Antoniou v Georges River Council

Land and Environment Court (NSW)|2017-08-23

Judgment

COMMISSIONER: This is an appeal against the refusal of Development Application (DA) No. 16/0314 for Lot 3 DP 15582, known as 25 Old Forest Road, Lugarno, NSW (the site).
The DA was lodged by the applicant with Georges River Council (Council) on 18 November 2016, with a proposal to demolish existing structures and construct a two storey child care centre for 40 children.
The site has an existing DA (2015/0082) for a 19-place child care centre, approved by Council and Independent Hearing and Assessment Panel (IHAP) on 16 August 2016.
The DA (16/0314) was advertised on 5 December 2016, which received 16 submissions, and reported to the IHAP on 23 February 2017. IHAP determined to refuse the DA and a Notice of Determination was issued by Council to the applicant on 28 February 2017.
The applicant was granted leave by the Court to amend plans, and provide acoustic and traffic reports on 13 June 2017, which were then notified to the objectors. Subsequently, ten submissions were received to Council. Further leave was granted by the Court on 11 August 2017 to amend the DA by substituting updated plans and documents.
Leave was again granted by the Court during the hearing to amend the plans and documents that are submitted as Exhibit D.
In hearing this matter, a site visit was undertaken on 23 August 2017, whereby Mr Andrew Aversa, of Old Forest Road, Lugarno, gave onsite evidence for himself and on behalf of a neighbour, Ms Cathy Tsolakki, of Hillcross Street, Lugarno. The concerns of residents related to privacy, noise and visual impact from the rear car park.

The site

The site is located on the corner of Old Forest Road and Hillcross Street, Lugarno with street frontages of 14.42 m and 48.77 m, respectively. The site is generally rectangular in shape with a total site area of 702.9 m2, and a fall toward Old Forest Road (western boundary) of approximately 2 m.
The site is currently occupied by a single storey residential dwelling oriented north-south, and a detached garage along the eastern boundary of the site, with numerous trees and shrubs in the front and rear.
The surrounding area within the zone is a mix of detached one and two storey residential dwellings, and dual occupancies. A primary school (Lugarno Public) is located immediately adjacent to the site on Old Forest Road.

Relevant planning controls

The State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPP 2017), supported by the Child Care Planning Guidelines 2017 (Guidelines 2017) provide objectives that have regard to the co-location, design and desired site area for child care centres.
The Education and Care Services National Regulations 2016 (Reg 2016), clause 113 stipulates the requirement for 'centre based providers to ensure outdoor spaces at education and care service premises allow children to explore and experience the natural environment'.
The site is zoned R2 Low Density Residential, pursuant to Hurstville Local Environmental Plan 2012 (HLEP 2012) zone map LZN_003. Clause 2.3(2) of the HLEP 2012 requires that the consent authority must have regard to the zone objectives, when considering a development application. The zone objectives are: To provide for the housing needs of the community within a low density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. To encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area. To ensure that a high level of residential amenity is achieved and maintained. To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment. To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity.
Clause 4.4, HLEP 2012, establishes the objectives and requirements for FSR. According to the FSR Map (FSR_003), FSR relevant to this site is 0.6:1. Clause 4.5 addresses the calculation of FSR and site area. In response to the FSR exceedance, the applicant has submitted, pursuant to cl 4.6, HLEP 2012 a request to vary the FSR requirement. The objectives of cl 4.4 are: (a) to ensure that buildings are compatible with the bulk and scale of the existing and desired future character of the locality, (b) to establish the maximum development density and intensity of land use, accounting for the availability of infrastructure and generation of vehicular and pedestrian traffic to achieve the desired future character of the locality, (c) to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain, (d) to facilitate an appropriate transition between the existing character of areas or localities that are not undergoing and are not likely to undergo a substantial transformation, (e) to minimise the adverse impact of the development on heritage items, (f) to establish maximum floor space ratios that ensure the bulk and scale of development is compatible with the major centre status of the Hurstville City Centre.
HLEP, cl 6.4(3) requires that the consent authority must not grant consent without consideration of how the development would affect the qualities of the Foreshore Scenic Protection Area (FSPA), location as shown in Sheet CL1_003. The Court must consider if development within the FSPA will: (a) affect the natural environment, including topography, rock formations, canopy vegetation or other significant vegetation, and (b) affect the visual environment, including the views to and from the Georges River, foreshore reserves, residential areas and public places, and (c) affect the environmental heritage of Hurstville, and (d) contribute to the scenic qualities of the residential areas and the Georges River by maintaining the dominance of landscape over built form.
The Hurstville Development Control Plan No.1 2016 (HDCP 2016), Amendment No. 5, provides the following relevant performance criteria (PC) for children care centres and specific design solutions (DS), in Section 5, for consideration of the DA: PC1, DS 1.1, minimum frontage for parking PC2, DS 2.1 and 2.3, location and minimum street frontage PC3, DS 3.4, cumulative impact PC5, DS 5.1 and 5.3, maximum and minimum number of places PC6, DS 6.1 and 6.4, height and setbacks PC8, DS 8.1 and 8.2, car parking and landscaping area PC10, operating hours PC11, traffic noise

