ArtMade Architectural Pty Ltd v Willoughby City Council

Planning context

1. The total site is generally regular in shape with a 54.71m frontage to Willoughby Road, a 44.96m frontage to Walter Street and northern and western boundaries of 47.73m and 47.38m respectively. It is situated on the north eastern corner of Willoughby Road and Walter Street, has a total area in the order of 2 250m², and is generally level.
2. The site is zoned R3 Medium Density Residential under the provisions of the Willoughby Local Environmental Plan 2012 (the LEP). A child care centre is permissible in the zone.
3. West and south of the site, in Walter Street, are single and two storey dwellings. Those on the northern side of Walter Street are zoned R3 whilst those on the southern side are zone Infrastructure SP2 being part of the M1 Gore Hill Freeway reservation. Properties adjoining and in close proximity on the western side of Willoughby Road are also zoned R3 immediately north of the site and R4 further north. Hallstrom Park is on the opposite (eastern) side of Willoughby Road and is zoned Public Recreation RE1. The Willoughby Leisure Centre is east of Hallstrom Park within the RE1 zone and accessed off Small Street which connects with Willoughby Road at a signalised intersection.
4. The LEP contains a number of objectives for development in the R3 zone of which the Council contended two were relevant to consider in terms of the proposed development, namely: • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To accommodate development that is compatible with the scale and character of the surrounding residential development.
5. Following lodgement of the application, in February 2017, draft State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (the Child Care SEPP or SEPP) was advertised (the draft SEPP). The draft SEPP referenced Draft Child Care Planning Guideline - Planning and designing quality child care facilities in NSW (the Draft Guideline) and contained savings and transitional provisions (the savings provisions). The savings provisions enabled applications lodged but not determined to be determined once the SEPP was finalised as if the SEPP had not been made but which nevertheless required that the consent authority have regard to the regulatory requirements of Part 4 of the (draft) Guideline.
6. On September 1, 2017 the Child Care SEPP commenced. It contained, in Schedule 5, the savings provisions found in the draft SEPP relevantly as follows: (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. (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. (2A) … (3) … (3A) Subject to subclause (2), an application to which subclause (1), (2A) or (3) applies is to be determined as if this Policy had not been made….
7. The application was also subject to assessment under the Willoughby Development Control Plan 2006 as amended (the DCP) which contains a number of provisions to control development. At part A9 of the DCP it states that the applicable parts of the DCP that apply to child care centres in terms of development controls are Part C - General Development Guidelines and Part G - Controls for Specific Development Types. Part D - Specific Controls for Residential Development is not said to apply to child care centres.
8. There are specific objectives and controls for child care services found in the DCP at Part G.8. Relevant to this appeal are the following extracts from G.8: Child care centres should not be located in cul-de-sacs or no through roads, except where more than one street access and egress is available to the site and the Centre has adequate parking and pickup/drop off space. In residential areas a minimum 20 metre frontage is required. These requirements are supported by the following objectives: • To ensure child care centres are compatible with the surrounding residential neighbourhood in terms of siting, landscaping and access arrangements for both vehicles and pedestrians, • To identify preferred sites for child care centres on regular lots with a wider frontage, • To reduce additional traffic generated by a child care centre in a cul-de-sac or no through roads as such locations do not allow for good traffic circulation and to minimise potential adverse impacts on the surrounding area in terms of noise, traffic generation and car parking. • To ensure access for emergency vehicles and evacuation options/routes. Child care centres may only be located above ground level where: a. it can be demonstrated that there are no viable alternatives for the location of a child care centre at ground level in the building or the surrounding area due to the built form of the building and density of the surrounding area; b. suitable access to designated play areas is available; and c. effective emergency evacuation procedures will be provided. Above ground child care centres are to be located no higher than the first floor level of a building for emergency evacuation reasons. Indoor Areas 1. Each playroom must have its own storeroom with a minimum size of 5 square metres, and an additional bed storage area. 2. Windows must be provided to allow for access to natural light and views to the outdoors. 3. Mechanical ventilation must be installed in nappy change areas and toilets. Outdoor Areas 1. The outdoor area must have its own storage area, or areas, with a combined minimum size of 8 square metres. 2. The outdoor play area should be accessible from the indoor play area, toilet and washing facilities and designed to enable supervision of children. 3. Play areas should be orientated to take advantage of natural sunlight and shade, with the most desirable aspects north and north east. 4. The outdoor play area should be designed so that it is protected from environmental health risks such as noise and adverse air quality. 5. The outdoor play area should be designed so that adjoining residences are not adversely affected by noise from the use of the outdoor play area. The noise level shall not exceed the background noise level by more than 5dB at the most affected point on or within any receiving property boundary. 6. Ground surfaces should be suitable for play equipment and play activities. 7. Reference must be made to the Children's Services Regulation 2004 in respect to requirements for shade and fencing. Planting and Landscaping 1. Plans should provide for adequate tree retention and tree planting on the site in order to: a. Ensure the predominant landscape quality of the area and the amenity of immediately surrounding areas are maintained or enhanced; b. Provide light, shading and wind control on the site; c. Provide an attractive natural environment for the users of the site; and d. Provide a functional and educational role for the users of the site. 2. Compliance with Clause 5.9 of Willoughby Local Environmental Plan 2012 and the provisions of C.9 of WDCP-Preservation of Trees or Vegetation may be necessary for removal of any trees covered by C.9. Buildings and hard paved surfaces must be sited so as to retain significant trees and their root systems. 3. Tree retention and new planting should take account of the following factors: a. The "softening" of the built environment; b. The effect on sunlight access and shading, wind deflection and temperature moderation; c. The reduction of soil erosion; d. The definition of play zones; and e. Incorporation of plantings as play or educational features. 4. A Landscape Plan will be required which notes those trees to be removed and those to be retained, the proposed layout, planting schedule, and location and details of any paved areas, fencing, retaining walls and equipment. 5. Where the outdoor area is considered "artificial" in that it is not part of the natural environment, the application must outline how "greening" of this area will occur. Consideration should be given to: a. Safety of ground surfaces; b. Use of pots and containers for planting of natural growth, bearing in mind placement so they do not allow children to scale fencing; and c. The "softening" of the built environment. Emergency Evacuation An Emergency Evacuation Plan must be submitted with Development Applications for all child care centres. This Plan should consider: a. The mobility of children and how this is to be accommodated during an evacuation (including the use of emergency evacuation cots where appropriate); b. The location of a safe congregation area, away from the evacuated building, busy roads, other hazards and the evacuation points of other residents or tenants within the building or surrounding buildings; c. Where the child care centre is part of a larger building or complex…; and d. The supervision of children during the evacuation and at the safe congregation area with regard to the capacity of the child care centre and the child to staff ratios.

