusion that the form of a child care centre as proposed would not have an unreasonable adverse impact on local character.

[13]

Child care standards

Two key contentions were raised by Council on this issue. The first was in regard to qualities of outdoor play spaces. The second was in regard to the proportion of spaces set aside for children under 2 years old.
In terms of assessment criteria, a question before the hearing was the applicability of the SEPP. This SEPP was gazetted on 1 September 2017, subsequent to the lodgement of the application. Schedule 5 of the SEPP prescribes the savings and transitional provisions, and provides at cl 1(1): (1) This Policy does not apply to or in respect of the determination of a development application made under Part 4 of the Act, but not finally determined before the commencement of this Policy.
There is an exceptions provision at cl 1(2) of Schedule 5 to the SEPP: (2) Despite subclause (1), before determining a development application referred to in that subclause for development for the purpose of a centre-based child care facility, the consent authority must take into consideration the regulatory requirements and the National Quality Framework Assessment Checklist set out in Part 4 of the Child Care Planning Guideline, in relation to the proposed development.
Mr Doyle's interpretation was that the "taking into consideration", required under cl 1(2) of Schedule 5 to the SEPP was limited to the nominated "Regulation" in the CCPG. I understood his point to be that when undertaking assessment one would set aside the "Design guidance" provided in regard to each of the relevant Regulations. His view was that, as a consequence of the cl 1(2) reference to "regulatory requirements", alone, the "Design guidance" elements of the CCPG must be ignored. I believe his argument was that to think otherwise left cl 1(1) of Schedule 5 of the SEPP with no work to do.
The "Design guidance" components in Part 4 of the CCPG are, like Parts 2 and 3, more generally, concerned with helping applicants with their design. In that sense, there is a logic at a baseline level that they do not apply if an application is already designed. But if I am to "take into consideration the regulatory requirements" and the National Quality Framework Assessment Checklist (NQFAC), and say, relevantly, whether there is "adequate shaded areas to protect children" (Regulation 114), it is reasonable to think an assessor would look to interpretive guidance on "adequacy", one way or another. I cannot see it as necessary to not look at the design guidance material listed in the CCPG when I take into consideration the regulations.
Council's DCP (Section 6.1) also included assessment criteria of relevance. Pertinent provisions to these matters include: "Objectives A. To encourage the provision of high quality child care centres which meets the needs of the community, including users of the facility and owners and users of surrounding land uses B. To encourage the provision of child care centres in commercial and residential developments … D. To ensure that child care centres are appropriately located on sites where high levels of safety, security, environmental health and amenity for children are achieved. … H. To ensure that well designed spaces are provided that are safe and functional, and enable staff supervision of children at all times … Provision of Child Care Places 1. Child care centres must provide a minimum of 33% of their child care spaces for children under the age of 2 years. … Indoor and Outdoor Space 36. The outdoor play spaces are to be: … ak. located at ground level and at the rear of the Centre an. located (where practicable) to the northern or north-eastern end of the site and not to the south of the building. It should be able to receive a minimum of 3 hours direct sunlight during the centre's operating hours … at. adequately shaded in accordance with Shade for Child Care Services published by the NSW Cancer Council and NSW Health Department. Physical shading devices are to provide sun protection to children and be integrated into the design of the building and the outdoor area."

[14]