Is the acoustic fence a wall for the purposes of FSR calculation?

The FSR defined in the HLEP 2012 is: "floor space ratio" of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.
A key contention of Council is that the proposed development exceeds the allowable FSR of 0.6:1 with a ratio of 0.636:1, resulting in an exceedance by 25.56 m2, equivalent to a 5.9% variation.
The FSR calculation is based on the definition of gross floor area (GFA) in the HLEP 2012, that states: "gross floor area" means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and excludes: (i) terraces and balconies with outer walls less than 1.4 metres high.
The experts agree that the FSR exceedance as estimated by Council is primarily due to the inclusion of the first floor outdoor play area in the GFA calculation. The experts disagree as to whether the 1.8 m acoustic fence constitutes a 'wall' and therefore whether the outdoor play area should be included in the FSR calculation.

Evidence

The experts accepted that the acoustic fence is required to allow the outdoor play area to be used as intended, both on the ground floor and first floor. Mr Dickson contended however that as the fence was glazed rather than a solid structure, it should not be considered as a wall.
Ms Bizimis considered that if the acoustic fence was at a height of less than 1.8 m, this would result in a change in how the proposed outdoor play area on the first floor could be used. She noted that if a lower fence (<1.4 m) was installed, the outdoor play area would not be considered as part of the GFA.

Findings

The issue for consideration is whether the 1.8 m acoustic fence around the first floor play area constitutes an external wall and therefore whether the first floor outdoor play area should be included in the calculation of GFA.
What constitutes a 'wall' was posed in Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1009. Consistent with the principles of statutory construction whereby the natural and ordinary meaning should be used, Commissioner Tuor adopted the Macquarie Dictionary to define a 'wall' with the following meaning: Noun 1. an upright structure of stone, brick, or similar material, serving for enclosure, division, support, protection, etc., as one of the upright enclosing sides of a building or a room, or a solid fence of masonry
Commissioner Tuor in Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1009 went on to say that based on these definitions: The "walls" of the balconies relate to the outside and form the outer part of the building. They are therefore external walls. While they may not be structural or meet acoustic or fire requirements, I do not accept that this is necessary in determining whether the wall is external for the purpose of GFA and FSR.
The 1.8 m glazed acoustic fence proposed around the first floor outdoor play area is agreed by all experts as required to ameliorate potential noise impacts to neighbours. It also has the effect of a privacy screen to the street.
Consistent with the definition of a wall provided above, I find that the 1.8 m acoustic fence forms the outer part of the building and does therefore constitute an external wall. I agree with Council that the area around the first floor outdoor play area that is confined by the acoustic fence should form part of the GFA and be included in the FSR.
I therefore find that the proposed development does not comply with cl 4.4, of the HLEP 20012 by 25.56 m2, equivalent to 5.9% and that a variation pursuant to cl 4.6, HLEP 2012 is required.

Have the requirements for cl 4.6 variation of FSR been met?

Clause 4.6 establishes the objectives and requirements for exceptions to development standards in the HLEP 2012, including FSR. Clause 4.6 states: 1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence.