Submissions on the application

1. The hearing commenced on site and the Court heard from three objectors who reside in Walter Street and one from the Castle Cove development immediately north of the site in Willoughby Road. The Court also viewed the site and surrounds and drove a number of alternate access routes to the site assuming left in/left out at the Walter Street/Willoughby Road intersection.
2. Issues raised by the objectors onsite and in submissions included concern at the changes to the intersection but also with regard to the traffic generated by the development and the lack of parking in the vicinity, noting the clearway on Willoughby Road. It was stated that the situation will be exacerbated by the redevelopment of properties in Walter Street for higher density housing. Reference was also made to the distance and incline to the railway station and the difficulty in accessing the child care centre if the left in/left out only treatment was undertaken to the Walter Street/Willoughby Road intersection.
3. Objectors considered the development to be an overdevelopment of the site with too many children in an unsafe location particularly if evacuation was required. The Court was advised that this was one of the largest child care centres proposed in Sydney and that there were already over 50 child care centres within a 3km radius of the site, with vacancies.
4. It was also argued that the centre was too close to Willoughby Road and the car park too small for the number of staff and children proposed. Other concerns were that Walter Street is too narrow to provide access to the centre and to accommodate the traffic that it would generate. This would have an adverse impact on Walter Street residents in addition to the adverse impact caused by the alteration to the intersection to limit turning movements into and out of the street which residents claimed was already at capacity. The alternative options to access the centre via surrounding streets were considered to be overly cumbersome.
5. Amenity impacts were raised on behalf of the owners of 4 Walter Street located opposite the site in terms of overshadowing and loss of solar access, adverse outlook, and privacy and noise impacts, including from outdoor playing areas at upper levels.
6. The resident from Castle Vale raised concerns with traffic and with bicycle and pedestrian access. She was also an architect and, whilst not claiming to be an expert in the proceedings, considered the design of the centre to be inappropriate even in a medium density residential area with an unrelenting façade, inappropriate setbacks and inadequate landscaping. She stated that Castle Vale, although a large development, still had significant landscaped setbacks to Willoughby Road
7. The proposed developer of adjoining residential properties, Mr Manning, also spoke and advised that he represented 3-13 Walter Street, being the six properties immediately adjoining the site to the west.
8. Mr Manning advised that he supported the proposed child care centre but believed the intersection of Willoughby Road and Walter Street should remain a four way intersection but be signalised and Walter Road widened accordingly to accommodate this. Further, the RMS had indicated its support for such signals.
9. The Council advised that Mr Manning had a planning proposal before the Council which sought to upzone his Walter Road land to R4 to increase the yield to 350 units. The Council was not aware of whether this would generate the need for traffic signals however, Mr Manning had volunteered to provide traffic signals regardless of whether they were warranted.

Applicability of the Child Care SEPP and Guideline

1. A threshold issue between the parties was the applicability of the Child Care SEPP and in particular the provisions of the Guideline referenced by the SEPP.
2. In essence, the applicant argued that, as a consequence of the SEPP's savings and transitional provisions, only Part 4 of the Guideline and no other provision of either the Guideline or SEPP applied. However, the Council argued that, whilst Part 4 of the Guideline definitely applied, regard could also be had to other provisions of the Guideline.
3. It was agreed that the DCP-overriding provision in clause 26 of the SEPP did not apply. Therefore, to the extent the DCP contains provisions that govern child care development, they remain applicable.
4. The applicant argued that the March 2017 amendments to the application were in response to the advertising of the draft Child Care SEPP and in particular to the requirements of Part 4 of the Guideline. Otherwise the applicant's position was that the draft SEPP did not, and the final SEPP would not, apply giving the proposed savings provision.
5. In particular, Mr Staunton, counsel for the applicant noted that, but for the savings provisions in the SEPP, clause 23 of the SEPP would require the consent authority to take into consideration any applicable provisions of the Guideline before determining the application. He argued by the operation of the savings provision, cl 23 of the SEPP, requiring consideration of the whole of the Guideline, did not apply to the application.
6. The Council contended that the effect of the savings and transitional provisions is to make Part 4 of the Guideline a mandatory consideration by virtue of the SEPP and, otherwise, the provisions of the Guideline are either mandatory as an aspect of the public interest, or in any event able to be taken into account.
7. Mr To, counsel for the Council argued that the key error in the applicant's argument is to equate the election of Part 4 of the Guidelines as a mandatory consideration with a mandatory disallowance of consideration of any other part of the Guideline and that neither the savings provision, nor the Act, contemplates or requires only a binary outcome.
8. Mr To submitted that the balance of the Guideline remains a mandatory consideration, not because of a status provided through the SEPP (ie. s 79C(1)(a)(i) of the Act), but as aspects relevant to the public interest (ie. s 79C(1)(e)). He referenced Maygood Australia Pty Ltd v. Willoughby City Council [2013] NSWLEC 142 (Pepper J): 34 Fifth, even if the 2012 LEP is not a proposed instrument to be considered under s 79C(1)(a)(ii), it is, in my opinion, given that the instrument had commenced, a matter that was relevant to "the public interest", and therefore, was necessary to consider pursuant to s 79C(1)(e) of the EPAA. The breadth of matters that can be taken into account as an element of "the public interest" is considerable (Village McEvoy at [38]-[40]) and it may be expected that only the clearest and most unequivocal of words in a planning instrument would displace the statutory operation of s 79C(1)(e) of the EPAA. 35 Alternatively, even if the 2012 LEP is not a mandatory consideration under s 79C of the EPAA, this does not mean that a consent authority is precluded from considering it as a draft or final planning instrument. It is still a matter to which the consent authority may nevertheless, absent clear language or necessary implication to this effect, have regard in making its determination. As the Court stated in Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 (at [22] and [25]): 22. These objects, in my opinion, can only be given full effect by not adopting a narrow construction of s 79C(1). A narrow construction would exclude from consideration the objects of the Act. For example, one of the objects of the Act is to encourage ecologically sustainable development (s 5(a)(vii)). If s 79C(1) were to be regarded as an exclusive list of relevant considerations it would result in the exclusion from consideration of an important objective of the Act. I am thus inclined to the view that s 79C(1) does not exclude the kind of considerations to which Mahoney JA referred in BP Australia Ltd v Campbelltown City Council. That is to say, I am inclined to the view that s 79C(1) sets out the matters that must be taken into consideration, but does not exclude from consideration other matters not included in those listed and which may be of relevance to the particular development application and which furthers the objects of the Act. The view of Cripps J in Ian Turner Partners is clearly obiter and I do not regard myself as bound by it. ... 25. I thus conclude that the matters for consideration listed in s 79C(1) are not the only matters to which a consent authority may have regard. The listed matters are those which a consent authority must consider. The consent authority may also take into consideration other matters not included in those which are listed. Those other matters include, in the public interest, any matter which relates to the objects of the Act set out in s 5. This does not mean that the decision-maker may take anything into consideration. The relevant considerations are confined so far as the subject-matter, scope and purpose of the Act and any environmental planning instruments allow. The draft DCPs and the Values Statement in the present case are relevant as documents which relate to the matters described in sub-paras (i), (ii), (vi) and possibly (vii) of para (a) of those objects. In taking those matters into consideration the Commissioner made no error of law. 36 Similarly in Terrace Towers, the Court of Appeal observed (at [81]): 81 In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 42-44. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land and Water Conservation [2001] NSWLEC 265; (2001) 119 LGERA 231 at 235).
9. In essence, the Council's submission was that the design principles in Part 2 of the Guideline, along with the consideration provisions in Part 3, are informed by, and part of, the national regulatory scheme for delivering child care services, through the National Quality Framework. The SEPP and Guideline do not exist in a vacuum, or even only as a state based regime, but are a nationally developed, coordinated legislative/administrative framework to ensure the wellbeing of children, therefore an aspect of the public interest.
10. Even if not mandatory, the Council submitted that the Court is entitled to, and should, take the Guideline, and what it seeks to achieve, into account having regard to the findings in Maygood at [35]. Significant weight is appropriate as, had the drafter intended that no other parts of the Guideline could be taken into consideration, the savings provision could easily have said so expressly but does not.
11. Mr To submitted that there is a subtle, but important difference in the distinction between considerations that are mandatory, and those which are not, but may still be taken into account by a consent authority arguing that Maygood emphasised at [35] and [36] that s 79C has never been an exhaustive list of considerations.
12. The Council argued that Parts 2 and 3 of the Guideline are plainly relevant - as they are an integral part of the design process directed towards achieving quality child care outcomes and describe precisely the same kinds of matters that the Court would take into account in any merit assessment. Mr To contended that the applicant's argument would lead to the perverse outcome that the Court could not take into account the objective "to ensure that the child care facility is compatible with the local character and surrounding streetscape".
13. Counsel for both parties argued that their position was consistent with the recent finding by Robson J in Omid Mohebati-Arani v.Ku-ring-gai Council [2017] NSWLEC 143: 19. I note there is an element of ambiguity in the precise relationship between subcll (1) and (2) of cl 1, Sch 5. However, I am conscious that planning instruments are not always drafted with pellucid clarity, and the Court should assume that the clauses are intended to enact sense and not nonsense. 20. Having considered the submissions, I find that, while the SEPP would ordinarily be a relevant consideration pursuant to s 79C(1)(a)(i) of the Act, the SEPP does not to apply in relation to development applications such as the one currently before Court. This is made evident by the use of "clear language" in cl 1(1), Sch 5 of the SEPP, which, contrary to the legislation under consideration by Pepper J in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142, does preclude consideration of the SEPP. 21. I am comfortable however that, because of cl 1(2), Sch 5 of the SEPP, the Court is required to take into account Pt 4 of the Child Care Guideline, which incorporates part of the Education and Care Services National Regulations ('National Regulations') and includes the National Quality Framework Assessment Checklist ('Checklist'). 22. I accept the parties' submission that the Draft SEPP and Draft Guideline, given the enactment of the SEPP and Child Care Guideline, are no longer relevant considerations for the purposes of these proceedings. I note however that there is significant overlap between the matters elucidated in the Draft Guideline, the DCP and the Child Care Guideline, such that despite the parties having made their initial submissions on the basis of the Draft Guideline and DCP, I am satisfied that there is sufficient evidence before the Court to be able to appropriately consider and apply the Child Care Guideline.
14. Mr To submitted that [21]-[22] of Omid, had the effect of stating that Part 4 of the Guideline had to be taken into account, and the Guideline otherwise could be taken into account.
15. However, Mr Staunton argued that Omid confirmed that only Part 4 of the Guideline could be applied and later references in the judgment to the Guideline were to Part 4 only accordingly. He submitted that, if the rest of the Guideline or SEPP should be applied, the drafter would have said so not specified just Part 4, and cl 1(2) of Schedule 5 would have been unnecessary. He further submitted that s 79C(1)(e), being the public interest, cannot be relied upon to bring back into consideration that which is expressly excluded under s 79C(1)(a) by operation of the SEPP's savings provisions.
16. In written submissions, Mr Staunton stated that such an outcome "would lead to an absurd result where the legislature specifically says this SEPP does not apply other than Part 4 of the Guideline(s) but you should take into account all the other provisions of the Guideline(s) that don't apply as a matter of public interest. That approach itself is contrary to the public interest as it is neither orderly (n)or economic because it subjects the applicant to retrospective application of provisions which did not apply at the time of making the development application and that are specifically said, by the instrument itself, not to apply".
17. In summary, Mr Staunton submitted that it would not be in the public interest to apply all of the provisions of the Guideline in circumstances where there are specifically imposed savings and transitional provisions which limit the application of the Guideline to be taken into account to those in Part 4 and the checklist. Further, the public purpose of including savings and transitional provisions is to prevent unfairness by the retrospective application (of new controls).