Outdoor play spaces

Council contends that the proposed outdoor spaces are unsatisfactory in regard to child care requirements. Concerns were in regard to both shading availability (on the upper level) and the extent of overshadowing (including as a consequence of the large balcony). Council relied to an extent on the CCPG, but noted that its DCP was also relevant and generally encompassed the requirements of the new SEPP in any event.
Regulation 114 at Part 4.11 of the CCPG provides as follows: "The approved provider of a centre-based service must ensure that outdoor spaces include adequate shaded areas to protect children from overexposure to ultraviolet radiation from the sun."
Additional, more detailed, sunlight and shadow information was requested in the Joint Expert Report by the planners. This work was undertaken by the applicant and accepted at the hearing as a component of Exhibit B. The more detailed sunlight and shadow information indicated acceptable levels of sunlight access, including in mid-winter. I accept that there are sufficient arrangements for shaded areas on both levels. Overall, I accept Mr Sarich's evidence that the proposal achieves a suitable balance of sun and shade for outdoor areas.
Council's DCP requires outdoor play spaces to be "located at ground level". A feature of this proposal is the large area of outdoor space located on the first floor. Here, I also note Regulation 113 at Part 4.10 of the CCPG which provides as follows: "The approved provider of a centre-based service must ensure that the outdoor spaces allow children to explore and experience the natural environment."
There would generally be increased opportunity to "explore and experience the natural environment" where play spaces are at the ground level. The DCP control represents a desirable ambition for Council in its planning for and assessment of child care services. The extent of reliance on non-ground floor outdoor space is a negative aspect of the proposal. I say this notwithstanding the designing-in of nominated landscaping and "exploratory" play-facilities on the upper level balcony (Landscape Plan at Exhibit G), which does demonstrate a response to the requirements of Regulation 113.

[17]

Findings

A central concern with the proposal, from Council's viewpoint, is its non-conformance with Council's DCP. There are a series of built-form related non-compliances which Council contends would result in the proposal having an adverse effect in the streetscape. As indicated above, I am not convinced of this argument. The proposal would be expected to sit reasonably, albeit somewhat idiosyncratically, in the street as a child care centre providing a local service.
Other direct DCP non-compliances are in relation to outdoor open space for the children (upstairs rather than at ground level), and the proportion of under 2 year olds accommodated in the centre.
Section 4.15(3A) of the EPA Act directs me to be flexible in instances of DCP non-compliance. In addition to this provision I have had regard, in particular, to two authorities on the application of DCPs, namely, Zhang v Canterbury City Council [2001] NSWCA 167 (Zhang) and Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 (Stockland). Zhang requires a "proper genuine and realistic consideration of the DCP" (at [62]), and suggests it as "focal point" for deliberation on the DA (at [77]). But I also note Zhang's emphasis on how DCPs must be distinguished from LEPs. That is to say that while LEPs are "determinative" and a contravention (in principle) must require refusal, DCPs are discretionary instruments, which need to be taken into account, but among other matters (at [74]-[75]).
I turn to the findings of the former Chief Judge in Stockland. While here talking about adopted "urban design controls", McClellan CJ found: Unless cogent reasons suggest otherwise, a council is also entitled to expect the Court to require development to conform to the adopted parameters.
"Cogent reasons" to suggest otherwise, evidenced by the submissions of Mr Doyle, might include a lack of consistent application of the DCP. Mr Clendenning submitted in his oral evidence that Council applied the DCP with some rigour (and was "not flippant" as to its application). However, Mr Doyle provided explicit examples where Council appeared to have approved an area of open space, above ground level, in one child care centre (in addition to the current approval for this site); along with two examples of lower than 33% provisioning of under 2 year olds in the application (but only by a single child under 2 year olds care place - whereas the current proposal is non-compliant by two places).
The second of the Planning Principles contained in Stockland points directly to the relationship between DCP weight and the consistency of DCP application. Nevertheless, I am only partly convinced by the evidence of non-compliant approvals in regard to above ground open space and proportion of under 2 year olds, in part due to the numbers involved. Further details on the circumstances of each (non-compliant) case would have been useful in that regard.
Nevertheless, I do find favourably in regard to the proposal notwithstanding these two non-compliances. In regard to the question of above ground open space, I note that this proposal does include considerable area of ground floor open space and there seem to have been genuine efforts made to provide interesting and stimulating replacement facilities on the upper level. I also note the geographical setting, in the near environs of R4 (higher density housing) zoned land and the B4 Mixed Use zoned land at Brighton Le-Sands centre. While it is not necessarily desirable, higher density areas would be expected to more frequently need to provide other than ground level outdoor open space, when compared to lower density areas. In regard to the question of under 2 year old care place numbers inconsistent with DCP requirements, it seems to me that this matter alone can be considered as insufficient to warrant refusal of the application.

Antoniou v Bayside Council

At a glance

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Decision date

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Judgment (19 paragraphs)

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Cases Cited (10)

Cited By (2)