Written request

The written request, pursuant to cl 4.6(3) of the HLEP 2012 was prepared by the applicants town planner, Mr Dickson of Dickson Rothschild, and states that a variation to the FSR requirement should be supported as summarised below: 1. The proposed child care centre provides social infrastructure to the local area that supports a growing population and provides local employment opportunities. To restrict development that supports the growing local population is unreasonable and unnecessary. The site area is sufficient in size to accommodate a 40-place child care centre, and the location is well positioned adjacent to Lugarno Public School, close to road transport and compatible with the local area. The proposed development: 1. Has windows positioned towards the street frontages and rear of the building to reduce visual and aural impacts. This is further supported by privacy and acoustic screens, and landscaping. 2. Presents as a two storey building, similar to residential dwellings in the neighbourhood. 3. Has traffic impact on the residential area that is minimal. The first floor level is setback by 7m from Old Forest Road, 10.1 m from the rear boundary and 2 m from Hillcross Street. Therefore, the effect of the 1.8 m acoustic fence on the first floor is a recessive feature from the streetscape perspective, which is further softened by glazing, timber panelling and planter boxes. This design is consistent with residential dwellings in the area. The proposed development has incorporated sufficient environmental planning grounds, such as the 1.8 m acoustic fence to ameliorate noise impacts. There are no adverse environmental impacts from this fence. The effect of the fence has resulted in the requirement for the cl 4.6 variation request. Without the acoustic fence, the proposed development would be compliant with the FSR. The proposed development does not raise any matters of significance with State or regional environmental planning.

Evidence

The parties agree that the new SEPP 2017 applies to the proposed development and that the proposed activity is permissible in the zone, however disagree whether the HLEP 2012 objectives for the zone and FSPA have been met.
Divergence in agreement between the experts relates to the suitability of the location on a corner block with a narrow frontage to Old Forest Road which Council considers constrains the development such that landscaping is not sufficiently utilised to address key development controls, such as bulk and scale, and privacy.
Ms Bizimis considers that the proposed development presents as a commercial building, and the proposed landscaping is limited, which adds to the perception of bulk. The bulk of the development is further exacerbated by the first floor enclosed play area, surrounded by a 1.8 m acoustic fencing.
Ms Bizimis considers that the rear car park will have an aesthetic impact to 23 Old Forest Road, due to excessive hard surfaces without relief from landscaping. She noted that 'typically' child care centres in the zone have car parking at the front of the property with landscaped play areas at the rear to minimise impact to neighbours. The corner block location is a limitation to development of basement car parking that therefore adds to bulk and scale.
Mr Dickson noted that the existing development consent for a child care centre on the site has already approved car parking at the front of the property. He considers that the benefit of the corner block supports the rear parking option that provides a safer environment for children including those attending the local school.
Mr Dickson considers that the deep soil planting proposed around the front, side and rear of the site together with the acoustic fence at the ground level has a similar height and site coverage to that of neighbouring residential dwellings, and will not necessarily present as a commercial building.
Mr Dickson suggested that the acoustic fence will have the 'appearance' similar to neighbouring fences, such as at 23 Old Forest Road, and that the proposed boundary and first floor landscaping will effectively obscure the visual effect of the fence over time. Other properties in the area were observed to have a 1.8 m external masonry wall presenting to the street, which Mr Dickson considered less appealing than the proposed development.
The planning experts agreed on the construction of a 1.8 m acoustic fence along the site northern boundary will mirror the partly constructed existing fence of similar height on the southern boundary of 23 Old Forest Road. Also, they agreed that the upper portion of the acoustic fence along the rear northern boundary will be glazed to allow light through.
Exhibit A provides a snapshot of the current demographics for the Hurstville area. The data indicates that there are 338 children under the age of five currently living in the Hurstville area, part of the zone. The experts agree that the proportion of children of relevant ages provided for in the proposal is consistent with these demographics and that the area has a need for child care facilities.