Applicability of the DCP

1. Notwithstanding that the DCP states that Part D - Specific Controls for Residential Development is not said to apply to child care centres, the Council referenced Part D-2 on the basis that it provided a guide to determining the appropriate design context for the child care centre. Part D-2 contains controls for attached dwellings, multi dwelling housing and residential 1 dwellings.
2. Specifically, the Council referenced the provisions at D.2.6.3 (Developments in relation to the streetscape) in particular the special treatment required for corners at D.2.6.3(3), the setback and building separation controls at D.2.8, and the site landscaping controls at D.2.10.3(4). Mr To submitted that the DCP requires that child care centres be compatible with the surrounding residential neighbourhood, in terms of siting, landscaping and access arrangements, and that evaluation of compatibility necessarily requires an understanding of what residential development is envisaged by the planning controls. Part D2 of the DCP is the source of that understanding and therefore the yardstick against which child care centres should be measured.
3. The applicant argued that the Council was in error is seeking to apply controls for residential development to the child care centre and the design evidence of the Council's planner should be given little weight accordingly.
4. The applicant submitted that the only relevant parts of the DCP which should apply to the centre are at Part G.8 - Child care services, Part C.4 -Transport and Part C.9 - Preservation of Trees albeit C.9 referred to a repealed clause of the LEP and is therefore not applicable.

Agreed design elements

1. The proposed centre as amended complies with the height and floor space ratio (FSR) provisions of the LEP. Notwithstanding it is, in part, 3 storeys, the majority of the building is well below 12 metres and the FSR is 0.6:1 relative to an LEP permissible FSR standard of 0.9:1. Even if the outdoor play area on the first floor is included as floor space, the FSR at 0.77 is below the maximum permissible FSR for the site.
2. In their joint report (Exhibit 5) the Acoustic experts agreed that, subject to the appropriate treatments and conditions recommended, noise to and from the child care centre would comply with the relevant noise criteria.
3. The landscaping experts also agreed that, subject to the modifications and conditions of consent agreed to in joint conferencing as outlined in their joint report (Exhibit 4), the landscaping (and its compatibility with use of outdoor areas as play spaces) would be satisfactory.
4. It was also agreed that the parking provision met the parking requirements in Part C.4 of the DCP as well as the DCP's locational requirements.
5. Evidence was provided from planners and urban designers for both parties: Mr Chapman, Mr Saad and Mr Tran for the applicant and Ms Chugh and Ms Ruker for the Council (the design experts). A joint report (Exhibit 3) was also provided to the Court from these experts.
6. The design experts agreed in their joint report that the built form, including the height and FSR, was compatible with the desired future character of the medium density residential area in which the development will be situated. The Council experts also agreed that the proposed setback to Walter Street was acceptable and that there would be no unreasonable adverse impacts on 4 Walter Street notwithstanding the resident's objections to the contrary.

Impacts on locality

1. The Council accepted that a child care development could be approvable on the site but considered the development as proposed was too intense and did not meet the LEP zone objective of being compatible with the scale and character of the surrounding residential development.
2. The Council submitted that the design makes extensive use of covered decks stacked centrally to the development in an attempt to achieve the quantum of unencumbered outdoor space, being 7m² per child, required for licensing the centre. It was contended that this drove the design with buildings pushed to the edges of the site, reducing the setbacks and limiting the amount of landscaping to those edges.
3. The centre is setback a minimum of 6m at ground level to both the northern and western boundaries with increased setbacks at upper levels. The remaining boundaries are to streets.
4. The Council accepted that the setbacks reflected the desired future medium density character in terms of numeric compliance, but were concerned with what is within these setbacks.
5. The Council's argument was that future character is defined by the medium density approvals on the northern side of Walter Street, which typically provide 6m side setbacks, and 6-9m rear setbacks, with substantial planting in the side and rear setbacks. Therefore, there is a substantial landscaping character that will occur in development along the northern side of Walter Street. In contrast, only limited landscaping can be provided along the western and northern (rear) boundaries. The landscaping is limited to 1.9m of the 3m setback to the western boundary with the balance of the setback area constrained by an emergency access path. In the case of the rear boundary, the landscaping strip is 3m wide but 1.8m is part of the outdoor play space. Further, the significant trees on the western and northern setbacks are generally limited to the corners of the site which will not complement or be compatible with the landscaping character in the side and rear setbacks of the approved developments along Walter Street.
6. The Council argued that the limited landscaping on the western boundary would also likely impact on the outlook from, and visual privacy for, 3 Walter Street whilst the limited landscaping at the rear of the site results in the substantial landscape corridor, along the rear of developments on the northern side of Walter Street, not being continued to Willoughby Road.
7. The Council accepted that the proposed landscaping is greater than the landscaping currently provided on the site or on adjoining sites in Walter Street. However, these sites currently contain single dwellings likely to be redeveloped. The Council did not accept that the predominant landscape quality of the area or the amenity of immediately surrounding areas would be enhanced as the controls require.
8. The Council further contended that a compliant redevelopment of 3 Walter Street for a residential flat building (RFB) would be constrained by the reduced western setback on the site, with building separation distances under the Apartment Design Guide (ADG) necessitating a greater and inequitable setback having to be provided.
9. Such outcomes were argued to be symptomatic of the development being too intense with the Council submitting that there was no reason, beyond attainment of a desired number of child care places, for such outcomes on a relatively unconstrained site.
10. A particular concern was the setback to Willoughby Road. A 4.3m - 6.2m setback is proposed. Willoughby Road is a classified road. The Council was concerned that this setback was not compatible with the existing streetscape or with the desired future character of the area.
11. It is less than the default 10m setback from a classified envisaged by the Guideline which otherwise would apply under the SEPP if no prevailing setback controls exist and other parts of the Guideline applied. There is such a control for residential development to retain local character, namely 7.5m.
12. The Council considered that the reduced Willoughby Road setbacks limit the amount of possible landscaping and therefore result in a lesser, inconsistent outcome compared with that sought for future development in the area. It reduced the ability of the landscaping to adequately soften the visual bulk of the centre when viewed from Willoughby Road.
13. As the design experts had agreed that the built form, including the height and FSR, was compatible with the desired future character of the surrounding medium density residential area, the applicant argued that the Court could be satisfied that the zone compatibility objective is met. Further, it was not appropriate for the Council to apply design quality principles of Part 2 of the Guideline when only Part 4 applied under the savings provision of the SEPP, and the provisions of Part 4 were complied with.
14. The applicant also contended that the development complied with the DCP location provisions for child care centres as, although the centre is located in a cul de sac, it is on a corner and has more than one street frontage. Furthermore, it has adequate parking and pick up and public drop-off space and frontages exceeding 20m. Whilst the centre is located at various levels, it is in a form compatible with the likely future built form.
15. The applicant argued that the Court should accept the definition of compatibility in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [22] to [26] as being appropriate for the requirement of compatibility in the zone. Namely that, to be compatible, the proposed development did not have to be of the same scale and character of surrounding residential development but rather it must be in visual harmony and not have any unacceptable physical impacts. Given it was a different but permissible use in the zone, the design and use of outdoor areas should expect to be different to those of an RFB or other residential form.
16. It was also argued by the applicant that the proposed centre was not an RFB and therefore should not have required RFB setbacks to the street nor to have a consistent landscaped 6m setback to the rear also required for RFBs. Further, the proposed centre was at most 3 storeys in part whereas an RFB could be erected on the site of a greater height, to 4 storeys, and with potentially greater impacts on neighbours in terms of outlook and privacy.
17. The Council accepted that the adjoining RFB to the north, Castle Vale, had courtyards within 6m of Willoughby Road but argued this improved the landscaped setting. A further property to the north is currently vacant whilst the development on the opposite corner across Walter Street has a side setback to Willoughby Road. Hallstrom Park is opposite the site across Willoughby Road.
18. The applicant therefore submitted that there was no consistent existing setback of development and no basis to apply a 7.5m setback as would be required for development of an RFB on the site.
19. The applicant also argued that the 10m setback requirement was not in Part 4 of the Guideline and therefore could not be applied. In any event it was not a mandatory requirement but only advice that a 10m setback should apply in the absence of prevailing setback controls. Furthermore, reference in DCP controls to prevailing setbacks is for residential development not for child care centres (and in any event can be varied by 25%) and the setback to Willoughby Road increases to 7.5m for upper levels of the centre other than for stairs, ramps and planters.
20. Mr Staunton contended that there is no consistent prevailing local character and that the proposed planting and landscaping would ensure the predominant landscape quality of the area and the amenity of immediately surrounding areas are maintained or enhanced. This includes the use of landscaping to soften the bulk of the development when viewed from Willoughby Road, as outlined by the applicant's landscaping expert, Ms Sonter, and not disputed by the Council's landscaping expert, Mr Powe.
21. It was agreed that there was no consistent landscaping along Willoughby Road in the vicinity of the site with remaining single dwelling houses having limited or variable landscaping including hedging, a vacant grassed site with some canopy trees, walled courtyards of Castle Grove and perimeter landscaping of Hallstrom Park opposite.
22. Ms Sonter considered the proposed landscaping accorded with landscaping in the broader Willoughby locality and would provide more landscaped area than currently existed on the site.
23. Mr Powe however, considered some changes to the location of the path and plantings in the setback areas could be beneficial for the use of adjacent play areas and he was concerned with the density of plantings.
24. The applicant argued play areas can and should extend under boundary plantings however, offered to provide the species and density of planting sought by Mr Powe within the landscaped areas, including all evergreen trees along Willoughby Road to assist with year round screening and softening of the built form.
25. In terms of other design issues, the Council raised a contention with excess site cover. In essence, however, the concern was with the setbacks. The applicant was critical that the Council sought to apply site cover and landscape controls applicable to RFBs whereas Mr Chapman argued that the proposed site cover was appropriate given the development provided a minimum of 30% landscaped area and met the objectives of the child care design controls found at Part G.8 of the DCP.