Findings

The planning experts recognise that co-locating the proposed child care centre adjacent to a local public school is appropriate, and satisfies a number of SEPP 2017 and HDCP 2016 development requirements, specifically Objective C3, of the Guidelines 2017. The proposed development supports the objectives and controls that relate to a child care centre being at a focal point location and avoiding hazardous areas.
The issue for consideration arises due to the requirement of a first floor level to accommodate some of the proposed 40 children, and the resultant need for a 1.8 m acoustic fence to ameliorate the impact of noise from the first floor outdoor play area.
The parties have different interpretations as to whether the 1.8 m fence results in a change in bulk and scale. The submission by Council is that the change in bulk and scale should be given significant weight by applying the numeric standards of cl 4.4 HLEP 2012, setting a 0.6:1 ratio for FSR. Accordingly, a FSR of 0.636:1 would be inappropriate. Council contends that compliance with this standard then establishes the local amenity.
Cl 4.6(2), HLEP 2012 provides that 'Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument'.
Cl 4.6 imposes three relevant preconditions on the Court in exercising the power to grant consent to the proposed development where a development standard is not compliant, namely: 1. Cl 4.6(3)(a) and (b) as provided below, and cl 4.6(4)(a)(i) - consideration of written request and satisfaction that: 1. compliance is unreasonable and unnecessary, and 2. sufficient environmental planning controls to justify contravention. 1. Cl 4.6 (4)(a)(ii) - in public interest and consistent with objectives of the standard and zone. 2. Cl 4.6 (5)(b) - there is public benefit to maintaining development standard.
In considering the question of achievement of the objectives of the relevant regulatory tools, I have considered the approach of the former Chief Judge, Pearlman J in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21, where her Honour expresses the following opinion at [27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.
With regards to achieving cl 4.6(3)(a), there is a demonstrated need for a 40-place child care centre in the zone and there are benefits of co-locating a child care centre close to the local public school. This creates local employment opportunities in the zone. I agree that the child care centre requires the first floor level to accommodate the 40 children proposed for the child care centre. Therefore, I find that pursuant to cl 4.6(3)(a), compliance with FSR requirements in the proposed development is unreasonable and unnecessary.
With regards to cl 4.6(3)(b), I find there are sufficient environmental planning controls to justify contravention of the FSR standard. The 1.8 m acoustic fence around the first floor outdoor play area will have the effect to ameliorate acoustic impacts when implemented together with a Plan of Management (POM). The proposed landscaping around and within the fenced areas at the site will have the effect to soften and reduce the perception of bulk and scale, and will not have an adverse effect on local amenity. Traffic issues have been addressed through car parking at the rear of the property, away from the school crossing and school drop off areas, and car park use managed under a POM.
I therefore find that pursuant to cl 4.6(4)(a)(i), the written request for a variation to cl 4.4 has been adequately addressed to demonstrate compliance with cl 4.6(3) requirements.
I find, pursuant to cl 4.6(4)(a)(ii), that a variation of the FSR is in the public interest and is not inconsistent with the objectives of HLEP 2012 for the zone. The proposed development specifically addresses zone objectives 'To enable other land uses that provide facilities or services to meet the day to day needs of residents' and 'To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity'. The provision of a child care centre, located adjacent to a public school that already has associated traffic and child play noise issues is not considered to cause further unacceptable local amenity impacts, particularly if the child care centre is operated consistent with the POM. The transition opportunity for children from the child care centre to the nearby school, enables parents to remain located in the local area and supports day to day needs of residents.
Further to this, I find that the proposed development, pursuant to cl 4.6(4)(a)(ii) satisfies the objectives of cl 4.4(1), and specifically: (a) 'to ensure that buildings are compatible with the bulk and scale of the existing and desired future character of the locality'; and (b) 'to establish the maximum development density and intensity of land use, accounting for the availability of infrastructure and generation of vehicular and pedestrian traffic to achieve the desired future character of the locality'. The proposed two storey building with landscaping along the boundary will soften the effect of the acoustic fence and is consistent with the future character of the locality. I find that by providing the opportunity for families to drop off children of multiple ages at both the school and child care centre in the same area will not generate additional traffic congestion. The development proposal seeks to redirect traffic away from the busy pedestrian cross for the adjacent school, with a rear carpark entry from Hillcross Street.
The variation of FSR for the development is not inconsistent with the other FSR objectives in cl 4.4, as environmental planning controls have sufficiently been applied to reduce impacts to bulk and scale, traffic and noise to adjoining properties. According to the IHAP report for this DA, the site is not located within close proximity of any heritage items, structural or environmental.
For the reasons provided above, namely supporting the economic viability for residents to remain in the zone, meeting the educational needs of the local community and applying significance to the standards of the HLEP 2012 to protect public interest, I find that there is public benefit, pursuant to cl 4.6(5)(b) to varying the development standards for FSR requirement on the proposed development.
I therefore find that a variation of the FSR requirement, pursuant to cl 4.6, has been satisfied.

Have the requirements and objectives for FSPA been met?