Play areas/spaces

1. A number of play areas or spaces are proposed, indoor and outdoor, and at various levels. The Council argued that the overwhelming majority of the ground and first floor outdoor play areas were covered, punctuated only by a relatively small void to give light, and enclosed on 3 sides.
2. The Council considered the amenity of these spaces and others to be inadequate due to the setbacks and design resulting in inadequate landscaped and unencumbered or overlooked external areas, solar and shade access, ventilation, and ceiling heights in internal spaces.
3. Under Part 4.4 of the Guideline it states: Child care facilities must comply with the light and ventilation and minimum ceiling height requirements of the National Construction Code (NCC).
4. The NCC requirements were outlined in the BCA report which accompanied the application.
5. The applicant argued that the development complied with all of the relevant regulatory requirements for play spaces on the basis that only the requirements of Part 4 of the Guideline applied, including the relevant NCC provisions. Further that the setbacks proposed were adequate.
6. The Guideline includes a number of diagrams to demonstrate the requirements for adequate sun and shade access for play spaces. These requirements include that at least 30% of ground level play space should receive year round sun whilst not more than 60% should be covered.
7. Ms Ruker was concerned as to the adequacy of solar access to, or alternatively shading of, different outdoor spaces thus compromising their amenity. She believed that addressing these concerns, particularly the external areas at ground level adjoining the western and northern boundaries, may restrict the development potential of adjoining properties. She referenced Part 3 of the Guideline. The applicant argued Part 3 did not apply, but in any event it did not require absolute privacy for play spaces or preclude some overlooking.
8. There was debate between the design experts as to how to calculate the extent of the covered play spaces including what constituted the perimeter of proposed enclosures and therefore how it should be measured. This was in order to determine the adequacy of these spaces relative to the provisions in Part 4 of the Guideline, for example, to provide adequate weather protection. One of these provisions is that an outdoor space should be open on at least one third of its perimeter.
9. The parties' design experts disagreed on whether the relevant Guideline provisions could be met given they disagreed on what constituted the perimeter of a 'partially enclosed space'.
10. Mr To submitted that the Court would conclude that the covered outdoor spaces (or a substantial proportion of them on the ground and first floors) would not qualify as 'unencumbered outdoor space' for the purposes of the Regulation and the Guideline given the requirement that the space must have at least one third of its perimeter open. He understood this to reflect the relationship that the quality of the space is as a function of its depth or distance from the opening to the elements. Spaces beyond the depth dictated by this ratio are therefore excluded. Therefore, the relevant perimeter is that which allows the covered space access to the elements.
11. On the Council's estimated measurements, there would be a perimeter length of 36m for the ground floor and 28m for the first floor. On this basis, a substantial part of one outdoor play area on the ground floor, and of a second on the first floor could not be counted unencumbered outdoor space including an area under an awning with limited opportunities for exposure to the elements. The Council also argued that the applicant's calculations ignored the void which should not be included as part of the perimeter.
12. Ms Ruker stated that it is the effective perimeter that is relevant, which in this case is the shortest interval that provides access to light and air. The Council argued that Mr Saad did not disagree with this.
13. The Council calculated that some 59% of the 2-5 year old outdoor space on the ground level would be permanently shaded by the deck above and, when shade from landscaping is taken into account this well exceeded the maximum shaded area supported under section 4.11. In contrast, the shade provided to the outdoor space for infants would appear to be about 20% of the outdoor play area, less than the minimum 30% of shade required with the amount of natural shading not quantified. On the first floor, the covered outdoor area comprised 58% of the area. On the second floor, shade sails were added as part of amendments to the plan resulting in only 36% of the outdoor area being covered.
14. The Council accepted that the opportunity existed to rotate older children to play areas on different levels in the centre which would mitigate the uneven distribution of shade. However, the analysis highlighted how much of the ground floor level would be shaded by structures or vegetation.
15. The applicant's experts argued that the outdoor play spaces met the objectives of Part 4.11 of the Guideline to provide adequate shaded areas for children and an appropriate balance between sunlight and shade in the play areas. However, the Council contended these play spaces suffered from inadequate natural shade, contrary to section 4.11 of the Guideline, where natural shade is required to be a major element in outdoor play areas, trees with dense foliage being preferred. In contrast, the play areas are provided with either too little, or too much, shade.
16. The applicant disagreed claiming that, with modifications undertaken to the application, there was now only 60% of the outdoor play areas shaded and 30% had year round solar access.
17. The applicant also argued that, whilst the Guideline may indicate that natural shade is the preferred option, it acknowledges this is not the only option with shade structures a contemplated alternative, as was proposed for a number of the spaces.
18. Further, the Guideline makes it clear that covered areas are to be treated as either indoor or outdoor play spaces but not both. Their required solar access and design criteria depends on whether they are treated as indoor spaces in which case specific ventilation and natural light requirements, including ceiling heights, apply. Therefore, Ms Ruker was inappropriately applying indoor space design criteria in part to proposed covered outdoor spaces.
19. The Council argued that the Guideline is clear that outdoor spaces are intended to achieve better amenity than indoor spaces and this wasn't demonstrated. However, Mr Staunton submitted that this was only referenced for 'simulated' outdoor spaces in buildings, not natural ones.
20. The child care experts did agree that, subject to agreed conditions of consent, the outdoor spaces would provide adequate access for exploration and experience of the natural environment.
21. Ms Ruker also raised a concern with the adequacy of solar access to a number of the internal play areas at ground and first floor levels. In particular she was concerned with play areas that relied on windows facing internally to the site into covered areas (internally facing windows).
22. However, the applicant noted that Part 4 of the Guideline focuses on required natural light access rather than solar access. The applicant's design experts contended that all indoor play areas complied with the natural light, ceiling height and ventilation requirements of Part 4 of the Guideline.
23. Specifically, Mr Chapman believed that the internally facing windows would receive sufficient natural light through the void which was proposed to be substantially enlarged with the roof over it removed. In terms of the internal play areas on level 1, amendments to the application were proposed to introduce highlight windows above a lowered awning to improve natural light.
24. With these modifications, Mr Chapman considered that all of Ms Ruker's concerns in terms of natural light access should be addressed or at least the Guideline requirements and intent met. However, it was also agreed that the depth of some of the rooms could also be reduced.
25. However, the Council maintained that there were only minor improvements to the void which receives its light from two storeys above. Therefore Mr Chapman's evidence that he expected that the void would provide sufficient natural light should be given little weight.
26. The design experts disagreed on whether room depths were required not to exceed 2.5 times the ceiling height in order to achieve adequate internal amenity. They did not dispute that the penetration of natural light is a function of room depth and height and agreed that amenity would be adequate for the room depths proposed subject to the location and performance of windows in that room. Ms Ruker remained concerned as to the adequacy of internal windows to provide natural light on the deeper rooms with a single aspect but Mr Chapman and Mr Saad argued these rooms still met the relevant controls with rooms where depth exceeded 2.5 times the height having windows on more than one wall.
27. The Council maintained that the windows to a number of internal play rooms would not provide sufficient natural light particularly given the significant reliance on the internally facing windows to covered outdoor areas. This leaves the externally facing windows. It was submitted that four of the play areas (1, 3, 5 and 8) relied on either highlight or small external windows or 'borrowed' light from an adjacent staff room. The applicant disagreed saying the modifications to the plans introduced additional windows and/or increased daylight for these rooms.
28. In terms of ventilation, the Council claimed that natural ventilation was clearly preferable but similarly inadequate in that, like access to natural light, the depth of the building constrained the extent to which air flow is received to play rooms. The Council also noted that most operable windows to play rooms are inward facing and, particularly for the ground floor, all except face the covered area with significant distance and/or oblique angles to the open side. Relatively low ceiling heights, a limited number of opposite facing windows and excessive room depths were seen to exacerbate the effects of sub-optimal orientation in terms of even modest cross ventilation being achieved.
29. The applicant's design experts argued that the application, as modified, complied with the relevant SEPP provisions in terms of ventilation and ceiling heights. All ceiling heights exceeded the minimum height required by the NCC and all rooms, other than playroom 8, could be naturally cross ventilated with changes to window openings not required by the acoustics' experts to be fixed. For the remaining play room (8), an additional window was proposed to achieve a degree of cross ventilation.
30. The applicant also contended that some reliance on mechanical ventilation was required for all child care centres to maintain children's health.
31. Finally, in terms of the amenity of the internal play areas, the Council contended that mere compliance with the relatively low thresholds for light and ventilation established by the NCC did not mean that sub-optimal and sub-standard amenity should result on an essentially unconstrained site.
32. The Council's final concern was the ability for some outdoor play spaces to be overlooked from adjacent properties. Their concerns with the adequacy of the side and rear setbacks to accommodate reasonable landscaping have already been outlined. The Council further contended that the fact that devices might be available to be employed by future developments on adjoining lots to mitigate overlooking of and privacy impacts to the play spaces, is not the point. Rather, it is the design of the centre that will introduce constraints on future development that is unreasonable - particularly when the site is of significant size, relatively unconstrained, and should not impose such constraints.
33. However, Mr Chapman argued that the combination of the proposed 1.8m high fence and the amended landscaping now proposed along the northern boundary, with more deep soil landscaping and canopy trees than the remaining boundaries, would adequately deal with any overlooking concerns.
34. The applicant also queried why RFBs should not overlook aspects of a child care centre as distinct from the privacy requirements between RFBs. It was also noted that the play areas in question would be used on a limited basis, being not more than 1.5 hours in the middle of each day, whereas Ms Ruker has assumed more intensive use of them.
35. The experts noted the likely development of an RFB on the property to the north. Mr Chapman noted that any redevelopment of this property would be unlikely to have primary living areas or balconies overlooking the play area adjoining the northern boundary given the southerly aspect.
36. Mr Staunton also submitted that developers of any residential development on the property to the north would have to address privacy and overlooking impacts as would be the case if the site contained residential development. Therefore, the proposed centre would not have any more unreasonable impact on the development potential of this property than an RFB could have at up to 4 storeys, with a potentially greater impact in terms of bulk, height, privacy and outlook.