The site is located within the FSPA, as shown in Sheet CL1_003 of the HELP 2012.
The Council's position is that the proposed development is inconsistent with the objectives of the FSPA and will have an effect on its qualities, pursuant to cl 6.4(1) and (3) of the HLEP 2012.
The applicant's written request, pursuant to cl 4.6(3) of the HLEP 2012 addresses the requirements for assessing potential impact to the FSPA, as follows: 1. The site is not within vicinity of any heritage items or in a conservation area. 2. There are no significant views from the site or affected by the development to Georges River. 3. Planter boxes on the first floor balcony, retaining existing vegetation on the front and side verges, planting trees in the front setback and along Hillcross Street will have the effect to present the site with landscaping dominating over the building form.
Council has addressed the issues regarding effect on the FSPA from the development in paragraphs above, and specifically 36 and 37.

Findings

The threshold issue is whether the proposed development has implications to the 'environmental quality', including natural, visual and heritage, and contributes to scenic qualities of the FSPA. A consent authority must consider the effect on the FSPA environmental and scenic qualities, pursuant to cl 6.4(3) of the HELP 2012.
As mentioned previously, the proposed child care centre presents as a two storey building similar to neighbouring dwellings within the visual catchment of the site. The character test in cl 4.4, objective (1)(a) refers specifically to 'existing and desired future' character. I find that the existing and future character of the 'surrounding residential area' is consistent with the proposed development, which is increasingly two storey dwellings with first floor balconies, and landscapes along the boundary to soften the built form.
I find that the proposed development will not detract from the scenic qualities of the FSPA, as it does not have a dominance of built form over the landscape with the benefit of the proposed landscaping on both floor levels.
The proposed landscaping of planter boxes with cascading plants together with retaining existing/planting new trees will soften the acoustic fence, thereby reducing any visual impact of the building bulk and the potential 'commercial appearance' as referred to by Council. Landscaping at the ground floor level is of similar design as observed in the surrounding residential area. First floor plantings along the balcony will soften the effect of the fence.
The natural environment of the FSPA will not be adversely affected by the proposed development, particularly with the retaining of existing verge vegetation and planting of new trees within the site.
As observed on site, the proposed development is located at the top of the hill that does not obstruct any views to the Georges River. Therefore, the visual environment of the FSPA will not be affected by the proposed development.
I do not find that the 'environmental heritage' of the area will be affected by the proposed development. As discussed in paragraph 54, there are no identified heritage items in the surrounding locality of the site.
The Council contended that the car park area at the rear of the site promotes a visual impact on the neighbouring properties. However, I find that the visual impact to 23 Old Forest Road is sufficiently reduced due to the obstructed view from the neighbouring rear bedroom window and the effect of the 1.8 m fence on both sides of the boundary to provide privacy. The hard surface of the proposed rear car park is in effect no different from that found in the front of 23 Old Forest Road, which is visual from the street.
I therefore find that the local amenity impacts from the proposed child care centre will result in insufficient change to the local zone character that would impede achievement of the objectives of the FSPA, pursuant to cl 6.4(1) of the HLEP 2012.
Based on the above, I find that the proposed development for a 40-place child care centre at the site satisfies the requirements of cl 6.4(3) of the HELP 2012 and does not affect the qualities of the FSPA, and is consistent with objectives of the FSPA pursuant to cl 6.4(1).

Have the acoustic impacts been satisfactorily ameliorated?

Acoustic issues that relate to the proposed development arise from the rear located car park and the outdoor play areas.
Dr Tonin, referred to his modelled results in the expert report, and found that the noise generated from the proposed rear access car park, would be limited to 37.3 decibels (dB), further reduced with an acoustic screen of 1.8 m to 34.7 dB. These modelled acoustic estimates were based on a predicted traffic flow during peak periods of 32 movements/hour.
He also concluded that the predicted outdoor play noise levels, based on LAeq (weighted equivalent sound pressure level in dB measured over a period of time), 15 minutes criterion, would reach a maximum of 43 dB (at 23 Old Forest Road). Acoustic estimates are well within the HDCP 2016 acoustic criteria (DS 12.3, PC 11).
Dr Tonin considers that the potential acoustic impacts from the rear car park and front play areas will be ameliorated by the 1.8 m acoustic fence around the site boundary and first floor outdoor play area when implemented together with a POM.
Mr Atkins did not agree with the aforementioned acoustic modelling assumptions, and considers that due to the proximity of the car park to the windows at 23 Old Forest Road, noise levels are likely to be higher.
The acoustic experts were not in agreement as to the effectiveness of a POM to manage and control noise from the proposed child care centre, specifically that parents dropping/picking up in the car park and children playing outside would not be easily managed by the operators or carers.
The acoustic experts agreed that limiting active play on the upper floors, climbing of children at ground level below 1.5 m, and restricting access to the centre before 7 am and after 7 pm, would reduce potential acoustic impacts beyond the site. However, Mr Atkins considered that limiting play in outdoor play areas to reduce noise is unrealistic, and that there would be instances were loud noises could be audible to neighbours.
The planning experts agreed that play equipment and decking should be limited in height so that children are below the 1.8 m acoustic fence.

Findings

I find that the applicant has successfully demonstrated that the provision of a 1.8 m acoustic fence along the boundary and first floor play area, with restrictions in child climbing, will ameliorate the potential noise impact to within the required HDCP 2016 standards (DS12.3) and that the POM when properly implemented will further reduce noise impacts to neighbours. I note that the effective administration of the POM is essential to reduce noise impact.
Pursuant to cl 1.9(1) of the HLEP 2012 and cl 8(1) of the SEPP 2017, the provisions of a SEPP prevail over the HLEP, as provided for in s 36, Environmental Planning and Assessment Act 1979. The saving provision, Schedule (s) 5 (1)(1) requires that the consent authority under s 5(1)(2) have regard to the National Quality Framework Assessment Checklist in the Guidelines 2017.
The Guidelines 2017 require that the physical environment of child care centres to 'provide a rich and diverse range of experiences that promote children's learning and development'. This is supported by the assessment checklist (specifically Regulation 113), Guidelines 2017 which requires outdoor spaces allow children to 'explore and experience the natural environment'. Regulation 113 of Reg 2016 states: The approved provider of a centre-based service must ensure that the outdoor spaces provided at the education and care service premises allow children to explore and experience the natural environment.
Regulation 113 informs the design and operation of outdoor play areas to ensure child play is active and educational. The acoustic and planning experts all agreed that child's play in the outdoor play areas, particularly on the first floor would need to be well managed to reduce noise impact. The proposed approach to achieving a noise reduction is through limiting climbing on equipment and outdoor play times implemented through the POM (Exhibit A) to 2 hours a day. The applicants planning expert agreed to remove all climbing posts and reduce decking height in the ground floor and first floor play areas to ensure children do not exceed 1.5 m height.
I find that the requirement of the proposed development to significantly limit child's active play time and use of equipment to achieve local amenity has the effect of limiting achievement of Regulation 113. However, I find that the limitations are not to the extent that Regulation 113 cannot be achieved through more interactive passive play to enhance the child's experience of natural environments which should be address through the implementation of the POM.