Evacuation and staffing

1. Much of the evidence focused on the acceptability of the proposed evacuation of the centre if such an evacuation was required in an emergency situation. The Council were concerned with both the proposed evacuation locations, referred to as safe assembly or evacuation areas (or SEAs), the staff numbers to supervise evacuations, and the time it would take to safely evacuate the centre and move children to the SEAs.
2. The evacuation concerns were dealt with by evacuation experts, Mr Lee-Joe and Mr Muir. Mr Lee-Joe, Council's expert, is an accredited building surveyor and fire safety officer with over 25 years' experience working in local government with a relevant emphasis on fire safety and assessment of Emergency Response and Evacuation Plans that accompany development applications. Mr Muir, the applicant's expert, is a risk management consultant who has developed Emergency Management Plans for clients and with 30 years prior experience in the NSW Police Force as an Inspector including as an Acting Superintendent and Commander of The Hills Local Area Command.
3. The evacuation experts prepared a joint report (Exhibit 6) which identified 4 key issues for the Council being: the adequacy and suitability of the nominated SEAs; the suitability of the route to them; evacuation of persons with disabilities; and the location and storage of evacuation equipment.
4. Of these initial concerns, following expert conferral and modifications to the application, only the adequacy and suitability of the SEAs, and access to them, remained in contention.
5. The child care and evacuation experts met together to discuss the adequacy of the evacuation process and the SEAs and produced a further joint report (Exhibit 12).
6. The applicant had prepared an Emergency Evacuation or Management Plan (EMP) as required by the DCP. The initial but interim point of evacuation in an emergency was an area of vacant land near the cul de sac head of Walter Street (referred to as 'outside 18A'). The second evacuation point proposed is the Willoughby Leisure Centre which is a designated Evacuation Centre under the Willoughby Displan and is in reasonable proximity but on the opposite site of Willoughby Road. In evidence, Mr Muir also identified Hallstrom Park as a possible third evacuation location. If Walter Street was unsafe, then evacuation would thus all be via Willoughby Road.
7. The EMP identified 8 emergency exits. The order in which evacuation would occur and the exits used would depend upon the nature and location of the emergency. If it was unsafe to exit via Walter Street then alternate exits were available to Willoughby Road.
8. There was extensive oral evidence on how evacuation would or could occur. The experts agreed that the evacuation method had to be flexible being dependent on the emergency.
9. Mr Muir's evidence was also that such emergencies at child care centres were extremely rare - he had not known of one in his 35 years of experience. However, the parties agreed that the safe evacuation of the centre, if required, must be ensured.
10. In their joint report (Exhibit 7) the child care experts agreed that the required staffing numbers should be 37, being 33 full-time 'educators', a full-time director and 3 part-time staff. Subject to this staffing provision, staffing numbers would be consistent with current operational industry standards. Nevertheless, the Council remained concerned that all educators had to act as wardens or supervisors in an emergency including co-ordinating the emergency response and required communication. However, the applicant indicated this was usual with training provided to nominated staff in communication and first aid and procedures set out in the EMP.
11. The Council was concerned that the Walter Street SEA was towards the dead end of the street with limited access for parental collection, Walter Street had uneven footpaths on an incline, and the SEA identified was vacant and included rough terrain with little shelter. There was also concern that, if evacuation to the Leisure Centre or Hallstrom Park was then required, the children would need to pass the centre where the emergency was underway.
12. Ultimately however, the Walter Street SEA was not the major concern. The primary concern was if the Walter Street SEA wasn't safe and children had to be evacuated straight to an SEA across and along Willoughby Road.
13. Mr Muir advised that, prior to evacuation staff and children would muster with infants placed in evacuation cots, the toddlers tethered in accordance with equipment the details of which were supplied to the Court (Exhibit F), and the remaining older children holding knotted ropes. This assembling of children would be done by the educators in accordance with their usual supervision ratios.
14. Evidence was given by the applicant's child care expert, Ms Campbell, on how children were tethered and evacuated, and their likely behavior in being carried, lead or pushed in cots by supervising staff to the SEAs. She advised at least 2 staff would be trained as traffic controllers. Her evidence was that there would be no difficulty pushing cots or walking children up Walter Street. Once at the assembly area, the children would sit down and be supervised likely with storytelling and singing. In her opinion, there is adequate flat area in the road reserve and adjacent to 18A Walter Street to accommodate the number of children and cots required.
15. Ms Campbell confirmed that the emergency evacuation kits provided at the centre would include food and water and that the EMP procedures would include children taking hats. As a temporary assembly point, permanent shelter at the Walter Street SEA would not be warranted.
16. In terms of controlling children's behaviour during evacuation, Ms Campbell indicated this was achieved through a process of evacuation drills and education so that children become accustomed to the environment of actual emergencies. Emergency Services personnel would be asked to participate in drills including creating real emergency environments.
17. The experts, and the applicant, agreed that drills should take place monthly to reinforce appropriate behaviour during emergencies. The Council remained concerned however, that there would be insufficient staff to carry out any required evacuation of 204 children.
18. In terms of concerns about heading towards any SEAs, Mr Muir's evidence was that this would only occur if it was safe to do so. Once there, the centre operators would have the assistance of Emergency Services personnel.
19. If required, the police would close Willoughby Road thereby alleviating safety concerns from traffic on Willoughby Road. The children could then be either directed across Willoughby Road to the eastern footpath or north to the intersection of Artarmon Road. The pedestrian light arrangements were irrelevant as the road would be closed and children would be crossing under the direction of Emergency Services. Ms Campbell confirmed that the maximum distance of 700m could be traversed by the children and staff with cots and evacuation equipment without difficulty.
20. In oral evidence not disputed by Mr Lee-Joe, Mr Muir advised that, in a fire emergency at the centre, he believed NSW Fire and Rescue would park emergency vehicles in Willoughby Road adjacent to the hydrant boosters that are located north of the site in Willoughby Road and that they would not enter Walter Street. Mr Muir also confirmed, and Mr Lee-Joe agreed, that under the relevant standard the exclusion distance from a building was 6 metres and that the southern side of Walter Street was well outside that exclusion distance. Therefore it would be safe to pass the centre along the footpath on the southern side of Walter Street even if the centre was on fire.
21. During the hearing, the Council provided an email from a Police crime prevention officer, Constable Alexander, stationed at the Chatswood Police Station in response to referral of the EMP (Exhibit 14). The email raised concerns with children having to pass the centre in an emergency given the activity that would be underway. It further suggested that police attending within 2-5 minutes would be an unrealistic expectation and a more realistic expectation would be an initial response within 4-7 minutes with a major police presence taking 15 minutes or longer.
22. Constable Alexander had also responded to the referral of the initial application in which he raised concerns with the ability for safe evacuation and opposed the evacuation routes along Willoughby Road, due to the traffic volumes, plantings along it, and sightlines to the centre. He also had concerns with the SEA nominated in Walter Street given the street was narrow and a cul de sac, would be difficult to access by collecting parents with emergency vehicles attending, and the topography of the SEA nominated.
23. In response, Mr Muir stated that it would take at least 5 minutes for the children to be prepared before they would leave the building and arrive on either Willoughby Road or Walter Street footpaths. Based on his experience, he would expect a Police response within 2-5 minutes albeit the email in Exhibit 14 suggested 4-7 minutes. His evidence was that this was because the police use Willoughby Road as the quickest route between the city and the Hornsby pistol training range, and highway patrol, general duties and dog squad are all regular users of Willoughby Road.
24. Mr Muir advised that, under the EMP, if it was safe to do so, in an emergency, the children would exit via Walter Street, cross to the southern footpath and walk up to the evacuation area outside 18A Walter Street. This assembly area would be interim only. It would then be a matter for the police officer in charge to decide whether the group should be moved to another location for safety or pickup including if it was safe to pass the centre if that was required.
25. However, if occupants had to be evacuated to SEAs accessed via Willoughby Road, Mr Muir advised that only one police car would be required to close Willoughby Road. On the timeframes given, and in his view, it is likely that the police would be in attendance and close the road before the children left the building. He did accept that children could be evacuated when ready which may be before Willoughby Road is closed. The Council considered this would be an unacceptable risk.
26. Mr Lee-Joe accepted that he was not in a position to dispute Mr Muir's evidence, but he maintained his concern as to the ability to safely evacuate so many children across Willoughby Road in an emergency and in a timely manner. He did accept that, within 15 minutes of any emergency, there would be a major police presence to assist with, and assume control of, any evacuation and that, once across Willoughby Road, there were ample places where a parent pickup could be arranged.
27. Mr Staunton submitted that the Court should prefer and accept the evidence of Mr Muir given his experience and former rank in the NSW Police and with formal training and experience in emergency evacuation rather than that of Mr Lee-Joe and a Police constable with limited experience.
28. Finally, an agreed condition required the final EMP to be the subject of consultation with NSW Police and Fire and Rescue.