Conditions of consent

It therefore follows from what I have set out above, that the proposed development application should be approved.
Following the hearing the Respondent and the Applicant provided written submissions on the without prejudice conditions of 29 August 2017. There are a number of conditions where the parties are not in agreement.
In concluding that the proposed development should be approved my assessment and consideration has been on the basis of the conditions as follows.
Draft condition 42 relates to a requirement for a registered surveyors report and specifically with regards to issues in contention states: subparagraph (d) 'Completion of Floor Slab Formwork - Before pouring of concrete/walls construction, detailing the location of the structure relative to adjacent boundaries and floor levels relative to the datum shown on the approved plans. In multi-storey buildings a further survey must be provided at each subsequent storey'; and subparagraph (f) 'Completion of any Roof Framing - Before roof covered detailing eaves/gutter setback from boundaries'. I find in favour of the Council with regards to sub paragraphs (d) and (f) of condition 42, on the basis that the RL height of first floor fencing is a requirement to ameliorate acoustic impact, as specified in condition 70, and the agreed setbacks are a component of the approval. Condition 42 is detailed below: Condition 42 PREC7001 - Building - Registered Surveyor's Report - During Development Work - A report must be submitted to the Principal Certifying Authority at each of the following applicable stages of construction: (a) Set out before commencing excavation. (b) Floor slabs or foundation wall, before formwork or commencing brickwork. (c) Completion of Foundation Walls - Before any construction of flooring, detailing the location of the structure relative to adjacent boundaries and floor levels relative to the datum shown on the approved plans. (d) Completion of Floor Slab Formwork - Before pouring of concrete/walls construction, detailing the location of the structure relative to adjacent boundaries and floor levels relative to the datum shown on the approved plans. In multi-storey buildings a further survey must be provided at each subsequent storey. (f) Completion of any Roof Framing - Before roof covered detailing eaves/gutter setback from boundaries. (g) Completion of all Work - Detailing the location of the structure (including eaves/gutters) relative to adjacent boundaries and its height relative to the datum shown on the approved plans. A final Check Survey must indicate the reduced level of the main ridge. Work must not proceed beyond each stage until the Principal Certifying Authority is satisfied that the height and location of the building is proceeding in accordance with the approved plans.
Draft condition 64 states 'The maximum of 2 hours outdoor play time for the childcare centre must take place between 8.30am and 2.50pm'. The applicant has requested that the hours of play be extended between 8.30 am and 4 pm, on the basis of 'Lugarno Public School will generate noise between 2:50pm and 4pm with parents and children leaving the school' and Lugarno after school care will also generate noise until 6 pm. I find in favour of the applicant to extend outdoor play periods consistent with the nearby school. The amended condition 64 is provided below. This is consistent with my findings above that relate to co-location of the child care centre close to the school that will have associated noise from the school and that the noise from the child care centre during this time would not be inconsistent with existing background noise. Condition 64: The total outdoor play time for the entire child care centre is limited to 2 hours per day in accordance with the recommendation of and Dr Tonin (Joint Report 31 July 2017). During the outdoor playtime the number of children in the outside areas shall not exceed the following: 6 children 0-2 yo and 5 children 2-3 yo in the outside active play area on the ground floor, 6 children 0-2 yo and 5 children 2-3 yo in the outside passive play area on the ground floor, 9 children 3-5yo in the outside active play area on the first floor, 9 children 3-5yo in the outside passive play area on the first floor. The maximum of 2 hours outdoor play time for the childcare centre must take place between 8.30am and 4 pm. The OPOM referred to in condition 33 above shall incorporate this condition.
Draft conditions 69 and 70 relate to the height restriction on play equipment on the ground floor and first floor outdoor play areas, respectively. I find in favour of the Council with regards to these conditions detailed below on the understanding that play equipment that could be used to climb on should be limited in height to reduce noise impact to neighbouring properties. I have however amended conditions 69 and 70 to remove the reference to furniture and amended condition 70 to refer entirely to first floor level. This would not restrict the use of chairs and tables as they are not intended nor should be used for climbing purposes. Condition 69: The finished floor level of the ground floor outdoor play area (including any landscape structures that could be climbed by a child, such as decks and planters, fixtures and fittings) shall not exceed RL 72.00 and there shall be no play equipment that could be climbed by a child shall be installed or used on the ground floor outdoor play area. This condition is to ensure that the children (0-3 years) are not elevated above 1.0m so that the noise levels of children playing do not exceed the levels deemed acceptable by Dr Tonin in the Joint Report 31 July 2017. This condition of consent is to be incorporated into the OPOM submitted pursuant to condition 33. Condition 70: The finished floor level of the first floor outdoor play area (including any landscape structures that could be climbed by a child, such as decks and planters, fixtures and fittings) shall not exceed RL 75.150 and there shall be no play equipment that could be climbed by a child shall be installed or used on the first floor outdoor play area. This condition is to ensure that the children (3-5 years) are not elevated above 1.2m so that the noise levels of children playing do not exceed the levels deemed acceptable by Dr Tonin in the Joint Report 31 July 2017. This condition of consent is to be incorporated into the OPOM submitted pursuant to condition 33.
The remaining proposed conditions of consent are agreed.

Orders

The orders of the Court are: 1. Leave is granted to rely on amended plans tendered to the Court on 6 September 2017 as Exhibit D. 2. The appeal is upheld. 3. Development Application No. 16/0314 for demolition of existing structures and construction of a two storey child care centre for 40 children at Lot 3 DP 15582, also known as 25 Old Forest Road, Lugarno, NSW is approved subject to conditions as provided in Annexure A. 4. The exhibits, except Exhibits 1 and D, are returned.

S Bish Commissioner of the Court Annexure A(370 KB, pdf)

Amendments 11 October 2017 - Annexure 'A' attached to decision. 27 October 2017 - Incorrect Annexure attached (Annexure 'A') 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: 27 October 2017

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