Impacts to the local road network including the intersection of Willoughby Road and Walter Street

1. Expert evidence on parking and traffic was provided by Mr Doan for the applicant and Mr Hollyoak for the Council. In their joint report (Exhibit 8), they agreed that, subject to agreement on staffing numbers, the amount of proposed parking was now adequate.
2. In terms of traffic impacts, the Council contended that the proposed development would have a negative impact on local residents who currently enjoy all traffic movement onto Willoughby Road, with reduced service levels.
3. In particular, the four way intersection of Willoughby Road and Walter Street, which currently has full turning movements, would need to be amended to left in/left out only to enable the future safe functioning of the intersection.
4. This proposed change to the intersection was a major ground of objection raised by residents of Walter Street. It would also mean patrons of the centre would need to use alternate routes in the local road network if travelling southbound to or northbound from the centre along Willoughby Road.
5. However, the expert evidence was that, even without the child care centre, the likely redevelopment of the R3 zoned properties in Walter Street would require this proposed modification to the intersection and this would likely occur within the next 10 years.
6. The redevelopment would yield in the order of 174 units of which 94 had already been approved. The experts agreed that, once 150 units were developed, a left in/left out restriction would apply to the intersection of Walter Street and Willoughby Road irrespective of whether the child care centre was developed. Further, this restriction would improve the efficiency and safety of the local road network, RMS concurrence to the left in/left out arrangement had been provided, and the application has simply brought forward the timing.
7. Mr Hollyoak also gave evidence that, in his opinion, it is unlikely that the child care centre and 174 units would warrant the need for traffic signals. Mr Hollyoak confirmed that Mr Manning had a planning proposal before Council which sought to upzone the R3 land in Walter to R4 which would increase the yield to 350 units. Mr Hollyoak did not know whether that would generate the warrant for traffic signals because Mr Manning had volunteered to provide traffic signals regardless of whether signals were warranted. Mr Hollyoak confirmed that the RMS had provided in principle agreement for the provision of traffic lights.
8. The Council therefore argued that the applicant should fund the signalisation of the intersection to minimise impacts on the local community associated with a left in/left out intersection restriction which would otherwise be required.
9. The Council also contended that the use of alternative routes for access had not been adequately assessed and therefore it was not possible to determine whether the proposed left in/left out arrangement would increase the number of potentially unsafe alternative manourvres. One of the proposed alternative routes for traffic travelling southbound to Walter Street would involve a 100m detour with each car negotiating 7 intersections and going through traffic signals twice resulting in a potential delay of around four minutes. The second alternative route for traffic southbound to Walter Street would also involve a very significant diversion.
10. There was much oral expert evidence on the possible local routes that would be used to access the centre with the left in/left out restriction in place. This took into account the width and speed of roads, their environmental capacity to accommodate extra traffic, and uses along these routes, as well as likely future major developments such as the proposed 510 units at the Channel 9 site in Artarmon Road, one of the roads on a likely alternate route.
11. The applicant argued that the alternate routes identified are only some of the alternate routes not all of them. The Court drove the first alternate route. The expert evidence was that the signalised intersection of Willoughby Road and Garland Street would retain a high level of service and that phasing of the lights could be altered if necessary to address delays.
12. The experts disagreed on the timing impacts from delays at lights or alternate routes but the applicant argued that alternative routes were feasible and the delays small and would not warrant refusal of the application.
13. The applicant argued that the Court would accept from the drive around on the view, and from the evidence, there are many alternate routes that are feasible and safe.
14. Mr Doan, the applicant's traffic expert also noted that most trips would be linked trips and would not constitute additional traffic. He advised the Court that the proposed left in/left out arrangement and design had been assessed by RMS and determined to be acceptable. Notwithstanding, the traffic experts agreed on an alternate design which was an improvement and was acceptable to the applicant.

Disputed conditions of consent

1. Following the hearing, the parties filed agreed conditions of consent however, the timing of compliance with a number of conditions, some 26 in total, was not agreed.
2. The applicant sought deferral of compliance with these conditions until the stage at which the applicant sought a final occupation certificate. The Council sought compliance with these conditions prior to any occupation, noting the Council can issue both interim and final occupation certificates.
3. The conditions in dispute range from the dedication of land for the splay to Willoughby Road, to engineering, fire safety and disabled access, the requirement for a Satisfactory Emergency Response and Evacuation Plan, creation of positive covenants for drainage and stormwater, creation of a floodway restriction, the provision of footpaths and vehicular crossings (and removal of redundant crossings), certification on the provided acoustic measures and on the basement car park's construction, conditions associated with landscaping and street tree planting, and validation of no contamination.
4. The applicant argued the disputed conditions could be deferred until final occupation as section 25 of the Education and Care Services National Regulation requires a 'Service Approval' before the centre can commence operation. Such an approval will not be issued until the final occupation certificate for the centre is provided but will enable an application for a service approval, and its assessment, if an interim occupation certificate is provided.
5. Whilst acknowledging that a Service Approval was required prior to the centre commencing, the Council argued that nothing in the Act requires a final, as distinct from interim, occupation certificate to be obtained. If an interim certificate was issued, it would sufficiently authorise the centre use to commence without the applicant then having to comply with those conditions sought by the applicant to only be required prior to a final occupancy certificate. Further, the Council argued that cl 25 did not preclude the grant of a Service Approval even without a final occupation certificate.

Findings

1. In terms of the threshold issue of the applicability of the Child Care Guideline, having regard to the submissions made on this issue, I have formed the view that only Part 4 of the Guideline is applicable and this is consistent with the finding of the Court n Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143. At paragraph, Robson J, having regard to Maygood, stated Having considered the submissions, I find that, while the SEPP would ordinarily be a relevant consideration pursuant to s 79C(1)(a)(i) of the Act, the SEPP does not to apply in relation to development applications such as the one currently before Court. This is made evident by the use of "clear language" in cl 1(1), Sch 5 of the SEPP, which, contrary to the legislation under consideration by Pepper J in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142, does preclude consideration of the SEPP.
2. I read this finding, and those later in Omid, as the applicant did, as confirmation that Part 4 of the Guideline is the only part of the Child Care SEPP or Guideline to apply to this application as a consequence of the savings and transitional provisions found in Schedule 5 of the SEPP. These provisions reference a requirement only to consider that part. Had the SEPP intended that all of the Guideline could still be considered as a matter of public interest, or in the terms of Maygood, then the specific requirement to have to have regard to Part 4 (and Part 4 only) need not to have been referenced in the savings provision.
3. I therefore agree in this instance with Mr Staunton's submission that the Council cannot rely upon s 79C(1)(e) to bring back into consideration provisions said to meet the public interest, when those provisions are excluded under s 79C(1)(a), being an environmental planning instrument, in this case by the SEPP itself through the savings provision it contains. Further, that to do so would be against the public interest insofar as it seeks to override the express provisions of an operational planning instrument.
4. Accordingly, in considering this application, the design provisions of Part 4 of the Guideline, along with the relevant Council controls found within the LEP and DCP as they apply to centre-based child care centres, are the only relevant planning controls which apply to this application. In my view, and in any event, these combined provisions give sufficient control to enable adequate design parameters for the centre. I say that noting, had the entire SEPP and Guideline applied, they would have overridden the DCP child care controls which the applicant had to have regard to and the Council, to some extent, relied upon.
5. The application was amended prior to the appeal being lodged to address the provisions of Part 4 of the Guideline and again prior to and during the hearing in an endeavour to address the Council's concerns in terms of landscaping, external amenity impacts and the amenity of a number of play areas.
6. I am satisfied, for the following reasons and on the basis of the evidence, that the application as amended will have acceptable amenity impacts and be compatible with the character of the area as it will likely exist in the foreseeable future under the R3 zoning. Further, that there is no consistent existing streetscape character, particularly in this section of Willoughby Road.
7. The fact that the centre is multi-level, albeit only containing a third level for a component, is consistent with the form and height of residential development permitted and supported in the zone with RFBs permitted at higher levels of up to 4 storeys. Similarly, decking proposed in the centre is not inconsistent with balconies and outdoor open space areas which could reasonably be expected in such residential development.
8. I agree with the applicant's argument that the proposed development, though different in form to other development in the R3 zone as a consequence of the fact that it is not a residential use, is nevertheless both permissible and compatible. Noting that the development is less than the height permissible in the zone, and in part is only 2 storeys, the setbacks proposed are adequate at ground and upper levels, increasing at upper levels. The centre will also be located on a regular site with wide frontages readily meeting the specified minimum frontage of 20 metres with both street frontages exceeding 40 metres.
9. I have also formed the view that the centre will meet the DCP objectives which require that child care centres be compatible with the surrounding residential neighbourhood in terms of siting, landscaping and access arrangements.
10. In this regard, the Council's issue was not with the extent of the setbacks but what was provided in them in terms of the impact on adjacent residential properties. However, the extent and type of landscaping, as modified, was acceptable to the Council's landscape expert and, whilst the Council's planner remained concerned in terms of privacy, no specific adverse privacy impacts were identified.
11. Nevertheless, the applicant agreed to extend the western setback, being the setback to 3 Walter Street where a dwelling house currently exists but an RFB has been approved. This increased setback will enable a 2m landscaped area to be provided adjoining the common boundary, an outcome agreed by the landscaping experts. The only matter not agreed was the appropriate location of a proposed footpath.
12. Furthermore, it is not necessary, or even arguably appropriate, for the landscaping associated with a child care centre to reflect that provided for RFBs given there will be no residents requiring a landscaped outlook from the site and the centre has outdoor play areas, predominantly open, where the landscaping can and should form part of the outdoor play experience.
13. As long as the landscaping in the setbacks assists in providing screening and privacy to neighbours and reduces the visual impact of the building, as I consider the proposed landscaping will, then it suffices.
14. I also note that the outdoor play areas at ground level will be adequately landscaped, according to the Council's landscaping expert, and there will be adequate screening to minimise overlooking from any existing or future adjacent development to the extent that some overlooking of children's play areas from adjacent development is considered to be undesirable.
15. It was agreed that the development met the core LEP controls for bulk and scale being less than the maximum permissible height and FSR. These are the controls that will largely determine the area's future built form character.
16. I also note that the design experts for both parties agreed that the form and scale of development accorded with the desired future (built form) character of the area. In this regard, whilst I accept that the DCP controls for residential development provide some guidance as to the form of future residential development in the zone, I agree with the applicant that the Council placed too much emphasis on the centre having to comply with these controls, which it is not required to do.
17. On the basis of the evidence provided, I also conclude that the development will be compatible with the scale and character of surrounding residential development as required by the objectives of the R3 zone, particularly as that character emerges with new higher density residential development in the R3 zone surrounding the site.
18. In terms of the play spaces, I acknowledge that the amenity of some spaces may not be ideal, particularly in terms of solar access, but I note the distinction between daylight and solar access and that there are a number of rooms for the centre to choose from for play activities depending on the elements and circumstances.
19. Whilst there was no conclusive evidence that all play rooms and spaces comply with Part 4 of the Guideline, it is the case that this is a large multi-level centre with various play spaces, the amenity of a number of the spaces was not in contention, and the application was modified to improve the amenity of the areas of concern. These modifications included expanding the central void, adding windows, and amending the awning on Level 1, all designed to permit additional solar and daylight access. On this basis, I consider that the play spaces generally meet the controls in the Guideline and in the DCP.
20. Furthermore, in my view, the technical non-compliance on any individual space in such a large centre, in terms of daylight access, shading, height or cross ventilation, would not be determinative in terms of whether or not to approve the application.
21. The most significant factor to consider was the appropriateness of the proposed use, at the scale proposed, on a busy road, namely Willoughby Road and the impact this would have on the operability of the intersection of Willoughby Road and Walter Street and on the safety of the children in the centre should the centre need to be evacuated.
22. In terms of evacuation, I firstly note the requirement for evacuation is likely to be extremely rare. It must however, be adequate given the consequences otherwise for the safety of children and their carers.
23. The centre is located on a corner with one proposed method of evacuation being to vacant land at the end of one of the roads, a cul de sac, being Walter Street, away from the busy road (Willoughby Road). It is not unreasonable to expect that, in most foreseeable emergencies, this location would provide the safe evacuation and congregation area away from a busy road required by the DCP.
24. Whilst the alternative SEAs are along and across a busy road, being Willoughby Road, I must accept that Mr Muir and Ms Campbell are experts in this regard. They were satisfied that the evacuation in such an instance could be undertaken satisfactorily with police assistance and adequate staff training and procedures in place. Based on their oral and written expert evidence on evacuation, I must accept the adequacy of evacuation procedures proposed.
25. Whilst intuitively this may be difficult to accept given the number of children involved and the nature of Willoughby Road in this location (as the Council highlighted), the only evidence from an experienced expert in this field, Mr Muir was not refuted. It is also the case that the refuges requiring access via Willoughby Road are not the only proposed evacuation points.
26. I must also however, accept and assume that trained staff and supervisors at the centre will follow the adopted emergency evacuation procedures which are documented in the Emergency Evacuation and Management Plan (EMP) required as a condition of consent.
27. In terms of the conversion of the Walter Street/Willoughby Road intersection to left in/left out only, I note the expert evidence is that this will be required irrespective of the proposed development. Furthermore, it may not eventuate or be reversed if a developer proposal to fund signals to maintain full movements proceeds and is accepted by RMS.
28. In this regard, the evidence was that, regardless of the child care centre, a left in/left out intersection will be required as a result of traffic generated by the redevelopment of Walter Street properties in the R3 zone. A number of such developments have already been approved suggesting the R3 zoning is leading to redevelopment, unlike areas which may be similarly zoned but which have not been subject to redevelopment proposals. The intersection works are required for road network efficiency and safety.
29. Therefore, in response to the residents' objections on these works, it is a relevant consideration that they are an inevitable consequence of the upzoning of the R3 land not of the child care centre application. It is only the timing of these works that is influenced by the centre's development. Accordingly it is not a reason for refusal of the application.
30. In this instance, the applicant will be funding works which, on the evidence, will likely be required within the next 10 years in any event even if the child care centre does not proceed, in order for the intersection to safely and efficiently function if it is not signalised.
31. In summary, on the basis of the expert evidence on all of the contended issues, I find that there are no determinative grounds for refusal of the application albeit I accept that the evacuation methods and design of some of the play areas may not be ideal. There are no substantive built form issues raised as contentions with the building itself acknowledged as being appropriate, and the Council advising that the use of the site for a child care centre is not inappropriate.
32. I do accept that there will likely be some interim inconvenience for Walter Street residents and residents of alternate access routes, as well as staff, patrons and visitors to the centre associated with the left in/left out intersection treatments until or unless signalisation occurs. However, I note that such treatment will be required irrespective of the centre at some point in the foreseeable future unless the intersection is signalised.
33. In terms of the dispute over the timing of compliance with the agreed conditions, I agree with the Council that there is insufficient if any justification to insert the work 'final' prior to the word 'occupation certificate' in the conditions which are required to be complied with prior to the issue of an occupation certificate. It would not be appropriate for the works or actions to be undertaken in accordance with the nominated conditions to be deferred until after interim occupation was allowed. For example, there is no basis to defer the registration of the land accommodating the required splay corner at the Walter Street/Willoughby Road intersection until the building is ready to be finally occupied, as opposed to some form of earlier occupation.
34. It may be the case that the centre cannot operate until a Service Approval is issued under the Education and Care Services National Regulation but to amend the conditions as sought by the applicant would not stop the building being otherwise occupied or utilised without compliance with a number of the conditions of the consent. I do not consider this to be warranted or appropriate. It may assist the applicant from a timing perspective to be able to apply for a Service Approval and have it be assessed whilst a number of conditions are still being met, which I presume is the basis for seeking the change in the conditions. However, in my view, that convenience does not outweigh the benefit of a fully complete development being in place prior to any occupation of the building.
35. Furthermore, the heading and chapeau sought by the Council for the conditions to be met in the section titled "Prior to an Occupation Certificate", being all bar one of the conditions in dispute, are common to the consents of many Councils, including Willoughby's. I see no reasonable basis for varying the consent in the manner sought by the applicant based on the circumstances of the application. The Council's conditions are imposed accordingly.

Orders

1. The orders of the Court are: 1. The appeal is upheld. 2. Development application DA-2016/263 for demolition of existing structures and construction of a child care centre with associated works at 1 and 1A Walter Street and 452-460 Willoughby Road, Willoughby is approved subject to the conditions set out in Annexure "A". 3. The exhibits are returned other than Exhibits 1, C and G.

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Jenny Smithson Commissioner of the Court Annexure A (672 KB, pdf)

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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: 23 January 2018